SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite parties to refund the amount of Rs.14,50,000/- to the complainant together with compensation and cost alleging deficiency in service on the part of opposite parties.
Brief facts of the complaint are that complainant planned to start a small restaurant cum bakery and health club for her family’s livelihood in a building belonged to her husband. The OP No.1 approached the complainant at her residential address as shown in the cause title and represented that he is the representative of the OP No.2 and undertaken to renovate the building as per the needs of the complainant and also to supply the necessary pieces of equipment and electrical appliances. Accordingly, a quotation was submitted by the OPs. The OPs had undertaken to complete the entire work within 120 days and the 1st installment of Rs.50,000/- was given by complainant’s as per the direction of the OPs to commence the work. However, not completed within the time frame was agreed by the OPs saying that the OPs need time for commencing the work as there is a shortage of skilled labourers. Later they again made another quotation by adding some more works in the 1st quotation after discussion on 25/01/2019. Though agreed to give final quotation the OPs had not made any final quotation stating that in case of shortage of materials and labours quotation may be changed. The OPs demanded the payment before the completion of and accordingly complainants paid a sum of Rs.45,50,000/- to the OPs in installment. Earlier inauguration was scheduled on 01/06/2019. However, the OPs could not complete the work as agreed. Finally scheduled the inauguration of the shop on 14/11/2019 and notice of the same was also exhibited in public. Though the work was not completed in time and since the inauguration is already scheduled the complainant commenced the business from 14/11/2019. Later, an invoice dated 25/11/2019 was given, then only the complainant noted that many items in the invoice are not delivered and they incorporated the same in the bill without delivering them. The quality of work is very poor and very much disappointed. There are many defects in the work carried out by the OPs. Complainant submits that many times the complainant requested the OPs to complete the work and clear the defects in their work however they did not heed the words of the complainant. According to the calculation of the complainant, the Ops had borrowed an excess amount of Rs.14,50,000/- from the complainant which is liable to be refunded. It is unfair trade practice and there is a gross deficiency in service on the part of the OPs.
After receiving notices, OPs filed written version denied entire allegation raise by the complainant. It is submitted that they denied the allegation of the complainant that the work could not be completed within time and the quality of work is very poor and there are many defects in the work made by the OP. The OP delivered the substandard goods and charged more than MRP and did not complete the work that the added items in the invoice which are not delivered. Further denied that the OP carried out the work with substandard technician and did the work which did not satisfy the statutory requirements. Further denied the averment that they cheated the complainant and committed deficiency in service and unfair trade practice and collected the excess amount of Rs.14,50,000/- and same is liable to be returned. It is submitted that the OP undertook the work in the premise of the complainant based on the concluded quotation dated 25/11/2019. The said quotation was concluded on material consultation and the entire work was entrusted in the quotation which sum totaled to Rs.63,47,527/- As per the request made by the complainant the OP agreed to grant a discount of Rs.2,00,000/- on 24/11/2019 which is in addition to the discount already granted to the complainant while finalizing he quotation dated 25/11/2019. The grant total payable by the complainant to OP was Rs.63,41,527/- including GST. Out of the said amount the complainant paid only an amount of Rs.45,50,000/- and there is a balance of Rs.17,91,527/- payable byte h complainant to the OP. It was only to counter the amount due false allegations are made in the complaint on experiment to defeat the legitimated claim of OP. According to OP, he has completed all the work before the inauguration day itself and the complainant was fully satisfied. After the inauguration function due to careless treatment the floor become dirty and there was stains. The complainant requested to dispute painting labour on extra work wages and accordingly the OP deputed painting workers after inauguration. But the extra payment of Rs.3,000/- is not provided by the complainant to the OP. Despite repeated request by e-mail and direct, the pending amount is not paid by the complainant. Since the complainant did not pay the money in time the OP had to pay penalty to the material suppliers which affected the very business of the OP. OP prayed to dismiss the complaint.
Complainant has filed her chief-affidavit and has been examined as Pw1, marked Ext.A1 Invoice and Ext.C1 the Advocate commission report.
OP No.2 filed his proof affidavit and was examined as Dw1. Pw1 and Dw1 were subjected to cross-examination by the rival parties. After that the learned counsels of both parties filed their argument notes.
The allegation of the complainant is that she had paid a total sum of Rs.45,50,000/- to the OPs in installment. But the work was not completed in time. It is also alleged that in the Ext.A1 issued by OPs in relation to the work, many of the times in the bill were not supplied to the complainant and claimed to refund Rs.14,50,000/- to the complainant.
On the other hand OPs contended that the complainant has not proved the defects of the building as alleged by an Expert Commissioner. Further the complainant has sold the building for a higher amount and the complainant got the higher price due to the renovation and interior designing of the shop. OP’s case is that the entire work was entrusted in the quotation for a sum of Rs.63,47,527/- and out of the said amount, the complainant paid only an amount of Rs.45,50,000/- and there is a balance of Rs.17,91,527/- payable by the complainant to the OP. OP pleaded that in order to avoid the balance payment, complainant has filed this false case. According to OP, he has completed all the work before the inauguration day itself and the complainant was fully satisfied.
OP’s counsel submitted that during cross-examination time, Pw1 admitted that there are some additional works were done by the OP and some amount is kept in balance to be paid to the OP. For that amount OP had issued a notice demanding the balance amount of Rs.17,91,527/-.
Here though the complainant raised defective work of OP and made an Advocate Commissioner, the assessment of the expenses to defective work and quality of the material etc are not established. She also gave a vague answer to the above fact during cross-examination. Further Pw1 admitted that there is some balance amount to be given to the OP. More over there was no written agreement between the complainant and OPs. Complainant also failed to establish the schedule of payments given to OPs. Without executing the builder’s agreement and without schedule of payment, the deficiency and dereliction of duty on the side of OPs cannot be found out.
In the complaint and in the Advocate commissioner’s report, though many items are described, as defective, the quality and quantity of material to be used as per the contract between the parties cannot be ascertained in the absence of written agreement and also the duration of damage and seriousness of damage affected were not proved through the Expert Commissioner, since it is the specific case of the opposite parties, that there was no defect, as claimed by the complaint. Moreover the Complainant has sold out the building while pending of this case, without obtaining permission of the commission.
In the result, as per the facts and circumstances of this case, complainant has failed to substantiate her allegation with cogent evidence. So complaint is dismissed. No order as to cost.
Ext.
A1- Invoice dated 25/11/2019
C1- Advocate commission Report with photos
Pw1-Complainant
Dw1- OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
