Date of Filing:12.05.2022

Date of Disposal:20.03.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR,

MEMBER

1. The complaint has  filed by the complainants under section 35 of C.P.Act, 2019 against the Opposite Party(herein after called as “OP”) alleging deficiency in service.

2.   Brief facts of the complaint is as follows: 

The complainants submits that the complainants  avail the services of the OP to carryout works for their residential building and as per request from the complainants the OP had issued the first estimation dt.07.08.2021 of Rs.8,55,440/- in addition to GST of Rs.1,53,979/- with total of Rs.10,09,419/- wherein the complainants signed and the complainants paid total amount of Rs.11,00,000/- to the OP for four installments of different dates. The complainants states that while the payments were being made in good faith as 22.09.2021. The OP sent another estimate to the complainants giving a different estimation of Rs.11,58,000/- Despite the protests of the complainants, OP dispatched another estimation dt.25.10.2021 through WhatsApp of Rs.12,09.429/- and against sent another estimate dt.18.11.20221 for a different amount, which was sum of Rs.12,11,789/-. Despite paying the advance amount as indicated in the 1^st estimate the OP has issued the deadline to complete the project work. The complainants through her husband sent email to the OP on 27.10.2021 seeking an explanation from OP concerning payments made, incomplete works carried out and inconsistent estimates pertaining to certain works. The said email also indicated due to the incomplete work carried out by OP estimated in the flooding resulting in damages of the complainants house due to heavy rain and the rituals of house warming ceremony which has to be commenced had to be rescheduled on many occasions. There were no responses from the OP with email dt.27.10.2021 after which the complainant found an email dt.16.11.2021 for which reply dt.17.11.2021 was caused by the complainants communicating the issues and non-performance of the works as promised and have not been completed till date.  Aggrieved by the said action of the OP the complainants approached another concern seeking the estimates of work carried out by the OP in the month of December and received an estimation along with detailed assessment report of Rs.7,45,336/-. In view of the above the complainant sent legal notice to OP seeking damages amounting to Rs.21,00,000/-, but no reply from the OP. Aggrieved by the act of the OP the complainant preferred present complaint seeking relief as prayed in the complaint.

3. Notice to the OP duly served, OP remained absent and not chosen to contest the matter and they have been placed exparte.

4. The complainant has filed chief-examination affidavit by reiterating the complaint allegations and also filed documents in support of his plea. 

5. Heard arguments and matter is posted for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there in deficiency of service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought for?

2. What order?

7. The findings on the above points are as under:

Point No.1               :       Negative

Point No.2               :       As per final order

REASONS

8. POINT NO.1:- That the complainant availed the service of the OP to carry out work of  their residential building and after estimation was given to the complainant. The complainant had paid an amount of Rs.11,00,000/- on different dates, but after receiving the said amount the OP has not completed the project and missed the deadline to complete the project. The complainant has alleged deficiency of service and initiated the complaint by praying refund the amount of Rs.11,00,000/- paid to the OP to perform the renovation of the house.

9. Despite service of notice, OP remained absent and OP has been placed exparte.

10. The complainant filed chief-examination affidavit by reiterating the complaint averments as against the OP and also produced relevant documents in support of their contention. From the perusal of the complaint averments and allegations against OP, the commission observed that the complainant availed service from OP, but after receiving amount of Rs.11,00,000/- from the complainant, OP failed to complete the project work.

11. From the facts and circumstances of the complaint and the documents produced, estimation report from the concern estimation as renovation work carried out by the OP, but the complainant has not produced estimation report of the OP that how much work has been done by the OP, but the complainant has produced only project assessment work. The complainant himself pleaded in his complaint in para-8 that the complainant seeking explanation of concerning payments made, incomplete work carried out and estimation pertaining to certain works and the work carried out by the OP has resulted in the flooding in the house. Which means the OP has conducted some work, but in document no.9 of  page(69) produced by the complainant in which there is absence of estimation of the work done by the OP and the  complainant failed to furnish the estimation of work done by the OP and also in communication mail between OP and the complainant, it also marked as annexure, the OP has replied  the mail sent by the complainant wherein the OP has stated the reason for delay for the project work.

12. In view of the above discussion and an perusal of complaint  averments and also by considering relief which is claimed by the complainant towards the damages for alleged deficiency, it is also observed the prayer of the complainant to refund the sum of Rs.11,00,000/- which is sought by the complainant for the deficiency in service of OP. Under the principle of law, the report of the expert evidence in the complaint should be part of the records and the expert report has evidentiary value and expert  report stands as the footing of evidence. The assessment of the expert report is necessary for proper clarification and  assessment regarding project work undertaken by  the OP, even though the complainant has filed estimation report of the project work and the assessment report of the OP, but failed to file the estimation report to explain the alleged work done by the OP.

13. In view of the above discussion and on perusal of the complaint the commission come to the conclusion that the case of deficiency of service alleged is not proved. Hence, the complaint is deserves to be dismissed for want of expert evidence as work done by the OP.  Accordingly, we answer Point No.1 we answer in Negative.

14. POINT NO.2:-  In the result, we passed the following:

ORDER

1. The complaint filed by the Complainant U/s.35 of the Consumer Protection Act, 2019 is hereby dismissed. No costs.
2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 20^th   March 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)      (CHANDRASHEKAR S.NOOLA)       

         MEMBER                               MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Malay Barua -who being the complainant No.2

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*