Date of Filing:24:02.2022

Date of Disposal:23.03.2023

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 is filed by the complainant under section 35 of C.P.Act, 2019 against the OPs alleging deficiency in service.
2.   Brief facts is as follows: 

The complainant entered into an agreement with OP1 on 22.12.2020 to take up the interior works for the complainant’s newly house and as per the agreement the OP1 had agreed to undertake the interior work and had given quotation of Rs.10,45,428/-. Further the OP1 sent one more quotation of Rs.11,83,774/-, but the complainantwas not in a position to afford the higher price and instructed OP1 to make certain changes. After the deduction quoted final price of Rs.9,99,407/- including GST and the complainant made the payments of the same amount on various dates. After full payment the employees of OP1 failed to complete the work within the stipulated period of 60 days as per the agreement and OP1 dragged on the work till September 2021 and also the OP1 employees had failed to fix Lacquered Glass to the Aristo shutterof themaster bedroom wardrobes. When the complainantquestioned OP-2 through email and whatsapp. OP-2 accepted the mistake and requesting to replace the glasses, even after payment was made OP-1 has failed to use the better quality material alsoand not completed the work agreed .

3. The complainant submitted that, after lot of discussions, arguments with complainant, OP1 agreed that the payment was made by the complainant for fixing Aristo Lacquered Glass as per agreement and meanwhile the complainant received email from OP-3 that the OP has completed the work undertaken as per the agreement and the concern raised by the complainant and his wife resolved the work was completed as per the requirements  and as a good will. The OPs have decided to refund a sum of Rs.5,000/-, but the complainant refused to accept the amount and instructed the OPs to fix the Aristo Glass, but after notice of the house the OPs made false statement about Lacquered glass fitted. For this the complainant sent legal notice to OPs on 09.12.2021 demanding of fix Aristo Lacquered Glass, but OPs have not responded. Aggrieved by the act of OPs, the complainant maintain the present complaint for seeking refund of amount as prayed in the complaint.

4. Notice to the OP-1to 3 duly served, OP-1 to 3  represented by counsel and filed their detailed version and affidavit.

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

6. Heard arguments and matter is reserved for orders.

7.   The points that arise for our consideration are;

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

2. What order?

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

Point No.1               :       Affirmative in part

Point No.2               :       As per final order

REASONS

9. POINT NO.1:- The complainant entered into an agreement with OP1 on 22.12.2020 to take up the interior works for the complainant’s newly house and as per the agreement the OP1 had agreed to undertake the interior work and had given quotation of Rs.10,45,428/-. Further the OP1 sent one more quotation of Rs.11,83,774/-, but the complainant  was not in a position to afford the higher price and instructed OP1 to make certain changes. After the deduction quoted final price of Rs.9,99,407/- including GST and the complainant made the payments of the same amount on various dates. After full payment, but the employees of OP1 failed to complete the work within the stipulated period of 60 days as per the agreement and OP1 dragged on the work till September 2021 and also the OP1 employees had failed to fix Lacquered Glass to the Aristo shutter  of the  master bedroom wardrobes. When the complainant  questioned OP-2 through email and whatsapp. OP-2 accepted the mistake and requesting to replace the glasses, even after payment was made OP-1 has failed to use the better quality material also  and not completed the work agreed .

10. The complainant submitted that, after lot of discussions, arguments with complainant, OP1 agreed that the payment was made by the complainant for fixing Aristo Lacquered Glass as per agreement and meanwhile the complainant received email from OP-3 that the OP has completed the work undertaken as per the agreement and the concern raised by the complainant and his wife resolved the work was completed as per the requirements as good will. The OPs have decided to refund a sum of Rs.5,000/-, but the complainant refused to accept the amount and has instructed the OPs to fix the Aristo Glass, but after notice of the house the OPs made false statement about Lacquered glass fitted. For this the complainant sent legal notice to OPs on 09.12.2021 demanding of fix Aristo Lacquered Glass, but OPs have not responded. Aggrieved by the act of OPs, the complainant maintain the present complaint for seeking refund of amount as prayed in the complaint.

11.  The OPs have filed version and affidavit. In their version, they denied the allegations and deficiency in service on their part. The OPs taken contention that as per the  contractual covenant the 60% payment was completed and the commencement of the 60 days of the execution period should commence from 01.01.2021 when the complainant paid 5^th installment and the 2^nd wave of COVID-19 pandemic  struck in February 2021. Therefore,  OPs did not receive the requisite materials to carry out the project which caused delay in the work.  The work as done as per caluse-2 and the complainant may be put to strict proof, for which the complainant were being betrayed by the OPs and lower quality material was used. However, the OPs agreed to refund Rs.5,000/-, for which the price  the OP1 has been captured as Lacquered Glass as it comes by default and they do not have an option to changing the default. Therefore, it does not amount to unfair trade practice and deficiency of service on part of OPs. Hence, they are not liable  to refund the amount  and prays to dismiss the complaint.

12. The complainant also filed chief-examination affidavit along with documents in support of their contention. From the perusal of the complaint averments also made same allegations. The complainant produced agreement between the complainant and the OPs and also mail communications with OP, wherein as per the agreement, the complainant has paid the entire consideration amount of the  project work and OP-1 has agreed to complete the said work within 60 days, but as per the clause-2 of the agreement, the complainant has made last payment on 01.01.2021, which counts the date of the last payment and as per the mail conversation produced by the complainant, the OP clearly replied for delay and difficulties  faced by the OPs during the COVID-19 pandemic  to carry out the project work. But as per the contention of the OPs the project work was completed and handed over to the complainant in September 2021 and the same was communicated with the complainant through email dt.14.09.2021.

13. In view of the above, it is also observed that, the whole averments of the complaint the complainant has pleaded only about wrong materials of the  Lacquered Glass and the quality of material used for project work. In this regard the complainant has failed to prove the defect or quality of material used by providing expert report. Therefore, in absence of any such expert evidence, the bare contention of the complainant for faulty and incomplete work done by the OPs and to refund of the amount as prayed in the complaint cannot be accepted. As per the number of citations relied by the Hon’ble National Consumer Commission and Hon’ble Supreme court that when there is a faulty material, defect or  incomplete work is alleged the burden of proof has been lies on the complainant and there is not substitute  for an expert opinion to determine the quality of material in support of their contentions and the allegations without proof are not tenable under law. Even though the OPs have accepted to refund of Rs.5,000/- for good will gesture to the complainant and no where in the complaint the complainant has pleaded that the OPs have not completed the project work.

14. In view of the above discussion and the contentions of both the parties, we are opined that, in  the absence of any expert report it is held that the complainant failed to prove the deficiency of service on the part of the OPs. But OPs are only directed to pay  the amount as they admitted in their letter as per document-6. Accordingly, we answer the point No.1 in the affirmative.

15. 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 allowed in part.
2. The OPs are directed to pay the amount of Rs.5,000/- to the complainant with interest at 6% from the date of filing of this complaint until payment is made.
3. The OPs are further directed to pay compensation of Rs.5,000/- towards pain and sufferings together with cost of litigation of Rs.5,000/- to the complainant within 45 days.

4. 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 23rd 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 B.Anil Kumar -who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-1,2 & 3 by way of affidavit: Kanishka Agarwal

Documents produced by the OP- 1,2 & 3:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*