Date of filing: 4.4.2018
Judgment date: 6.12.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Shri Subhasish Dey U/s. 12 of the Consumer Protection Act, 1986 against the opposite party Mr. Amitava Chakraborty (referred as O.P. hereinafter) alleging deficiency in service on the part of the O.P.
The case of the complainant in short is that on 27/06/2017 complainant by an agreement assigned the O.P. to do some interior works in his house being premises situated at 6/6/1, R.K.M. Park, under P.S. Howrah. As per the terms and condition in the said agreement, O.P. was to do all the interior works including modular kitchen and bathroom (including all accessories) along with pasting of tiles and granite at kitchen, tiles at bathroom and repair with putty and painting, false ceiling, wooden work like T.V. cabinet, loft back storage etc. The O.P. was also to do all the electrical fittings. The time schedule for the work was within six week from the start of the assignment. But O.P. failed to do the work within time in spite of the extension of further time. However, upon a mutual understanding a dead line of completion of work was fixed i.e. 20/12/2017. The total cost of the entire project of the said interior work was Rs.3,50,000/-. The complainant has already paid an amount of Rs. 2,70,000/- out of the total amount of Rs. 3,50,000/-. There is also a default clause in the contract that if the O.P. failed to complete the interior work within 20/12/2017 than O.P. would pay Rs. 2,00,000/- as penalty to the complainant. In spite of payment of Rs. 2,70,000/- O.P. has failed to complete the work. Neither the money paid by the complainant has been refunded to the complainant by the O.P. The notice was also sent by the complainant to the O.P. to refund the sum but all in vain. So the present complaint has been filed praying for directing the O.P. to refund sum of Rs. 2,70,000/- to the complainant along with interest, to pay a sum of Rs. 2,00,000/- as penalty, to pay sum of Rs. 1,00,000/- as compensation and litigation cost of Rs. 30,000/-.
O.P. has contested the case by filing written version denying the allegation made against him contending inter-alia that the work has already been completed by the O.P. So the O.P. has prayed for dismissal of the case.
During the course of trial complainant filed examination in chief followed by filing questionnaire by the O.P. and reply by the complainant. The O.P. has also filed his evidence which was followed by filing of questionnaire by the complainant and reply by the O.P. However at the time of argument O.P. did not take any step. Brief notes of argument was only filed by the complainant and the Ld. Advocate appearing for the complainant also advanced his argument.
Following points require determination.
- Whether there has been any deficiency in service on the part of the O.P.
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
Both the points being inter related are taken up together for discussion. In support of his claim that he had entered into contract with the O.P. to carry the interior works in his house, complainant has filed a settlement agreement entered into between the parties on 27/06/2017. He has also filed the payment details indicating a sum of Rs. 2,30,000/- was paid till 14/09/2017. Complainant in this case has claimed that he has paid the total sum of Rs. 2,70,000/- and according to him further amount of Rs. 25,000/- and Rs. 15,000/- was paid by him on 20/11/2017 and 07/12/2017 respectively by cash to the O.P. On a careful scrutiny of the settlement agreement it appears that both the parties on 17/11/2017 reduced into writing the incomplete work which was to be done and the time limit to complete the said work was fixed till 20/12/2017. It is apparent from the said documents, that 40% of the work was already completed by the O.P. as on 16/11/2017 and Rs. 2,30,000/- was already paid by the complainant out of total price of Rs. 35,000/-. The further amount was to be paid on five different dates and last payment of Rs. 35,000/- was to be made within seven days after completion of the each and every work. According to the complainant he has paid further sum of Rs. 25,000/- on 20/11/2017 and Rs. 15,000/- on 27/11/2017 which indicates that the O.P. had also done the further work specified in the said documents executed on 17/11/2017. If no further work was done, there was no reason on the part of the complainant to pay said sum of Rs. 25,000/- & Rs. 15000/-. If that be so, than it was upon the complainant to specify the exact unfinished work not done by the O.P. But complainant in the complaint has made vague statement that in spite of repeated request, O.P. failed and neglected to refund the sum or complete the due work but has not specified the nature of the due work. So since major part of the work has already been completed as evident from the own document of the complainant than question of refund of entire sum of Rs. 2,70,000/- as prayed by the complainant does not arise. It is apparent that the complainant has also not paid of the full sum as agreed between the parties of Rs. 3,50,000/-. In the absence of specification of the incomplete work, the value / price of the alleged pending work cannot be assessed. However since after 07/12/2017, no further payment was made by the complainant, it suggests that there were still some work left to be done by the O.P. as the last date to complete the said project was 20/12/2017 and certain work such as colour, kitchen finished with accessories and wooden work was to be completed within the period from 30/11/2017 to 16/12/2017. So taking into consideration the discussion as highlighted above we find that the complainant is entitled to refund of sum of Rs. 60,000/- and for harassment and mental agony a sum of Rs. 30,000/- as compensation and Rs. 10,000/- as litigation cost.
Hence,
ORDERED
CC/173/2018 is allowed on contest. O.P. is directed to refund Rs. 60,000/- and pay compensation of Rs. 30,000/- and litigation cost of Rs. 10,000/- to the complainant, within two months from this date in default the entire sum shall carry interest @8% p.a. till realization.
