Date of Filing:17.01.2019

Date of Disposal:20.04.2023

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. This complaint is filed by the complainant under section 19 of the C.P.Act, 1986 against the OPs alleging deficiency of service.  

2.   The brief facts of the case is as follows: 

The complainant submits that, the complainant approached OP-1 & 2for doing renovation in his apartment and there after OPs had given an estimation of Rs.5,60,000/- on 03.05.2018 for work to be done and as per quotations and additional requirements, the complainant had made a payment in regular interval of Rs.10,00,000/- on different dates. After payment the OPs have submitted estimatewhich has increased to Rs.15,15,563/- as on 18.07.2018. The complainant asked for reduction of rates, but same was not considered by OPs. Subsequently, on 03.08.2018 complainant and his wife met OPs and asked to reduce the scope of two activities i.e. painting worth Rs.1,33,500/- and UPVC windows of Rs.2,09,000/- and remaining they would pay as per the revised estimate. The said demand was agreed by OPs, but on 04.08.2018 without intimating the complainant OPs took away all materials and belongings they had brought to the work place. Later on OP2 called complainant and informed that OP1 had updated that the deal was not worth and they would check the accounts and refund the remaining balance amount. Thereafter, the complainant made phone calls to OPs and asked to raise the bill for the work that has been done till 3^rd August 2018 and settle the account, but OPs never turned back till date. But after filing the police complaint, OPs sent a frivolous and baseless bill to complainants of Rs.12,90,726.67, no supporting bills for purchase of materials. Subsequently complainant get the valuation of the work done wasworthof Rs.2,92,398/-, but the OPs are failed to refund the remaining amount of Rs.7,07,602/- tocomplainant. The complainants issued legal notice to OPs, but OPs failed to reply. Aggrieved by the act of the OPs the complainant this present complaint seeking relief as prayed in the complaint.

3. Notice to the OP1 & 2  duly served. OPs represented by their counsel and filed their written version, affidavit  in support of the plea.

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

5. Heard arguments and the matter is posted for orders.

6.  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?

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:-  The complainant approached OP-1 & 2  for doing renovation in his apartment and there after OPs had given an estimation of Rs.5,60,000/- on 03.05.2018 for work to be done and as per quotations and additional requirements, the complainant had made a payment in regular interval of Rs.10,00,000/- on different dates. After payment the OPs have submitted estimate  which has increased to Rs.15,15,563/- as on 18.07.2018. The complainant asked for reduction of rates, but same was not considered by OPs. Subsequently, on 03.08.2018 complainant and his wife met OPs and asked to reduce the scope of two activities i.e. painting worth Rs.1,33,500/- and UPVC windows of Rs.2,09,000/- and remaining they would pay as per the revised estimate. The said demand was agreed by OPs, but on 04.08.2018 without intimating the complainant OPs took away all materials and belongings they had brought to the work place. Later on OP2 called complainant and informed that OP1 had updated that the deal was not worth and they would check the accounts and refund the remaining balance amount. Thereafter, the complainant made phone calls to OPs and asked to raise the bill for the work that has been done till 3^rd August 2018 and settle the account, but OPs never turned back till date. But after filing the police complaint, OPs sent a frivolous and baseless bill to complainants of  Rs.12,90,726.67, no supporting bills for purchase of materials. Subsequently complainant get the valuation of the work done was  worth  of Rs.2,92,398/-, but the OPs are failed to refund the remaining amount of Rs.7,07,602/- to  complainant. The complainants issued legal notice to OPs, but OPs failed to reply. Aggrieved by the act of the OPs the complainant preferred this  present complaint seeking  relief  as prayed in the complaint.

9.  Notice to OP 1 & 2 represented by their counsel filed their version. In their version the OPs denied the entire allegations made by the complainant. The OPs submits that, the complainant approached OPs for renovation work of their 30 years old flat, which was in dilapidated condition and the earlier contract given to Mr.Santhosh, for which has not carried out the work as satisfactory as stated by the complainant and misused the funds. After satisfied with the OPs with regarding nature of work complainant placed an order for renovation of work of above said flat and the OP have issued quotation on 03.05.2018 and the OPs have admitted for having received sum of Rs.8,00,000/- on various dates from the complainant and the OPs have  denied the cash payment of Rs.2,00,000/- which is against  rules of the OPs company is prohibit from accepting cash payment and as per quotation OPs have started work in full swing also have accepted the additional requirements of the complainant and after request of the complainant, the OPs have cancelled two items from revised estimation worth of Rs.1,33,500/- and Rs.2,09,000/-. Though the OPs agreed to drop the two items from estimation, but they felt that the labour already agreed and procured material partly purchased from various suppliers for above work. For which  the OP cannot take the burden of loss and decided to withdraw the work and the OPs agreed to provide bills as the job done by them and there was delay in submitting the final bill. In the meantime, the complainant filed complaint before Police station for non submission of final bill, but complaint is with  regarding the defect in the work and also  in quality of materials used. Here there is no deficiency in the service provided by the OPs. Therefore, the OPs are not liable to refund as alleged in the complaint. in fact complainant is due to reimburse the short fall amount of Rs.4,90,726.67 after deducting the advance amount of Rs.8,00,000/- from final bill amount of Rs.12,90,726.67 and here the survey report given by the complainant consulting and taking personal opinion with from qualified contractor cannot be regarded as holistic. Since, due to professional ethics, each contractor use his own ideas since there is no standard norms are envisaged anywhere without furnishing supported reasons and explanation for showing deficiency. Wherefore, the OPs prays to dismiss the complaint and put to strict proof of the survey report submitted by the complainant.

10.  The complainant filed chief examination affidavit along with documents in support of their contention. From the perusal of the complaint averments made some allegations against the OPs. The commission observed that, the complainant availed service from OPs that after receiving  considerable amount from the complainant OP failed to complete the renovation work and the complainant raised the bill for the work that has been done by the OPs and to refund the remaining amount of Rs.7,07,602/- to the complainant.

11. From the facts and circumstances of the complaint and documents produced, the survey report and valuation report consulting and taking personal  opinion from the concerned contract as renovation work  carried out by the OP without furnished the supported reasons and explanation for showing deficiency of the OP company. The complainant has failed to produce estimation report of the work carried out by the OP company and the complainant  pleaded  in his complaint that the complainant raised the bill of the work done by the OP company, which means the OPs have conducted some work  and as per mail communication produced by the OP in exhibit B4 between  complainant and OP, in which the complainant also agreed  and  happy for OPs work carried out and the Ex.A-17 page 32 produced by the complainant, in which there is absence of valuation  of  work done by the OP and the complainant failed to furnish the estimation of work of  the OPs and also in the mail communication between OPs and complainant, wherein the OP has stated the reasons for delay for the issuing a bill regarding work carried out by the OP company.

12. In view of the above  and on perusal of the complaint averments by considering the relief which the complainant claimed for refund of Rs.7,07,602/- and for alleged deficiency under the principle of law, the report of the expert is evidence in the complaint is the part of the records and the expert report has evidentiary value and expert report stands as the footing  of evidence. The bare contention allegation of deficiency of service on the part of OP cannot be accepted under law. And the assessment of the expert report is necessary for proper clarification of deficiency of service on the part of the OP to refund the amount of Rs.7,07,602/-. Even though the complainant has filed survey report of contractor, but failed to file the survey report of the OPs to examine the alleged work done and the burden of proof has been lies on the complainant and  there is not substitute for an expert opinion of the present OPs to determine the assessment of the renovation work done by the OP in support of these  contentions and the allegations without proof  is not tenable under law and no where in the complaint the complainant has pleaded that the OP company have not completed the  renovation work. The complainant only raised the complaint for not furnished the bills for the work carried out by the OP company, for which the OPs have to refund the amount as prayed in the complaint.

13. In view of the above discussions and on perusal of  contentions of both the parties, we are of the opinion that the absence of any expert report to execute the complaint, the complainant failed to prove the deficiency of service on the part of the OPs. Hence, the complaint deserves to be dismissed for want of expert evidence for the work done by the OPs. Accordingly, we answer the Point No.1 in Negative.

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

                                         ORDER

1. The complaint filed by the Complainant U/s 12 of the Consumer Protection Act, 1986 is 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 April  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 Ventaka Satya Kumar Phani Tumu-who being complainant

Documents produced by the complainant:

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

Sri Kamalesh AVS & Raju Rajan-Who being the OPs

Documents produced by the OPss
 

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*