DATED ; 24.05.2022
FURTHER JUDGEMENT
ORDER DATED 24TH DAY OF MAY 2022
BY SRI.H.R.SRINIVAS, PRESIDENT.
After the order/judgement pronounced on 28.02.2019, OP filed an appeal before the State commission in A.No.859/2019, wherein the Hon’ble State Commission remanded the matter with the direction to provide an opportunity to both parties to adduce further evidence and dispose the matter in accordance with law.
Upon receipt of the above order, notice was sent to both parties and both parties appeared before the commission and adduced further evidence.
While remanding the matter at para 8 of the judgement in the appeal it is observed by the State Commission that the appellant is a qualified architect and not a contractor and consultant. Complainant neither explained as to why she has taken the service of an architect nor produced any contract agreement entered into between them. Further respondent kept mum on yet another point of dispute as to whether she has utilized the materials blocked by architect or returned the same by producing cogent evidence. On the other hand, when the complainant has requested for return of the advance amount paid by her why the appellant did not demand for cost of the materials blocked by her if that is so, to prove all these points since there is no evidence recorded by the District Commission as to whether the appellant has supplied materials to respondent and if supplied the same was utilized by respondent or not has to be considered by obtaining further evidence.”
After the remand, the complainant has reiterated the contents of the earlier evidence. In para 4 of the further evidence it is mentioned by the complainant that after payment for blocking the materials for the purpose of construction she did not receive any reply from OPPOSITE PARTY. Only after request OP sent an acknowledgement regarding blocking the materials and it did not have any details of the any materials blocked and was merely an acknowledgement for accepting the payment. The emails produced by her go to prove that OP has taken construction work by receiving the payments. Had the OP delivered the materials she would have obtained her signature for acknowledgement. Even OP has not produced any materials to show that she had purchased materials for her house construction out of the amount paid by her.
On the other hand, OP got herself examined as RW1, and for the first time has taken up the contention that the complaint is bad for non-joinder of necessary party and one UT associate has transacted with the complainant’s husband and there is no transaction with her. Only one Anandan Pachiyappan being the husband of the complainant transacted and interacted for the architect design and execution of all the mail transactions were done through UT associates. The UT associate is a firm where she was an architect engineer by profession who designed and executed the construction work and has a good name and fame. During 2013 as the elections were declared there was all possibility of hike in the material and the husband of the complainant sought for a solution for which they suggested to block the materials. Accordingly, a sum of Rs.6,30,000/- was paid to UT associates to block the materials, so that the material would be supplied at a later date, so that he could save some money. With good faith and as they are having good name and fame in the business they accepted complainant’s husband request to block the materials. Since the amount was received by the firm they blocked the materials immediately. It is mentioned that the said materials were used by the complainant for the construction of the building without her knowledge. She has not paid any money for professional service. By blocking the materials, she has saved a huge amount to the complainant’s husband in the purchase of cement, wood, to the extent of Rs.1,40,000/-. She also raised the bill of other expenses incurred and professional fee and after all negotiation, complainant agreed to transfer the amount for the services as a remuneration as a gratitude to compensate the loss incurred to her. She has admitted having received Rs.6,30,000/- to block the materials and balance amount to be paid is Rs.1,97,448/-, paid to the complainant.
When all these evidences are taken into consideration, that itself answers to the doubts raised while passing a judgement in the appeal by the State Commission. The OP who has preferred the appeal herself has clearly and unequivocally admitted that she is an architect and takes up the construction work as they have name and fame in the business. In view of this, and as admitted by her that she has received Rs.6,30,000/- to block the materials, there is no further proof provided by a OP to show that she has in fact procured the said materials and the same has been utilized by the complainant. Hence we are of the opinion that OP has failed to prove that though the amount was paid to block the material, the said materials were really purchased and handed over to the complainant.
Under the circumstance, the case of the complainant is highly probable that even though OP has received the amount, the materials were not procured and handed over to the complainant and that the complainant has utilized the said materials. Even the OP has admitted that she has been given her professional fee. When this is taken into consideration, the complainant and her husband becomes consumers and OP through UT Associates becomes the service provider and hence for the reasons stated while deciding the case on 28.02.2019, we hold that there is deficiency in service and that OPPOSITE PARTY is liable to return Rs.5,30,000/- out of Rs.6,30,000/- received by them by retaining a sum of Rs.1,00,000/- towards her professional charges for making the plan, architectural design, and for personal visits. Hence we pass the following;
ORDER
The complaint is allowed in part with cost.
OPPOSITE PARTY is hereby directed to pay Rs.5,30,000/- to the complainant along with interest at the rate of 12% per annum from 14.07.2017 the day of filing of this complaint till payment of the entire amount.
Further OPPOSITE PARTY is hereby directed to pay a sum of Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses to the complainant.
Send copy of the order to both the parties at free of cost.
MEMBER MEMBER PRESIDENT
