DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of June 2023.
Filed on: 18/04/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C C No. 214/2022
COMPLAINANT
Thomas Varughese, Central Excise Qtr.No.84, CSEZ PO, Kochi-682-037
Vs.
OPPOSITE PARTY
Mr.Shameer, Kureekkode House, Eachamukku, CSEZ PO, Kochi-682037.
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that on February 17, 2022, the complainant awarded the opposite party a composite work contract involving the removal of an old house, a standing tree, and various items from the premises. The opposite party agreed to the work for a consideration of Rs. 17,500 and made three cash payments totalling that amount. The complainant had obtained site approval and a building permit for constructing a new building on the plot and entrusted the opposite party with the clean-up and waste removal in their absence. The complainant specifically mentioned the importance of not damaging a PVC water tank. The opposite party initially claimed to have successfully completed the work, except for the tree removal, which was to be done the next day. However, upon the complainant's visit to the site on March 9, 2022, they discovered that the water tank was damaged, and the tree had not been removed as agreed. The opposite party later argued that tree removal was not part of the contract, but the complainant stated that it was clearly mentioned in the terms and conditions of the WhatsApp contract. The complainant emphasized the potential danger posed by the tree and requested its removal, but the opposite party refused. The complainant considers this a deficiency of service and highlights that tree parts, such as roots, leaves, and branches, are still present on the site. Due to the lack of the opposite party's address proof, the complainant was unable to send a formal written notice but made requests through mobile communication, which were denied by the opposite party.
2) Notice
Notice was issued from the Commission to the opposite party. The opposite party received the notice but did not file their version. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant had filed a proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6.
Exhibit A-1: A copy of the site approval and building permission issued by the Municipality on February 9, 2022.
Exhibit A-2: A copy of a written message on WhatsApp detailing the contract terms, dated February 17, 2022.
Exhibit A-3: A copy of the damaged water tank application, with the application number 9747910410.
Exhibit A-4: A copy of a photo image showing tree waste, such as leaves, branches, and roots, that were not removed.
Exhibit A-5: A copy photograph showing the damaged water tank.
Exhibit A-6: A copy photograph showing the damaged water tank.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant produced a copy of a written message on WhatsApp detailing the contract terms, dated February 17, 2022. This document evidencing payment to the opposite party (Exhibit A-3). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019.
The complainant has filed this case seeking compensation for the deficiency of service caused by the opposite party's inaction in a contract involving the removal of an old house, a standing tree, and various items from the premises. The complainant alleges that the opposite party failed to fulfill their obligations under the contract, resulting in a deficiency of service. The complainant aims to receive compensation for the damages or losses incurred as a result of the opposite party's failure to act.
The complainant submitted that the opposite party agreed to perform the work for a total consideration of Rs.17,500, paid in three cash installments. The complainant entrusted the opposite party with the clean-up and waste removal on their plot, with specific instructions to protect a PVC water tank. While the opposite party claimed to have completed the work, except for tree removal, the complainant discovered on March 9, 2022, that the water tank was damaged and the tree had not been removed as agreed. The complainant expressed concerns about the potential danger posed by the tree, but the opposite party refused to remove it. The complainant alleged a deficiency of service, highlighting that tree parts, such as roots, leaves, and branches, were still present on the site. Due to the lack of the opposite party's address proof, the complainant was unable to send a formal written notice and made requests through mobile communication, which were rejected by the opposite party.
We have also noticed that a Notice sent to the opposite party. The opposite party received the notice but did not file their version. Hence, consequently, the opposite party is set ex-parte. The complainant had produced 6 documents which are marked as Exbt.A-1 to A-6. But the opposite party did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary, and unjustified act of the opposite party amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant as against the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
Exhibit A-5 and A-6 have been produced by the complainant as evidence to substantiate their claim. These exhibits consist of two separate photographs showing the damaged water tank. By submitting them as separate exhibits, the complainant is providing additional evidence to support their case regarding the deficiency of service caused by the opposite party's inaction.
The opposite party had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite party in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant. The aforesaid acts of the opposite party would stand to show their callous attitude, utter negligence, and deficiency of service, for which they are solely answerable.
The opposite party is liable to compensate the complainant for deficiency in rendering service and also for immense physical harassment and mental agony.
We find the issue Nos. (I) to (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite party. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The Opposite Party shall refund Rs.17500/- (paid by the complainant in 3 instalments) towards the inaction in the contracts resulting in deficiency of service.
- The Opposite Party shall pay Rs.5000/- towards compensation for the deficiency of service committed by the opposite party, and for the mental agony and physical hardships sustained by the complainant.
- The Opposite Party shall also pay the complainant Rs. 3000/- towards the cost of the proceedings.
The above-mentioned directions shall be complied with by Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (i) and (ii) above shall attract interest @9% from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission on this 30th day of June 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
Appendix
Complainant’s Evidence
Exhibit A-1: Copy of Site approval and Building permission of Municipality dt.09.02.2022.
Exhibit A-2: Copy of What’s app written message of contract with terms dt.17.02.2000.
Exhibit A-3: Copy of Damaged water tank app.No.9747910410.
Exhibit A-4: Copy of Photo image Tree waste such as leaves, branches, roots not removed.
Exhibit A-5: Copy of Applicant's Aadhar card copy
Exhibit A-6: A copy photograph showing the damaged water tank.
C.C.No.214/2022
Order dated 30.06.2023
