DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 160/2016
Date of Filing: Date of Admission Date of Disposal:
15.03.2016 22.03.2016 14.11.2017
Complainant = Vs. = O.P.
Smt. Ananya Das, Sri. Swapan Biswas
D/O Lt Justice Gora Chand De S/O Nagen Biswas
Residing at: CK-260,Sec-II Painter & Contractor
Salt Lake City, ` Residing at :
P.S: Bidhan Nagar(East) Patra Para,Kestopur
Kolkata-700091. (Near Pechopachi sthan)
Taruliya, New Town
Kolkata- 700102
Old Office Address at:
Biswas Painting Concern,
C/O Krishnakali Enterprise,
Shop No: 16,
C.K.Market, Salt Lake,
P.S: Bidhan Nagasr (East)
Kolkata-700091
P R E S E N T : Sri. Bankim Chandra Chattopadhyay …………. President
: Sri. Siddhartha Ganguli………………………………Member
: Smt. Silpi Majumder……………………………………Member
Ld. Advocate for Complainant: Sri. Subhranasu Gangopadhyay.
Ld. Advocate for the O.P: None appeared and Ex-parte.
Final Order & Judgment
Sri. Siddhartha Ganguli, Hon’ble Member:
Brief facts of the case are that the O.P furnished one estimate dated 02.12.2015 for painting the house of the complainant mentioning the procedure of the painting works and detailed area of painting including the
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cost of such painting works and the parties to the case being agreed with the said estimate entered into a contract for painting the house of the complainant and the O.P in pursuance of the aforesaid estimate started work on 20.12.2015 and on that very day the complainant paid Rs.9000/ as first payment to the O.P.
It is alleged by the complainant that the dispute arose on the very first day of work when the O.P started demanding Rs.25, 000/ from the complainant over phone for the cost of pre-paint repairing work beyond the contract work. The complainant stated that on the very next day i.e on 21.12.2015 the O.P humiliated and abused the complainant in presence of all the laborers and other public when the complainant asked for clarification for such arbitral demand of Rs. 25,000/ as cost of pre-paint repairing works, wherein the cost of materials like cement ,sand and others used in such pre-paint works have been directly settled and paid by the complainant to the vendor/supplier inspite of mentioning all repairing works as pre-paint procedure, being inclusive of the said contract work.
It is stated by the complainant that on 26.12.2015 the O.P was asked to stop the contract work and submit the ad-hoc bill for the part of contract completed till date for settlement but the O.P left immediately with his laborers when the complainant asked for clarification of such unfair trade practice for the unjustified arbitral demand of Rs.25, 000/ and the O.P used derogatory comments towards the complainant which caused severe mental agony and trauma upon the complainant.
It is further stated by the complainant that on 27.12.2015 the O.P adopted a cunning strategy and continued with his contract work being apologetic for his misbehavior, made further commitment that no such untoward instances and/or adoption of any unfair trade practice would occur in future and assured full co-operation to perform the contract work in accordance with the aforesaid estimation dated 02.12.2015 and the complainant again paid Rs.9000/ as second part payment out of the estimated contract work.
It is further stated by the complainant that on 02.01.2016 the O.P was paid Rs.50,000/ as third part payment out of the estimated contract work, in accordance with the aforesaid estimation dated 02.12.2015 and provided a receipt by signing in the payment book wherein the O.P declared that he was not in a position to submit any new/fresh estimation since it would not be possible for him to provide proper detailed break-up of the measurement of area repaired and the materials (cement and sand) utilized in such pre-paint repair. However, adopting the same unfair trade practice, the O.P insisted the complainant to clear the payment of the unjustified arbitral demand of Rs.25, 000/.
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It is further stated by the complainant that the O.P was asked to clarify about the chemical treatment that to be completed as part of the pre-paint procedure, the O.P assured the complainant to perform the same in accordance with the said estimation dt.02.12.2015.The complainant again paid Rs.20,000/ on 10.01.2016 as fourth part payment. Ne chemical treatment was done and the color used in dilute form and the painting works were substandard and not satisfactory. The complainant alleged deficiency in service on the part of the O.P as despite payments Of Rs: 1, 38,000/made by her, in total, the O.P did not perform his contractual obligation; rather he used filthy languages towards the complainant.
The dispute between the parties went so bad that the complainant had to file a petition U/s 144 Cr.P.C before the Ld. Executive Magistrate, Bidhannagar against the O.P for his alleged misbehavior and threat.
It is further stated by the complainant that on 16.01.2016 the O.P once again approached before the complainant and being apologetic for his misbehavior but he demanded arbitrarily that there would be a minor cost escalation in the contract work, exceeding the aforesaid estimation dated 02.12.2015 wherein the complainant insisted on submission of a new/fresh estimation with detailed break-up immediately but the O.P did not pay any heed to. On 24.01.2016 the O.P coerced the complainant for payment of Rs.1, 00,000/ additionally over the aforesaid Rs.1,38,000/ which the complainant paid in six installments and threatened to withdraw all laborers if the said amount is not paid. The O.P on 26.01.2016 withdrew all his laborers and took away all the materials leaving the work half done.
The O.P left his job unfinished in the mid way and therefore the complainant had to engage another person to complete the residual works and to incur an extra expenditure of Rs.22670/
The complainant paid Rs.5853/ to the O.P as extra work payment and further sent a D/D of Rs.183/ to the O.P through post as final settlement of payment as per estimation and contract dated 02.12.2015.
The complainant therefore, files this case against the O.P for the reliefs, as prayed in the complaint petition, which are as follows:
- An order directing the O.P to refund the amount of Rs.22, 670/ being penal charges as deficiency in service, for violating the estimation dt. 02.12.2015.
- An order directing the O.P to pay an amount of Rs.50, 000/ being penal charges for adopting unfair trade practices.
- An order the O.P to pay compensation of Rs. 2,00,000/ for mental agony, trauma by way of aforesaid harassment brought to the complainant hereto, being a law abiding bonafide citizen, having renowned credibility within the legal fraternity ,however suffering severe loss and perpetual injury.
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- An interest of 8% p.a on the aforesaid penal charges and compensation amount.
- Cost of Rs.5, 000/ towards litigation expenses.
- Such further order or orders as Ld. Forum may deem for and proper.
The complainant along with complaint petition filed the following documents (Xerox):
- Estimation dated 02.12.2015
- Payment receipts of Rs.1, 38,000/ wherein the signature of the O.P is present on each date of part payment.
- Receipts of materials purchased from Asha Builders -4 Nos.
- Attendance of another painter Mahbul Sekh
- Bill of Rs. 9130/
- Copy of order sheet U/s 144 Cr.P.c of E.M, Bidhannagar.
- Details of incomplete works, payment made prepared by the complainant.
- Copy of D/D of Rs.183/ drawn in favour of O.P.
- Postal receipts and T/R
The notice was sent to the O.P but it was not served upon the O.P. The complaint petition was amended as per prayer of the complainant and the new address of the O.P was inserted in the cause title. The wife of the O.P received the notice but the O.P did not appear before this Forum. Further a paper publication was made. Despite so the O.P did not appear before this forum and therefore, the case has been proceeded ex-parte against the O.P.
The complainant filed evidence and B.N.A
From the complaint petition, evidence of the complainant and other materials on record following points have been framed:
- Is the complainant a consumer?
- Is/was there any deficiency on the part of O.P?
- Is the complainant entitled to get any relief /reliefs as prayed for?
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Decision with Reasons
All the points have been taken together for the sake of brevity and avoidance of repetition of facts.
From the complaint petition, evidence adduced by the complainant and other materials on record it is found that in pursuant of the estimation dated 02.12.2015 the O.P was engaged in painting works of the building of the complainant and an amount of Rs.1,55,000./ was fixed for such painting works including pre-paint procedure. The O.P commenced pre-paint works in the building along with his laborers and from the very beginning started demanded more money beyond the contract. The O.P failed to provide details of break up part bills to the complainant. The complainant had paid Rs.1, 38,000/ in total in six installments to the O.P. But the O.P demanded more money beyond the contract. The relation between the parties deteriorated so that the complainant had to lodge GDE before the police station against the O.P and to file a complaint before the Ld. Executive Magistrate U/S 144 Cr.P.C for alleged misbehavior and threat of the O.P towards the complainant and her family. Despite receiving the lion’s share of the agreement money the O.P left the job in the mid way. The complainant had to engage another person to complete the residual painting works including applying chemical treatment and adopting pre-paint procedure. The quality of works of the O.P was substandard and the paint used by him was inferior quality. The complainant was completely dissatisfied over the works of the O.P. Moreover, the O.P misbehaved with the complainant which caused great mental agony and trauma over the mind of the complainant.
Again, from the materials on record, it is found that the estimation was given by the O.P was of Rs.1, 55,000/. The complainant had to pay Rs. 22,670/ for purchasing materials and cost of labour for unfinished works of the O.P. The complainant had paid Rs.1, 38,000/ to the O.P. Therefore, the complainant incurred expenditure a total of Rs. 1, 38,000/ + Rs. 22670/= 1, 60,670/.
Had the O.P completed his contract work in terms of the written estimation dated 02.12.2015, the complainant would have to incur expenditure of Rs.1, 55,000/ in total for such painting works. But due to the deficiency of service of the O.P, the complainant had to pay more, which if calculated, it comes to Rs.160,670/- Rs.1,55,000/= Rs.5670/.
Some extra works have been done by the O.P out of the said estimation dated 02.12.2015 for which the complainant had to bear an additional expenditure of Rs.5853/ and he paid Rs. 5670/ to the O.P. for such extra works.
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The complainant sent the balance amount of Rs.5853/ - Rs. 5670/ = Rs. 183/ to the O.P by a Demand Draft drawn in favour of the O.P by post ,which was returned with an endorsement “unclaimed”.
So, from the above mathematical calculation, the complainant is entitled to get back Rs.5670/ from the O.P, which she had to pay more apart from the estimation dated 02.12.2015 for the deficiency of service of the O.P.
We therefore hold the view that the complainant is a consumer as per the definition given U/S 2(1)(d) of the C.P.Act,1986 and the O.P was deficient in service toward the complainant and the complainant is entitled to get relief but in part.
Regarding the quantum of compensation and litigation cost we quantify Rs. 5000/, and Rs.5, 000/ respectively, totalling Rs.10, 000/ considering the nature of the case and keeping in mind the sufferings of the complainant.
Hence, all the points go in favour of the complainant as she is able to prove her case.
All the points go in favor of the complainant.
Hence
It is ordered that the complaint case being No: CC-160 of 2016 is allowed ex-parte against the O.P but in part.
The O.P is directed to pay Rs. 5670/ to the complainant, which the complainant had to incur additional expenses for painting of her house beyond the estimation given by the O.P, within one month from the date of this order.
The O.P is further directed to pay Rs.5000/ as compensation and Rs. 5000/ as litigation cost to the complainant within the aforesaid period of one month.
In default, the entire amount i.e Rs.15, 670/ shall carry an interest @ 9% p.a which shall be calculated after one month of this order till realization.
Let free copies be given to the parties concerned as per provisions of C.P Rules & Regulations.
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Member Member President
