Full Judgment
Oral Order: (R. Lakshminarasimha Rao, Member)
1. The unsuccessful complainant is the appellant. He filed complaint seeking the following reliefs;
i) Declaration that there is defect in carrying out the interior work.
ii) Refund of excess amount of Rs.7 lakh collected from the appellant.
iii) Repair of the improper work carried out by the respondent or in the alternative for payment of Rs.5,00,000/- towards the expenses for rectification of the improper interior work.
iv) Compensation and damages of Rs.5 lakh.
2. The case of the appellant as seen from the averments of the complaint is that the appellant purchased Flat bearing number 214 at Narayanaguda locality of Hyderabad city and on recommendation of one Manish Tiwari who is common friend to the appellant and the respondent, the appellant entrusted the interior work of the Flat to the respondent for a consideration of Rs.15,00,000/-. The appellant paid advance amount of Rs.3,00,000/- to the respondent. The completion of interior work within a period of 90 days from the date of commencement and payment of the amount as per stage wise work was agreed upon.
3. The appellant submitted that since commencement of the work, he observed that the style and manner it was carried out was not upto the standard and the appellant paid the amount as per payment schedule and that he was disappointed by the progress and quality of the work carried out by the respondent. The respondent was to complete the work by the middle of December, 2009 and it abruptly stopped the work and left the site in the month of July,2010 and on enquiry made by the appellant the respondent informed him that it had completed the interior work of the Flat.
4. The appellant submitted that the respondent collected an amount of Rs.20 lakh as against the agreed amount of Rs.15,00,000/- and that the respondent had not furnished him the statement of account nor did it return the excess collected amount. The appellant got evaluated the work carried out by the respondent by Pediment Designers which estimated the work carried out is worth of Rs.13,04,169.30 and he was informed that the work is unfinished and infested with technical flaw. The appellant by e-mail dated 14.09.2010 requested the respondent not return the excess collected amount and the respondent replied by e-mail dated 17.09.2010 that the appellant got additional work done and he was still due a sum of Rs.7,39,000/- to it.
5. The appellant submitted that he had not got carried out any extra work and due to the delay in carrying out the interior work by the respondent, he was compelled to perform house warming ceremony in the month of May,2010 instead of performing it on the prescribed date and the respondent has to carry out the work such as childrens bed room ward robe, proper wiring for telephone and internet connections, proper fixing of doors of the kitchen, wall paneling etc. The respondent collected excess amount, caused delay in completing the work , it has not done the work in proper manner and left the work incomplete.
6. The respondent resisted the claim on the premise that the work was undertaken with estimate of Rs.20 lakh and subsequently on request of the appellant, additional work was carried out which resulted in increase of cost of the work by Rs.7,00,000/-. The respondent submitted that the entire work was completed in the month of June,2010 and the appellant paid a sum of Rs.20 lakh on different occasions while the work was in progress. The appellant evaded to pay the balance amount of Rs.7,00,000/- lakh for payment of which amount the respondent requested the appellant in the month of June,2010 and September,2010.
7. The proprietor of the respondent submitted that the appellant abused him in filthy language and threatened that he would kidnap the respondents proprietor. Amicable settlement between the appellant and the respondent could not be made at the instance of the mediator Manish Jain. The respondent issued reply to the e-mail of the appellant. The respondent had taken photographs interior work carried out by it in the Flat of the appellant and produced them along with the written version before the District Forum.
8. The appellant filed his affidavit and the documents, Exs.A1 to A6. On behalf of the opposite party, Mr.Ashish Awasthi filed his affidavit and the no documents have been filed.
9. The District Forum opined that the evaluation reports submitted by the architect appointed by the appellant and by the advocate commissioner are not supported by bills and on the count the matter was required to be decided by civil court.
10. Aggrieved by the order of the District Forum, the complainant has filed appeal contending that the bills are in the custody of the respondent and the third party architect estimated the approximated value of the materials used on the prevailing market rates. It is contended that the estimation as to the value of work made by the architect appointed by the appellant and the one appointed by the advocate-commissioner is almost the same. It is contended that the respondent had not produced any documents in support of its case. It is contended that the District Forum failed to consider the photographs filed by the appellant and the advocate commissioner.
11. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
12. The appellant entrusted the interior work of his Flat to the respondent on 27.08.2009 upon confirmation of final quotation submitted by the respondent for a sum of Rs.19,61,785/-. The work agreed to be carried out by the respondent as mentioned in the quotation is mentioned herein below:
1. Drawing Room
2. Dining Room
3. Kitchen
4. Living Room
5. Puja Room
6. Children Bedroom
7. Master Bedroom
8. False Ceiling in Toilets
9. Painting
10. Civil Work
11. Glass cubicles in toilets
12. Masterbedoom cot with storage
13. Children Bedroom cots with storage
14. Lighting fixtures and cabling
15. Sanitary and fixtures
16. Toilet Dadooing and Flooring
13. It was agreed that the respondent would purchase the materials included in the contract and the payment terms provide for payment of 20% of total project in advance and the remaining amount in phased manner except the last 10% of the project value which was agreed to be paid within one week from day of handing over the site. Relevant payment schedule terms read as under:
“1. 20% of the total project value should be paid as an advance along with contract award. Therefore, we should be paid interim bill @ 4% every week along with review of progress of work and material procurement at the site shall be taken into consideration. We will complete at least 40% work within that period. Thereafter, payment shall be made in equal installments every week to clear 90% of the total value of the project by the time of completion of the work.
2. 10% of the project value should be paid within 1 week from the date of handing over the site.”
14. Both parties agreed that the appellant paid and the respondent received a sum of Rs.20,00,000/- as on 26.07.2010 and the appellant agreed to pay the balance amount of Rs.6 lakh in two installments in the manner as shown in the document dated 26.07.2010 which reads as under:
Rs. 3.50 lacs within 3-4 days from the day all works completed
Rs.2.50 lacs within 30 days from the day all works completed.”
15. The appellant has claimed a sum of Rs.7,00,000/- said to have been collected in excess of the value of the interior work carried out by the respondent. The appellant based his claim for refund of the excess amount basing on the evaluation report of Pediment Designers. The District Forum appointed advocate-commissioner to assess with the assistance of architect the value of the interior work carried out by the respondent. The interior designer appointed by the appellant for the purpose valued the work carried out by the respondent at Rs.13,04,169/- and the Interiors, 7-D Studio appointed by the commissioner estimated the interior work carried out by the respondent at Rs.14,04,467/-. There is no significant variation as to the estimated worth of the interior were carried out between the two evaluation reports.
16. The District Forum brushed aside the two evaluation reports of M/s Pediment Designers and 7-D Studio on the premise that they are not supported by bills. The learned counsel for the appellant has submitted that the bills are in possession of the respondent and the respondent had not considered the fact that the respondent could produce the bills and it retained them. There is sufficient substance in the contention of the learned counsel. The respondent could have produced the bills in support of its contention as to the extent of finishing the interior work of the Flat. Thus, adverse inference can be drawn against the respondent for not producing the bill. Howsoever the adverse inference is drawn, it cannot be stretched to that extent that the respondent carried out the interior work of the Flat to limit to Rs.14,00,000/-.
17. The amount payable in terms of the mutual agreement dated 26.07.2010 is Rs.6,00,000/-. The respondent left the work incomplete without informing the appellant or issuing any notice to him. The respondent issued reply only when the appellant had sent email requesting it to complete the work or return the amount. The respondent had not produced any documents to show the percentage of work completed, The evaluation reports submitted by the two designers appointed by the appellant and the advocate-commissioner are not supported by the relevant bills.
18. All these facts have to be considered and taking into consideration of the same, this Commission concludes that the respondent carried out the work worth of Rs.16,00,000/- and as such the respondent collected excess amount of Rs.4,00,000/-. The respondent has stated that additional work was requested to be carried out and as such the estimation of the interior work had gone from the agreed amount of Rs.20,00,000/ to Rs.27,00,000/-. The agreement dated supports the version of the respondent The appellant is due to pay the amount of Rs.6,00,000/- in terms of the document dated 26.7.2010. If the amount of Rs.4,00,000/- which is liable to be paid back to the appellant is deducted from the amount the appellant is due to pay for the unfinished work the amount payable by the appellant comes to Rs.2,00,000/-.
19. The respondent left the interior work of the Flat unfinished and it had not even informed the appellant its intention as to the cause for stopping the work abruptly. The appellant has submitted that he could not perform the house warming ceremony on the expected date due to failure of the respondent in completing the interior work. Pediment Designers opined that the interior work carried out by the respondent in the Flat of the appellant need readjustment and in the words of the Pediment Designers, the respondent leaving the interior work of the Flat incomplete is “unethical and unprofessional”. The appellant has stated that he suffered mental tension due to the attitude of the respondent in abruptly leaving the interior work unfinished. We award a sum of Rs.50,000/- toward compensation and the amount of Rs.50,000/- if deducted from the aforementioned amount of Rs.2,00,000/- due to the respondent, the amount payable by the appellant comes to Rs.1,50,000/-. As such the order of the District Forum is liable to be set aside.
20. In the result, the appeal is allowed setting aside the order of the District Forum. The respondent/opposite party is directed to rectify the defects in the interior work and finish the incomplete work of the Flat and stated in the complaint. The appellant is directed to deposit the amount of Rs.1,50,000/- before the District Forum to be paid to the respondent on completion of the interior work of the Flat. There shall be no separate order as to costs. Time for compliance four weeks.