Aarush Kitchen & Bedrooms vs Pratap R. Sawant & Anr.

This first appeal has been filed by the appellant Arush Kitchen and Bedrooms challenging the order dated 3rd August 2018 passed by the Goa State Consumer Disputes Redressal Commission (in short 'the State Commission') in consumer complaint No. 09 of 2017.

Brief facts of the case are that the respondents/ Complainants are the owner of a bungalow and awarded a contract to the appellant/OP to undertake a complete and comprehensive renovation of the said bungalow. The work included General, Civil, Electrical, Plumbing and Sanitary, Tiling etc. The quotation of the said work was given by OP as Rs.37,11,000/- dated 03.11.2014. The OP was required to start and complete the renovation work upon the receipt of 35% advance amount of the total estimate and the complainant made the 35% advance payment on different dates via issuing of cheques. The work in the said bungalow was required to be finished by the OP by the end of July 2015. Complainant alleges that though the OP started with some of the proposed works, not only failed to complete them by the end of July 2015 but also failed to maintain quality and standard in respect of the work. Legal notices were also sent by the parties through their counsels. Complainant states that they have already paid to the OP the entire amount of Rs.46,50,000/- which is more than what is mentioned in the estimate dated 03.11.2014. State Commission vide its Order dated 03.08.2018 passed the following order:-

"I. The complaint is partly allowed.

II. Opposite Party is directed to refund an amount of Rs.28,10,000/- to complainant with simple interest @9% per annum thereon from 23rd September 2016 (being the date of last payment by complainant to opposite party) till date of payment in compliance with this Order. Said amount represents such items in Opposite party's Estimate of 03/11/2014 (which is the basis of understanding between parties), that were left incomplete or not even commenced.

III. Opposite party shall further refund sum of Rs.10,00,000/- to complainant with simple interest @9% per annum thereon from 23rd September 2016 (being the date of this payment made by complainant) till date of payment in compliance with this order. This is the sum paid over and above estimated cost without receiving any measurements/bills, and after which opposite party abandoned work.

IV. Opposite party shall also repair the improperly aligned door frames at the suit site within 45 days from date of this order.

V. Complainant is awarded compensation of Rs.1,00,000/- for his mental torture and harassment at being denied peaceful living in his own bungalow due to site conditions that have rendered it uninhabitable in spite of effecting much more than agreed payment.

VI. Complainant is further awarded cost of Rs.20,000/-

VII. Opposite party shall comply with all above directions within 45 days of receipt of this order."

Hence, this appeal.

Heard the learned counsel for both the parties and Perused record. The learned counsel for the appellant stated that the State Commission has accepted the report of an Architect Mr. Suvrat S. Bhobe who was appointed by the complainant himself during the pendency of the complaint. First of all, this report was filed by the complainant by making an amendment in the complaint and the amendment in the complaint was allowed by the State Commission vide its order dated 23rd October 2017.By that time, the opposite party had already filed its written statement. At this stage, the amendment cannot be allowed as this is against the provisions of the Code of Civil Procedure. The objections were raised on the report because the inspection was not done before any representative of the appellant and therefore the report is only one-sided as per the wishes of the complainant. Moreover, when the complaint was pending before the State Commission, the complainant should not have appointed any architect without the permission of the State Commission. In fact, if the complainant was interested for any local inspection, the request should have been made by the complainant before the State Commission for appointing a local commissioner to inspect the premises and to give the report. When the application was moved by the complainant for making an amendment in the complaint for taking this expert report on record, the State Commission should have appointed a local commissioner if there was a need to get the position on site. In this situation, both the parties may have been present before the local commissioner to see that he submits the factual report.

It was further pointed out by the learned counsel for the appellant that the original estimate was only an estimate for Rs.37 lakhs and it was mentioned therein that the same may change as per the actual condition of the bungalow. In fact, the complainant was also convinced and that is why he paid more than the estimate. In fact, the work for Rs.38 lakhs was carried out and therefore, at the most, the complainant is entitled to get about Rs. 8 lakhs as refund. The State Commission has ordered refund of 38 lakhs and it seems that no work has been done by the appellant, which is totally false and incorrect. In fact the order of the State Commission also suffers from an error apparent on the face of record. The complainant in paragraph 14 of the complaint has clearly stated that the opposite party be directed to refund Rs.18,30,000/- to the complainant. Apart from this, another Rs.10 lakhs has been asked for refund in the complaint. However, the complainant in the final prayer clause of the complaint has mentioned this figure to be Rs.28,10,000/- and the State Commission has awarded refund of Rs.28,10,000/- on the basis of the prayer of the complainant without examining whether this amount was actually refundable to the complainant or not. Though the State Commission has given list of certain incomplete works, however, the objections of the appellant have not been considered and no financial implication of these so-called incomplete works has been calculated even on the basis of the report of the expert architect filed by the complainant. Thus, the State Commission has accepted this prayer of the complainant without any proper examination.

On the basis of the above arguments, the learned counsel for the appellant stated that the order of the State Commission be set aside and the matter may be remanded to the State Commission for deciding the complaint afresh and for considering the objections of the appellant on the report of the architect filed by the complainant or the State Commission may appoint a local commissioner to inspect the site and to give report.

On the other hand, the learned counsel for the respondent/complainant stated that it was necessary to file the report of an architect to prove the deficiencies of the appellant/opposite party in the matter.

It was further stated that the appellant was also granted time to file additional written statement when the amendment in the complaint was allowed by the State Commission, however, the opposite party did not file any additional written statement. The opposite party also did not cross examine the expert on his report. Thus, the opposite party cannot find fault now with the report of the expert. The State Commission has awarded refund of Rs.28,10,000/- on the basis of the examination of the estimate submitted by the opposite party by identifying the works that were not completed or were not even started as per the report of the expert. The objections of the appellant in respect of the report of the expert have already been considered by the State Commission and therefore, there is no need to remand the matter to the State Commission as prayed by the appellant.

I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record. First of all, I find merit in the assertion of the appellant that the complainant had prayed for refund of Rs.18,30,000/- whereas the State Commission has allowed Rs.28,10,000/- as was prayed by the complainant in the prayer for which no justification has been given by the State Commission in the impugned order.

When the complaint was already proceeding before the State Commission, the complainant should not have appointed an expert architect to inspect the property in question without the permission of the State Commission and a request could have been made to the State Commission for appointing a local commissioner or an expert to inspect the building and to give the report so that both the parties may have been present at the time of inspection. In fact, in my view, the amendment in the complaint was neither required nor should have been allowed for filing of the expert report of the expert who was appointed by the complainant. The State Commission has heavily relied upon the report of this expert and therefore it was incumbent upon the State Commission to have ordered inspection by an expert or a local commissioner under section 13 of the Consumer Protection Act 1986. Be that as it may, the fact remains that the inspection by the expert architect has been done in the absence of a representative of the appellant opposite party and this itself devalues the report of the expert. In these circumstances, the objections raised by the opposite party should have been more thoroughly and carefully examined by the State Commission. In fact, the crucial finding of the State Commission is reflected in the following portion of the impugned order:

"P. We find, upon inspection of Complainant's claims, cross-referenced by Opposite Party's Estimate of 03/11/2014, Technical report of 05/07/2017, photographs of site conditions, (and, in some cases, admission by Opposite party), that status of each area of work, listed in the same order that they appear in the Estimate, is that:-

i. Civil Work done is mainly that of demolition and dismantling. The little new work done such as partial plastering, is defective. Door and window frames installed are misaligned.

ii. Electrical Work-No work is done except ripping out of existing wiring/switches/fixtures.

iii. Plumbing & Sanitary- No work done.

iv) Tiling is partly done, but the laid out tiles are inadequately protected.

v. Carpentry-No work done.

Vi Furnishing-No work done.

vii. Finishing- No work done.

In consequence of all above Observations & Findings, we conclude that Complainant, a consumer who paid for the Service of renovation of his bungalow; who further has a continuing Cause of Action in that the renovation was never completed; has thus suffered Deficiency-in Service by Opposite Party, who undertook but miserably failed the task due to his own acts of omission or commission.

Complainant is thus entitled to relief under the Consumer Protection Act, and we hence pronounce, as follows, our : ............"

From the above, it becomes clear that no calculation has been mentioned in the order to justify the award of refund of Rs.28,10,000/- as demanded by the complainant.

There is no doubt that there is deficiency in service on the part of the appellant opposite party and the State Commission has rightly given a finding in this regard. The appellant has also admitted that the appellant is ready to offer Rs.8 lakhs to the complainants as their expenditure has been to the tune of Rs.38 lakhs and the complainant has given Rs.46.50 lakhs. The State Commission has not considered the bills submitted by the appellant and the complainant filed this complaint when the appellant issued a notice to the complainant. The State Commission has totally relied on the report submitted by the expert architect appointed by the complainant and objection of the appellant opposite party is valid to the extent that no representative of the appellant was present when the inspection was made as no notice for the same was issued by the expert or the complainant for the date of inspection.

Another surprising fact seen in the complaint is that if there was no progress in the construction, then why did the complainant make the payments starting from November 2014 till June 2016. In such agreements, it is expected that the complainant will pay to the builder according to the progress in the construction however, in the present case, if the report of the expert architect is to be believed then very little work has been done by the appellant but the complainant made more amount then even the agreed estimate. This also puts a question mark on the report of the expert architect.

Based on the above discussion, in my view, the deficiency in service against the appellant opposite party is clearly established, however, the question of refund or compensation has not been properly decided by the State Commission. From this point of view, the matter requires re-adjudication by the State Commission. The State Commission has two ways to re-adjudicate the matter for deciding the refund or compensation to be paid to the complainant. If the position of the building has not been changed since then, the State Commission can appoint a local commissioner or expert in civil engineering to assess construction work as per the estimate given by the appellant or if the position of the building has changed due to further construction having been completed by the complainant or otherwise, then the appellant may be allowed to file a detailed objection to the report of the expert architect appointed by the complainant. In this case, the State Commission will consider the objections of the appellant on every aspect of construction and then will decide the actual deficiencies in the construction and accordingly, the refund /compensation will be decided. One thing is clear that the complainant has lost about 3 years after filing the complaint and the opposite party already accepts refund of about Rs.8 lakhs then in these circumstances the matter is remanded to the State Commission for deciding the amount of refund or compensation to be given to the complainant in the light of the observations made above, subject to payment of Rs.10.50 lakhs (rupees ten lakhs fifty thousand only including rupees fifty thousand as cost) to the complainant by the appellant on or before the date being given for the appearance of the parties before the State Commission. The impugned order of the State Commission is set aside with the aforesaid condition. It is also made clear that the State Commission will proceed with the case only if the amount has been paid by the opposite party to the complainant. The State Commission will also have a power to extend the period for payment of this amount up to a limit of 30 days if the need arises. It is further made clear that if the amount is not paid by the appellant opposite party, this order shall lapse automatically after completion of the stipulated period as above and the impugned order shall stand revived. It is further clarified that if after decision in the complaint, the amount of compensation or refund to be given to the complainant comes more than Rs.10 lakhs, the remaining amount will be ordered to be paid to the complainant and if the amount of refund or compensation comes less than Rs.10 lakhs then nothing will be recovered from the complainant. The First Appeal No. 1585 of 2018 stands disposed of accordingly. Parties are directed to appear before State Commission on 6th October, 2020.