M/S. Proprietor Biswajit Patra vs Sanjib Mukhopadhyay

C. Viswanath, J

The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the "State Commission") in Appeal No. A/1199/2016 dated 19.01.2018.

In the Complaint Case, Respondent/Complainant handed over repairing work at roof top of his Flat to the Petitioner/Opposite Party, on the recommendation of Mr. T.K. Mitra, Civil Engineer, vide quotation dated 07.10.2013, with a warranty periodof 10 yearsat a price of Rs.79,652/-.The Respondent paid Rs.60,000/- to the Petitioner in three instalments. It was alleged by the Respondent that the Petitioner engaged unskilled labourers and used inferior quality material for the job.Though, the Respondent several times raised the issue of poor quality of work, the Petitioner turned a deaf ear and continued the work. Later the Petitioner declared that the work had been completed and demanded Rs.19,652/- from the Respondent. It was, however, noticed that the roof developed cracks and water stagnated on the roof seeped through the walls.The cracks in the roof were increasing day by day, causing great danger to him and his family. The Respondent sent a legal notice to the Petitioner for refund of the amount paid for carrying out the repair work, but there was no response. Hence, the Complaint was filed.

The Complaint was contested by the Petitioner wherein he contended in his Written Statement that after completion of the entire work, the Respondent appointed an Engineer who inspected and approved the repair work done by the Petitioner.Furthermore, the Respondent insisted on additional work, which was also done in good faith. When the final bill was raised, the Respondent flatly refused to pay the balance amount on frivolous grounds and demanded refund of the amount. The Petitioner thus, prayed for dismissal of the Complaint.

District Forum, vide order dated 15.11.2016, allowed the Complaint.The Respondent entrusted the repair work of the roof of his flat to the Petitioner under a 10 year warranty.Petitioner cannot absolve his responsibility, shifting the burden of liability upon the Engineer. Despite offering a warranty of 10 years after completion of the job, water started pouring from the ceiling and even after repeated requests of the Respondent, the Petitioner denied to refund the amount which was paid by the Respondent for repairing the roof. It was, therefore, a fit case to direct the Petitioner to pay punitive damage under Section 14 of the Consumer Protection Act, 1986, to give a message to the service providers to restrain themselves form doing such type of act, which amounted to deficiency in service and/or unfair trade practice.The Petitioner was directed to refund Rs.60,000/- to the Respondent and to pay compensation to the tune of Rs.20,000/- and litigation cost of Rs.5,000/- within 30 days from the date of the order. The Petitioner was further directed to pay Rs.50,000/- towards punitive damage within 30 days, out of which 50% be paid to the Respondent and the rest of the amount be deposited in the Consumer Legal Aid Fund, failing which the Petitioner shall pay interest accrued @10% p.a. on the total decretal amount to the Respondent after the statutory period till full and final compliance of the order in its entirety. The Respondent was at liberty to execute the order through the Forum.

Aggrieved by the order of the District Forum, the Petitioner filed an Appeal before the State Commission. The State Commission, vide order dated 19.01.2018, dismissed the Appeal and confirmed the order passed by the District Forum, except modifying the order of payment of Rs.50,000/- towards punitive damages on the ground that there was no such averment in the prayer clause in the Complaint. Fair procedure was the hallmark of natural justice and when there was no demand regarding punitive damages, the Petitioner did not get opportunity to controvert the same. In view of the above, the final order was modified only to the extent that the Petitioner shall refund Rs.60,000/-, alongwith a compensation of Rs.20,000/- and litigation cost of Rs.5,000/- aggregating Rs.85,000/- in favour of the Respondent to be paid within 30 days from date, otherwise the amount shall carry interest @9 p.a. from date till its realisation.

Aggrieved by the order passed by the State Commission, the Petitioners filed the present Revision Petition before this Commission.

Heard the Learned Counsel for the Petitioner. We have also carefully gone through the record.

It was found that both the Fora below have looked into the merits of the case carefully.The District Forum appointed a Commissioner Engineer and got the work inspected which clearly brought out that the roof was not properly repaired.It developed cracks and started leaking very soon after the repair, despite a ten year warranty.The State Commission had also gone into the evidence and facts of the case and passed a reasoned order. The Petitioner miserably failed to submit any evidence which could establish that he had executed the work properly.Both the Fora below have concurrently observed that there was a deficiency in service on the part of the Petitioner and the Complaint case succeeds.The State Commission has only modified the order of the District Forum to the extent to setting aside the punitive damages.

In view of the above, the Revision Petition is dismissed and order passed by the State Commission is confirmed.