State Consumer Disputes Redressal Commission
Mr Ramesh Mehta vs Mr. Nipun Mistry (Architect & Interior ... on 12 August, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
MAHARASHTRA, MUMBAI
First Appeal
No. A/12/56
(Arisen out
of Order Dated 17/11/2011 in Case No. 239/2008 of District DCF, South
Mumbai)
1. MR RAMESH MEHTA
103, ATMAJ APARTMENT, 94/C, AUGUST KRANTI MARG, OPP.
KAMBALIA HILL HOSPITAL, MUMBAI 400089.
...........Appellant(s)
Versus
1. MR. NIPUN MISTRY (ARCHITECT & INTERIOR
DESIGNEER)
A/C MARKET BUILDING, ROOM NO. 30,
5TH FLOOR, TARDEO ROAD, TARDEO 400034
MUMBAI, MAHARASHTRA.
...........Respondent(s)
BEFORE:
HON'BLE Mr. Dhanraj Khamatkar PRESIDING MEMBER
HONBLE Mr.Narendra Kawde, Member
PRESENT:
Adv Uday Wavikar
......for the Appellant
Adv S.S. Dwivedi
......for the Respondent
ORDER
(Per Shri Dhanraj Khamatkar, Honble Presiding Member ) (1) This appeal takes an exception to an order dated 17/11/2011 in Consumer Complaint No.239/2008, Mr.Ramesh Mehta vs. Mr.Nipun Mistry., passed by South Mumbai District Consumer Disputes Redressal Forum at Mumbai (District Forum in short).
(2) The facts leading to this appeal can be summarized as below:-
The original complainant wanted to carry out interior designing and renovation work of his flat no.103, Atmaj Apartment, 94/C, August Kranti Marg, Opp.Kumballa Hill Hospital, Kemps Corner and entrusted the same to the opponent. Before entrusting the work, the opponent visited the flat and assessed the work of renovation and taken the measurements and given estimate of `9,25,962/-. The particulars of the specification are not given in the complaint. The work was to be completed within a period of four months from June, 2007. It is also contended by the complainant that he handed over the keys of the flat to the opponent for carrying out the renovation and left for USA.
During his absence, the daughter of the complainant and her husband were to supervise the renovation work.
It is stated that he returned back on 03/11/2007 and noticed that the work carried out by the opponent was incomplete, unfurnished and unsatisfactory and found some of the antique articles in the flat missing. He contended that the work carried out by the opponent found to be defective and of poor workmanship. He has explained incomplete work and contended that the opponent has admitted the mistakes in the execution of the work and assured to complete the remaining work and rectifying the defective work. The complainant further stated that despite of the assurance, the opponent has not re-started the work and completed the unfinished work. The complainant stated that he has made payment of `8,96,874/- to the opponent as demanded by the opponent from time to time. The complainant has given the details of untouched work and the works executed unsatisfactorily. The complainant appointed an architect viz. Shrikant Hadke for inspection, verification and evaluation of the work done by the opponent. The architect had given his report dated 07/06/2008 along with his affidavit.
The complainant alleged that from the report it is clear that the opponent has failed to complete the work and the work carried out is of the poor quality and the material used is not as per the instructions of the complainant. The complainant further submitted that as per the report of the architect, the evaluation of the work executed is `3,54,988/-. The complainant contented that the opponent is liable to pay an amount of `6,92,500/- to the complainant or should finish the work assigned to him.
Alleging deficiency in service on the part the opponent, the complainant filed consumer complaint before the District Forum praying therein that the opponent be declared as deficient in service and be directed to pay an amount of `5,72,022.75 ps. to the complainant with interest @18% p.a. and also be directed to pay `75,000/- as the expenses for appointing the architect, `2,50,000/- for mental agony and `50,000/- towards costs.
(3) The opponent has contested the complaint by filing written version contending therein that the opponent is an interior decorator and not a contractor and his job is only to certify the work. The opponent further contented that the complainant defaulted in making payment of dues of the opponent, contractors and suppliers as well as the labourers, who carried out the renovation work. He further contented that due to good relationship with the complainant, the opponent did not enter into an agreement specifying the terms and conditions with regard to the scope of the service and terms for payment of professional charges and hence terms & conditions with regard to the scope of the services and terms of payment of professional charges were not signed between the complainant and the opponent. The material required for the renovation was to be purchased by the complainant himself as per his choice and same was to be supplied to the contractor.
The work was to be carried out by the contractors and workers of the contractors. The total estimated amount of the renovations work was `10,52,230/- plus professional charges @ 10% p.a. i.e. `1,05,223/-. Thus, the total cost of the renovation comes to `11,57,453/- and it was prepared on 09/04/2007. The complainant was made aware that the cost will depend upon the material chosen and the rates quoted by the contractors. The opponent denied that the keys were handed over to him. It is further contented by the opponent that the material required for renovation was selected by the daughter and son-in-law of the complainant and the payment for the same was also made by them. The contractors executing the work were paid on the certificate of payment given by the opponent. The trouble started when the contractor started demanding their dues. He further stated that he has received the payment of `40,000/- and still an amount of `81,430.81 ps. is to be received from the complainant. The opponent has stated that he has done his job entrusted to him and there is no deficiency in service on his part and as the complainant failed to pay the professional charges to the opponent as well as the payment of the contractor, he could not execute the work.
There is no deficiency in service on his part and hence prayed that the complaint may please be dismissed.
(4) The District Forum after going through the complaint, written version filed by the opponent, the evidence filed by both the parties on affidavit and pleadings of their advocates came to the conclusion that there is no deficiency in service on the part of the opponent and hence dismissed the complaint vide order dated 05/12/2011. Aggrieved by the order, original complainant has filed the present appeal.
(5) We heard Adv.Uday Wavikar for the appellant and Adv.S.S.Dwivedi for the respondent.
(6) Admittedly, the appellant/complainant has availed services of the respondent/opponent for carrying out the interior designing and renovation work in the flat belonging to the complainant. There is no agreement on record regarding the terms & conditions to be carried out, specification of the work to be carried out and the material to be used.
In the complaint, the complainant has stated that he had given specific instructions to the respondent/opponent. However, he has not clarified what were the specific instruction regarding the specification of the work. At page 49 of the appeal compilation, there is an estimate dated 09/04/2007 given by the respondent/opponent which describes the nature of the work, quantity, rate and amount. As per the rough estimate, the amount is `10,52,230/- and in addition to this, professional charges @10% i.e. `1,05,223/-. In the rough estimate, there is a note stating that a. Items not included in the above shall be extra.
b. All the material will be
purchased & supplied by the client.
c. Charges for clearing the Debries
by truck shall be extra, as per actuals.
d. The above estimate is an
approximate one. It will vary as per
the selection of material.
(7) According to the note, items not included will be extra items, the material be purchased and supplied by the complainant and the estimate is an approximate. From this, it is a proper work estimate.
There is an admission in the complaint that before starting the execution of work, the appellant/complainant left for USA and came back on 03/01/2007 and found that work is unfurnished, incomplete and unsatisfactory.
(8) As against this, the opponent has contented that during the absence of the appellant/complainant, the material to be used for renovation was selected by his daughter and son-in-law and payments were made to the supplier. At page 121, there is a list of payments made to the different parties on different dates amounting to `8,88,874/-. From perusal of the said amount, the opponent has received a payment of `40,000/- only. There is no agreement between the parties specifying the terms & conditions, scope of work. In the complaint, it is stated that specific instructions were given.
However, he has failed to place them on record. Further, he has also failed to establish the deficiency in service on the part of the opponent. The complainant/respondent relied upon the report of the architect, Shrikant Hadke, who has submitted his report along with affidavit. The report of the architect is at page no.55 of the appeal compilation. In the said report, Mr.Hadke has stated that estimated evaluation of the work done is as per the current market rates of material and labour. He further stated that he has consulted with the interior contractor. However, he has not mentioned the names of the contractors with whom he has consulted. He further stated that the evaluation is on the current market rates of material and labour. In the present case, the material is purchased by the daughter and son-in-law of the complainant. In view of these defects in the technical report relied by the complainant, we do not give much credence to it. In the complaint, the complainant has alleged that some antique pieces are missing from his flat. However, he has not filed any FIR with the police. Similarly, he has taken a stand that keys were given to the respondent/opponent, which the respondent/opponent has vehemently denied.
The rough estimate given by the opponent cannot be treated as an agreement between the parties and the notes given below states that the estimate is an approximate and it will vary as per the selection of the material which is undoubtedly selected and purchased by the daughter and son-in-law of the appellant/complainant.
Thus, as observed by the District Forum, the appellant/complainant has miserably failed to establish his case by adducing any documentary evidence. For the reasons stated above, we find that appeal is devoid of any substance.
We hold accordingly and pass the following order:-
ORDER (1) Appeal stands dismissed.
(2) Order dated 17/11/2011 in Consumer Complaint no.239/2008 passed in South Mumbai District Forum is hereby confirmed.
(3) Appellant to bear his own costs and shall pay costs of `25,000/- to the respondent.
(4) Inform the parties accordingly.
Pronounced on 12th August, 2012.
[HON'BLE MR.
Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER pgg