State Consumer Disputes Redressal Commission
Dr. Pratibha Khosla vs M/S Randhir Garg And Associates on 9 August, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.133 of 2016
Date of Institution: 03.05.2016
Order reserved on: 03.08.2018
Date of Decision : 09.08.2018
1. Dr. Pratibha Khosla, resident of House No.1285, Ranjit Nagar,
Kharar-140301, District Mohali, Punjab.
2. Akash Khosla resident of House No.1285, Ranjit Nagar, Kharar-
140301, District Mohali, Punjab.
....Complainants
Versus
1. M/s Randhir Garg & Associates [including all partner(s),
concerned architect(s), concerned structure engineer(s),
concerned Valuer(s)], through Architect Randhir Garg,
Proprietor/Partner/Associate of M/s Randhir Garg and
Associates, SCO 23, 2nd floor, Sector 20-D, Chandigarh.
2. Architect Deepika Garg, Senior Architect/Associate of M/s
Randhir Garg & Associates, #295, Advocates Society, Sector
49 A, Chandigarh, Email:- [email protected],
[email protected].
..... Opposite parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Dr. Pratibha Khosla, in person For the opposite parties : Sh. D.S. Dhaula, Advocate ................................................................................................. Consumer Complaint No.133 of 2016 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs, on the premise that M/s Randhir Garg and Associates OP no.1 is an association of Chandigarh Administration registered Architects, Structure Engineers and Valuers with its registered office at SCO 23, 2nd floor, Sector 20-D, Chandigarh. OP no.1 provides architectural, structural and valuation services, etc in Chandigarh. OP no.2 is Chandigarh Administration's registered Architect and is also associate of OP no.1. It is further averred that complainants engaged the architectural, structural and valuation services of OPs regarding construction of house on their plot no.337, Sector 40 A, Chandigarh, as per sanctioned building plans by competent authority and OP no.1 also undertook to supervise the construction on site, as per terms of contract dated 14.01.2014 entered into between the parties. The last date of construction without any extension fee was 07.12.2014 on the above said plot and the price of the plot of the complainants was Rs.38,50,000/-. The OPs received Rs.30,000/- in advance for above services from complainants, but failed to provide the same as per terms of the contract dated 14.01.2014, which was entered into between complainant no.2 with OP no.1. Work and services, which were to be provided by OP no.1 to complainants are as under:
(i) All types of drawings and plans including its detail working drawing such as structural drawings, electrical Consumer Complaint No.133 of 2016 3 and plumbing drawings and joinery details, etc. complete in all respect for execution of the work on site to the satisfaction of applicable rules.
(ii) Due assistance and certification to the complainant to get demarcation certificate, plinth level certificate, DPC certificate, procuring completion certificate for occupying and grant of sewer connection, revised building plan, etc. to the satisfaction of Chandigarh byelaws.
(iii) Due onsite visit for supervision as per rules and to pen down the shortcomings/defects/deviations, if any, to the complainant, till the completion of the work, to the satisfaction of relevant sanctioned plan from time to time.
(iv) Checking of contractors work stages and issue due stages completion certificates.
(v) Interpretation of drawings and specifications that may be necessary and to ensure that the project proceeds in accordance with the sanctioned plan and detailed written report to the complainant against receipt at the earliest about defects and deficiencies in the work of the builder contractor, whenever it occurs.
(vi) Advice reasonable suggestions/solutions to the complainant in writing against receipt, if OPs found any deviation, etc. from the relevant sanctioned building plan, so that the work will proceed with as per relevant rules.
(vii) Statements of Probable construction cost. Consumer Complaint No.133 of 2016 4
(viii) OPs shall not make any deviations, alterations or omission from the approved drawings, involving financial implications without prior consent of the complainant in writing.
(ix) Any work done/alteration made/contract entered by OPs without written permission of complainant will not be binding on the complainant.
(x) This agreement represents the entire and integrated agreement between the complainant and the OPs and supersedes all prior negotiations, representations or agreements, either written or oral. This agreement may be amended only by written instrument signed by both complainant and OPs.
(xi) Nothing in the agreement shall imply a relationship of employment, agency association of persons, partnership or joint venture between complainant and OPs or between any persons engaged, respectively, by the OPs.
(xii) The services of the OPs ceases when the building is handed over to the complainant as per relevant rules.
(xiii) OPs professional fees for the above said services (architectural services, structure services, etc.) is inclusive of all taxes including service tax, etc. and will be Rs.70,000/- on lump sum basis through cheque or cash and this can be paid by the complainant, as per below said schedule:-Consumer Complaint No.133 of 2016 5
Supervised stages and its advance payments:-
I. Advance payments Rs.10,000/-
II. After issuance of DPC certificate Rs.20,000/-
by competent authority
III. After casting of roof slab Rs.15,000/-
(ground floor)
IV. After Flooring work is completed Rs.15,000/-
V. After completion certificate Rs.10,000/-
(xiv) The OPs will be entitled only to retain advance remuneration paid upto the stages of work, which has been duly completed under the supervision of the OPs.
(xv) If the OPs lack in its professional duties, the complainant is entitled to the losses, damages, compensation, etc. as decided by the competent court of jurisdiction. All the disputes are subject to the courts having jurisdiction in Chandigarh only.
After receiving the amount of Rs.30,000/- from complainants by OPs, they failed to provide the due documents, reports, certificates, etc. as per assurances and terms of contract till 08.03.2014. The complainants sent written reminder to OPs on 09.03.2014, but to no effect. OP no.1 sent email on 12.03.2014, which was wrong and misleading just to conceal the actual facts. The complainants requested OPs, vide letter dated 18.03.2014, to perform their duties, as per terms of contract dated 14.01.2014. Due to wilful negligence and deficiencies of service on the part of OPs, the complainants had to spend Rs.13,000/- to get the work checked below DPC level by Consumer Complaint No.133 of 2016 6 Chandigarh Administration Senior Architect, who found that there has been building plan violations from the very start of the foundation and OPs failed to report it to the complainants and misled them till date. The complainants have alleged deficiency in service and unfair trade practice on the part of OPs and prayed for following reliefs:
(i) OPs be directed to provide details of their all associates and due reports along with due stagewise statutory as well as contractual certificates, documents, etc. of the work supervised by them in respect to plot no.337, Sector 40A, Chandigarh.
(ii) To fulfil their obligations, as per terms of contract dated 14.01.2014 and to remove the defects or deficiencies in their services in question and not to repeat them.
(iii) To stop OPs from misleading bonafide consumers and punitive action may kindly be taken against OPs in the interest of justice.
(iv) to pay Rs.35,73,612/- with interest @12% per annum till its realization as loss suffered by complainants due to negligence of OPs.
(v) to pay Rs.3,00,000/- as compensation for mental harassment.
(vi) to pay Rs.50,000/- as cost of litigation.
2. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable and complainants have no locus standi to file the complaint. The Consumer Complaint No.133 of 2016 7 complaint is alleged to be false and frivolous. OP no.2 has no concern with the matter in controversy nor any agreement was signed by her with complainant no.1. Rather Randhir Garg is the sole proprietor of M/s Randhir Garg Associates and he has alone entered into agreement with complainant no.2 only. On merits, it is averred that as per the above agreement with complainant no.2, the revised building plan was to be submitted before the Estate Officer Chandigarh and the revised plan was also emailed many times by OP no.1. The email was sent to complainants so that they might put their signatures on the same as per rule no.7 of the Punjab Capital (Development and Regulation) Building Rules 1952. The person concerned at the same time submitted in triplicate duly signed by himself or his legally authorized agent or attorney. (1) a site plan detailed in Rule 8, (2) Plan elevations and sections of the proposed structure detailed in Rule 9 or 10, (3) drainage plans detailed in rule 11 and (4) the specification detailed in rule 12. Any change in the name of such architect shall be intimated to the Chief Administrator within seven days of the date of change. Complainant no.2 had approached OP no.1 for preparation of working drawings and submission of revised building plan of their plot with required changes as per terms of the agreement, but the same was not signed by the complainant, as required by Rule, so the same could not be submitted. The complainants have not mentioned condition no.1, (iii) and (v) of the agreement deliberately. The complainants have been litigating with the construction contractor before District Consumer Complaint No.133 of 2016 8 Forum concerned. A local commissioner was appointed and his report went against the complainants and objection of complainants thereto were also dismissed therein. The construction was stopped by construction contractor due to dispute raised by the complainants on 28.02.2014 with him. OP no.1 has completed the services, as per agreement upto the stage of issuance of DPC certificate. Any deficiency in service was denied on the part of OPs in this case. Even the report of senior architect did not mention a word of blame against OP no.1. OP no.1 controverted the other averments of complainants and prayed for dismissal of the complainant.
3. OP no.2 filed its separate written reply by raising preliminary objections that complainants have no locus standi to file the present complaint. OP no.2 has no concern with the matter in controversy nor any agreement was signed by her with complainants. On merits, it is averred that OP no.2 has nothing to do with the matter in controversy whatsoever, as there was no agreement between the complainants and OP no.2. OP no.2 has prayed for dismissal of the complaint.
4. We have heard complainant no.1 in person and have also gone through her written points on the record and have also heard counsel for respondent no.1 and examined the record. The controversy in this case before us is as to whether this Forum has pecuniary jurisdiction to try the complaint or not. The pleadings of the parties have been considered by us. The agreement, which was entered into between the parties is dated 14.01.2014. The Consumer Complaint No.133 of 2016 9 complainants hired the services of OP no.1 for providing the architectural, structural and valuation services. The total consideration of this agreement dated 14.01.2014 between the parties is Rs.70,000/- only. The amount was to be paid, as stated below by complainants to OP no.1:
IV. Advance payments Rs.10,000/-
V. After issuance of DPC certificate Rs.20,000/-
by competent authority
VI. After casting of roof slab Rs.15,000/-
(ground floor)
VI. After Flooring work is completed Rs.15,000/-
VII. After completion certificate Rs.10,000/-
The payments were to be released by complainants to OP no.1 as per the schedule provided in agreement between the parties. The core controversy in this case is as to whether this Forum has pecuniary jurisdiction to try the case or not. The agreement, which is the bone of dispute in this case between the parties is of consideration of Rs.70,000/- only. The contention of complainants is that it is sale consideration amount of the plot Rs.38,50,000/-, which is to be taken as consideration in this case. The counsel for OPs argued against it. We find no force in the submission of the complainant no.1 because sale price of the plot is not in controversy in this case. The controversy in this case is the agreement of service entered into between the parties on 14.01.2014, wherein consideration amount is Rs.70,000/- only. The grievance of complainants is that OPs have not rendered the architectural and Consumer Complaint No.133 of 2016 10 structural services, as required by the above agreement in this case. The consideration amount of agreement is Rs.70,000/- only, but complainants brought the attention of this Forum to this point that they claimed compensation of Rs.35,98,612/- with interest @12% per annum for deficiency in service, Rs.3,00,000/- for mental harassment and Rs.50,000/- as cost of litigation. The submission of counsel for OP no.1 is that compensation has to be reasonable for actual loss sustained by the parties only. The complainants relied upon law laid down by the Apex Court in "Ghaziabad Development Authority Vs. Balbir Singh" in appeal (civil) 7173 of 2002, decided on 17.03.2004 and in case titled as "Charan Singh Vs. Healing Touch Hospital and others" decided by the Apex Court on 20.09.2010 without any number of the case. The Apex Court held that grant of compensation should be reasonable, fair and proper in the facts and circumstances of the given case according to established judicial standards for actual loss. Negligence without actual loss by tort-feasor is not actionable. The complainants claim loss of Rs.35,00,000/- as deficiency in service on the part of OPs for the loss sustained by them. The counsel for OPs argued that this is a fanciful and exaggerated claim by the complainants in this case just to harass OPs only. The counsel for OPs brought our attention to the photographs on the record whereby the construction of the house is only shown at the initial stages. It was submitted that since, the photographs, as placed on record do not depict the completion of construction and these show it at initial stages of construction and as Consumer Complaint No.133 of 2016 11 such the compensation of Rs.35,00,000/- for deficiency in service and loss suffered by them and Rs.3,00,000/- for mental harassment, as claimed by complainants is only an exaggerated and incredible one just to file the complaint before this State Commission. We agree with the submission counsel for OPs on this count, as the photographs shown at page no.53 to 63 of this file show that the construction of the house is at initial stage and no lintel has been put on it as yet. The submission of counsel for OPs, on the basis of this photographs, is that the claim of the amount of compensation of Rs.35,00,000/- whereas the service agreement between the parties is only to the tune of Rs.70,000/-.It is totally incomprehensible and incredible one. The submission of counsel for OPs is that at the initial stages of the construction, as shown in the above photographs, it cannot be said that OPs caused any colossal loss as alleged by complainants in this case to the tune of Rs.35,00,000/-.
5. The National Commission has examined this controversy in "Tony Tom Vs. M/s Nissan Motor India Pvt. Ltd. & others"
2017(3)CPR-368 and held that complaint filed with inflated claim with a view to increase the pecuniary value of the case in order to bring it within pecuniary jurisdiction of National Commission. Compensation claimed is highly unreasonable and exaggerated. It appears that complainant has made prayer for highly unreasonable compensation with a view to defeat the hierarchy of the pecuniary jurisdiction of the Forums. The issue raised was held not to be within the pecuniary jurisdiction of the Forum and hence the complaint was rejected for Consumer Complaint No.133 of 2016 12 lack of pecuniary jurisdiction in the cited authority. The National Commission has further examined this point in "Capt. G.N. Venkar Rajaram & others Vs. American Airlines Group Inc. and others"
2018(2)CLT-319/320 and held that even taking the case set up in the complaint and the supporting documents at their face value, the claim made appears to be ex-facie unusually high without any basis, a Consumer Fora would be justified in declining to admit the complaint and relegating the complainant to an appropriate Forum. The National Commission has also held in "Ashok Kumar Goel Vs. Branch Manager, ICICI Bank" consumer case no.1520 of 2015, decided on 21.01.2016 that the tendency to file exaggerated and unfounded claim only with a view to bypass the jurisdiction of Forum has been disproved by this Commission in a number of cases. The National Commission further observed, as to whether the claim in complaint, is realistic, exaggerated or excessive is the yardstick of the matter. The National Commission has also held in the cited authority by rejecting the contention of complainant that complainant was free to claim the compensation as per his own assessment, keeping in view the extent of the loss and the injury suffered by him and that complaint could not be disposed off at a preliminary stage on the ground that claim was exaggerated was not accepted by the National Commission. The order of the National Commission has been approved by the Supreme Court, vide order dated 14.10.2011 in Civil Appeal no.8642 of 2011. In this authority, the National Commission has taken the view that it is necessary to curb such Consumer Complaint No.133 of 2016 13 tendencies, so that the mechanism prescribed in the Consumer Protection Act for redressal of the grievances of a consumer is not distorted. The claim being highly, excessive and unrealistic, made with a view to bypass the Fora below was dismissed by the National Commission with liberty to file a suitably amended complaint before an appropriate Forum. The National Commission has also held in "Sujata Nath Vs. Popular Nursing Home and others"
III(2011)CPJ-239(NC) that complainant has not disclosed basis for arriving at compensation of Rs.1.5 crores. Consumer Forum can grant compensation on defect or deficiency being established and it has to be commensurate with loss or injury suffered by complainant and cannot be arbitrary, imaginary or for a remote cause.
6. In view of law laid down by the National Commission in above referred authorities, which is applicable to the case in hand, we find that the complainant has just inflated and exaggerated the claim under the head of deficiency in service loss and for mental harassment, so as to bring the claim within the jurisdiction of this State Commission. The claim cannot be said to be realistic and it is exaggerated not in proportion to any alleged loss to the complainants. Consequently, the compliant is ordered to be dismissed by giving them liberty to file it before appropriate Forum. The complainants can invoke the provisions of Section 14 of Limitation Act, 1963 in this regard before competent Forum. Consumer Complaint No.133 of 2016 14
7. Arguments in this complaint were heard on 03.08.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 09, 2018.
(MM)