State Consumer Disputes Redressal Commission
Dr.Deepak Parikh vs M/S.Home Makers Interior Designers & ... on 6 May, 2024
1 (CC/19/619)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/19/619
Dr. Deepak Parikh
04, Stone Valley Apartment,
Sector 6, Plot 8,
Opp Shah Arcade,
Kharghar,
New Mumbai 410 201. Complainant
Versus
M/s. Home Makers Interior Designer
and Decorators Private Limited
Through its Directors & Worker
1. Mr. Shishu Naharsingh Yadav
A/1702, Evershine Cosmic,
Opp Infinity Mall,
Off New Link Road,
Andheri (W),
Mumbai 400 053.
2. Ms. Shreya Shishu Yadav
A/1702, Evershine Cosmic,
Opp Infinity Mall,
Off New Link Road,
Andheri (W),
Mumbai 400 053.
3. Mr. Shashi Shishu Yadav
A/1702, Evershine Cosmic,
Opp Infinity Mall,
Off New Link Road,
Andheri (W),
Mumbai 400 053.
2 (CC/19/619)
4. Mr. Subodh Yadav
A/1702, Evershine Cosmic,
Opp Infinity Mall,
Off New Link Road,
Andheri (W),
Mumbai 400 053. Opponents
BEFORE :
Mr. Mukesh V. Sharma, Presiding Member
Dr. Satish A. Munde, Member
PRESENT:
For the Advocate Ashok Shekade
Complainants(s):
For the Advocate Hardik Shah i/b
Opponent(s): Advocate Uday Wavikar
-:JUDGMENT-:
(Dated: 6th May, 2024)
Per : Hon'ble Dr. Satish A. Munde, Member-
1] Complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986.
The brief facts of the complaint are as under -
The Complainant states that the Opponent M/s. Home Makers Interior Designer and Decorators Private Limited is a Private Limited Company (but no any number is given in complaint) engaged in Home Interior business under the name and style of 'Home Makers Interior Designers and Decorators Private Limited'. Opponent Nos.1 to 3 namely Mr. Shishu N. Yadav, Ms. 3 (CC/19/619) Shreya S. Yadav and Mr. Shashi S. Yadav are the Directors of the said Company and the Opponent No.4 namely Mr. Subodh Yadav is the Manager of the said Company.
2] The Complainant states that the Complainant has a flat in Rasayani bearing Flat No.503, Hermes Tower, Hiranandani Fortune City Township, Bhokarpada, Rasayani, Taluka Panvel District Raigad. The Complainant contacted Mr. Shishu Naharsingh Yadav and discussed his requirements and then on 04/08/2018, the Complainant and his wife had meeting with his assistant Mr Subodh at his own residence in Kharghar. After that meeting, the Opponent sent quotation on email to the Complainant and for sum of Rs.26,40,000/- and work described with quotation. The quotation was approved by the Complainant and the Opponent informed the Complainant that they want 50% amount in advance as per the Company's policy of work. Accordingly, the Complainant had transferred by way of NEFT/RTGS and cheque sum of Rs.12,50,000/- to the Opponent company.
3] The Complainant further states that, the Complainant handed over the keys of the flat to Mr Shishu Yadav and Mr. Subodh on 13/12/2018 and the Opponents assured to start the work immediately. The Complainant states that the poor-quality material was brought without Complainant's knowledge and permission and even invoice and details of the material were neither shared with the Complainant nor approved by him. When the Complainant enquired on phone on 12th December about the progress of the work, the Complainant was shocked to know that 4 (CC/19/619) no work has been started. The Complainant further submitted that the Opponents informed that the work will be over by February end. Further the Complainant states that Opponent used unparliamentary language very furiously with Mrs Arpita Parikh. The Complainant alleged that the Opponent's behaviour and mannerism were completely of awful. The Complainant states that the Opponent did not do any single work as assured. Further the Complainant alleged that the opponent abused the Complainant in very filthy and uncultured language.
4] The Complainant states that, on 6th January, the Complainant e-mailed Mr. Yadav and asked why they have stopped the work of his flat. The Opponent i.e. Mr. Yadav made some silly excuses not to proceed with the work and agreed and committed that the closure of work was his own decision. Next day when the Complainant called him, at that time, the opponent's said they are not willing to work anymore and will refund the full money to the Complainant. However, when after 2 days Complainant did not get any communication as regards to money the Complainant was shocked to learn that rather than refunding the amount, the Opponent has asked for Rs.6,00,000/- more. That means total of Rs.18,00,000/- and that too with hardly any work. This additional bill was completely fabricated as they did not want to refund any money.
5] The Complainant states that the Opponent had failed to give any 2D or 3D design with specific measurement. The opponent had initially agreed to give the 3D design seen on their website.
5 (CC/19/619) They have not given any presentation nor discussed the details of the material to be used. The Complainant states that, the opponent's aim was only to cheat the customer and harass the customer.
6] The Complainant further states that, the complainant handed over 3 sets of his flat keys to the opponent which was not returned by the opponent for around 4 months and was forced to take help of Navi Mumbai Police Commissioner to get the keys back. Further, the Opponent dumped their worthless articles and garbage in the Complainant's flat hence, the Complainant's flat is not in use for last 8 months and thus for 8 months it caused inconvenience to the complainant. The Complainant is forced to stay in rental apartment and forced to raise expenses of Rs.25,000/- per month for 8 months nor he could rent out his Apartment.
7] The Complainant further submitted that, the FIR against Opponents is registered in Kharghar police station under section 406, 420 and 506 of IPC. The Complainant states that, during the investigation and interrogation by police found that the Opponents have habitual record of cheating. Also, on Google reviews several peoples marked and shared their bad experience with the Opponents.
8] The Complainant further states that, he sent legal notice dated 5th June, 2019 to the Opponents through Advocate but it was not responded by the opponents. Hence, the present 6 (CC/19/619) complaint against the Opponents for deficiency of service and unfair trade practice under section 2(1)(d) and 2(1)(g) of the Consumer Protection Act, 1986. The Complainant prayed for refund of Rs.24,00,000/-, Rs.3,00,000/- as mental torture and compensation and Rs.2,00,000/- as litigation charges. The Complainant has annexed the documents in support of his claim such as copy of quotation, copies of communication between the parties and email exchanged with each other, copies of payment and bank statements, copies of photographs of poor quality material, copies of photographs of flat, copies of emails, copies of WhatsApp chats, copies of screenshot taken from Opponent's website which shows that Opponents have offered free 2D and 3D designs, copies of written complaint to police station and FIR, copies of Email communication with Mrs. Jeiny Maliya, copy of legal notice and track report and other relevant documents.
9] The complaint was admitted and notices were issued to the Opponents. The Opponents appeared and filed written version commonly. The Opponents have raised the issue of pecuniary jurisdiction and mis joinder of parties. The Opponent Nos. 2 and 4 filed application seeking deletion from the array of parties.
10] The brief facts of the case of opponents are as under-
The Complainant approached the opponents for the interior design and decoration for their flat situated at Panvel. The Opponents are into the business of interior designing and decoration since last 30 years and has well experienced in the field of interior design and decoration. The Opponents gave a quotation 7 (CC/19/619) to the Complainant amounting to Rs.26,42,620/- dated 12/09/2018. The same was accepted by the Complainant and the Complainant made initial payment of Rs.2,50,000/- on 12/10/2018 and the 3D designs was started for the flat of the Complainant. Thereafter, a common WhatsApp group was created by the opponents and the Complainant and his wife were also added, so that they can be kept in loop for their ongoing work at site and sharing of 3D designs and information of work can be made available to them. After receiving the initial advance of Rs.2,50,000/- Opponents made the 'N'-number of 3D designs for interior of the said flat, for the convenience designs were shared in the common WhatsApp group created by the opponents. Thereafter, the Complainant finalized few designs as per the quotation given and subsequently paid Rs.5,00,000/- on 28/11/2018 and Rs.5,00,000/- on 10/12/2018. Accordingly, Opponents ordered raw materials i.e. plywood, Gypsum board, PVC floor protector and other allied material required for the interior renovation work. After the finalization of the said design the Complainant and his wife kept on changing the 3D designs which took a lot efforts and time of the opponent, still the opponents happily provided more designs, which took them great time and efforts to make.
Finally, after giving the designs the Complainant wanted to change the major structure of the design in the flat. Therefore, the opponents said that this would incur the additional expenditure, as the whole quotation has to be revised. To this, the wife of the Complainant kept on unnecessarily arguing and exchanged some heated words with the employees and Directors of the Opponent 8 (CC/19/619) Company and kept on continuously demanding new 3D designs just to harass the opponents and kept on blaming, insulting, making personal allegations and using foul language with the team of the opponents. The work was never stopped by the opponents but the Complainant failed to agree on revised quotation.
In between sharing of heated words by the Complainant's wife Mrs. Parikh with the team of the opponent Company. The Complainant- Mr Parikh himself told the Opponents to hold the work for sometime. After all such incidents, suddenly wife of the Complainant started demanding the refund of money. The Complainant by using some influential sources, registered false FIR against the employees and the Directors of the Opponent just to harass and make false criminal case and to extract money from the Opponents. The Opponents had already worked on the said project and 3D designs for days and hours and also incurred cost on procurement of the raw material for the interior work of the Complainant's flat. Hence, it was impossible for the opponent to refund the money in such situation. Already a lot of time and money was spent by the opponents on the said project.
The Opponents were always ready and willing to work but the Complainant's wife created such miserable situation for the employees and team of the opponent, it was made impossible for them to execute the work in such a situation. The Complainant has just made out a false case of deficiency in service and unfair trade practice against the Opponents and the opponent states that legal notice of the Complainant was replied but returned as unaccepted. From the forgoing paras, it is crystal clear that the Complainant himself is liable and has come with unclean hands 9 (CC/19/619) and the opponents have never stopped the work. Therefore, just to harass the opponents and to earn handsome ransom, the Complainant approached this Commission and filed false and frivolous complaint and the present complaint is liable to be dismissed with compensatory costs. The Opponents have annexed the documents in support of their case such as copies of Company Master Data, quotation copies, copies of 3D designs, copies of WhatsApp chat, copies of purchase bill and invoice, copy of revised quotation, copies of website pages, copy of terms and conditions of agreement copies of original Google reviews, copies of reply of notice.
11] Both the parties have filed their evidence and the written notes of argument and the matter was finally heard.
12] After considering the complaint, the written version, evidence and the written arguments following points arise for our determination. We have recorded our findings for the reasons given below-
Sr.No. POINTS FINDINGS
1 Whether the Complainant is a In the affirmative
consumer as contemplated u/s
2(1)(d) of the Consumer Protection
Act, 1986?
2 Whether the complaint is within In the affirmative
the pecuniary jurisdiction of this
Commission?
10 (CC/19/619)
3 Whether the Opponent No.2 and In the negative as to
No.4 are entitled to be deleted Opponent No.2 and from the array of parties? in the affirmative as to the opponent No.4.
4 Whether the Opponents have In the affirmative committed deficiency in service to the Complainant?
5 What order? As per final order :- REASONS :-
As to the Point No.1- 'Consumer' 13] The transaction between the parties is not denied. The Complainant has paid Rs.12,50,000/- to the Opponents vide various cheques/NEFT/RTGS. The said amount is admitted by the opponents. Furthermore, the quotation dated 12/09/2018 for Rs.26,42,620/- issued by the opponents is also not disputed by the parties. Hence, it is proved that the complainant has availed the service of Opponent No. 1. According to Section 2(1)(d) of the Consumer Protection Act, 1986, the term 'consumer' includes any person who hires or avails of any services for a consideration, which covers the Complainant in this case. Hence, the point No.1 is answered in the affirmative.
As to the Point No.2- 'Pecuniary jurisdiction' 14] The present complaint is filed under section 12 of the Consumer Protection Act, 1986. In the present complaint, the 11 (CC/19/619) Complainant has claimed total amount more than Rs.20,00,000/-
The Opponents have objected on the ground that the Complainant has paid the amount that is less than Rs.20,00,000/-. It is to be noted that, as per section 17 of the Consumer Protection Act, 1986 this Commission can entertain the complaint if the value of goods or services and compensation exceeds Rs.20 lakhs but does not exceed Rs.1 crore. Hence, we answer point No. 2 in the affirmative.
As to the Point No.3- 'Deletion of Opponent No.2 and No.4' 15] The Opponents filed the written version and disputed the joinder of the parties in the present complaint. The Opponents stated that the Complainant had unnecessarily impleaded the present Directors and former Directors employees to the present complaint, which has no privity of contract with the Complainant and the complainant has abused the process of law to harass the Opponents. Furthermore, the Opponent Nos. 2 and 4 have filed applications dated 16th January, 2020 seeking deletion from the array of parties in the present complaint. In the present application, it is stated that, the Opponent No.1 and 3 are the Directors of the Opponent Company 'M/s. Home Makers Interior Designer and Decorators Private Limited'. Further, it is stated that the Opponent No. 2 is presently not a Director of the Company. The Opponent No. 2 was a director in the year 2015 long ago and hence Opponent No.2 should be deleted from the present complaint. Further it is stated that, the Opponent No. 4 is no more working with the Opponent No.1. The Opponent No. 4 has stated that he was an employee and has no privity of contract and hence be deleted and discharged from the complaint.
12 (CC/19/619) 16] The Complainant filed reply on the said application and denied the contentions of the said application. The Complainant has stated that the Opponent Nos. 2 and 4 were actively involved in the said contract. The Complainant has annexed copy of relevant documents from the website of Ministry of Corporate Affairs at page No.194 which shows that the Opponent No.2 was ceased her office of director on 6th May, 2019 i.e. after the date of disputed transaction in the present complaint. Hence, the Opponent No.2 cannot be deleted from the array of parties. The record shows that the Opponent No. 4 is an employee of the Opponent Company. Hence, he is released from the liability though he was involved in the disputed transaction between the parties. The principle of vicarious liability does not hold the employee responsible for acts done on behalf of the employer without direct involvement in the contractual agreement. Moreover, the Opponent No. 2, being a former director, cannot be absolved of liability for actions taken during his tenure. Hence, the Point No.3 is answered in the negative in respect of the Opponent No.2 and in the affirmative in respect of the Opponent No. 4.
As to the point No. 4 - 'Deficiency in service' 17] Heard both the parties. Perused the record. The transaction between the parties is not disputed. The opponent had issued quotation dated 12/09/2018 to the Complainant and the same is approved by the Complainant (page No.C-12 to C-18). Having trust on the opponents, the Complainant paid the amount totalling to Rs.12,50,000/- to the opponents vide NEFT /RTGS and cheques.
13 (CC/19/619) The copies of details of payment and bank statement are annexed at Exh.-C. The said payment is admitted by the opponents also.
18] The record shows that in pursuance of the said transaction, heated words are exchanged between the parties in pursuance of the said transition. It is resulted into the closer of work suo moto by the Opponent No.1 (email dated 6th January 2019 at page C-6) and agreed to settle the accounts of the Complainant and to hand over the keys to the Complainant. But the Opponents neither handed over the keys nor refunded the money. The Complainant was compelled to take the help of police to recover the said keys of the Complainant.
19] Thus, the main dispute arose between the parties as to failure to start the work immediately by the opponents, as to the poor- quality material, refused to complete the work and keeping the keys of house with Opponents and compelling the Complainant to take the assistance of police machinery and ultimately to lodge the FIR.
20] Advocate for the Opposite Parties referred and relied upon the Judgment passed by this Commission in FA/12/56 in the case of Mr. Ramesh Mehta Vs. Mr. Nipun Mistry. Upon perusal, it is evident that the facts of that judgment are not similar to the present case. In the referenced case, the goods were purchased by the daughter and son-in-law of the Complainant, whereas, in the present case, the Opposite Party could not even prove the purchase or delivery of any material/goods to the Complainant's house, 14 (CC/19/619) where the interior work was supposed to be carried out. Furthermore, in the referenced case, certain antique pieces were missing, but the Complainant had not lodged an FIR. In disparity, in the present case, the Complainant has lodged an FIR against the Opposite Parties, which is pending before the Competent Court. Hence, in our opinion the judgment is not useful for the Opponents.
21] Advocate for the Opposite Parties further referred to and relied upon the judgment passed by the State Commission of Telangana in FA/195/2015 in the case of V. Sathish Vs. Indian Interior Designers. The facts mentioned in that judgment are not similar to the present case. In the referenced case, the allegations were of using inferior quality materials and delay in completion of work. Further, the legal notice was sent by the Complainant to the Opposite Party, claiming that 10 to 15% of the work was yet to be completed and asking for its completion within 15 days. After receiving the notice, the Opposite Party expressed willingness to identify defects or unfinished work, but the Complainant did not come forward. Additionally, there was a pending amount due from the Complainant to the Opposite Party. Although photographs alone cannot determine whether inferior materials were used or inferior work was done, in the present case, the foremost allegations against the Opponents are refusal to complete the work and keeping keys and compelling the complainant to take the assistance of police machinery and to lodge FIR, which caused undue harassment to the complainant. Hence, the present case is different from the referenced case and in our considered opinion not useful to the Opposite Parties.
15 (CC/19/619) 22] In light of the above discussion and considering the facts and circumstances of the case, the record, and the proceedings, it is clear that the Opponents committed deficiency in service by not fulfilling their obligation as agreed in the said transaction. Section 2(1)(g) of the Consumer Protection Act, 1986 defines 'deficiency' as any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance required by or under any law or in pursuance of a contract or otherwise in relation to any service. The Opponents' actions fall squarely within this definition. The complainant's evidence corroborates the breach of contract and failure to provide the agreed-upon services, thus fulfilling the requirements for establishing deficiency in service. By looking at the photographs certainly we cannot determine whether the material used by the Opponents are of poor quality also it is not a main issue here, but the Opponents stopped their work due to exchange of heated words among the parties then they must have settled their accounts with the complainant by refunding the excess amount, but without settling the accounts, with ulterior intention and to avoid the refund the Opponents had sent further bill of Rs. 6,00,000/- to the Complainant. Here if it is contention of the Opponents that they have done work of Rs. 18,50,000/- which is around 75 % of entire quotation, then burden lies on the Opponents to prove that they have done approximately 75 % of work and burden does not fall on complainant. Further the Opponents have annexed certain bills of goods / material but bills do not prove that the goods / material were supplied or utilized to the house of the complainant for interior work. The goods were ordered from Andheri (Mumbai) to Panvel (Navi Mumbai) having 16 (CC/19/619) distance of around 40 KM and delivery destination is Panvel Site. Opponent is having several customers, miserably failed to prove material / goods is used at complainant house or delivered to Complainant house. As such, the point No. 4 is answered in the affirmative. Keeping in mind the doctrine of preponderance of probabilities and in the interest of justice, we pass the following order:
:- ORDER :-
[1] The complaint is partly allowed against the all Opponents except Opponent No. 4 and dismissed against the Opponent No.4.
[2] The all Opponents except Opponent No. 4 jointly and severally are directed to refund amount of Rs.12,50,000/- (Rupees Twelve Lakh Fifty Thousand only) to the Complainant with interest at the rate of 7 % per annum from the date of its respective payments.
[3] The all Opponents except Opponent No. 4 jointly and severally are directed to pay sum of Rs.1,00,000/- (Rupees One Lakh only) to the Complainant toward compensation for mental and physical harassment.
17 (CC/19/619) [4] The all Opponents except Opponent No. 4 jointly and severally are directed to pay sum of Rs.25,000/- (Rupees Twenty-Five Thousand only) to the Complainant towards costs of litigation.
[5] This order to be complied within period of 30 days failing which Opponents shall be liable to pay interest at the rate of 12% per annum till its realization.
[6] The Copy of this order be supplied to the both parties free of costs.
[ Mukesh V. Sharma] Presiding Member [Dr. Satish A. Munde] Member rsc