Jagmohan Swamidas Chandrani vs Vivekta Designs

JAGMOHAN Swamidas Chandrani (hereinafter referred to as the ''Appellant '') has filed the present appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ''State Commission '') which had dismissed his complaint against Vivekta Designs (hereinafter referred to as the ''Respondent '').

THE Appellant in his complaint before the State Commission has contended that he had entrusted the interior decoration of his Flat No. D, Paramount, 25-B, Ballygunge Circular Road, Kolkata to the Respondent on 27.1.2005 initially for Rs. 19,96,250 which after negotiations was settled at Rs. 17,50,000 and an advance of Rs. l lakh was given. Thereafter another advance of Rs. 11,75,000 as demanded by Respondent was given for buying raw materials, wood, electrical cables, switches etc. which would facilitate completion of work. Appellant also executed an MoU with the Respondent confirming the negotiated price of Rs. 17,50,000 and detailing the actual works to be undertaken. However, the scope of work and its value was again revised to Rs. 9,75,000 and on demand by Respondent, another sum of Rs. 50,000 was advanced with an assurance from Respondent that the final adjustment based on the bill of the revised work valued at Rs. 9,75,000 would be made. However, the Respondent did not adhere to its assurances regarding completion of work and on pointing these out to Respondent, Respondent demanded more money to complete the work. Since, this was a settled issued, Appellant did not agree to pay any more money after which Respondent unilaterally withdrew its workmen and left the entire place in shambles without completing the work. Since there was no response from Respondent on repeated calls made by the Appellant, he got an assessment of the work done by approved Valuers who stated that it came to only Rs. 5,16,490. Appellant therefore asked the Respondent to refund an amount of Rs. 6,58,510 which he had paid in advance. Appellant also had to get the work completed by another agency to make the place habitable and in the meantime, he had to live in rented premises which cost him Rs. 1,45,750. Since the Respondent did not respond to the Appellant ''s notices, he filed a complaint before the State Commission on grounds of deficiency in service and requested for a refund of Rs. 6,58,510 taken in excess by the Respondent without completing the corresponding work as also compensation of Rs. 15,50,000 for causing mental agony and harassment to him as well as to his aged parents. 3. Respondent while admitting that an advance amount of Rs. 11,75,000 was paid by the Appellant to the Respondent only after he was satisfied with the work done by the Respondent, stated that some non-estimated works amounting to Rs. 3 lakh were also undertaken by Respondent subsequently at the behest of the Appellant and a letter enclosing a statement of accounts detailing the said non-estimated works as also supervision and execution charges totalling Rs. 5,75,000 which was payable by the Appellant was sent to him which was accepted without any demur. Appellant, however, failed to make the payment and therefore, the Respondent could not complete the interior works because of default in payment on the part of the Appellant for which Respondent cannot be held responsible. Respondent further stated that it had no knowledge nor was it informed about the appointment of any Valuer which was done behind its back and without giving an opportunity to intervene in the matter. Respondent had also written to the Appellant in this connection. Therefore, it was the Appellant who was guilty of committing breach of terms of payments by not paying the Respondent ''s legitimate dues and appointing a Valuer behind Respondent ''s back, thus causing unnecessary misery and financial suffering to the Respondent.

THE State Commission after hearing the parties and on the basis of evidence filed before it, dismissed the complaint. The operative part of the order of the State Commission is reproduced: "Admittedly the OP took a sum of Rs. 11,75,000 as advance from the Complainant for doing the job entrusted on him by the Complainant towards interior decoration of the disputed premises. According to the Complainant, out of this amount Rs. 5,16,490 was assessed by his valuer as the value of work actually done by the O.P. and consequently a sum of Rs. 6,58,510 becomes due to the Complainant from the O.P. as the money which has been advanced but against which work has not been done. The O.P. has strongly disputed this contention of the Complainant on the ground that such report of any valuer as allegedly appointed by the Complainant cannot be acceptable to the O.P. because such survey and assessment it at all done by the valuer, as alleged was not done to the knowledge or in the present of the O.P. and the O.P. cannot be bound by any such unilateral action of the Complainant. Such a contention of the O.P. in our considered view is quite substantial. Such alleged inspection and assessment of the work done by the O.P. in the disputed premises of the Complainant having not been privately done in the presence of the O.P. under the principle of natural justice the report of the valuer on the basis of such a unilateral inquiry and assessment by the valuer is hit. The learned Lawyer for the Complainant has argued that this valuer ''s report has not been challenged by the O.P. But this is not correct. The O.P. has in its Written Version denied the genuineness of such a report. Moreover, the Complainant has failed to show that he informed the O.P. about such survey work to be done by his valuer beforehand or that it was in the knowledge of the O.P. In the absence of proof of service of any such notice being issued by the Complainant as alleged, it must be held that such one sided report of valuation cannot be accepted, it would be most unjust and improper to do so. The Complainant could have made a prayer before the Court during trial of this case for having a fresh survey by a valuer being appointed by the Court, but he had not chosen to do so. In such circumstance, the valuer ''s report relied upon by the Complainant cannot in our view provide any dependable evidence for the purpose of coming to the finding that the work already done by the O.P. is valued at Rs. 5,16,490 as alleged and the work omitted to be done by the O.P. as alleged is assessed at Rs. 6,58,510 as claimed by the Complainant It is the case of the O.P. that the total amount on account of deletion from the scope of work was a sum of Rs. 4,75,000 and not Rs. 5,04,102 and a further sum of Rs. 2,70,000 on account of adjustable mode of Jaguar, Hydrobath, Parents Room, Glass Panel was further reduced from the scope of the work and thus, according to the O.P., a total sum of Rs. 7,45,000 and not Rs. 9,75,900 as falsely alleged by the Complainant was deleted. It is the further case of the O.P. that the Complainant paid a sum of Rs. 11,75,000 in advance after he was satisfied about the work done by the O.P. in terms of the Agreement and not otherwise and now after the O.P. has done his job perfectly in terms of the Agreement and when the Complainant is rather required to pay some outstanding sum due to the O.P. in terms of the settlement of Accounts which he enclosed with his letter dated 22.6.2005 has not been falsely claiming such an amount of Rs. 6,58,000 on the basis of his self-styled valuer ''s report which was obtained by him unilaterally and arbitrarily to the ignorance of this O.P. The Complainant has failed to adduce sufficient evidence to show that these allegation are false or unworthy of acceptance and the allegation made by him are correct. The Complainant has claimed a sum of Rs. 1,45,750 on account of rent which he had to pay as alleged for his tenanted house for the extra period (from 16.5.2005 to 31.10.2005 i.e. 5.5 months @ 26,500) during which he had to allegedly live in such rented house as a result of the work of interior decoration undertaken by the O.P. having not been completed within the scheduled time. But in respect of such a claim the Complainant has not adduced an iota of evidence. Not a single scrap of paper has been filed to show that he had to live in such rented house or he had to pay rent at such a rate or of such an amount as claimed. Therefore, without proof being furnished of the same, such an allegation cannot be taken as established. "

Hence, the present appeal.

COUNSEL for both parties made oral submissions. Counsel for Appellant while reiterating the stand taken by the Appellant before the State Commission contended that the State Commission erred in not taking cognizance of the Report of a well reputed Valuer giving specific details under various heads as also the description of the actual work done by the Respondent, the estimated cost of which amounted to only Rs. 5,15,490 whereas Appellant had made advance payments of Rs. 1,00,000, Rs. 11,75,000 and Rs. 50,000. Since, Respondent had refused to complete the work and did not respond to any of the repeated calls made by the Appellant, he had no option but to seek refund of the amount already paid to the Respondent for which no work was done as also compensation for mental agony etc. Counsel for Respondent on the other hand contended that the State Commission had rightly dismissed the Appellant ''s complaint by not taking cognizance of the Report of the Valuer which was done behind the Respondent ''s back and without giving it any opportunity of countering the same. Further, the Valuer who prepared the Report was not produced as a witness by the Appellant thereby depriving the Respondent of an opportunity to cross-examine him and challenge his conclusions regarding the actual expenditure incurred. Counsel for Respondent further stated that there were valid reasons for the Respondent not being able to complete the work because of non-ï¿ 1/2payment of legitimate demands as contended before the State Commission for which it could not be held responsible.

WE have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Appellant had entrusted interior works of his Flat to the Respondent initially for Rs. 19,96,250 which was subsequently revised to Rs. 17,50,000 and thereafter to Rs. 9,75,000 and also the fact that the Appellant had paid an advance of Rs. 1 lakh, Rs. 11,75,000 and Rs. 50,000 to the Respondent are not in dispute. It is also admitted by both Appellant and Respondent that the work could not be completed following a dispute regarding both payment and the actual interior work undertaken by the Respondent which led the Appellant to seek redressal before the State Commission. The Appellant in his complaint before the State Commission has filed a Report of the Valuer to substantiate his findings that not only was the work not completed but also that it was valued at much less than the amount projected by the Respondent. The State Commission had not taken cognizance of the Report and assessment of the Valuer on the grounds that this was done behind the back of the Respondent and thus denied the Respondent an opportunity to verify or counter the basis and veracity of the valuation/assessment. The Valuation Report was thus one-sided. We agree with this finding of the State Commission. Further, the Appellant could have either made a prayer before the State Commission for getting a fresh survey done by a Valuer appointed by the Court or putting the Valuer on the witness stand so that Respondent would have had an opportunity to cross-examine him which he failed to do. It is well established that mere production of a document does not amount to proof of its veracity. In the instant case, the Appellant on whom there was onus to prove the authenticity or veracity of the Valuation Report filed by him, has failed to do so and, therefore, no evidentiary value can be attached to such a document to prove the Appellant ''s case. We further note that the Appellant has also not been able to produce any evidence to quantify the financial loss for physical and mental agony suffered by for which he has sought compensation. Keeping in view these facts, we agree with the findings of the State Commission in toto. This First Appeal having no merit is accordingly dismissed. No costs. First Appeal dismissed.