H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 146/2008.

Date of Decision 23.3.2009.

Sh. Duni Chand Goel S/o Sh. Matkoo Ram,

Robroy Building, Talland, Shimla-1, HP.

……..Appellant.

Versus



1. Asha Tandon D/o late Sh. Ram Chand Tandon, presently

Govt. Employee, Ro C/o Sh. GK Tandon, Kings Hotel,

4th Floor, Set No.5, Near Honeymoon Inn, Shimla-1, HP.,



2. Shiv Kanta D/o Late Sh. Ram Chand Tandon, Ro C/o Sh. GK

Tandon, Kings Hotel, 4th Floor, Set No.5, Near Honeymoon

Inn, Shimla-1, HP.

…….Respondents.



Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? Yes.



For the Appellant. Mr. R.S. Kanwar, Advocate.



For the Respondents. Mr. Surinder Thakur, Advocate vice counsel

Mr. Prem P. Chauhan, Advocate.



O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



While allowing complaint No. 485/2003 filed by the respondents, District Forum Shimla has ordered the appellant to pay a sum of Rs. 60,000/- to them with interest @ 9% per annum from the date of filing of the complaint, i.e. 23.9.2003 till realization, plus Rs. 5,000/- as compensation for mental agony and pain along with cost of Rs. 2,000/-. Hence this appeal by the appellant.

2. Facts as they emerge from the record are, that the respondents orally contracted with the appellant for construction at an estimated cost of Rs. 2,35,000/-. He started construction of retaining wall of their house. For this purpose a sum of Rs. 60,000/- was paid by the respondents to the appellant by means of two cheques. This retaining wall gave way soon-after its completion on 1.8.2003 per them. According to respondents material used while constructing the retaining wall was of poor quality and construction was also not as per prescribed norms and standards. In these circumstances, they called upon the appellant to either reconstruct the wall or to refund the amount. He did nothing. This resulted in filing of the complaint.

3. When put to notice, while admitting having undertaken the work of constructing the retaining wall it was pleaded by the appellant, that out of the sum of Rs. 40,000/- paid in advance the respondents received back Rs. 10,000/- in cash, therefore, payment of Rs. 40,000/- as alleged was not admitted. Similarly, allegations of the respondents regarding material of poor quality having been used by the appellant were also denied. On the other hand it was pleaded by him, that the construction of one phase of the retaining wall was as per specification was done by him till 13.4.2003, and he further continued the work between 24.5.2003 to 14.6.2003. Work of construction of entire retaining wall, as also digging of pits for two RCC pillars was also done by 14.6.2003. As already noted against the payment of Rs. 60,000/-, as alleged by the respondents, receipt of Rs. 50,000/- is admitted by the appellant. As against this amount, work of the value of Rs. 67,000/- had been undertaken by the appellant, thus a sum of Rs. 17,000/- was payable by the respondents.

4. Entire case of the respondents is based on the fact, that the construction work carried out by the appellant was not of proper specification, and poor quality material was used in it. As a consequence of it, the retaining wall gave way.

5. On examination of the complaint file and keeping in view the allegations made in the complaint, we are of the view that it was prima facie for the respondents to have placed on record some acceptable, cogent and reliable evidence to show that the material used was of substandard quality and the construction was not carried out as per specifications. Thus some technical opinion regarding the quality of material used in the construction of retaining wall that gave way was necessary to be placed on record by the respondents to sustain their plea. There is none produced by them.

6. Similarly case set out in the complaint was, that the construction of retaining wall was not as per specification. Again in order to succeed on this plea it was primarily to be established by them as to what was the specification agreed upon between the parties, so far construction of retaining wall was concerned. In the absence of anything to that effect, it cannot be said that the construction of the retaining wall was not as per specification as alleged by the respondents.

7. In this behalf we may observe, that reasons for the retaining wall giving way can be numerous, we cannot loose sight of the fact that as per claim of the respondents, it gave way on first of August, which is peak rainy season. One of the plausible reasons can be that due to incessant rains, the retaining wall may have given way. It is a matter of common knowledge that retaining walls do give way in the rainy season. Besides this there numerous slips from hill side resulting in damage to structures/walls etc. above such area also occur during this season. It was for the respondents to have placed material on record for excluding such an eventuality. District Forum below in a slip-shod manner has allowed the complaint after holding that immediately after construction, the retaining wall gave way, without the respondents having placed any material, muchless opinion of some expert in that behalf. There is no presumption in law that whenever a retaining wall gives, it is always due to either use of sub-standard material, or the construction being not of proper specification.

8. We are alive to the situation that in a given case, circumstances may warrant for allowing the claim of litigants like respondents in this appeal. However foundation has to be laid by a litigant who files the complaint. How the material used was substandard in the construction of the retaining wall, and at the same time it being not as per the specification, there is no evidence worth the name produced by the respondents to allow their claim as set out in the complaint. Nothing could be pointed out on behalf of the respondents from the complaint file so as to uphold the order of the District Forum below.

9. Proceedings under the Consumer Protection Act, 1986 are meant to provide speedy, inexpensive, as well as quick justice to the parties. However it has to be administered even handedly to both the parties on the basis of the material on record. Why no material by way of expert evidence to support their claim was produced before the District Forum below, learned counsel for the respondents had no answer. However he supported the order of the District Forum below and persisted with vehemence that the complaint and affidavit of his client to that effect and other material on record filed by his client should be taken on its face value and on its basis he further submitted that appeal be dismissed. This plea is being noted to be rejected.

10. From the complaint file as well as in the light of the above discussion, it is felt that the impugned order is based on no evidence, so as to uphold the same as was urged on behalf of the respondents.

11. Version of the appellant regarding Rs. 10,000/- having been taken back in cash out of the cheque of Rs. 40,000/- has not been dealt with in the impugned order by the District Forum below. There is no reason assigned by the District Forum below to ignore this fact set out by the appellant in his reply as also in his affidavit filed in evidence. In fact, this is a case of affidavit versus affidavit. Minimum that was expected of the District Forum below was to have dealt with this plea and recorded finding either way.

12. It is not the case of the respondents, that retaining wall was not constructed by the appellant. Here at the risk of repetition, we way observe that the dispute is regarding the specification and quality of material, and as already held in the preceeding paras in order to succeed on these pleas respondents were required to lead evidence to support their claim, there is none.

13. No other point is urged.

In view of the aforesaid discussion, we are of the view that this appeal deserves to be allowed. It is ordered accordingly. Thus the order passed by District Forum Shimla, in Consumer Complaint No. 485/2003, dated 30.4.2008 is hereby quashed and set aside and as a result of it complaint filed by the respondents is dismissed. It is however clarified that in case respondents have any other remedy in law available to them against the appellant, they will be free to have recourse to it and in such a situation this order will not come in their way.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

23rd March, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.