KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.800/2016

JUDGEMENT DATED: 01.12.2022

(Against the Order in C.C.No.123/2015 of CDRF, Pathanamthitta)

PRESENT:

APPELLANTS:

(by Adv. Narayan R.)

Vs.

RESPONDENTS:

(by Adv. B.N. Mangalan)

(by Adv. G.S. Radhakrishnan)

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The complainants in C.C.No.123/2015 of the Consumer Disputes Redressal Forum, Pathanamthitta (in short the District Forum) have filed this appeal against the order passed by the District Forum dated 31.08.2016.By the said order the District Forum has directed the 1^st opposite party to repair the defective portions of the house of the complainants as per Exhibit C1 report  within thirty days from the receipt of the order, if the complainants provide necessary building materials for the same with sufficient acknowledgement.  If any of the parties fails to perform the order as directed, the 1^st opposite party is directed to pay a compensation of Rs.25,000/-(Rupees Twenty Five Thousand) to the complainants with interest @10% per annum from the date of the order.  If the complainants and the 1^st opposite party comply the first part of the order, the 1^st opposite party is directed to pay Rs.3,000/-(Rupees Three Thousand) to PW2, the Commissioner, as supervision charge.  The 1^st opposite party is also directed to pay costs of Rs.3,000/-(Rupees Three Thousand) with interest @10% per annum from the date of order, to the complainants.

          2.       The averments contained in the complaint are in brief as follows:  On 01.09.2010 the complainants and the 1^st opposite party entered into an agreement for the construction of a two storied building in the property of the complainants situated in Ezhamkulam village, with an extent of 1845sq.ft. @Rs.1,100 per sq.ft.  It is stated that the 1^st opposite party received Rs.22,15,000/-(Rupees Twenty Two Lakhs Twenty Fifteen Thousand) and the 2^nd opposite party received an amount of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) during the period from 2010 to 2012 from the complainants.  The complainants further contended that even though the opposite parties completed the construction of the building, subsequently certain damages were seen inside and outside of the said building.  The complainants laid aluminium roofing to certain portion of his building in order to avoid the water leaking from the concrete portion.  It is also contended that the construction of kitchen area is also defective and the area provided for keeping the cooking gas cylinder is also seen not sufficient.  According to the complainants, the 1^st opposite party provided so many sub contractors for the completion of the building work so that so many defects in the construction of the building was also caused.  It is further contended that the front door frame (kattila) of the sitout area was also damaged due to the defect of the wood used for this construction.  All the acts of the opposite parties are clear violation of the agreement between the parties and come under deficiency in service under the Consumer Protection Act.  Hence the complainants filed this complaint to realise an amount of Rupees Fifteen Lakhs as compensation from the 1^st opposite party and Rupees Seventy Five Thousand as compensation from the 2^nd opposite party.

          3.       The opposite party filed version raising the following contentions.  As per the agreement dated 01.09.2010 the opposite parties executed the construction of the building to the satisfaction of the complainants under excellent workmanship with quality materials.  It is contended that the work of the building was completed in the year 2011 and after the completion of the work the 1^st opposite party executed so many additional works in the year 2013 and a huge amount is due to the 1^st opposite party from the complainants.  According to them, the complainants have not made any complaints ever since 2011.  Hence the case is barred by limitation.  It is further contended that all the works of the building were conducted under the strict vigilance, supervision and quality checking of the complainants.  The height of the roof, kitchen slabs, the length and width of the shade all are decided as per the building plan description and all the works are done under the supervision of the complainants.  It is contended that all the wood required for the building were selected by the complainant.   If at all any damages are caused to the door frame, wall or foundation it is due to the failure of the maintenance done by the complainants to the building.   The complainants filed this case against the 1^st opposite party in order to avoid payment for the additional works done by 1^st opposite party in the year 2013.  According to the 1^st opposite party, an amount of Rs.10,40,000/-(Rupees Ten Lakhs Forty Thousand) is due from the complainants in connection with the extra works done outside the above said agreement.  According to the opposite parties, there is no deficiency in service on their part as alleged by the complainant and this complaint is a counter blast to the demand of money due to the 1^st opposite party from the complainants.  Therefore, the opposite parties prayed to dismiss the complaint with costs to the opposite parties.

          4.       The 1^st complainant was examined as PW1 and Exhibits A1 to A5 were marked on the side of the complainants.  The Expert Commissioner was examined as PW2 and report filed by him was marked as Exhibit C1.  The opposite parties 1 and 2 were examined as DW1 and DW2, respectively and Exhibits B1 to B3 were marked on their side.

          5.       After considering the evidence adduced by the parties and hearing both parties the District Forum passed the impugned order.  Aggrieved by the order passed by the District Forum the complainants have filed the present appeal.

          6.       Heard.  Perused the records.

          7.       Parties are referred to according to their status/rank mentioned in the complaint.

          8.       The allegation of the complainants is that there are several defects in the construction of the house made by the opposite parties.  The said allegation is denied by the opposite parties.  The District Forum, after considering the evidence, especially Exhibit C1 report found that there were defects in the construction of the house made by the 1^st opposite party and there was deficiency in service on the part of the 1^st opposite party.  The District Forum found that, as per the evidence there was no ground to proceed against the 2^nd opposite party and he is exonerated from the liability.  The District Forum passed the order directing the 1^st opposite party to rectify the defects in the construction of the complainants’ house as pr Exhibit C1 report within thirty days of the receipt of the order, if the complainants provide building materials for the same.  It was also ordered by the District Forum that if any of the parties fails to perform the order the 1^st opposite party shall pay compensation of Rs.25,000/-(Rupees Twenty Five Thousand) to the complainants with interest @10% per annum from the date of the order.  The 1^st opposite party was also directed to pay Rs.3,000/-(Rupees Three Thousand) as costs to the complainants with interest @10% per annum from the date of the order.

          9.       The counsel for the appellants submitted that after finding that there was deficiency in service on the part of the 1^st opposite party the District Forum ought to have directed the 1^st opposite party to rectify the defects in the construction of the house or to pay amounts required for the rectification of the defects.  Instead of that the District Forum directed the complainants to provide building materials for rectification of the defects in the construction of the house and further no amount was ordered to be paid for rectification of the defects in the construction of the house,  if the 1^st opposite party fails to carry out the construction. The District Forum directed the 1^st opposite party to pay Rs.25,000/-(Rupees Twenty Five Thousand) as compensation in case of failure of any party to perform the order of the District Forum.  It is to be noted that in the complaint, the complainants have no prayer to direct the 1^st opposite party to rectify the defects in the construction of the house building or to give certain amounts to them to rectify the defects.  The District Forum, based on Exhibit C1 report found that there are defects in the construction of the building by the 1^st opposite party.  But it was found that the defects noted are simple/minor, which can be rectified by doing minor maintenance works.  The District Forum also found that from Exhibit C1 it can be seen that the house is not under proper protection and maintenance.  Nobody was residing in the house building and the premises of the house building was covered with leaves of the plants and also covered with mud which can be seen from Exhibit B1 photographs.  The District Forum observed that if the building is not maintained after its construction, no doubt, so many damages may occur due to lack of maintenance and due to effect of weather conditions.  In Exhibit C1 report, the Commissioner had noted the defects of the construction of the house and the amounts to be spend for carrying out the repairs/for rectification of the defects are also stated in the report by the Commissioner.  Considering all these facts, the District Forum directed the 1^st opposite party to pay Rs.25,000/-(Rupees Twenty Five Thousand)to the complainants as compensation with interest @10% per annum from the date of order, if any of the party failed to perform the order.  It is to be noted that the complainants have not taken any steps to set aside the report filed by the Commissioner or to appoint another Commissioner.  Further, the complainants had examined the Expert Commissioner as a witness on their side, as PW2 and the report filed by him was marked as Exhibit C1.  When the Commissioner was examined as PW2, the counsel for the complainants have not put any question to him to suggest that the report filed by him is not correct or it cannot be accepted.  As rightly found by the District Forum, the report filed by the Expert Commissioner is to be accepted.  The District Forum directed the 1^st opposite party to pay a compensation of Rs.25,000/-(Rupees Twenty Five Thousand) to the complainants considering the amount required for rectification of the defects in the house building, as stated in Exhibit C1.  We consider that the amount of Rs.25,000/-(Rupees Twenty Five Thousand) ordered by the District Forum as compensation is just and reasonable, considering the defects in the building to be rectified, as reported by the Commissioner in Exhibit C1.

          10.     However, after finding that there were defects in the construction of the building by the 1^st opposite party, there was deficiency in service on the part of the 1^st opposite party and the 1^st opposite party was responsible for the said defective construction, the District Forum ought not have directed the complainants to supply the building materials for rectification of the defects in the construction of the house building and hence the said direction made by the District Forum is to be set aside.  The 1^st opposite party is bound to rectify the defects in the construction of the building or to pay Rs.25,000/-(Rupees Twenty Five Thousand) as compensation to the complainants.  Admittedly, the 1^st opposite party has not rectified the defects in the construction of the house of the complainants.  So the 1^st opposite party is bound to pay Rs.25,000/-(Rupees Twenty Five Thousand) as compensation to the complainants with interest @10% per annum as ordered by the District Forum.  So the order passed by the District Forum is to be modified to that effect.  The District Forum directed the 1^st opposite party to pay Rs.3,000/-(Rupees Three Thousand) as costs with interest @10% per annum from the date of the order, which is just and reasonable.  Hence no interference is necessary regarding the costs ordered by the District Forum.

          In the result, the appeal is partly allowed and the order passed by the District Forum is modified as follows:

          The 1^st opposite party/1^st respondent is directed to pay compensation of Rs.25,000/-(Rupees Twenty Five Thousand) and costs of Rs.3,000/-(Rupees Three Thousand) to the complainants with interest @10% per annum from the date of the order of the District Forum (31.08.2016) till realisation.  Parties are directed to suffer their respective costs.

SL