Chandigarh

StateCommission

CC/43/2022

Randeep Sood - Complainant(s)

Versus

Narinder Singh Builders (NSB Group) - Opp.Party(s)

Amandeep Singh Nirmaan Adv.

17 Jan 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

===========

 

Consumer Complaint No.	:	CC/43/2022
Date  of  Institution	:	12/05/2022
Date   of   Decision	:	17/01/2023

 

 

 

 

 

Randeep Sood S/o Late Sh. Shiv Kumar Sood, Resident of H.No. 26, PGI Campus, Sector 12, Chandigarh – 160012.

 

…. Complainant

 

Vs.

 

 

Narinder Singh Builder (NSB Group), Booth No.8, Old Sunny Enclave Market, Nijjar Chownk, Kharar – Mohali Road, Kharar.

…… Opposite Party

 

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Amandeep Singh Nirmaan, Advocate for the Complainant.
	:	Sh. Jobanprince Singh Bhullar, Advocate for the Opposite Party.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

                In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainant hired the services of the Opposite Party for constructing his dream house on a plot in Omaxe New Chandigarh, Mohali. Accordingly, an agreement was executed [Annexure C-1], as per which the quality of material to be used in the construction was of ultra-premium quality [Specifications Annexure C-2]. The Opposite Party assured to hand over the possession of the constructed ground floor within six months i.e. on 25.06.2021 while the possession of the first floor was to be handed over on or before 15.12.2021. The Complainant, in terms of the contract, paid an amount of Rs.57,00,000/- to the Opposite Party upto 10.03.2022 [Receipts Annexure C-3]. It has been alleged that the Opposite Party ruined the entire structure of the house and used sub-standard material and Brands which are not in the agreed specifications. The cement used was of very low quality which tends to peel off from the walls easily. Further, the Opposite Party failed to hand over the possession of the ground floor as well as first floor on the agreed date and left the construction in between. All the frantic efforts and personal requests made by the Complainant to carry out the pending construction work and to rectify the flaws in the construction fell on the deaf ears of the Opposite Party, on account of which the Complainant had to engage the services of another builder namely Home Decors & Interior Designer’s vide Agreement Annexure C-7 for rectifying the flaws in the construction.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainant has preferred the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Party seeking its version of the case. 

 

3.         Opposite Party filed its written statement, admitting that the Complainant gave contract for construction of his house on Plot No. 558AP, Omaxe, New Chandigarh, Tehsil & District Mohali with material and accordingly, agreement dated 22.01.2021 was executed between the Opposite Party and the Complainant. The Opposite Party used the material to the satisfaction of the Complainant as he was daily visiting the site and also checked the material used. In fact, the Opposite Party almost completed the work of construction and an amount of Rs.23,16,000/- is due towards the Complainant which he is not paying and rather assigned the work to some other Contractor and on the false & frivolous grounds instituted the present Complaint. Pleading that there was no deficiency in service or unfair trade practice on its part, a prayer has been made by the Opposite Party for dismissal of the complaint.

 

4.         Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the replication.

 

5.         Parties led evidence by way of affidavits and documents.

 

6.         We have heard the learned counsel for the parties and gone through the record of the case, including the written arguments advanced.

 

7.         After scanning of record, including written arguments, our findings are as under:-

 

8.         Learned Counsel  for the Opposite Party raised an objection with regard to existence of Arbitration clause contained in the Agreement, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as “Aftab Singh  Vs. Emaar MGF Land Limited & Anr.”, Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the Opposite Party in this regard stands rejected.

 

9.         Another objection raised by Counsel for Opposite Party was that since complicated questions of law and facts are involved in the instant complaint, the instant complaint cannot be decided in a summary procedure before the Consumer Fora and only a Civil Court can decide the issues.  It may be stated here that the Opposite Party has miserably failed to place on record any evidence to prove that complicated questions are involved in this case. In the present case, the complainant hired the services of the Opposite Party for construction of his house and paid the total amount of Rs.57,00,000/- but the Opposite Party used the sub-standard material and also made structural flaws which can be gauged from the material available on record. Due to the negligent and poor workmanship on the part of the Opposite Party, the complainant sought refund of the amount paid. So, it cannot be said that complicated questions of facts and law are involved in this case. The plea taken by the Counsel for the Opposite Party has no force, at all, and the same stands rejected. 

 

10.         Record transpires that the Complainant availed the services of the Opposite Party for constructing his house on Plot No. 558AP, Omaxe, New Chandigarh, Tehsil & District Mohali. Annexure C-1 is the agreement dated 14.01.2021 executed between the Complainant and the Opposite Party. The agreement contained the terms & conditions, mode of payment and specifications for construction work.  Perusal of the agreement shows that the possession of the constructed floor was to be handed over within six months i.e. upto 25.06.2021. Subsequently, the Complainant also gave contract to the Opposite Party for constructing the first floor also. Annexure C-2 is the copy of the specification for construction work provided by the Complainant for first floor. According to the Complainant, the possession of the first floor was to be handed over by the Opposite Party on or before 15.12.2021. Per payment receipts annexed with the Complaint as Annexure C-3, it is evident that Complainant made all the timely payments to the tune of Rs.57,00,000/- to the Opposite Party in terms of the agreement ibid, which fact has not been disputed by the Opposite Party.

 

11.         It is the case of the Complainant that Opposite Party did not complete the work as agreed & used sub-standard material and made structural flaws in the construction which cannot be easily rectified. The photographs [Annexure C-4 to C-6, C-9 & C-10] placed on record by the Complainant not only prove the sub-standard material used by the Opposite Party, but also depicts the flaws in the construction and that the Opposite Party had also abandoned the work. For the purpose of proving his case, the Complainant even got his property inspected by the approved Chartered Engineer who in his report dated 04.06.2022 (Annexure C-10) proved the said fact and observed that the construction of the house was incomplete. The work so far done by the executing agency i.e. Opposite Party was not satisfactory and does not maintain and confirm to IS code of the buildings. The material used for the construction was of sub-standard. The workmanship was very poor due to employment of unskilled labors on the job and lack of proper supervision from the Opposite Party.

 

12.         Prima-facie, as per the specifications agreed upon, the contract with the Opposite Party was of using ultra-premium quality material, but the Opposite Party used sub-standard material which can easily be gauged from the photographs and Civil Engineers report referred to in the preceding paragraphs. Faced with this situation, the Opposite Party disputed the report of the Civil Engineer (Annexure C-10) aforesaid on the ground that it has come in the replication and just to improve his case, the Complainant has attached the same and the said report would affect the decision of the matter. To rebut the aforesaid report, the Opposite Party moved MA/701/2022 for permission to allow their expert to visit the premises in question and to submit his report.    

 

13.         This Commission after protracted hearing of the case, disposed off the said MA/701/2022 on 23.09.2022 and after recording the joint consensus of the Parties, appointed Sh. Pardeep Sekhri, Executive Engineer (Retd.), Rural Development & Panchayat Department, Punjab, as Local Commissioner, to visit & verify the alleged deficiencies pointed out and submit a report on the following points:-

 

“i]      As to whether the entire work of the Kothi has been completed as per the Agreement [Annexures C-1 & 2].

 

ii]       Whether gutter(s)/sewerage, water pipes, electrical wires, tiles have been installed as per the drawings and the Agreement [Annexures C-1 & C-2].

 

iii]      Whether the air duct, if kept, open in the dressing room/ wash room.

 

iv]      Whether septic tank/gutter has been laid/installed in front of the main door.”           

 

14.         In terms of the order dated 23.09.2022, passed by this Commission, after due notice to both the parties, Sh. Pardeep Sekhri, Local Commissioner visited the premises on 06.10.2022 and after going through the agreements for the ground floor and first floor, as well as the Building Plan furnished to him, submitted his report dated 12.10.2022. Here, for the sake of precision, the relevant extract of the inspection report is reproduced below:-    

“1.     In reference to the first query posed by this Hon'ble Commission, so far as the ground floor is concerned, it is submitted that the entire work of the Kothi has not been completed as per agreement.

 

a)       As per the agreement flooring was to be of Dongri Marble Rs.130 per square foot, however the contractor/opposite party has laid tiles instead of Dongri Marble. Even there are cracks in the tiles so laid (Photos attached). On asking the opposite party to show the purchasing bills of the tiles, the opposite party failed to provide the same.

 

b)       As per the building plan there are 3nos toilets on the ground floor and all the three toilets were not completed i.e. Bathroom fittings, water closet and wash basin were not fixed (Photos attached).

 

c)       Wood work i.e. doors, door fittings, handles, locks are yet to be fixed (Photos attached).

 

d)      Painting on wall and polishing on wood work has not been completed by the Contractor and the same is now being got executed by the painter engaged by the owner as informed to the undersigned by both the parties and also verified from the painter.

 

e)       Electrical work is not completed by the Contractor i.e. switch boards and other related electrical works. Electrical works which are now in the process, the same is being got done by the owner. MCB is to be fixed by contractor as per agreement, but the contractor has not fixed the same and it is now fixed by the owner as confirmed at site.

 

f)       Kitchen work are not done by contractor i.e. tile work, affixing granite on the shelves and the work of the cupboards. It has now been got done by the owner as admitted by both the parties.

 

g)       As per the agreement, work of modern Cupboards and LCD panels was to be made in both the bedrooms and living room on the ground floor by the opposite party which has not been done by him.

 

So far as first floor is concerned, the first floor is also not completed by contractor.

 

a)       It was found on inspection that the opposite party has not done plaster of paris (POP) work on the walls as per the agreement.

 

b)       Bathroom fittings and fixtures on the first floor were not as per the agreement because as per the agreement, the fittings of Jaquar base model were to be used but the fittings so fixed were of make not mentioned in the agreement (Photos) attached).

 

c)       For Electrical wiring, colour coding is essential for ensuring the safety and nature of the supply. Different colour wires are used to represent neutral, phase, earthing and inverter. For neutral-black colour wire is to be used, for phase-red and blue colour wire is to be used, for earthing-green colour wires is to be used and for Inverter-white colour wire is to be used. However in the present case the contractor has used only single colour wiring i.e. yellow colour for everything (Photos attached).

 

d)      Bathroom & Kitchen tiles to be affixed were to be of Rs. 40 per square foot as per the agreement. However on asking Opposite Party for the purchasing bills of the tiles, he was not able to produce the bill.

 

e)       Under size rain water pipes of 3"dia instead of 4" dia have been affixed on the terrace for 2100 sq feet. Moreover the pipes for AC's, cables and vent pipes have put in the middle of the terrace whereas it should have been laid on the side of the parapet wall; thus resulting into wasting space at the terrace and it also gives shabby look (Photos attached).

 

2.      As far as the second query is concerned, it is submitted that:-

 

a)       On inspection, it was found that the gutter/manhole for sewerage in the front courtyard are not constructed as per the architectural drawings. As per the drawings 3nos manholes are to be constructed but the opposite party has constructed only two manholes (Photo attached).

 

b)       Rain water harvesting pit is not constructed by the contractor in the front courtyard as per the drawing, which is mandatory.

 

c)       So far as the electrical wires and tiles are concerned, the response to first query may be read as it covers this part of the query.

 

3.      As far as third query is concerned, it is submitted that :-

 

a)       The air duct has not been kept as per the drawing and has been kept in the dressing room (Photo attached).

 

4.      As far as the fourth query is concerned, it is submitted that:-

 

a)       The septic tank was laid in the front door as per the drawing but the same has been shifted near inside of the front boundary wall by the owner.

 

          Lastly, it is submitted that the contractor/opposite party has laid down the brick masonry work in the foundation in the ratio of 1:10 (cement sand ratio). Structures with this ratio are having lesser strength. Thus, the contractor/opposite party should produce a certificate from the Structural Engineer that the foundation of the building is safe with this ratio 1:10 (cement sand ratio). Incomplete structural drawings were also shown by the contractor/opposite party. When asked why these drawings are without any signature of structure engineer and incomplete i.e. reinforcement in slab and beams in the plan and 9" thick brick wall section, the contractor did not give any reply for the same, rather asked the undersigned to discuss with my bar binder. Undersigned refused to talk to him. It is suggested that the contractor should be asked to produce a Structural Stability Certificate of the building.

 

          The inspection report is submitted for the perusal of the Hon'ble Commission.”

 

15.          The Opposite Party filed objections to the report submitted by the Local Commissioner, inter alia, pleading that there were no illegality, much less deficiencies pointed out in the report and the construction was done as per approved plan and any change which has been made, was done on the instructions of the Complainant. It has been submitted that bills were shown to the Local Commissioner, but he failed to consider the same. On these precincts, a prayer has been made not to consider the report submitted by the Local Commissioner at the time of final decision of the case.

   

16.         Admittedly, the Local Commissioner conducted a joint inspection of the site in question when the representatives of both the parties were present and gave comprehensive report. Needless to mention here that interference with the result of a detailed and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner  whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party

 

17.         Going by the aforesaid report submitted by the Local Commissioner - a retired Executive Engineer, we find that since the Opposite Party itself violated the terms & conditions of the agreement and did not adhere to the specifications agreed upon and abandoned the work prior to the filing of the present complaint, they cannot derive any benefit of their own wrong and raise aspersions on the findings of the Local Commissioner.

 

18.         The Opposite Party along with the objections has annexed the copies of the bills, which goes a long way to prove that although they are in possession of the same, yet they chose to withheld the same from the scrutiny/analysis of the Local Commissioner during his inspection, for the reasons best known to them, for which adverse inference is drawn against the Opposite Party, as the same is nothing but a clever ploy of the Opposite Party to dodge this Commission.  
19.         Nonetheless, all the bills aforesaid are prior in time to the filing of the present Complaint by the Complainant i.e. 12.05.2022. Interestingly, the said bills have not been filed by the Opposite Party alongwith their written version. What precluded the Opposite Party to place on record the same is nowhere specified, much less explained in their pleadings or in the objections so raised to the report of the Local Commissioner. All this cast a shadow of doubt on the style of functioning of the Opposite Party.     

 

20.         Pertinently, the Opposite Party has not been able to produce any credible evidence before us to displace the report of the Local Commissioner. The Local Commissioner in his report has specifically observed that the contractor/opposite party has laid down the brick masonry work in the foundation in the ratio of 1:10 (cement sand ratio) and eventually, opined that structures with this ratio are having lesser strength. Therefore, in all probabilities, it was Opposite Party who is prima-facie guilty of using sub-standard material and also made structural flaw in the building, thereby compromising the strength of the building, which can be one of the reasons contributing life hazardous for the occupants therein. For the said reasons, this Commission has no ground to disbelieve the said report submitted by the Local Commissioners and as such, finds the said report to be in order.  The objections filed by the Opposite Party are devoid of any substance and have been filed only for the sake of objections. The same does not merit consideration and stands rejected. 

 

21.         It was certainly & definitely the low quality construction made by the Opposite Party which prompted the Complainant to engage the services of another Contractor to carry out the pending construction work and to rectify the flaws in the construction.  In this backdrop, the allegation of the Opposite Party that still some amount is due towards the Complainant does not appears to be  plausibly sound, in as much as, if a person who had paid a considerable amount of Rs.57,00,000/- could also pay the balance amount and if he desisted from the same, it was owning to his displeasure & dissatisfaction over the quantum of work carried out by the Opposite Party. At any rate, once it is proved beyond reasonable doubt that the Opposite Party failed to raise the construction, as per the agreed schedule/ specifications, they had no occasion to agitate that the Complainant still required clearing the outstanding dues towards the work undertaken by the Opposite Party. 

 

22.         No doubt, the Complainant had paid a considerable amount of Rs.57,00,000/- to the Opposite Party, however the Opposite Party ruined the said amount not only by using poor quality of construction material, compromising the structural strength of the building, but also left the Complainant in limbo and in fact, abandoned the work, which led to the engagement of other agency/contractor by the Complainant to carry out the pending construction work, which to our mind, amounts to deficiency in service and unfair trade practice. 

 

23.        The sequence of the events of the present case, clearly establishes the highhandedness of the Opposite Party of which the complainant became the victim and felt the brunt, as a result the complainant has been left with no alternative, except to knock the doors of this Commission, which further aggravated his pain & harassment.

 

24.         One can well imagine the plight of a person, who hired the contractor with a view to construct his/her house as per the specifications/sanctioned plans, yet, later on, after paying Rs.57,00,000/-,  it was found that in order to cut the cost of labour etc., the contractor has adopted shortcut methods thereby compromising and deviating from agreed specifications against the sanctioned plan and also using poor quality of construction material, just in order to save money. The complainant has been put into the present litigation and still, he is not able to live in his house because the construction has been left in lurch since long. The hopes of the complainant and his family members to live in their own house have been dashed to the ground. Now the cost of construction has also increased manifolds which necessitates the complainant to shell out more money from his pocket for completion of the construction work.

 

25.         In case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer.

 

26.         In our considered opinion, under these circumstances and keeping in view the settled law in case Lucknow Development Authority (supra), when it has already been proved on record that the Opposite Party was deficient in providing service to the complainant, in the manner stated above, as such, if we pass orders granting global compensation for deficiency in service on the part of the Opposite Party to the tune of Rs.30,00,000/- (instead of refund of the entire amount paid by the Complainant to the tune of Rs.57,00,000/- keeping in view that the fact that the Opposite Party had undertaken the construction work at the site notwithstanding the deficiencies pointed out by the Complainant in his complaint and proved by the comprehensive report submitted by the Local Commissioner & also the fact the cost of construction has also increased manifolds and the complainant will certainly have to entail more expenses for completion of the pending construction work), and further the compensation for mental agony and harassment caused to the complainant to the tune of Rs.5,00,000/- & cost of litigation of Rs.50,000/-, that will meet the ends of justice.

 

27.        No other point, was urged, by the Ld. Counsel for the Parties.

 

28.         In the light of above discussion, the act of Opposite Party, to our mind not only amounts to deficiency in service, but is a grave malpractice under the Consumer Protection Act. This consumer complaint deserves to succeed. The same is accordingly partly allowed.  Opposite Party is directed as under:-

[a]   To pay global compensation of Rs.30,00,000/- to the Complainant for deficiency in service, deviating from agreed specifications against the sanctioned plan & using poor quality of construction material thereby  compromising the structural strength of the building. 

[b]   To pay compensation, in the sum of Rs.5,00,000/-for causing mental agony and physical harassment, to the complainant.

[c]   To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.

 

29.         The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, it (Opposite Party) shall be liable for an interest @9% per annum on the amounts mentioned in sub-para [a] to [c] above from the date of institution of this complaint, till it is paid.

 

30.         In view of the present Consumer Complaint being partly allowed, the pending application(s), if any, also stands disposed off.

 

31.         Certified copies of this order, be sent to the parties, free of charge.

 

32.         The file be consigned to Record Room, after completion.

Pronounced

17^th January, 2023                                                            

Sd/-/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”