State Consumer Disputes Redressal Commission
P C Reghuthaman vs Rajesh Kumar on 1 September, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM First Appeal No. A/16/358 ( Date of Filing : 07 Jun 2016 ) (Arisen out of Order Dated 17/03/2016 in Case No. CC/819/2012 of District Ernakulam) 1. P C REGHUTHAMAN POOKKATU PARAMBU PANAYIKULAM PO ERNAKULAM PIN 683511 2. P K SELBY POOKKATTU PARAMBU PANAYIKULAM PO ERNAKULAM PIN 683511 ...........Appellant(s) Versus 1. RAJESH KUMAR INTIMATE BUILDERS SNDP BUILDING MANNAM PO NANNIKULANGARA NORTH PARUR ERNAKULAM PIN 683520 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN PRESIDENT HON'BLE MR. SRI.T.S.P.MOOSATH JUDICIAL MEMBER SMT.BEENAKUMARI.A MEMBER PRESENT: Dated : 01 Sep 2022 Final Order / Judgement KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL No. 358/2016 JUDGMENT DATED: 01.09.2022 (Against the Order in C.C. 819/2012 of CDRF, Ernakulam) PRESENT: HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT SMT. BEENA KUMARY. A : MEMBER APPELLANTS: P.C. Reghuthaman, S/o Chidambaran, Pookkattu Parambu, Panayikulam P.O., Ernakulam-683 511. P.K. Selby, Pookkattu Parambu, Panayikulam P.O., Ernakulam-683 511. (By Advs. George Cherian Karippaparambil & S. Reghukumar) Vs. RESPONDENT: Rajesh Kumar, Intimate Builders, SNDP Building, Mannam P.O., Nannikulangara, North Parur, Ernakulam-683 520. JUDGMENT
SMT. BEENAKUMARY. A : MEMBER Appellants are the complainants and respondent is the opposite party before the Consumer Disputes Redressal Forum, Ernakulam (in short the District Forum) in C.C. No. 819/2012.
2. Brief facts of the case are follows:
The complainants entered into a contract with the opposite party on 17.07.2012 for the construction of a building having an extent of 221.80 sq.m. as per permit No. 239/12, issued by N. Parur Municipality, at an agreed rate of Rs. 1000/- per square feet, making a total of Rs. 24,09,000/-for the construction of the whole building. The construction stared on 19.07.2012. The opposite party who undertook the construction work did not follow the covenants in the agreement. The pits taken for erecting the column and pillars were not having the required depth and the proportion of cement mortar used was substandard. The alignment of the structure of the building was irregular. The whole construction made so far, was deprived of technical expertise, affecting the stability of the building, and against the plan approved by the Municipality. The complainants had so far paid Rs. 3,27,000/- to the opposite party in advance. However the examination of an expert showed that the opposite party had made constructions worth Rs. 2,06,480/- only. The complainant is not interested to permit the opposite party to continue with the work. The plinth beam constructed by the opposite party is not having the required stability for further construction over it, as per expert advice. Entire constructions made by the opposite party are to be redone, requiring an additional expense of Rs. 1,00,000/-. The complainant was asked by his landlord to vacate the tenanted premises where he was doing his business. The defective construction has caused delay and the complainant is put to a loss of Rs. 2,00,000/- requiring reparation by the opposite party. The complainants, through this complaint, seek an order directing the opposite party to return Rs. 3,27,000/- which was already given to the opposite party, and to pay compensation to the complainant to the tune of Rs. 2,00,000/- towards the delay, Rs. 1,00,000/- towards the cost of demolition of the unskilled work and the costs of the proceedings.
3. Opposite party filed version raising the following contentions. The complaint is not maintainable. The construction was done as per the terms of the agreement. The allegation of payment of Rs. 3,27,000/- is incorrect. There was no disloyalty on the part of the opposite party in the matter of construction. The complainant was attempting to evade the payment of the amount due to the opposite party, by filing this false complaint. The complainant had, after obtaining permission from the Forum, started construction on the very same foundation alleged to be defective, without demolishing the previous structure. The commission report filed by the close friend of the complainant is not correct and opposite party had filed objection to it. The construction made by the opposite party was in accordance with the approved plan given from the Municipality. There was no deficiency in service on the part of the opposite party. The complainant had defaulted payment due to the opposite party and when the opposite party had demanded payment as per the agreement, the complainant had come forward with this false complaint incorporating untrue averments. The complaint is liable to be dismissed.
4. The evidence in this case consists of the oral evidence of the complainant as PW1 and the documents Exts. A1 to A13 on the side of the complainant and the oral evidence of the opposite party as DW1 and Ext B1 to B6 on the side of the opposite party. Ext C1 and C2 commission reports were also marked.
5. On the basis of the evidence adduced by both the parties the finding of the District Forum was that the building was intended to be used by the complainant for commercial purpose and the complainant has no case that he is constructing the same for eking out his livelihood. The opposite party had produced Ext. B1 building permit dated 05.09.2012 having No. 239/12 issued by Paravur Municipality, showing that the permit was granted for the construction of commercial building. Hence the Forum found that the complainant was not a consumer under Sec. 2(1)(d) of the Consumer Protection Act, 1986. The District Forum also found that the complainant has not produced any evidence other than certain photographs to prove deficiency in service. The commission reports marked as Ext. C1 and C2 will not help the complainant to prove any deficiency in service, in the absence of production of approved plan on the basis of which the construction had to be made. The District Forum stated that the complainant has approached the Forum with unclean hands. So the complaint was dismissed with costs of Rs. 5,000/- to the opposite party. Against the impugned order the complainants have filed this appeal.
6. Main contentions raised by the appellants are that the District Forum has failed to appreciate the fact that initially the complaint was filed by the complainants themselves. During the pendency of proceedings complainants have engaged a lawyer. The counsel on perusing the complaint found that certain amendments were necessary in the complaint. Accordingly I.A. No. 199/2005 was filed on 24.04.2015. The same was dismissed on 15.12.2015 in view of the finding that the construction of the building was for commercial purpose. This I.A 199/2015 with prayer "എന്റെ ഈ പുതിയ കെട്ടിടം വാടകക്കെട്ടിടത്തിൽ പ്രവർത്തിച്ചിരുന്ന spare parts business ടി കെട്ടിടത്തിന്റെ ഉടമസ്ഥൻ ഒഴിഞ്ഞു കൊടുക്കണമെന്ന് ആവശ്യപ്പെട്ടതിന്റെ അടിസ്ഥാനത്തിൽ ആയത് മാറ്റി സ്ഥാപിക്കുന്നതിന് വേണ്ടി പണിയുവാൻ ഏല്പിച്ചിരുന്നതാണ്. ഈ കച്ചവടം എനിക്ക് സ്വയം തൊഴിൽ ചെയ്തു ഉപജീവനത്തിനുള്ള ഏക മാർഗമാണ്. താഴത്തെ നിലയിൽ കച്ചവടവും ഒന്നാം നിലയിൽ എന്റെ കുടുംബസമേത താമസ ആവശ്യത്തിനുമാണ് ഉദ്ദേശിച്ചിരുന്നത്" assumes importance and non-allowing of the I.A 199/2015 has caused severe prejudice to the complainants.
7. The District Forum has failed to appreciate the fact that there was no contention on the part of the opposite party that the complainant was not a consumer and that construction of the building was for commercial purpose. Even during cross examination of complainant as PW1 no question was put to the complainant suggesting that he was not a consumer and that the construction was for commercial purpose and accordingly complainant was not a consumer.
8. The District Forum has failed to appreciate the pleadings of the parties and the explanation added to Sec. 2(d) of the Consumer Protection Act, 1986 as per the amendment which came into force on 15.03.2003 which states "commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment". Hence the dismissal of the complaint and also dismissal of I.A. No. 199/2015 by the District Forum after a lapse of four years of admission has caused miscarriage of justice.
9. The finding of the District Forum that there was no deficiency in service is strange and against the commission reports Ext. C1 and C2 and the very order of the District Forum in I.A. No. 531/2013. The District Forum ought to have appreciated Exts. C1 and C2 in the correct perspective. Discarding the important piece of evidence, the expert commission reports marked as Exts. C1 and C2, without adverting to them or even giving any reason is strange and against the settled principles of the law and evidence.
10. The District Forum went wrong in holding that Exts. A2 to A13 photographs will not serve any purpose is strange especially in view of the order of the District Forum allowing the complainant to resume construction on the basis of the order in I.A. No. 531/2013. Exts.C1 and C2 categorically stated that the further construction on the existing structure is not recommended and the same is to be demolished. These are the contentions raised by the appellants before this Commission.
11. We carefully examined all the documents. It is the fact that at first the complaint was filed by the complainants themselves. Thereafter they have engaged a lawyer and he amended the complaint putting forward a case that the construction was intended to run a spare parts shop for their livelihood. In the original complaint they mentioned the fact that they were conducting a shop and the owner demanded for eviction. From that statement we assume that the proposed building is for conducting his business and more over the opposite party has no case that the complainant is not a consumer under the Consumer Protection Act. There is no averment in his version and at the time of cross examination no question was put to the complainant suggesting that he was not a consumer and that the construction was for commercial purpose and accordingly complainants are not consumers. The opposite party has produced some documents regarding the permit to show that the proposed building was a commercial building. All shop rooms are commercial buildings, at the time of issuing building permits. This is not the deciding factor that the complainant was planning to use the shop for commercial purpose. Hence the finding of the District Forum is wrong. Complainants are consumers under Sec. 2(d) of the Consumer Protection Act, 1986. (Explanation).
12. The District Forum also found that there was no deficiency in service from the side of the opposite party/respondent. In this case the District Forum appointed two commissions. These two reports clearly stated that the construction was defective and to be demolished. Exts. C1 and C2 clearly stated that construction was defective and the construction cost comes to Rs.2,70,000/-. But the complainant had paid Rs. 3,27,000/- to the opposite party. The photographs produced by the complainants and commission reports proved that there is deficiency in service from the side of opposite party. For the defective construction the complainants had suffered too much mental agony and financial loss and they spent their valuable time. After the filing of the expert commission reports Exts. C1 and C2 complainant sought the permission of the Forum for construction of the building and accordingly complainant had demolished the defective construction and resumed the construction of the building. In the Commission report it is clearly stated that the cost of demolishing the building was Rs. 50,000/-.
13. From the above mentioned reasons we find that the appellants/complainants are consumers and there was deficiency in service on the side of the respondent/opposite party. For that the appellants suffered too much mental agony, financial loss and other hardships. For the grievances of the appellants the respondent has to pay compensation and costs to them.
In the result, appeal is allowed and the order in C.C. 819/2012 on the file of the District Forum, Ernakulam is set aside. The respondent has to pay Rs.50,000/- as compensation and Rs. 5,000/- as costs to the appellants. Time for compliance shall be one month from the date of receipt of the copy of this order. Otherwise the above said amounts shall carry interest @ 9% per annum.
JUSTICE K. SURENDRA MOHAN : PRESIDENT BEENA KUMARY. A : MEMBER jb [HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN] PRESIDENT [HON'BLE MR. SRI.T.S.P.MOOSATH] JUDICIAL MEMBER [ SMT.BEENAKUMARI.A] MEMBER