State Consumer Disputes Redressal Commission
The Blossom Coop. House Building First ... vs Sh. Surinder Singh Saini, Prop., ... on 31 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Complaint Case No. 28 of 2003) Date of Institution : 04.07.2003 Date of Decision : 31.05.2011 The Blossom Coop. House Building First Society Ltd., Sector 48A, Chandigarh previously The Blossom Coop. House Building Society Ltd., Sector 48A, Chandigarh through its President Sh. Kishan Dass, Flat No. 854, The Blossom Coop. House Building First Society Ltd., Sector 48-A, Chandigarh. Complainant V e r s u s 1. Sh. Surinder Singh Saini, Prop., Surindra Builders and Engineers, SCO No.2, 1st Floor, Sector 34-C, Chandigarh. 2. Sh. Vinod Joshi, A.N. Architect Group, SCF No.2, Sector 21, Chandigarh. 3. Sh. H.L. Bhatti, Ex. President, the Blossom Coop. House Building First Society Ltd., Sector 48-A, Chandigarh, R/o Flat No. 814, the Blossom Coop. House Building First Society Ltd., Sector 48-A, Chandigarh. 4. Sh. T.N. Thukral, Ex. Secretary, the Blossom Coop. House Building First Society Ltd., Sector 48-A, Chandigarh, R/o Flat No. 830, the Blossom Coop. House Building First Society Ltd., Sector 48-A, Chandigarh. Second Address:- House No. 16, Technical Teachers Training Institute, Sector 26, Chandigarh. ....Opposite Parties BEFORE: HONBLE MR. JUSTICE SHAM SUNDER, PRESIDENT. SH.JAGROOP SINGH MAHAL, MEMBER
Argued by: Sh.H.P.S. Kochhar, Adv. for Complainant.
Sh.Jagdish Marwaha, Adv. for OP No.1.
OPs No.2 to 4 exparte.
PER JAGROOP SINGH MAHAL, MEMBER This case has been received on remand as per order dated 26.8.2008, passed by the Honble National Consumer Disputes Redressal Commission, for disposal of the complaint afresh, in accordance with law.
2. Adumbrated in brief, the facts necessary for the disposal of the instant complaint are that vide agreement dated 15.11.99, the Complainant Society entered into a contract with OP No.1 for constructing 30 dwelling units consisting of stilt plus three storeys and other works, as provided in the agreement and in furtherance thereof, paid a sum of Rs.6.30 lacs for each category A flat and Rs.5.15 lacs each for category B flat. The grievance of the Complainant Society was that after possession of the flats had been taken by its members, they found that the flats were not constructed with good material and lacked good workmanship. It was also found that several other things which, although provided for in the building requirements, were not provided to the Complainant Society despite the fact that it paid the full amount as provided in the agreement and building requirements. OP No.2 was the Architect, who had passed the building/flats as being according to building requirements, despite being deficient, sub-standard and of poor workmanship. Several Complaints were made by the members/ allottees to OPs No. 3 & 4, but failed to evoke any positive result. It was due to this reason that the aforesaid OPs No.3 & 4 were removed from the Managing Committee and in a meeting held on 29.5.2003, Sh. Kishan Dass was appointed as President of the Society. He was to get charge and complete record of the Society from OP No.3, but inspite of verbal and written requests, the complete record was not handed over to him, for which Complaints were also made to the Registrar Cooperative Societies, U.T. Chandigarh.
3. It was averred that Complainant Society made the final payment for the said dwelling units to OP No.1 on 29.10.2001 and the members were requested to get their flats checked personally on or before 27.10.2001. On 19.6.2003, the Complainant hired the services of an Architect Shubh Consultants, for valuation of the defective jobs of the buildings/flats, who gave his report on 30.6.2003, pointing out the various deficiencies, duly mentioned in Para 10 of the Complaint. After setting out the deficient work done in each flat, as per valuation report, in Para 12 of the Complaint, the Complainant Society prayed for recovery of the amount of Rs.42,94,620/-, which comprised of Rs.28,64,714/- for 20 flats valuated for deficiency and Rs.14,29,906/- for 10 flats on an average basis. It was alleged that defects such as using of sub-standard cement and steel, non provision of pillars and beams in the building/ flats are such that they have materially weakened the strength of the whole building and the flats and thus were a perpetual danger to life and property of members of the Complainant Society. All this has led to the institution of the present Complaint.
4. After service of notice, OP No.1 filed his reply and while admitting the core facts of the Complaint, he pleaded that the Society entered into an Agreement (Annexure C-1) for construction of 30 dwelling units, which were to be virtually semi-built as per specifications attached with it. It was contended that the present Complaint was the result of feud between the two sets of office bearers, one outgoing and the other incoming and the entire claim was based upon the unilateral valuation done by Shubh Consultants at the behest of the present office bearers. It was asserted that the respective members of the Complainant Society, after thorough checking and inspection of their dwelling units, have taken over the possession after satisfying themselves regarding the construction of the dwelling unit by answering OP, as per the specification, as well as the sanctioned plan. Furthermore, it was the Architect of the Society, as well as the Engineer, who were getting the work executed under their regular supervision and checking and even the payment was being released only after getting the work checked through the Architect and Engineer of the Society by the then President of the Society and this was the reason that the certificate given by their own Architect regarding the construction of the building in accordance with the sanctioned plan, which the Society has submitted before the Estate Officer for getting permission for sewerage connection and for permission to occupy the building. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on his part, a prayer has been made for dismissal of the complaint with exemplary costs.
5. OP Nos. 2 to 4 were duly served, but when none appeared for them, they were proceeded against ex-parte.
6. The parties led evidence in support of their contentions.
7. We have heard the learned counsel for the parties and have perused the record, including the written arguments.
8. The contention of the learned counsel for the Complainant is that OP Nos. 3 and 4, the previous office bearers of the Society had joined hands with the OP No. 1 and 2 and in conspiracy with them, the OP No.1 did not construct flats in accordance with the requirements; whereas, OP No.2, who was the Architect and was required to supervise the said construction, did not perform the said service properly and thereby the OP No.1 made sub-standard construction to earn profits more than that which was legally due to him. It was due to this reason that the previous office bearers were removed and the present office bearers took reins of the Society. Annexure C-4 is a copy of the Proceeding Book dated 21.05.2003, showing the names of the persons, who were elected as Members of the Managing Committee of the Complainant Society unopposed. Annexure C-4/1 is the intimation given by the Returning Officer to the Assistant Registrar, Cooperative Societies, U.T. Chandigarh, in this respect. The office bearers of the Society were elected on 29.5.2003 vide Annexure C-5 and Kishan Dass was elected unanimously as President of the Society. He was to get charge and documents from the previous President namely Sh.H.L. Bhatti OP No.3, but inspite of verbal and written requests, the registers were not handed over to him, as is clear from the letter Annexure C-6 sent by the Complainant Society to the Registrar, Cooperative Societies, U.T. Chandigarh. The Inspector was also informed vide Annexure C-7.
9. The first contention of the learned counsel for the OP is that the present complaint has not been filed by a competent person. In this respect, we may refer to Annexure C-3, which is the copy of the Proceedings Book dated 1.7.2003, whereby the Members of the Managing Committee decided unanimously to file a court case, in pursuance of the report received from Shubh Consultants Architect, Engineers, Planners & Developers, who were deputed to inspect the building and the surrounding areas of the Society and to report about the defects in construction. Er. Ashok Tayal of Shubh Consultants had submitted the report on 30.6.2003 vide Annexure C-8 and it was in pursuance of that a meeting was called on 1.7.2003, when Kishan Dass, President of the Society was directed to file the court case on behalf of the Society Members and to sign all required documents, as mentioned in Annexure C-3. As against this resolution Annexure C-3 dated 1.7.2003, there is not even a slightest murmur from any of the Members or office bearers to deny, if no such authority was given to Kishan Dass to file the present complaint. This argument of the learned counsel for the OPs that the complaint has not been filed by an authorized person, therefore, has no merit and deserves to be rejected.
10. The learned counsel for the OP has argued that the possession of the flats was delivered to the Complainant on 16.04.2001, but the present complaint was filed on 04.07.2003 and, therefore, the complaint is barred by time. The learned counsel referred to the case V.Muthukrishnan and Others Versus K. Ponnuswamy and Others, 2002[2] CLT 407, in which case, the possession of the flats was taken in May, 1987 and the complaints filed in April, May and June, 1992, were held to be barred by time. This authority is not applicable in the present case, because the office bearers of the Complainant Society were hand-in-glove with the OPs and they were removed vide resolution dated 21.05.2003. It was only thereafter that the Complainant Society appointed Er. Ashok Tayal of Shubh Consultants, who submitted his report [Annexure C-8] on 30.06.2003. The defects, therefore, came to light from this report dated 30.06.2003 and the complaint filed on 04.07.2003, cannot be said to be barred by time. It may be mentioned that the period of two years shall be counted under Section 24-A of the Act from the date on which the cause of action has arisen. The defects came to the knowledge of the Complainant Society only on 30.06.2003 and, therefore, the period of limitation would start running from that date.
11. It is also argued by the learned counsel for the OP No.1 that if the OP No. 1 did not raise the construction in accordance with the specifications and sanctioned plan, it was only a breach of contract and, therefore, in view of the authority Executive Engineer, Gosikhurd Dam Division, Wahi (Pawani) Versus Shri Hariganga Cement Ltd. Nagpur, 1996[1] CLT 559, a consumer complaint would not be maintainable. This argument also is devoid of merit. The Complainant in that case had deposited a certain amount for purchase of cement from the OP. The OP supplied only some quantity of the cement and not the remaining, for which payment had been made. It was on that basis that the Complainant filed the consumer complaint to direct the OP to pay the cost price of the balance quantity of cement, along with interest and costs. It was under those circumstances held that the same was a breach of contract and did not relate to any defect in the goods supplied. It is not so in the present case. The facts of the case in hand, as enumerated earlier, show that the Complainant Society had hired the services of OP No. 1 for construction of the flats. This act of the OP No. 1 falls under the definition of Service covered under Clause (o) of sub-section (1) of Section 2 of the Act. The allegations against the OP No.1 are that he did not render proper service by raising construction in accordance with the specifications and sanctioned building plan. There was, therefore, deficiency in service and the Consumer Fora would have jurisdiction to decide the controversy between the parties. The authority cited by the learned counsel for the OP No.1 is, therefore, not helpful to him.
12. The learned counsel for the OP No.1 has also argued that though the Complainant Society has not mentioned fraud in the complaint, yet the entire tone and tenor of the complaint shows that it is a case of alleged fraud committed by the OPs with the Complainant. He referred to the case Shri Kewal Ram Thakur Versus Senior Superintendent, Post Office, Shimla Division, Shimla, 1998[1] CLT 99 and Dr. Sudhir G. Rao Versus Mrs. Kokila and Others, 1996[1] CLT 321 and argued that the Consumer Fora is not competent to take cognizance of such a case. Again, this contention deserves to be rejected, because there is no allegation in the entire complaint, if it is a case of fraud. As discussed above, it is made out that the OPs No. 1 and 2 were engaged by the Complainant Society to render specific service, which they utterly failed to render and, therefore, the Complainant has filed the present complaint for the relief on account of deficiency in service on their part. The authorities cited by the learned Counsel are, therefore, not applicable to the present case.
13. The learned Counsel, then, referred to case Tulip Park Co-operative Housing Society Limited Versus M/s Sai Overseas Import and Export, 1992[2] CLT 460 and argued that in the present case also, there is no deficiency in service. He referred to the case Sushil Kumar Gupta Versus Housing Board Haryana and Anr., 1996 [2] CPC 35 to contend that no protest was raised by the Complainant at the time of delivery of possession of the flats and, therefore, in view of Rakesh Kumar Versus Improvement Trust, Rupnagar, 2003[2] CLT 237, no case is made out against the OPs and the present complaint should be dismissed.
14. When we go through the authorities cited by the learned counsel for OP No.1, we find that none of the cases are applicable to the present case. In the case of Tulip Park Co-operative Housing Society Limited [supra], the allegation was that there was shortfall in saleable area, but it was found that the building was constructed as per the sanctioned plan and each flat had an area, as given in the agreement. In the present case, there is no such allegation, if the area of the flats is less. The allegations are that the OP No. 1 has not constructed the pillars and beams, which were provided in the sanctioned plan, and has not installed the articles such as taps, electric switches, earthing of electric installation, underground water tank, barbed wire, check-post, water tanks, water distribution system etc. etc., which were to be provided by him, as per the sanctioned plan.
15. Similarly, in the case of Sushil Kumar Gupta [supra], the house was alleged to be lacking in many of its material essential and inseparable aspects. That was, however, a case of Self-Financing Scheme and the possession of the house was to be delivered in semi-finished condition, as the allottees wanted their houses to be finished according to their own choice and taste. The Complainant in that case had not served any notice on the Respondent, before spending the amount on the house, nor any protest was lodged at the time of taking delivery of possession. In the present case, it was not under Self-Financing Scheme and all these requirements were mentioned in the Sanctioned Plan and the Agreement, to be supplied by the OP, but the same were not installed. When Er.Ashok Tayal of Shubh Consultants inspected the premises, the defects were still existing and, therefore, it is not a case where the Complainant had spent the amount on removing those defects, without giving any notice of the same to the OP.
16. As regards the third case i.e. Rakesh Kumar [supra], it also related to a flat under Self-Financing Scheme, in which various defects in the flooring, wall plastering and wood-work were alleged by the Complainant, but no cogent evidence was produced to prove the same. In the present case, the Complainant has not only produced Kishan Dass as a witness, but has also got the premises inspected and evaluated from Er. Ashok Tayal of Shubh Consultants. His report, along with affidavit was placed on file and it, therefore, cannot be said, if there was no evidence to prove the allegations. None of these authorities are, therefore, applicable to the present case.
17. The learned counsel for the OP No. 1 referred to the cases Executive Engineer and Administrative Officer Trichy Housing Unit Versus Trichy District Consumer Council and Others, 2004[2] CLT 592; H.R.S. Goel and Sarojini Goel and Others Versus Delhi Development Authority, 1997[2] CPC 336; Gurdev Singh Versus Ajmer Singh Contractor @ Bulla, 2004[1] CLT 636 and Trimurti Nagar Galdedharak Housing Griha Nirman Sahakari Sanstha Versus Chief Officer, Nagpur Housing and Area Development Board, CPC 1994 [1] 693. It is argued that in view of these authorities, the exhaustive evidence is required to be recorded, both the parties have to produce witnesses and to cross-examine each others witnesses and, therefore, the matter cannot be adjudicated in summary proceedings by this Commission.
18. First, we go through the authorities cited by the learned counsel for OP No.1. In the case of Executive Engineer and Administrative Officer Trichy Housing Unit [supra], the complaints were filed after about three years of the Complainants residing in the houses. The Housing Board had entered into an agreement with M/s R.P.P. Constructions for three years for the maintenance of the building, which period had since expired. As per the agreement, the Lessor was not to be responsible for any defects structural or otherwise in the property and the Lessee was bound to purchase the property alongwith defects, if any, on construction, without any claim for compensation from the Lessor. It was, therefore, not a case of giving a contract to the OP for construction of houses, in accordance with the sanctioned plan, but the houses were already constructed and were allotted to the Complainants, along with defects existing therein, in respect of which the Complainants were not entitled to claim any compensation. It is not so in the present case.
19. The second case is of H.R.S. Goel and Sarojini Goel and Others [supra], which relates to the allotment of D.D.A. Flats. The defects were pointed out in the flats, which were rectified. The Complainants could not prove any defects in the flats and the Executive Engineer also stated in his affidavit that there were no defects in the flats. Again, it is not so in the present case.
20. As regards the exhaustive evidence to be led by the parties, again there is no merit in this contention. In the case of Gurdev Singh Versus Ajmer Singh [supra], the contention of the Complainant was that he had engaged Ajmer Singh Contractor to raise construction of his house and had paid to him Rs.1.40 lacs towards full and final settlement vide a receipt, duly signed by Ajmer Singh. Ajmer Singh denied, if he entered into contract with the Complainant or constructed the house [in the present case, it is not so]. He also denied having received the amount of Rs.1.40 lacs from the Complainant or executed any receipt. The receipt was said to be a forgery committed by the Complainant in collusion with one Bhagat Singh Contractor, who had a professional jealousy with him. It was under those circumstances held that the contention of the Complainant of engaging Ajmer Singh as Contractor for construction of the house or paying the amount of Rs.1.40 lacs to him was doubtful. The receipt also appeared to be a forgery. Exhaustive evidence was required in that respect, which was not possible in summary proceedings before the Consumer Fora. The District Forum had dismissed the complaint, which order was upheld. In the present case, we do not find any of these road blocks to decide the complaint, because sufficient evidence has been led by both the parties in support of their respective contentions and there are no such contentious issues which cannot be decided by this Commission.
21. Similarly, in case Trimurti Nagar Galdedharak Housing Griha Nirman Sahakari Sanstha [supra], the grievance of the Complainant was regarding re-categorization of the flats, deviating from what was initially finalized, resulting in enhancement of the prices and also loss of plinth area, besides sub-standard material used for the construction. In that case, the Complainant had asked for all kinds of directions, to be made to the Housing Board, as mentioned in Para No. 5 of the order. The Honble National Commission felt that complicated questions of law and facts were involved, and elaborate oral and documentary evidence was required and, therefore, the Complainant was relegated to the Civil Court to seek his remedy. As discussed above, in the present case, we do not find any such impediment to decide the controversy between the parties and do not think it a proper case, in which the Complainant should be referred to approach the Civil Court.
22. The learned counsel for the Complainant referred to Annexure C-9 to C-49, which are the Valuation Sheets prepared by Er. Ashok Tayal of Shubh Consultants, specifying the defects in construction. The learned counsel argued that as per Annexure C-7/1, Shubh Consultants was directed to do the following:-
[1] That you will carry out the evaluation of the defective jobs of the flats of the members of the Society immediately in terms the agreement with the Contractor and submit the report in respect of each Members flat to be undersigned duly authenticated.
xx xxxxx xxxxx xxxxx xxxxx xxxx xxxx [5] Evaluation work will include the scope of the building requirements duly accepted by the Contractor and paid for by the Society, but not provided, work provided but deficiency in the quality of material and workmanship and any work left and will intimate the recovery from contractual agency.
He, therefore, examined the flats, keeping in view as to what were the building requirements, as per the Plan; what were the defects; what was to be provided in the building, but had not been provided and the value thereof. Er. Ashok Tayal visited each of the flats, as given in Para 12 of the complaint and prepared his report Annexure C-9 to C-49, he came to the conclusion that there was deficiency in service on the part of the Contractor, to the extent of Rs.28,64,714/- with respect to 20 flats inspected by him. There were another 10 flats in which, according to the Complainant, the deficiencies were similar, but the owners/ occupiers did not give them permission to inspect the same. However, the deficiency in service with respect to the said 10 flats was proportionately assessed at Rs.14,29,906/- and in this manner, a total claim of Rs.42,94,620/- has been filed by the Complainant, as mentioned in Para Nos. 13, 14 and 20(1) of the complaint.
23. The OP No.1 has not denied their appointment as Contractor to build the flats. Even otherwise, Annexure C-1 is an Agreement, executed between the OP No.1 and the Complainant, in this respect. It specifies that architectural and structural drawings would be supplied by the Society and the construction shall be raised by the Contractor, in accordance with that. The OP No.1 has not alleged if the said drawing and specifications were not supplied to it. In fact, Annexure C-1 itself encloses the building requirements as Annexure C-2 and Site Plan as Annexure C-2/1. The contention of OP No.1 is that Shubh Consultants were appointed on their back; that no notice was given to them and, therefore, this report cannot be read in evidence. We do not find merit in this argument. There is no such rule or law, nor has any been quoted by the learned counsel for the OP that such a report submitted by the Evaluator cannot be read in evidence.
24. There is another ground in the present case showing that the report Annexure C-9 to C-49 is perfectly correct and genuine, because no evidence has been led by OP No. 1, contrary to the findings recorded by Er. Ashok Tayal of Shubh Consultants in Annexure C-9 to C-49. These reports contain the facts, which were apparent on the face of it and possibly, it was this very reason that OP No.1 kept silent and did not get the premises examined or evaluated from any other Evaluator. Rather, when the Complainant moved another application on 7th December, 2009 for appointing an Evaluator that was vehemently opposed by OP No.1 through the reply filed by him. It shows that this OP was aware of the defects and did not want another evaluator going from this Commission to make another report about the defects. This fact confirm that the reports Annexure C-9 to C-49, therefore, cannot be excluded from evidence.
25. The learned counsel for the OP No.1 has then argued that the affidavits submitted by Kishan Dass - Complainant, former President and Er. Ashok Tayal of Shubh Consultants, cannot be read in evidence, firstly, because the affidavits have not been verified in accordance with law and secondly, that the affidavit of Kishan Dass was prepared at Chandigarh, but was sworn at Hoshiarpur.
26. As regards the first contention, the learned counsel argued that Kishan Dass deponent has verified the contents of Para No. 1 to 17 and 20 as true to the best of his knowledge and belief; whereas, the contents of Para No.1 to 14 of the affidavit of Er. Ashok Tayal were verified to be true to the best of his knowledge and belief. The learned counsel argued that in view of the requirements of Order 19 Rule 3 CPC, it was to be separately mentioned by the deponent as to the contents of which paras are true to his knowledge and which paras to his belief. In support of his contention, the learned counsel referred to Tek Chand Versus Balbir Singh, 1996 (1) RRR 621, Rai Prem Chandra & Ors. Versus OBEETEE Pvt. Ltd., 1991 Civil Court Cases 570, Milkha Singh & Others Versus Nirmal Singh & Others, 2008 (1) RCR (Rent) 46 and M/s Reliance Engineering Works Versus Renu Sharma, 2000 (1) CPC 530 and argued that the affidavits, which are not properly verified are not affidavits in the eyes of law and, therefore, cannot be read in evidence. The learned Counsel, therefore, argued that if both these affidavits are excluded, there remains no legal evidence on file and the result would be that the complaint is liable to be dismissed. We do not find any merit in this argument. There is no gain saying the fact that strict rules of CPC are not applicable to the proceedings under the Consumer Protect Act and, therefore, it would be too technical in these, proceeding to ignore the evidence, simply on the ground of surplusage, when the deponents mentioned the words and belief in the verification, though the same was not needed to be mentioned. In the case of Er. Ashok Tayal, he has mentioned in Para No. 2 of the affidavit that the Complainant had hired his services for valuation of the defective jobs of the building/flats and he gave his report dated 30.6.2003 Annexure C-8 to C-49 to the Complainant Society. The OP has no where denied if the said report was not given by him or is not signed by him. In Para No. 3, the deponent claimed to have inspected the building and surrounding areas of the society, including the flats mentioned therein and evaluated them as per the building requirements/ contract/ agreement supplied by the Complainant. He further mentioned that after the inspection and evaluation, whatever the deponent observed, he mentioned in (a), (b) and (c) of the said part. The amount of deficient work done in each flat, as detected by him, was separately mentioned in Para No. 5 (wrongly numbered as 11) of the affidavit. These are the facts, which were in the specific knowledge of the deponent, which he came to know on inspection of each of the flats. When the Complainant mentioned in the verification clause about the correctness of the contents of the paras, he, therefore, referred to Para No. 2 to 5 of his affidavit. Then, comes Para No. 6, 7 and 8 (wrongly numbered as 12 to 14), in which the defects were assessed on average basis in the remaining 10 flats, which worked out to Rs.14,29,906/- and he mentioned in Para No. 8 about the use of sub-standard cement and steel, weakening the strength of the whole building, for which the damages were assessed at Rs.10,00,000/-. These paras contained his belief, because it is not the result of his direct knowledge or inspection, but his supposition and calculations. We are, therefore, of the opinion that when the deponent has specifically mentioned having verified some acts himself and as a result thereof, having come to certain conclusion, and further, if the contents of those paras have been verified to be correct on the basis of his knowledge, his mere mentioning the words and belief, would not invalidate the entire affidavit. We may say that these words and belief is just a surplusage, which has been mentioned without any reason and cannot be attributed to the contents of Para Nos. 2 to 6 of the affidavit. The contents of Para Nos. 2 to 6 of the affidavit of Er. Ashok Tayal, therefore, cannot be discarded, merely because of the alleged defective verification.
27. The learned counsel for the OP has argued that the affidavit of Kishan Dass was prepared at Chandigarh. He, however, could not point out any evidence to that effect, because this affidavit is recorded to have been prepared at Hoshiarpur on 19.4.2011. It was verified and attested at Hoshiarpur. It, therefore, cannot be said if there is any such defect in the affidavit about the same having been prepared at Chandigarh.
28. The affidavit of Kishan Dass has also mentioned the facts, which were in his personal knowledge. The affidavit has been verified to be true to the best of his knowledge and belief. The words and belief, as mentioned in the earlier para, is a surplusage and merely due to the writing of these words, the entire affidavit cannot be thrown away. We may again mention here, for the sake of repetition, that strict rules of CPC are not applicable to the summary proceedings before a Consumer Fora. Order 19 Rule 3 CPC, therefore, cannot be introduced in these proceedings to shut out the material evidence, which has come on file.
29. The Reports (Annexure C-9 to C-49) show that the deficiency in service, in constructing the building, can be evaluated to the extent of Rs.28,64,714/-, as mentioned therein. Apart from that there were 10 other flats, for which also the proportionate amount of Rs.14,29,906/- was assessed by Er. Ashok Tayal. We are, however, of the view that Er. Ashok Tayal has not inspected those flats and in its absence, we cannot say if the defects, as were existing in other flats, also existed therein. Er. Ashok Tayal has simply presumed the defects, without any proof thereof. We, therefore, cannot accept this contention of the Complainant that the said flats also had deficiency in construction to the extent of Rs.14,29,906/-.
30. It is then argued by the learned counsel for the Complainant that due to the sub-standard cement used in the construction, non-construction of pillars and beams where necessary and other defects, the age of the building has been reduced. There is no doubt in it that cement is an important ingredient for securing the long life of a building. Similarly, pillars and beams are provided to share the load, wherever necessary, and if the same are not constructed, it would definitely reduce the age of the building. The OP No.1 has not explained as to why the cement of the required quality was not used and why the pillars and beams were not constructed, wherever the same were provided in the Building Plan. We are, therefore, of the opinion that due to the reduction in life of the building, the OP should pay Rs.10,00,000/- as compensation.
31. The learned counsel for the Complainant has also argued that the sub-standard construction is a constant source of mental tension for the Complainant and its Members. The OP No. 1 and 2 are the sole cause for the said mental tension, which shall continue, so long as the Members of the Complainant reside in the building or it does not fall down due to these defects. The Complainant, therefore, is required to be compensated for the same and we are of the opinion that Rs.5,00,000/- would be just and proper compensation for this purpose.
32. As regards Mr. Vinod Joshi, Architect, his duty was to supervise the construction and to get it done in accordance with the Building Plan. He also failed in rendering proper service and did neither get the work done from OP No. 1, in accordance with the Building Plan, nor informed the Complainant, if the OP No.1 was not using the proper material or was not acting in accordance with the Plan. The learned counsel for the Complainant argued that since the Complainant and its office bearers did not have the requisite acumen to supervise the construction, they had, therefore, engaged the services of the said Vinod Joshi OP No.2, for this purpose. But, he utterly failed to perform his part of the service. It was argued that in fact, the said Vinod Joshi joined hands with Surinder Singh OP No.1 and it was due to that reason alone that the building was not constructed as per specifications and requirements. Vinod Joshi did not come forward to deny any of the allegations, though he was served twice i.e. firstly on 26.03.2009 and secondly, on 21.10.2009, which shows that he has nothing to say against his liability. His liability would be, therefore, joint and several, with that of OP No.1.
33. In view of the above discussion, we are of the opinion that the present complaint must succeed and the same is accordingly, allowed. The OPs No. 1 and 2 are directed to pay, jointly and severally, a sum of Rs.28,64,714/- (as mentioned in Annexure C-9 to C-49) plus Rs.10,00,000/- for the reduced life of the building and Rs.5,00,000/- as compensation for mental tension, along with litigation costs of Rs.10,000/- to the Complainant, within 30 days from the date of receipt of the copy of the order. If the entire amount of Rs.43,74,714/- is not paid within the aforesaid period, the OPs No. 1 and 2 would be, jointly and severally, liable to pay the same, along with interest @9% per annum, since the filing of the present complaint i.e. 04.07.2003, till the same is actually paid or deposited with the Complainant.
34. The Complainant shall pay the amount of Rs.28,64,714/- to the owners of the 20 flats, as mentioned in Para No. 12 of the complaint, in accordance with the report (Annexure C-9 to C-49) of Er. Ashok Tayal.
35. The complaint against OPs No. 3 & 4 is dismissed, as there is no relationship of consumer and service provider between the Complainant and these OPs.
36. Copies of this order be sent to the parties free of charge.
Pronounced.
31st May,2011 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[JAGROOP SINGH MAHAL] MEMBER Dutt STATE COMMISSION (CC No. 28 of 2003) Argued by: Sh.H.P.S. Kochhar, Adv. for Complainant.
Sh. Jagdish Marwaha, Adv. for OP No.1.
OPs No.2 to 4 ex-parte.
Dated the 31st May, 2011 ORDER Vide our detailed order of even date, recorded separately, this complaint has been allowed qua OPs 1 & 2.
(JAGROOP SINGH MAHAL) MEMBER (JUSTICE SHAM SUNDER) PRESIDENT