State Consumer Disputes Redressal Commission
U.P. State Agro Industrial Corporation ... vs Sh. Piyush Aggarwal on 31 October, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 160 / 2005
General Manager (Service)
U.P. State Agro Industrial Corporation Limited
22 Baba Saheb Dr. Bhim Rao Ambedkar Marg, Lucknow
......Appellant / Opposite Party
Versus
Sh. Piyush Aggarwal S/o Sh. Mahesh Chand Aggarwal
R/o 109 Vasant Vihar
Dehradun
.....Respondent / Complainant
Sh. B.S. Ranghar, Learned Counsel for the Appellant
Sh. J.K. Jain, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 31.10.2008
ORDER
(Per: Justice Irshad Hussain, President):
This is opposite party's appeal against the order dated 12.01.2005 passed by the District Forum, Dehradun in consumer complaint No. 49 / 2001.
2. Complainant got erected eight tunnel type poly houses at his P and R Farms, Selaqui, Dehradun in February / March, 2000 and made total payment of Rs. 2,65,000/- to the opposite party as cost. Poly houses were constructed by opposite party on Turn-key basis. Complainant was handed over possession of the poly houses on 31.03.2000 and the certificates of the completion of the same were given by the complainant. The certificates are Paper Nos. 20Kha/1 to 20Kha/3 of the original record. The complainant, thereafter, proceeded to take steps for growing vegetable crops of high quality 2 Shimla Mirch and Tomatoes. According to the complainant, these poly houses were blown down and damaged by wind on 04th / 05th May, 2000 and 26th May, 2000. Damages were attributed to sub-standard use of the material in erecting poly houses and also not providing poly cover on all sides and provision of proper ventilation to with-stand the wind pressure. According to the complainant, this amounted to an unfair trade practice on the part of the opposite party, which failed to make required repairs despite undertaking, to enable the complainant to make use of the poly houses to raise off-season vegetable crops and, thus, also made deficiency in service, causing substantial loss to the complainant. The complainant, therefore, laid claim for total compensation of Rs. 3,62,872/- inclusive of Rs. 2,65,000/-, the cost of the poly houses.
3. Opposite party contested the complaint mainly on the grounds that the standard material was used in constructing the poly houses; that the complainant had, after completion of the poly houses, given full satisfaction certificates to the opposite party; that on 04th / 05th May, 2000 and 26th May, 2000, cyclonic storm lashed the district of Dehradun and considerable damage was caused to the properties, trees, electric and telephone poles / pillars were uprooted and poly houses of the complainant and others were also damaged; that the opposite party was intimated about the damage to the poly houses by letter dated 05.06.2002 of the complainant; that after construction of the poly houses and handing over the possession of these poly houses to the complainant on 31.03.2000, the privity of contract ceased to exist between the parties; that it was only on compassionate grounds that the opposite party decided to take the work of repair of the poly houses and which had been undertaken in the right earnest and that the opposite party has neither resorted to any unfair trade practice, nor made any deficiency in service. Therefore, the opposite party 3 submitted that the complainant was not entitled to any compensation for the alleged damage to the poly houses.
4. The District Forum, on an appreciation of the material on record, accepted the contention of the complainant that sub-standard material was used in the construction of the poly houses, which resulted in their damage due to wind on the said dates and accordingly held entitled the complainant for return of the cost of Rs. 2,65,000/- of the poly houses together with simple interest @8% p.a. w.e.f. 01.06.2000 till payment within the stipulated period. The complainant was not held entitled to damages in respect of the crop of the vegetables said to have been grown in the poly houses and for mental agony. Opposite party felt aggrieved by the impugned order and filed this appeal.
5. Learned counsel for the opposite party persuasively argued that the District Forum fell in error in accepting the allegation that sub-standard material was used in erecting the poly houses, as there was no reliable evidence on record to support the said allegation. To bring home his point of view, he drew attention to the written statement, in which under paragraph No. 3, complete detail of the material used in the construction of the poly houses had been given and urged that the complainant has not adduced any expert evidence to rebut the claim so made and in the totality of the circumstances of the case, the District Forum was not at all justified in accepting the complainant's version. On the other hand, learned counsel for the complainant supported the conclusion drawn by the District Forum, by submitting that since the opposite party failed to prove by cogent evidence that the damage to the poly houses was caused due to cyclonic storm on the above-mentioned dates, the damage had to be 4 attributed to wind and almost normal climatic condition, by reason of sub-standard material used in the construction.
6. Having considered the material on record, we are of the view that the submission made on behalf of the opposite party, can safely be said to be sustainable and it can not be accepted that the damage to the poly houses was caused on account of the sub-standard material used in the construction.
7. The reasons are that the opposite party having given specific detail of all the material used in erecting the poly houses and the complainant himself endorsing full satisfaction certificates of the work undertaken and completed by the opposite party (Paper Nos. 20Kha/1 to 20Kha/3), the District Forum was not justified in accepting the complainant's claim that the poly houses got damaged by normal wind due to sub-standard material used in the construction. Considering the specific detail given by the opposite party, the specification and quality of the material used, could have only been disputed by expert evidence, which could have easily been obtained by the complainant on getting the poly houses and their material examined by an expert. The opposite party had expertise and required know-how to construct the poly houses, which they had done and specific detail of the material used in the construction, could not have been challenged merely by saying that the damage caused to the poly houses by wind was on account of sub-standard material used in their construction.
8. Further, letter dated 30.06.2000 (Paper No. 20Kha/4) addressed to the complainant by Sh. A.K. Aggarwal, Divisional Engineer of the opposite party, categorically mentioned that the damage to the poly houses of the complainant was caused due to cyclonic storm on the 5 above said dates and that the steps for repairs were being taken by the opposite party. Complainant vide his endorsement dated 01.07.2000 on this letter, complemented the undertaking for repairs by the opposite party, besides stressing that the repairs be carried out per instructions contained in the circulars dated 04.01.2000 and 07.03.2000 issued by the opposite party. In his endorsement, the complainant has not at all disputed or challenged the above-mentioned version made on behalf of the opposite party that the damage to the poly houses was caused due to cyclonic storm. After the said letter dated 30.06.2000, the complainant sent letter dated 08.07.2000 (Paper Nos. 23Kha/6 to 23Kha/7) to the Divisional Engineer of the opposite party and in that letter also, the complainant has nowhere claimed and urged that the damage to the poly houses was not caused in cyclonic storm. By this letter, the complainant had requested the Divisional Engineer to start, at the earliest, the repair work in the poly houses, so that these may be used for the purpose, for which these were got constructed. This has also to be said in regard to complainant's another letter dated 06.09.2000 (Paper Nos. 23Kha/9 to 23Kha/10) and, thus, we are of the firm view that the complainant has not challenged the stand of the opposite party that the damage to the poly houses was caused due to cyclonic storm of the above said dates. The District Forum failed to take into consideration the probative value of these documents and rejected the contention of the opposite party merely on the ground that certificate of the electricity or telephone department was not filed, to show that in the cyclonic storm, the poles and pillars were uprooted and wirings were extensively damaged in the cyclonic storm of the said dates. Even if such certificates were not placed on record, the news item of these dates of a reputed daily newspaper "Dainik Jagran" (Paper Nos. 20Kha/5 and 20Kha/6) and photograph published in the newspaper on 29.05.2000 (Paper No. 20Kha/7) showing uprooted electric poles and damaged wirings 6 relevant to the news items of cyclonic storm and considerable damage to the property and blockade of the road and rail traffic, could not have been safely ignored on the ground that these documents were not admissible in evidence in the case. It need to be stated that strict principles and rules of the Indian Evidence Act, 1872 are not, as such, applicable to the proceedings before Consumer Foras. At the appellate stage, opposite party placed on record certificate (Paper No. 76) of the Tehsildar, Vikas Nagar, Dehradun, who, on the basis of the report of the Lekhpal, verified that cyclonic storm lashed the area all around on the above-mentioned dates and considerable damage to the properties of the villagers was caused. Sh. A.R. Khan, an officer of the opposite party, by his affidavit (Paper Nos. 74 to 75), affirmed taking of the report of the Tehsildar in usual course of official business. This piece of evidence, would not only support the stand taken by the opposite party, but would also make above news items of the said dates relevant in taking note of the fact that cyclonic storm lashed the area and damage was also caused to the poly houses of the complainant.
9. The above aspect of the matter also clearly indicate that standard material was used in the construction of the poly houses and these were, thus, capable of with-standing the pressure and high velocity wind of the cyclonic storm. There can be no gain saying that, as stated above, the complainant himself was fully satisfied by the quality of the material and construction of the poly houses per required design and norms and accordingly gave full satisfaction certificates on 31.03.2000. The endorsements made vide these three certificates, also indicate that the complainant had tested workability of the material used in the construction of the poly houses and further that mini and micro sprinkler system was provided in the poly houses to serve the purpose, for which they were got constructed by the 7 complainant. We, therefore, have no hesitation in saying that the complainant made incorrect statement of fact in his letter dated 05.06.2000 (Paper No. 23Kha/1) sent to the Divisional Engineer of the opposite party, alleging some shortcomings in the construction of the poly houses. In other words, the work of construction of the poly houses by the opposite party, left nothing to be desired and the complainant was fully satisfied with the quality and workmanship of the opposite party while taking possession of the poly houses on 31.03.2000.
10. In the face of above evidence and material on record, we don't think that the averment of the affidavit of the complainant and his village witnesses Sher Singh, Raja Ram and Karam Chand, who have filed affidavits (Paper Nos. 15Ka/1 and 16Ka/1), could have safely been taken to draw an inference that the poly houses were blown down and damaged in normal wind even when damage was not caused to the straw huts of these witnesses. In the peculiar circumstances of the case, the District Forum fell in error in placing reliance on the averment of the affidavits of these witnesses, to find favour with the allegation of the complainant that in normal wind, the poly houses were blown down and damaged.
11. We are, therefore, convinced that the opposite party has neither adopted unfair trade practice, nor made any deficiency in service in the matter of construction of the poly houses. The conclusion to the contrary drawn by the District Forum was not warranted from the material on record and it could not have been held that sub-standard material was used and poly houses were not constructed per required norms and design. The District Forum also fell in error in accepting that the poly houses got damaged and blown down in the normal wind on the above said dates.
812. In so far as the repair work of the damaged poly houses was concerned, we see force in the submission of the learned counsel for the complainant that in view of the implied warranty, the opposite party was obliged to undertake the repair work of the poly houses and that the steps taken by the opposite party, could not have been attributed to mere compassion and benevolent stand of the opposite party. This is also true in view of the fact that the poly houses got damaged and required repairs on account of the cyclonic storm, which lashed the area in the month of May, 2000. By letter dated 01.09.2000 (Paper No. 23Kha/8), the Divisional Engineer of the opposite party informed the complainant that repair work in poly houses Nos. 1 to 5 and 7 had been completed and repair work in other 2 poly houses is under progress. In reply to the said letter, complainant sent letter dated 06.09.2000 (Paper Nos. 23Kha/9 to 23Kha/10) described the deficiencies and shortcomings despite the repair work undertaken in the 6 out of the 8 poly houses and requested the opposite party to take urgent action towards repair and strengthening of 8 poly houses at the earliest. Since the required repair work could not be completed, the complainant sent reminder dated 25.10.2000 (Paper No. 23Kha/11) and called upon the opposite party to do the needful in the matter.
13. Record reveal that the complainant also sent another reminder dated 04.01.2001, which was acknowledged by the General Manager (Services) of the opposite party vide his letter dated 23.01.2001 (Paper Nos. 20Kha/10 to 20Kha.11) and explained the circumstances under which all the poly houses have not yet been fully repaired and the reason given was that some material necessary for the repairs, had not been provided by the complainant. In view of the implied warranty, we do not think that the complainant could have been expected to 9 provide material for the repairs of the poly houses and in the totality of the facts and circumstances of the case, the opposite party was obliged to get the poly houses repaired, so as to make these re-usable for the purpose, for which, they were got constructed by the complainant. In fact, the opposite party having started the repair work in the right earnest, failed to complete the same and, thus, made deficiency in service, making it liable to pay reasonable and proper compensation / damages to the complainant.
14. For the reasons aforesaid and the findings recorded by us, the complainant was wrongly held entitled to refund of entire cost of Rs. 2,65,000/- of the poly houses with interest from the opposite party and that the complainant could have only been awarded just and proper compensation / damages for not completing the repair work of the poly houses by the opposite party. Considering the total cost of 8 poly houses, we are of the view that lumpsum compensation / damages of Rs. 50,000/- shall be adequate and proper and the opposite party has to be directed to pay the said amount to the complainant. The appeal, thus, succeed partly and the impugned order need to be modified accordingly.
15. Appeal is partly allowed. Order dated 12.01.2005 of the District Forum is modified and the complainant is held entitled to lumpsum compensation / damages of Rs. 50,000/- (Rupees Fifty Thousand) to be paid by the appellant - opposite party within a period of one month from the date of this order. In the event of failure to pay the amount within the stipulated period, the amount shall carry interest @9% p.a. till payment. No order as to cost.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal