State Consumer Disputes Redressal Commission
M/S Enarc Constructions vs Nalini S Menon on 28 September, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM First Appeal No. A/15/821 ( Date of Filing : 27 Oct 2015 ) (Arisen out of Order Dated 18/09/2015 in Case No. cc/837/2007 of District Trissur) 1. M/S ENARC CONSTRUCTIONS M G ROAD THRISSUR REPRESENTED BY MANAGING PARTNER K RAMAKRISHNAN THRISSUR KERALA ...........Appellant(s) Versus 1. NALINI S MENON NEELAMBARI /KONDOTH HOUSE AVANUR P O THRISSUR 680547 2. AJITHA S MENON NEELAMBARI /KONDOTH HOUSE AVANUR P O THRISSUR ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN PRESIDENT HON'BLE MR. SRI.T.S.P.MOOSATH JUDICIAL MEMBER SRI.RANJIT.R MEMBER PRESENT: Dated : 28 Sep 2022 Final Order / Judgement KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL No.821/2015 JUDGEMENT DATED: 28.09.2022 (Against the Order in C.C.837/2007 of CDRF, Thrissur) PRESENT: SRI. T.S.P. MOOSATH : JUDICIAL MEMBER SRI. RANJIT R. : MEMBER SMT. BEENA KUMARY A. : MEMBER APPELLANTS: 1. M/s Enarc Constructions, M.G. Road, Thrissur represented by Managing Partner, K. Ramakrishnan, Enarc Constructions, M.G. Road, Thrissur 2. K. Ramakrishnan, Praveen House, Harisree Nagar, Poonkunnam P.O., Thrissur (by Adv. A. Abdul Kharim) Vs. RESPONDENTS: 1. Nalini S. Menon, Neelambari/Kondoth House, Avanur P.O., Thrissur - 680 547 2. Ajitha S. Menon, Neelambari/Kondoth House, Avanur P.O., Thrissur - 680 547 JUDGEMENT
SRI. RANJITH R. : MEMBER The opposite parties 1 and 2 have filed this appeal against an order dated 18.09.2015 passed by the Consumer Disputes Redressal Forum, Thrissur (in short the District Forum) in C.C.No.837/2007. The District Forum by its order directed the opposite parties to pay Rs.50,000/- as compensation and costs to the complainant within one month from the date of the order failing which the amount will carry interest 12% till realisation.
2. The case of the complainant in brief is that they have entered into an agreement with the opposite party for constructing a 1000sq.ft. house for an amount of Rs.12,00,000/-(Rupees Twelve Lakhs). Towards the cost of the house, the complainant paid Rs.10,00,000/-(Rupees Ten Lakhs) through State Bank of India and Rs.2,00,000/- (Rupees Two Lakhs) by cash to the opposite parties. Within one year, the walls of the house developed cracks and the rain water flows into the house through the cracks. The bath room constructed was also getting wet as a result of the crack in the wall. So they were not able to use it. Further as per the agreement doors and windows has to be constructed in teak wood whereas the opposite party has used inferior quality wood for construction of the doors and windows. There are several other defects in the construction as well. For curing the defects the house needs nearly 2,00,000/-(Rupees Two Lakhs). Hence they filed complaint for getting compensation from the opposite parties.
3. The opposite parties resisted the complaint by filing version. They would contend that they have constructed the house under the direct supervision and knowledge of the complainants. Each and every steps of the construction was directly witnessed by the complainant and only with their satisfaction the works proceeded. The opposite party denied that there was an agreement between them for using teak wood for making doors and windows. As per the agreement thy used good quality woods like Anjili, Burma pincoda etc for making the doors and windows. They were designed and prepared with thick plywood and bath rooms were prepared with syntex material. The doors and windows were painted for their protection. They further contended that the dispute between the complainants and opposite parties are civil in nature and it has to be adjudicated before a Civil Court. The complainant had filed the complaint before the District Forum to overcome court fee and other expenses. Since the complainant did not produce the agreement they have failed to prove the allegations in the complaint. The opposite parties thus prays for dismissal of the complaint with costs.
4. Evidence consists of Exhibit P1 to P6 marked on the side of the complainant. 1st complainant was examined as PW1, 2nd opposite party was examined as RW1. No documents were produced by the opposite parties. Exhibits C1 and C2 Commission Reports were marked and Expert Commissioner was examined as CW1.
5. The District Forum appreciating the materials produced especially Exhibit C2, Commission Report and Exhibit P2 the estimate, concluded that there were many defects in the construction of the house which was built by the opposite party and also materials used for construction were of inferior quality. The District Forum on the basis of such conclusion directed the opposite parties to pay an amount of Rs.50,000/-(Rupees Fifty Thousand) as costs and compensation to the complainant.
6. Heard the appellant. Respondent did not appear. Perused the records.
7. The learned counsel for the appellant contends that complainant did not produce the agreement for construction so as to prove the allegations contained in the complaint. Each and every step of construction was directly witnessed by the complainants and on their specification, works were proceeded and completed. No complaint was raised by the complainants till completion of the work. There is no agreement regarding using of teak wood for making doors and windows. They used Anjili, Burma pincoda etc for making doors and windows as per the agreement. The amount of Rs.12,00,000/-(Rupees Twelve Lakhs) was collected as the total cost for five cents of land as well as for construction of the house. These facts are clearly mentioned in the agreement. The complainant did not produce the agreement only to conceal these facts. The learned counsel further contended that the nature of the alleged defect is nothing but normal wear and tear associated with any residential house. This fact was not looked into by the District Forum. The District Forum erred in fixing compensation even though the Commissioner has not fixed the actual amount for the alleged repair. The learned counsel submitted that the District Forum grossly misconstrued the pleadings and documentary evidence let in by the opposite parties while passing the impugned order under challenge. He thus prays for setting aside the order of the District Forum and to dismiss the complaint.
8. We have considered the arguments put forward by the learned counsel for the appellant at length. We have also perused the order and the records.
9. The specific case of the complainants/respondents are that there were many defects in the construction of the house which was built by the opposite parties for an amount of Rs.12,00,000/-(Rupees Twelve Lakhs). The opposite parties has used inferior quality materials for construction as against the terms and conditions stipulated in the agreement for construction. On the other hand the appellants/opposite parties would state that the total payment which they received from the complainant is for five cents of land as well as the cost of the building. This fact is mentioned in the agreement. Moreover, in the agreement there is no stipulation that superior quality material would be used for construction like teak wood since the total cost for the building is very low.
10. Neither the complainants nor the opposite parties produced the agreement to prove and substantiate their respective case. However, we find that the complainant has produced Exhibit P2 estimate to show that the total cost of the construction of the building alone comes to Rs.12,00,000/-(Rupees Twelve Lakhs). In this estimate it is clearly mentioned about the materials to be used for construction. The doors and windows are to be made in teak wood, flooring with vertified tiles etc. It is also mentioned that high quality materials will be used for construction of the building which will cost to Rs.12,00,000/-(Rupees Twelve Lakhs). The complainants would state that the estimate was prepared by the opposite party as per the terms and conditions made in the agreement. The complainants thus prove their allegations about the materials to be used for the construction and also regarding the total cost of the construction through Exhibit P2 estimate. The 2nd opposite party on the other hand, as RW1 states that the estimate was not prepared as per the agreement. The opposite party would urge that as per the agreement the doors and windows are to be made using good quality woods like Anjili, Burma pincoda etc. and the doors of the bath room is to be made with sintex material. Now the onus to prove the above statements shifts to the opposite party. The opposite parties had admitted that they have received Rs.12,00,000/- (Rupees Twelve Lakhs) from the complainant. 2nd opposite party who was examined as RW1 has admitted that the copy of the agreement of construction is with him. However, the opposite parties have not produced the same to rebutt the allegations made by the complainants. From the above narrated facts, it is only to be concluded that the estimate is prepared as per the terms and conditions stipulated in the agreement and the opposite parties had deliberately violated the terms and conditions made in the agreement, thereby committing unfair trade practice. The other main allegation made by the complainant is that within one year, cracks were developed on the walls of the house as well as that of bath room and rain water flows inside the house through the cracks. There were cracks on the closets as well. Further, many tiles of the floors were lifted upwards. The complainants to prove the above facts, took out an Advocate Commissioner as well as Expert Commissioner. They have filed the reports and were marked as C1 and C2 report. The Expert Commissioner was also examined as CW1 to prove Exhibit C2 report. In C2 report it is specifically stated that there are cracks in the walls and in the bathroom. Inferior quality materials were used for construction and there was lack of proper skill in doing the construction. C2 report also confirms that there is lifting of many tiles due to lack of proper laying of the tiles. The complainants thus prove their contentions that there were many defects in the construction.
11. Admittedly the above stated defects had happened within one year from the date of handing over of the building to the complainant. Moreover, as found by the District Forum, the opposite parties had not used the materials specified in Exhibit P2 estimate. Naturally the complainants would suffer much mental agony, hardship and loss. For the above deficiency in service and unfair trade practice the complainants are to be adequately compensated for the same.
12. In the above circumstances the District Forum has rightly awarded a sum of Rs.50,000/-(Rupees Fifty Thousand) as compensation and costs for the deficiency in service and unfair trade practice committed by the opposite parties. The amount of Rs.2,000/-(Rupees Two Thousand) allowed towards cost is only just and reasonable. The District Forum has analysed the materials on record correctly and there is nothing to interfere with. Hence, the impugned order is only to be confirmed.
In the result appeal is dismissed. Parties are directed to suffer their respective costs.
The statutory amount of Rs.25,000/-(Rupees Twenty Five Thousand) deposited by the appellant is to be released to the respondents 1 and 2 on filing proper application. The balance amount due shall be paid by the appellants within one month from the date of receipt of this judgement failing which the respondents shall initiate appropriate proceedings for executing the order.
T.S.P. MOOSATH :
JUDICIAL MEMBER RANJIT R. :
MEMBER BEENA KUMARY A. :
MEMBER SL [HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN] PRESIDENT [HON'BLE MR. SRI.T.S.P.MOOSATH] JUDICIAL MEMBER [ SRI.RANJIT.R] MEMBER