State Consumer Disputes Redressal Commission
Sri Asim Das vs Mr. Prabir Roy on 4 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/578/2017 ( Date of Filing : 22 May 2017 ) (Arisen out of Order Dated 28/02/2017 in Case No. Complaint Case No. CC/309/2015 of District North 24 Parganas) 1. Sri Asim Das S/o Lt. Jagneswar Das, 67, Subasnagar, 3rd Bye Lane, P.O.- Rabindra nagar, P.S. Dum Dum, Kolkata -700 065. ...........Appellant(s) Versus 1. Mr. Prabir Roy Prop., Ashiana Construction Co., BB-234, Sector-1, Salt Lake, P.S. - Bidhan Nagar(N), Kolkata -700 064. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Pradip Pal, Advocate For the Respondent: None Appear Dated : 04 Jul 2018 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at instance of complainant Shri Asim Das to impeach the judgment/final order dated 28.02.2017 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short 'Ld. District Forum') in Consumer Complaint No. 309 of 2015 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest without any order as to costs.
The appellant herein being complainant lodged the complaint before the Ld. District Forum stating that being a land-lord of plot No. DF-4, Premises No. 75-0316 under Action Area - 1A New Town, Kolkata - 7000156 for the purpose of raising construction on the said plot of land entered into an agreement with the respondent on 30.11.2008 for completion of building planning, structural drawing, sanctioning of the same from the New Town Kolkata Development Authority (N.K.D.A.) for a proposed G+3 storied building. The appellant has paid all the dues of Rs. 25,000/- on demand. On 20.02.2009 the plan was sanctioned and when the complainant went to collect the same from the authority he was verbally informed that though his plan has been sanctioned for dwelling house but it will be treated as defective one since there was no proposed plan for drinking water, sewerage or drainage line and he will be required to submit a revised plan to correct the deficiencies. Subsequently, a plan for second time was placed and the appellant has paid Rs. 30,000/- to the respondent. Upon receipt of second sanctioned plan dated 16.07.2012 the appellant noticed that the plan was made arbitrarily by the respondent without taking into consideration the appellant's choice of rooms. Thereafter, the plan was submitted for the third time and it was sanctioned by N.K.D.A. on 11.11.2013. The appellant has stated that the said plan was also made arbitrarily and it was found that the structural drawing was more defective. When the appellant has made protest of it, the respondent asked the appellant that if it's structural plan is faulty then the he may appoint a qualified person in the field to prove the same to be wrong. Accordingly, the respondent has obtained a certificate from a professional Civil Engineer on 18.11.2014 and where it has been stated that the said structural drawings of the building plan was defective. Hence, the appellant approached the Ld. District Forum with prayer for several reliefs, viz.- (a) to pass an order upon the respondent to return a sum of Rs. 2,53,000/- as follows:- (i) Rs. 55,000/- for providing defective plans in two occasions; (ii) Rs. 22,000/- for making unnecessary second time soil test; (iii) Rs. 10,000/- for claiming the same in the name of extra work; (iv) Rs. 1,00,000/- for appreciation of revised structural drawing by Nirmalaya Chatterjee; (v) Rs. 66,440/- for sanctioning of building plan for the first two occasions; (b) compensation of Rs. 7,50,000/- for mental agony and harassment; (c) Rs. 1,00,000/- as cost. Etc. The respondent being opposite party by filing a written version has stated that the appellant has agreed to pay an amount of Rs. 25,000/- in respect of the first agreement and Rs. 30,000/- in respect of second agreement and Rs. 40,000/- in respect of final agreement amounting to Rs. 95,000/- as against the agreement. However, the appellant has paid Rs. 90,000/- against the said amount and an outstanding amount of Rs. 5,000/- is due which the appellant is to pay him. Apart from this, initially the appellant arranged for soil test as per the report, foundation pile was recommended and the respondent did structural design on the basis of the soil report but as per the second report of the soil test they recommended shallow foundation for which the respondent had to change the structural design again with the appellant's consent and the appellant agreed to pay a further sum of Rs. 15,000/- extra for structural drawing but later on the request of the appellant, the respondent charged a sum of Rs. 10,000/- as till date an amount of Rs. 5,000/- still due and payable by the appellant. The respondent has stated that there was no deficiency on the part of him and as such the complaint should be dismissed.
On evaluation of materials on record and having heard both sides, the Ld. District Forum by the impugned judgment/final order dismissed the complaint. Challenging the said order, the complainant has come up in this Commission with the present appeal.
Ld. Advocate for the appellant has submitted that the Ld. District Forum erred in law and facts by not considering the actual deficiency in services on the part of respondent who instigated the appellant to make the plan three times and to get it sanctioned amounting to huge loss. Ld. Advocate for the appellant has further submitted that the Ld. District Forum did not consider the report of expert dated 18.11.2014 wherein it has been clearly mentioned that the said structural plans are defective and cannot be desirable to be constructed anything further based on such defective structural drawing and as such the impugned order should be set aside.
The notice served upon the respondent has returned with postal remark 'unclaimed' amounting to good service. However, respondent has not come to contest in the appeal.
I have considered the submission advanced by the Ld. Advocate for the appellant and seen the materials on record.
Undisputedly, the appellant being a land-lord of plot being No. DF-4, Premises No. 75-0316 under Action Area - 1A of New Town, Kolkata - 7000156 came to an agreement with the respondent in order to construct a building over the said plot and to that effect engage the respondent for planning, structural drawing and sanctioning of the same from New Town Kolkata Development Authority (N.K.D.A.).
The respondent is an owner of an Architects and Engineering Firm. From the materials on record, it would reveal that on 30.11.2008 the appellant entrusted the design of building planning to the respondent for a proposed G+3 storied building with column structure having floor to floor height of 3 meter and one flat per floor. The appellant has paid all the dues of Rs. 25,000/- phase wise by 25.02.2009 to the respondent. The record speaks that the N.K.D.A. sanctioned the plan on 17/20.02.2009 being Pin No. R2009753168710. However, appellant was not satisfied with the plan on the plea that there was no proposed plan for drinking water, sewerage/drainage line. Accordingly, the appellant desirous to submit new plan and to that effect he has paid a sum of Rs. 30,000/- to the respondent. Accordingly, a plan for the second time was sanctioned vide Pin No. R0750031620120703 on 16.07.2012. Again the appellant became dissatisfied with the said building plan as there was a provision of unwanted huge shop room space. The appellant raised an objection for not initiative on the part of the respondent for a provision of lift space in the said G+3 storied building. Subsequently, a fresh plan for the third time was submitted for which the appellant has paid Rs. 40,000/- to the respondent. On that occasion, the plan was sanctioned for the third time by the N.K.D.A. authority vide Pin No. R0750031620131111 dated 11.11.2013 for which the appellant paid a sum of Rs. 10,000/- to the respondent on 26.11.2013.
However, the appellant found that the structural drawing is more defective when the Engineer/Skilled Labours went to the site to carry out the structural work as per the drawing. When the matter was brought into the notice of the respondent he did not pay any heed. Subsequently, the appellant prepared the building plan through some other engineer.
Ld. Advocate for the appellant has submitted that the Ld. District Forum has failed to consider that on 18.11.2014 one Shri Sudip Chakraborty, B.Tech (Civil) has issued a Certificate certifying that structural drawing of building plan was a defective one. The Ld. District Forum did not place reliance to that document and held that the appellant did not bring any Engineer nor he obtained any expert opinion in order to show that the plans as mentioned were defective. The Certificate (annexure - M) is a certificate issued by an Engineer but basing upon the same there is hardly any reason to hold that the respondent did not prepare the plan in accordance with the rules and regulations. Had it been so, certainly the N.K.D.A. authority would not sanction the building plans on consecutive three occasions on 20.02.2009, 16.07.2012 and 11.11.2013. The Certificate dated 18.11.2014 by one Civil Engineer cannot be considered as sacrosanct for the purpose of ascertaining the deficiencies on the part of respondent. During the pendency of the case, before the Ld. District Forum, the appellant/complainant did not make any prayer for appointment of an Engineer Commissioner for ascertaining the actual state of affairs. Had it been done, the respondent would have an opportunity to explain the circumstances behind preparation of the plans. It may be noted here that the respondent is enlisted by N.K.D.A. and the building plans of the appellant have been sanctioned three times and at all the three times the appellant, a N.K.D.A. enlisted architect, a N.K.D.A. enlisted Civil Engineer together have signed the building plans.
Considering the above, the Ld. District Forum has rightly observed that the complainant's plea of deficiency in services does not hold much water as the appellant has failed to prove lack or skill on the part of the respondent/opposite party.
After giving due consideration to the submission advanced by the Ld. Advocate appearing for the appellant and on scrutiny of the materials on record, I have no hesitation to hold that the appeal being devoid of merit deserves dismissal.
Consequently, the appeal is dismissed ex-parte.
The impugned judgment/final order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in connection with CC/309/2015 for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER