State Consumer Disputes Redressal Commission
Dr.Pannaben Padamsi Asar, vs Mr.Vilas Ramdas Borane, on 11 April, 2011
1 F.A.No.:1986/2006
Date of filing :26.09.2006
Date of order :11.04.2011
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. : 1986 OF 2006
IN COMPLAINT CASE NO.:16 OF 2006(NEW)
DISTRICT CONSUMER FORUM :NANDURBAR.
Dr.Pannaben Padamsi Asar,
R/o Nital Pathological Laboratory,
Desaipura, Nandurbar. ...APPELLANT
( Org.Complainant )
VERSUS
Mr.Vilas Ramdas Borane,
R/o 27-B, Vrundavan Colony,
Dist.Nandurbar. ...RESPONDENT
( Org.Opponent )
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Smt.Smita B.Kulkarni for appellant, Adv.Shri.Mahendra Kochar for respondent.
O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Member.
1. Dr.Pannaben Padamsi Asar resident of Desaipura, Nandurbar appellant herein original complainant challenges in this appeal order passed by Dist.Forum, Nandurbar in complaint case NO.21/05(Old) and complaint case No.16/06(New) dated 09.08.2006. The said complaint is about deficiency in service committed by respondent Shri.Vilas Ramdas Borane, resident of Nandurbar.
2. It is alleged that complainant is doctor by profession running pathological laboratory in Nandurbar. Complainant purchased plot No.8 of Survey No.283/1A+1B+2A+2B situated in Vardhaman Nagar 2 F.A.No.:1986/2006 Housing Society. She got sanctioned the plan of construction by Municipal Council. For the construction of said house, complainant approached to respondent, who is contractor by profession but not qualified engineer. Complainant entered into an agreement with the respondent on 8.11.1997 and it is agreed that complainant is to pay Rs.3,40,000/- in total for the said construction. It is alleged by the complainant that respondent recovered amount of Rs.3,88,354/- when it was decided that amount of Rs.3,40,000/- is only to be paid. It is alleged by the complainant that though amount as agreed was recovered by respondent, construction was not completed and therefore she filed complaint case No.7/00 which was decided in her favour by Dist.Forum on 6.11.2003. During pendancy of said complaint it was found by complainant that though construction was said to be completed it was not as per quality expected and agreed by her. Therefore civil engineer Shri.Ansari was appointed to inspect the said house. Accordingly, report of Shri.Ansari was produced before the Forum. But as complaint was for the excess amount and non completion of construction within stipulated period, Dist.Forum did not found anything about defective construction in report of Shri.Ansari. Forum consider the same. After taking possession of house it was found that construction is of very inferior quality. Many defects were committed by the respondent. Flooring was not in good condition. Levelling was not done properly. Walls were separated by slab etc. Complainant approached to Civil Engineer Shri.Prasad Kulkarni at Dhule for inspecting the construction of her house. Shri.Kulkarni accordingly inspected the house and gave report in respect of same. It is alleged by complainant that according to said report the defects in construction were beyond repair. Therefore entire house is to be demolished or rebuilt. It is alleged that complainant was to run pathology laboratory in the said house and was to use as residential house also. But due to defective construction she could not shift in her house. Therefore she suffered professional loss also. On 11.1.2005 complainant issued legal notice 3 F.A.No.:1986/2006 to respondent. Said notice was not replied by the respondent. Therefore complainant approached to Dist.Forum and demanded Rs.3 lakhs for reconstruction of house and Rs.2 lakhs for mental agony and financial loss with 18% interest.
3. Respondent appeared before the Forum and resisted the claim. On 3.5.2005 respondent made application and objected the complaint on the ground of res judicata. The said application was dismissed by the Forum, Dhule on 12.8.2005. Thereafter respondent filed his written version on 23.9.2005 and denied all the allegations made by complainant. It is submitted by respondent that complainant filed complaint case No.7/2000 with the same allegations and therefore complainant is not entitled to file another complaint on the same cause of action. It is contended by opponent that he is holding diploma in engineering and complainant after knowing fully well that opponent can make construction work, entered into agreement with opponent. He produced certificate of Institute of Engineering dated 20.9.1986 to show he is qualified engineer. It is further contended that after decision of complaint No.7/2000 for recovery of excessive amount, respondent paid decretal amount to the complainant which is alleged to be excess. In the said complaint, complainant made allegations about defective construction. Dist.Forum did not consider the said as complaint is about different cause of action. It is further submitted that after getting completion certificate from Municipal Council complainant started to reside in newly built house. It is further submitted by opponent that Shri.Prasad Kulkari who is consulting engineer and builder and developer submitted his report but said report is not authentic as no affidavit of said Shri.Prasad Kulkarni is produced on record.
4 F.A.No.:1986/20064. After hearing both the parties Dist.Forum held that absence of expert report about defective construction complaint is not maintainable and accordingly Forum dismissed the complaint.
5. Dissatisfied with the said judgment and order original complainant came in appeal.
6. Notices of final hearing were issued to the parties. Adv.Smt.S.B.Kulkarni appeared on behalf of appellant and Adv.Shri.Mahendra Kochar appeared on behalf of respondent. It is submitted by Adv.Kulkarni that complainant entered into an agreement with the respondent for construction of house. It is decided between the parties orally that construction will be completed within 6 months. But respondent failed to complete construction within stipulated period. When it is found by complainant that respondent recovered excess amount from her though it is agreed that construction will be completed at the cost of Rs.3,40,000/-. The complaint No.7/2000 was filed. During the pendancy of said complaint it was found that construction was not of quality which was expected by complainant. Therefore in that complaint she filed inspection report of one Shri.Ansari which was considered by the Forum. It is further submitted that Shri.Prasad Kulkarni Consulting Engineer also inspected the site and produced his report. According to his report construction made by respondent of the house of complainant is not of proper quality. Therefore it has to be demolished and reconstruct newly. But said Shri.Prasad Kulkarni did not file his affidavit as respondent is his professional brother. It is therefore submitted by Adv.Smt.Kulkarni that as the report is on record Dist.Forum should have considered the said report and photographs on the record and accordingly decide the complaint. Adv.Smt.Kulkarni further prayed for remand of matter, so that complainant can produce expert evidence. In support of her argument she relied on citation of National Commission and Supreme Court.
5 F.A.No.:1986/2006i) In 'B.Narsimha -Vs- Syed Mahboob & Ors.' reported in 2007(1) CPR 247(NC) , it held by National Commission that developers are responsible for defective construction.
ii) In 'Dilbagh Rai -Vs- Housing Board,Haryana' reported in CPR IX-1994(3) page31. It is held by National Commission that no defects certificate of complainant at the time he took possession refers to patent defects and not to latent defects-
Complainant entitled to all the expenditure that he has incurred to remove said defects deficiencies.
iii) In 'Faqir Chand Gulati -Vs- Uppal Agencies Pvt.Ltd & Anr.' Reported in 2008(3) CPR 76(NC). It is held by National Commission that if a builder of a house use sub-standard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act.
It is contended by Adv.Smt.Kulkarni that Order 2 Rule 2 of C.P.C. is not applicable to proceeding before the Consumer Forum. In that respect she relied on ' LIC -Vs- Smt.Shyam Dulari Devi Agarwal' reported in 1992(2) CPR page 407.
7. Adv.Shri.Mahendra Kochar for respondent submitted that respondent was qualified engineer and he has got certificate from Institute of Engineering regarding the same. Complainant after making enquiry with many persons entered into an agreement with the respondent. Accordingly, respondent completed construction 6 F.A.No.:1986/2006 work as agreed. Complainant obtained completion certificate and started using building. In complaint case No.21/05 complainant produced inspection report of Shri.Ansari and again complainant produced report of Shri.Prasad Kulkarni who is Consulting Engineer. Therefore there is bar of res judicata. It is further submitted that report of Shri.Prasad Kulkarni is not authentic as it is not supported by affidavit of Shri.Kulkarni. It is further submitted that as report of Shri.Kulkarni is without affidavit there is no other evidence on record to show that construction work done by opponent/respondent is of inferior quality. Dist.Forum rightly considered all the facts and record and rightly dismissed the complaint. Therefore there is no need to remand the complaint for adjudicating afresh. It is also submitted by Adv.Shri.Kochar that respondent deposed before the Forum and he was cross-examined by counsel of complainant. In the cross- examination opponent fairly explained all the facts. Therefore there is no need to remand the matter as complainant failed to produce expert evidence. It is submitted by Adv.Shri.Kochar that construction work was completed in the year 1999 and complaint about defective construction was filed in the year 2005. Therefore complaint is barred by limitation. In support of his argument he relied on some citations:
i) In 'V.Muthukrishnan and others -Vs-
K.Ponnuswamy and others' reported in NC & SC on Consumer Cases (Part IV) 1986-02 , it is held by National Commission that complaints barred by limitation as possession of the flats had been given to the complainants in May 1987 and complaints were filed only in April, May & June 1992- Complaints barred by limitation.
ii) In 'U.P.Avas Vikas Parishad -Vs- Pravesh Sharma' reported in I(2004) CPJ 478, it is held by Uttaranchal State Commission that, 'Consumer Protection Act, 1986-Section 15-Housing-
7 F.A.No.:1986/2006Construction below Standard-Absence of expert evidence-Possession taken in 1991-complaint filed in 1997-Limitation not extended merely by correspondence-Complaint time-barred.
iii) In 'Kamalinder Singh -Vs- Hanuman Trader' reported in 2005(II)CPJ page 297 it is held by Himachal Pradesh State Commission that , 'no authenticated details of raw material alleged to have been destroyed due to seeping produced-absence of expert report on poor quality of construction due to alleged defective cement.
iv) In 'Dr.(Mrs.) Poonam Verma & Ors.-Vs- Delhi Development Authority' reported in I(2005) CPJ 75, it is held by Delhi State Commission that, ' maintainability of complaint-complaints on same cause of action finally stand adjudicated by National Commission-Special Leave Petition,against above order, not admitted by Hon`ble Supreme Court-Complaint on same fact and cause of action not maintainable, dismissed.
Adv.Shri.Mahendra Kochar also contended that there are complicated questions of law and facts. Matter be referred to the Civil Court, so that all issues can be adjudicated.
8. We perused the record and gave our anxious thoughts to the arguments advanced by both the counsels. It is an admitted fact that complainant entered into an agreement with respondent for construction of house. The allegations of complainant that respondent is not qualified engineer cannot be accepted as she after enquiry about the same had entered into an agreement. Construction was completed in the year 1999. Accordingly, completion certificate was obtained from Municipal Council. Thereafter in the year 2000 complaint was filed for recovery of excessive amount accepted by the 8 F.A.No.:1986/2006 respondent and during pendancy of said complaint it was found by complainant that construction was not of proper quality. Therefore she submitted the report of one Shri.Ansari. Complaint No.7/2000 decided in favour of complainant and she received decretal amount from the opponent. Grievance about defective construction was considered in the said complaint. Therefore she filed complaint No.21/05. In the said complaint she filed inspection report of one Shri.Prasad Kulkarni who is Consulting Engineer and builder & developer. According to said report construction made by opponent is inferior quality and it must be reconstructed after demolishing. The said Kulkarni did not file his affidavit neither he offered himself for cross examination by opponent. Therefore there is no authentic evidence about defective construction. It is contended by Adv.Kulkarni that Order 2 Rule 2 of C.P.C. is not applicable, to proceedings under Consumer Protection Act. But in 'Dr.Poonam Verma`s case the Delhi State Commission relied on Hon`ble Supreme Court`s decision in which it is held by Apex court that complaint on same fact and cause of action not maintainable. It has come on record that Shri.Prasad Kulkarni is not ready to file his affidavit as he is not willing to depose against his professional brother i.e. opponent. Complainant is aware about said fact so she should have filed report of any expert with affidavit to show that construction made by opponent is of inferior quality. Only allegations made by complainant are not sufficient to prove that construction is of inferior quality. Photographer who took photograph has also not filed affidavit in respect of same. Construction work was completed in the year 1999 and possession was taken by complainant in the year 1999. Completion certificate obtained in the year 2001 and complaint about defective construction was filed in the year 2005.
9. In our view when there is no expert evidence to show that construction work is of defective in nature. The report in question cannot go on record in the absence of affidavit. We are not inclined to 9 F.A.No.:1986/2006 allow the appeal. Dist.Forum rightly considered all the facts on record and dismissed the complaint. Hence we pass the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora S.G.Deshmukh Member Member Presiding Judicial Member. Mane