State Consumer Disputes Redressal Commission
V.V. Krishnan Maistry, vs P.K.Kaumudi, W/O M.R.Subramonian, on 1 December, 2004
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 77/2004 (Arisen out of Order Dated null in Case No. of District ) 1. V.V Krishnan Maistry, Building Contractor,South Bazaar,Kannur BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO: 77/2004
JUDGMENT DATED:01-12-2011
PRESENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER V.V. Krishnan Maistry, Building Contractor, : APPELLANT South Bazar, Kannur-2. (By Adv:Sri.M.P.Vijayan) Vs. P.K.Kaumudi, W/o M.R.Subramonian, C.4/144, Ambili, Near Mookambika Temple, : RESPONDENT Pallikunnu, Kannur - 4. (By Adv: Kalkura) JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant is the opposite party and respondent is the complainant in OP.264/01 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency in service on the part of the opposite party in executing the construction work for the complainant's residential building. It was also alleged that due to the deficiency in service on the part of the opposite party, the complainant had to spend more than Rs.2.lakhs for completing the construction of her residential building. Thus, the complainant claimed a compensation of Rs.2,62,134/- including compensation of Rs.50,000/- for mental agony.
2. The opposite party entered appearance and filed written version denying the alleged deficiency in service. He contended that there was no privity of contract between the complainant and the opposite party for constructing the residential building for the complainant. It is further contended that the damage to the building occurred only due to the negligence of the complainant in completing the construction work and permitting the building exposed to sun and rain. It was also contended that more amounts are due to the opposite party from the complainant. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and 2 witnesses on her side were examined as PWs 2 and 3. Exts.P1 to P10 documents were also marked on the side of the complainant. The opposite party was examined as DW1. No documentary evidence was adduced from the side of the opposite party.
4. Two expert commissioners were deputed from the Forum below and they filed Ext.C1 and C2 reports.
5. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:24th November 2003 allowing the complaint in part and directing the opposite party to pay an amount of Rs.53,897/- with cost of Rs.2,000/- to the complainant. Hence the present appeal.
6. The case of the respondent/complainant that the appellant/opposite party agreed for construction of the residential building for the complainant on a consideration of Rs.2,lakhs has not been proved or established. Admittedly there was no written contract for execution of the construction of the residential building. There is also nothing on record to show that the subject building could have been constructed with cost of Rs.2.lakhs. It is the admitted case of the respondent/complainant that she spent a total of Rs.4,12,134/- for constructing the subject residential building. That fact itself would make the case of the complainant improbable to believe. The Forum below has rightly held that the building could not have been completed at a cost of Rs.2.lakhs.
7. The appellant/opposite party has got a case that some amount is due to him from the complainant towards the cost of construction. But there is nothing on record to show that the appellant/opposite party initiated any action for recovery of the amount said to have been due to him. It is further to be noted that the appellant/opposite party was the "service provider for the purpose of constructing residential building for the respondent/complainant. If that be so, the agencies constituted under the Consumer Protection Act, 1986 are not expected to pass an order directing the complainant/consumer to pay any amount to the service provider. If the appellant/opposite party (service provider) is entitled to get any amount from the complainant/consumer he has to approach the Civil Court or other authorities as provided under law. So, the Forum below can be justified in not considering the aforesaid issue regarding the amount due to the appellant/opposite party.
8. The respondent/complainant vehemently alleged deficiency in service on the part of the appellant/opposite party in executing the construction work for construction of residential building. The case of the appellant/opposite party that he provided only labour force for constructing the residential building cannot be accepted as such. The receipts issued by the opposite party would make it clear that the building materials were also purchased at his instance. The available documentary evidence would make it abundantly clear that the appellant/opposite party was the contractor for executing the construction work for the respondent/complainant. So, the case of the appellant that there was no privity of contract between himself and the complainant/consumer for construction of residential building cannot be believed for a moment. On the other hand, the available evidence on record would make it clear that the appellant/opposite party executed the construction work for constructing residential building for the complainant/consumer.
9. The respondent/complainant alleged deficiency in service on the part of the appellant/opposite party in constructing the residential building. It is specifically alleged that the construction of the residential building was defective and on account of the said defective construction there was leakage of water on the roof of the building and that steel rods were protruding outside. The expert commissioners who submitted C1 and C2 reports have also reported about the defective nature of the construction of the subject residential building. The expert commissioners are unanimous on their opinion that the construction of the residential building was defective. It is true that the experts were having difference of opinion regarding the cost for rectification of the defects. As per C1 report, the expert commissioner Baiju assessed the cost for rectification of the defects at Rs.41,625/- and that the 2nd commissioner as per his C2 report assessed the cost at Rs.53,897/-. There is no reason or ground to doubt the finding of the expert commissioners that the construction was defective. So, the Forum can be justified in finding deficiency in service on the part of the opposite party.
10. The Forum below adopted the assessment made by the 2nd commissioner in his C2 report. The mere fact that the first commissioner's report was not set aside cannot be taken as the sole ground to hold that C2 report cannot be relied on. It may be correct to say that the Forum below ought to have set aside the first commission report on the ground that no reasoning is given for assessing the cost for the rectification work. In such a situation, the assessment made by the 2nd commissioner in his C2 report can be accepted. So, the Forum below can be justified in holding that a sum of Rs.53,897/- is to be paid by the opposite party to the complainant for rectification of the defects in the construction.
11. The case of the appellant/opposite party that the defects occurred due to the negligence of the respondent/complainant cannot be believed or accepted. It is to be noted that the written version filed by the opposite party would make it crystal clear that the construction was defective. The only reason stated by the opposite party for the defects is that the complainant failed to complete construction of the building and that she kept the building exposed to sun and rain. But, there is nothing on record to substantiate the aforesaid contention of the opposite party that the defect developed only due to the negligence of the complainant/consumer. The available circumstances would also make it clear that the opposite party failed to complete the construction of the residential building for the complainant. It is also to be noted that the opposite party did not issue any notice to the complainant demanding construction materials or payment of amounts towards the cost of construction. So, it can only be concluded that the appellant/opposite party failed to complete the construction of the building. So, the Forum below can be justified in passing the impugned order dated:24.11.2003 directing the opposite party to pay Rs.53,897/- to the complainant with cost of Rs.2000/-. It is further to be noted that the Forum below has not awarded any amount by way of compensation for the mental agony and inconveniences suffered by the complainant/consumer. Thus, in effect the Forum below has taken a very lenient view in awarding Rs.53,897/- with a reasonable cost of Rs.2000/-. We do not find any reason to interfere with the aforesaid order passed by the Forum below.
In the result the appeal is dismissed. The impugned order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN: JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER VL.
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER