State Consumer Disputes Redressal Commission
Mrs. Lenni S. P. Rodrigues, vs Mr. Surendra Tari Volvoikar, on 2 January, 2015
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No. 22/14 Mrs. Lenni S. P. Rodrigues, R/o. H.No. 977, Tonca, St. Estevam, Tiswadi, Goa. ....Appellant V/s. Mr. Surendra Tari Volvoikar, Prop. Dhaad Constructions, R/o. Akhada, St. Estevam, Tiswadi, Goa. .Respondent Appellant/Complainant is represented by Adv. Shri. N.G. Kamat Respondent/OP is represented by Adv. Shri. S. M. Walawaikar. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 02/01/2015 ORDER
[ Per Justice Shri. N. A. Britto, President] This is a complainants appeal and is filed against exparte final order dated 27/11/13. The appeal has been filed by the complainant being dissatisfied with the quantum of compensation awarded to the complainant.
2. We have heard Shri. N.G. Kamat and Shri. S.M. Walawaikar, the lr. advocates on behalf of the parties.
3. Some brief facts may be stated to dispose off this appeal.
4. The complainant and the OP are from the same village St. Estevam. The complainant is a teacher while the OP is an architect-cum-builder. The complaint proceeded exparte against the OP by virtue of order dated 1/2/12. There is no dispute that the complainant had entrusted to the OP the construction of her bungalow in plot No. 15A. The bungalow was to be constructed as per the plan, and for a sum of Rs. 8 lacs, and within 6 months. An advance of Rs. 3 lacs was made to the OP and the last payment of Rs. 1 lac was made on 9/4/09. The complainant paid to the OP a total sum of Rs. 7,76,600/-.
5. The OP abandoned the construction after 10/05/09 and started giving excuses. The complainant then approached the OPs brother, the very Adv. Shri. S.M. Walawaikar, who suggested that the completed works be measured through engineer Shri. Ajit Parab who accordingly inspected the site and came to the conclusion that the works carried out by the OP were of the value of Rs. 6,61,501.60. The complainant then approached the Conciliation Committee of the Department of Civil Supplies on or about 2/3/10 with the view to resolve the matter. The OP was duly notified by the said Conciliation Committee and the OP sought extension of time to appear before the said Committee by his letter dated 20/5/10 but later did not appear and the proceedings came to be dropped by failure report dated 15/7/10.
6. Meanwhile, the complainant approached former Superintending Engineer, Government of Goa, Shri. M.S. Chauhan who inspected the site on 5/5/05 and submitted his report dated 13/5/10 stating that a sum of Rs. 5,70,000/- would be required to complete the incomplete bungalow. He has filed his affidavit in support of his report. Thereafter, the complainant, as per the advice of engineer Chauhan engaged the services of another contractor, one Subhash Madnur and got the roof slab cast at the cost of Rs. 2,14,558/- and then again engaged the services of another contractor by name Mallu Kattmani and got the remaining works carried out for Rs. 3,03,180/-. The complainant also claims that she has spent another sum of Rs. 2,05,000/- for completion of the bungalow. The said Mallu Kattmani in his affidavit confirms that the complainant spent a sum of Rs. 3,03,180/- and over and above the said sum that the complainant also spent another Rs. 2,05,000/- to complete the bungalow.
7. As against the excess payment made by the complainant to the OP, the Lr. District Forum has granted to the complainant refund of Rs. 2,14,498/- with interest at the rate of 12% from the date of the receipt till final payment. This part of the order has attained finality in that the OP has failed in his attempt to file an appeal against the exparte final order dated 27/11/13. Although the OP has filed a RP No. 3730/14 before the National Commission, the OP has failed to obtain stay of this F.A, inspite of having been given several adjournments.
8. The OP has filed cross objections on or about 8/4/14 but the same deserve to be dismissed as the C.P. Act, 1986 does not provide for filing of any cross objections and the provision of C.P.C providing for filing of the same are not followed by the Fora under the C.P. Act. The National Commission has taken the view, (see 1992 (2) CPR 132) that a counter claim is not maintainable as there is no provision under the C.P. Act to file the same. By analogy the same principle can be followed in case of cross objections as well.
9. The complainant had also sought to recover from the OP Rs. 7 lacs towards the completion of construction, Rs. 5 lacs as compensation and Rs. 3 lacs as damages. The Lr.
District Forum has awarded to the complainant out of the said sums a sum of Rs. 5 lacs towards inconvenience, repairs, rectification works required to complete the construction in all respects, etc., and it is against this part of the order that the present appeal has been filed by the complainant.
10. Be that as it may, Shri. N.G. Kamat, the lr. advocate of the complainant would submit that the complainant was atleast entitled to a sum of Rs. 7,22,736/- (i.e. 2,14,556/- + 3,03,180/- + 2,05,000/-) but the Lr. District Forum, disregarding the facts, awarded to the complainant only a sum of Rs. 5 lacs. Lr. advocate submits that the complainant deserves to be awarded compensation of 5 lacs in addition to costs.
11. On the other hand, Shri. Walawaikar, the lr. advocate and brother of the OP submits that the Lr. District Forum ought to have been cautious in allowing the complaint considering that the OP was not contesting the same and the complainant could have taken advantage of the fact that the OP was being proceeded exparte.
Lr. advocate submits that the complainant was their family friend and she had engaged engineer Shri. Ajit Parab at his suggestion. Although, Shri. Walawaikar, does not dispute the assessment made by engineer Shri. Parab, Lr. advocate submits that the complainant ought to have filed his affidavit.
Lr. advocate further submits that the affidavit of Subhash Madnur has also not been filed by the complainant.
Lr. advocate submits that the roof slab was cast by the OP and not by the said Subhash Madnur and that there is no evidence to prove that the slab was cast by the said Subhash Madnur.
Lr. advocate Shri. Walawaikar submits that the Lr. trial Forum has given an abrupt and an arbitrary order without discussing the evidence and an imbalanced view has been taken. Lr.
advocate submits that no case has been made out for enhancement of the compensation awarded and as such no interference is called for in this appeal.
12. Shri. Kamat, lr. advocate of the complainant in reply would submit, that the affidavit of engineer Shri. Parab could not be filed because he was a PWD engineer recommended by Adv. Shri. Walawaikar and had done the work at the instance of advocate Shri. Walawaikar. As regards the affidavit of Subhash Madnur, Shri. Kamat submits that his affidavit was kept ready but the said Subhash Madnur who had gone to Karnataka had not returned back. Lr. advocate submits that the claim of the OP that he cast the slab would stand falsified by the proceedings of the Conciliation Committee.
13. We have perused the record. We are unable to accept the submissions made by Shri. S.M. Walawaikar, the Lr. advocate of the OP. For best reasons known to the OP alone, the OP chose not to contest the complaint and the complaint proceeded exparte against the OP. To support the complaint, the complainant had filed her own affidavit besides the calculations made by the said eng. Shri. Ajit Parab which calculations were done at the instance of Adv. Shri. S.M. Walawaikar himself and the correctness of which is not disputed by the OP. The complainant also filed the affidavit of Mallu Kattmani who has confirmed that the complainant paid to him Rs. 3,03,180/- and the complainant had also paid a sum of Rs. 2,05,000/- to complete her bungalow.
14. The claim of the OP that the slab was put up by him cannot at all be accepted, as there is no evidence produced by the OP and there is evidence produced by the complainant to the contrary. In fact, the complainant by letter dated 12/5/10 called upon the OP to take up the work of casting the slab within 7 days which letter was not replied nor complied by the OP.
15. Engineer Shri. Chauhan estimated the cost of completion of the complainants house at Rs. 5,07,000/-. In terms of prayer (c) of the complaint, the complainant sought to recover a sum of Rs. 7 lacs to complete the works. The expenditure of Rs. 3,03,180/- plus Rs. 2,05,000/- is supported by two affidavits of the complainant and the said Mallu Kattmani and considering that the said expenditure is close to the expenditure estimated by Shri. Chauhan, the same can certainly be awarded to the complainant for the completion of the house in terms of prayer (c) of the complaint.
16. The complainant sought compensation/damages in terms of prayer (b) and (d) of the complaint in the sum of Rs. 5 and 3 lacs respectively. On this aspect, Shri. Walawaikar, the lr. advocate has placed reliance on Ram Jethmalani vs. Subramaniam Swamy, AIR 2006 Delhi 300 wherein the Delhi High Court has stated as follows:-
104.
Unfortunately, in India, Law of Damages and in particular in relation to defamation has not developed at the same pace as it has developed in the European countries and the United States of America. Punitive damages in defamation are not awarded in India. Damages awarded are a recompense to the loss of honour and reputation. Inherently, quantification is a problem as honour and reputation are inherently incapable of being valued in terms of money. More often than not, loss of honour and reputation lowers the image of the person in the eyes of his friends and relatives and he suffers social isolation.
If he is a professional, he may not suffer monetary loss as his clients would engage him for his professional skill and not his personal character. This appears to be the reason that th e plaintiff, in relation to his earnings made no attempt to establish that after the offending words were written and spoken, his earnings suffered a dip.
17. Nearer home we have the case of Lucknow Development Authority vs. M.K. Gupta, AIR 1994 SC 786 wherein the Apex Court has held that:
The word compensation is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, compensating or being compensated; thing given as recompense; . In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss The provision enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.
18. Compensation must be assessed in moderation. It has to be assessed under separate heads. This the Lr. District Forum has not done. It varies from case to case. The injustice suffered by the complainant, can certainly be imagined. Complainant was required to engage the services of experts, other contractors and in the process undergo tension and mental suffering. Considering the facts of the case, therefore, in our view a sum of Rs. 1 lacs would be just compensation to be awarded to the complainant in terms of prayers (b) and (d).
It may be noted that the liability to pay compensation is an additional liability arising from the change of deficiency in service as defined under Section 2(1)(g) of the C.P. Act, under which compensation is awarded for harassment, emotional suffering, etc.
19. For reasons aforesaid, the appeal deserves to succeed. The impugned order is hereby modified. The complainant shall now be paid by the OP the sum of Rs. 2,14,498/- with pending and future interest at the rate of 12% as awarded by the trial Forum in terms of prayer (a) of the complaint. The complainant shall be paid the sum of Rs. 5,08,180/- in terms of prayer (c) of the complaint. The complainant shall also be paid a sum of Rs. 1 lac in terms of prayers (b) and (d) of the complaint in addition to the cost awarded by the Lr. District Forum of Rs. 15,000/-. Considering the facts, the parties are left to bear their own costs of this appeal. In case the amounts awarded in terms of prayers (b), (c) and (d) are not paid within a period of 30 days, the same shall carry interest at the rate of 9% until they are paid.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President