State Consumer Disputes Redressal Commission
Abdul Khan vs Dr. Pratibha Khosla on 23 December, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal (RBT) No. : 28 of 2019 Date of Institution : 07.02.2019 Date of Decision : 23.12.2022 1] Abdul Khan s/o Late Shri Junni Khan R/o H.No.1100, Sector 56, Chandigarh. 2] A & H Construction Company through Partner Mrs. Hasina w/o Abdul Khan r/o H.No.1100, Sector 56, Chandigarh. ......Appellants/opposite parties. Versus 1] Dr. Pratibha Khosla r/o H.No.1285, Ranjit Nagar, Kharar - 140301, District Mohali, Punjab. 2] Akash Khosla R/o H.No.1285, Ranjit Nagar, Kharar - 140301, District Mohali, Punjab. .....Respondents/Complainants. Argued By:- Sh. Bhupinder Singh, Advocate for the appellants. Dr. Pratibha Khosla, respondent No.1 in person and also for respondent No.2 (on VC). Appeal (RBT) No. : 33 of 2019 Date of Institution : 15.02.2019 Date of Decision : 23.12.2022 1] Dr. Pratibha Khosla r/o H.No.1285, Ranjit Nagar, Kharar, District Mohali, Punjab. 2] Akash Khosla R/o H.No.1285, Ranjit Nagar, Kharar, District Mohali, Punjab. ......Appellants/Complainants. Versus 1] Abdul Khan R/o House No.1100, Sector 56, Chandigarh. 2] A & H Construction Co. (103/2012) through Partner Mrs. Hasina R/o House No.1100, Sector 56, Chandigarh. .....Respondents/Opposite Parties. Argued By:- Dr. Pratibha Khosla, appellant No.1 in person and also for appellant No.2 (on VC). Sh. Bhupinder Singh, Advocate for the respondents BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. RAJESH K. ARYA, MEMBER
PER RAJESH K. ARYA, MEMBER Vide this common order, we are disposing of aforesaid two captioned appeals, one bearing RBT No.28 of 2019 filed by the opposite parties and second bearing RBT No.33 of 2019 filed by the complainants against order dated 08.01.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [now District Consumer Disputes Redressal Commission-I, U.T., Chandigarh] [in short 'District Commission'], whereby consumer complaint bearing No.06 of 2015 filed by the complainants was partly allowed in the following manner:-
"15. In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-
To pay a global compensation of Rs.30,000/- to the complainants for deficiency in service on the part of OPs;
To pay Rs.20,000/- as compensation for mental agony and harassment caused to the complainants;
To pay to the complainant Rs.10,000/- as costs of litigation.
16. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
17. We have already referred in the body of this order that the civil litigation with regard to the same subject matter is pending inter se parties and present consumer remedy availed of by the complainants and the finding recorded by this Forum, in summary proceedings, shall not in any way prejudice the competent court of jurisdiction as we have decided the matter with the independent jurisdiction of a consumer dispute which is an additional remedy in addition to the regular remedy which the parties had already availed of by way of civil suit and counter claim."
2. Brief facts as stated in the impugned order passed by the Ld. District Commission are as under:-
"1. Summarised allegations, as culled out from the consumer complaint are, complainants happens to be owners of residential plot No.337, Sector 40A, Chandigarh which was purchased for Rs.38,50,000/-. The last date of construction without extension fee was 7.12.2014.
The case of the complainants is, they were attracted from the lucrative advertisement of the OPs/builders on internet. The construction work was undertaken by the OPs as per terms and conditions agreed inter se parties. Per the terms and estimation of OPs, the contract price was fixed at Rs.800/- per sq. ft. for 1357 + 204 (mumpty) + 150 (green house i.e. toilet and store in back open space) = 1711 covered area i.e. from its foundation upto roof tiles = Rs.13,68,800/- and for 809 sq. ft. covered area as per sanctioned building plan @ Rs.400/- per sq. ft. = Rs.3,23,600/-. Stage 1, 2 & 3 were fixed for construction and the total agreed amount for construction was fixed at Rs.16,92,400/-. The complainants paid an amount of Rs.3.5 lakhs, but, the OPs left many shortcomings and even without completing the work of stage 1, switched over to stage 2 etc. As such, there has been deficiency in service and unfair trade practice on the part of OPs. It is pertinent to mention here, many facts have been detailed in the consumer complaint, but, we have reproduced hereinbefore the material and crux of the allegations as detailing of other facts would only be a sheer wastage of time and energy as these are summary proceedings and we have to resolve the bone of contention existing between the parties. Thus, the complainants have prayed for Rs.7,00,136/- for deficiency in service; Rs.3 lakhs for causing mental and physical harassment and Rs.50,000/- as costs of litigation besides passing directions to the OPs to refrain from practising unfair trade practice.
2. OPs contested the consumer complaint, filed their written reply and, inter alia, raised objections of present consumer complaint being not maintainable. OPs have already filed a civil suit before the concerned Civil Judge, Chandigarh for the recovery of amount of Rs.7,19,401.26 plus interest against complainant No.2 which is pending disposal. It is with regard to the same subject matter and the OPs have completed the work of the amount quantified hereinbefore which has not been paid to them by the complainants which necessitated the OPs to file a civil suit which is being contested by the complainants before the civil court. In other words, unfair trade practice and deficiency in service had been denied in toto. The crux of the matter is, in order to ward off liability of the amount due to the OPs, complainants have taken the route to file this consumer complaint under colourful exercise for the protection of their rights. On these lines, the cause is sought to be defended."
The opposite parties in their appeal bearing RBT No.28 of 2019 have assailed the order on the ground that the Ld. District Commission failed to appreciate the changes, which the Local Commissioner reported in the construction i.e. 10, 12, 15, 16 & 17, which were done at the instance of the complainants as the opposite parties were compelled by the complainants for these changes. It has further been stated that there was a revised plan to be submitted by the complainants in the Estate Office as the complainants chose the appellants to carry out these changes as per their choice. It has further been stated that number of emails were made between the Architect and the complainants against the revised site plan as admitted by the Architect R.K. in his reply. It has further been stated that as per agreement dated 27.01.2014, Annexure P-3, the opposite parties complied with from the start of the work, which was to be executed stage wise and payments were to be released on completion of work of that stage. It has further been stated that total payment of Rs.3,50,000/- was to be made by complainant No.2 for laying DPC and the work was carried out as per building plan, which was certified vide DPC certificate, Annexure P-4, by the competent authority i.e. SDO, UT Estate Officer on application by the complainant No.2 and architect of the building Sh. R. K. Garg. It has further been stated that on completion of work up to DPC Level, complainant No.2 was to release Rs.1 Lakh for further construction over DPC Level, however, instead of paying the said amount, the complainants started quarrelling with the opposite parties for no reason. It has further been stated that appellant No.1 filed compliant in the office of SSP, Chandigarh on 28.02.2014 and second complaint was filed for harassment to the complainants on 03.03.2014. It has further been stated that the Ld. District Commission while deciding the complaint fell in error in directing the opposite parties to pay for deficiency, mental agony and cost of complaint, falsely and illegally without considering the agreement, Annexure P-3 and DPC Certificate, Annexure P-4. It has further been stated that the report of Local Commissioner cannot be read independently ignoring the agreement, Annexure P3, wherein it is provided that first party shall be entitled to inspect, view etc. and construction was under the supervision of architect R.K. Garg. It has further been stated that the opposite parties have no benefit in making the changes in keeping the window or not keeping the window or erecting the RCC and changing the other construction and it was on the instructions of the complainants and Architect and cannot be otherwise deficiency when read with Clause 10 of the agreement. It has further been stated that the contract was for full construction and the work was on the way at stage, after DPC, for raising upto door level and no complaint can be filed for which no amount was paid or the construction has not been completed. Lastly prayer for setting aside of the impugned order has been made by the opposite parties.
On the other hand, in their appeal bearing RBT No.33 of 2019, the complainants have prayed for enhancement in compensation awarded by the Ld. District Commission to the tune of losses suffered i.e. Rs.9,71,462/- as detailed in the written arguments, on the ground that the global compensation awarded vide the impugned order is too adequate to compensate for actual losses of more than Rs.11 Lakhs on account of penalty levied for extension of construction period, loss due to deficiency in service, unfair trade practices on the part of the opposite parties. It has further been stated that the compensation awarded is also too less to rectify construction defects as reported by the Local Commissioner including 25% short and defective work/construction from very start of foundation in all load bearing walls, 25% to 39% short and defective construction in all load bearing columns etc. We have heard the rival contentions of the the parties and have gone through the impugned order, record and the written arguments of the parties very carefully.
The questions which fall for consideration before this Commission in these appeals are that (1) whether there was any deficiency in rendering service on the part of the opposite parties and (2) as to whether, the complainants are entitled for enhancement of compensation already awarded by the District Commission or not.
It may be stated here that no doubt, the contesting parties had leveled numerous allegations against each other before the Ld. District Commission as well as before this Commission, yet, under those circumstances, in order to come to any definite conclusion, the matter had been referred by the Ld. District Commission to the Local Commissioner namely Sh. Rajinder Singh Kalsi, Senior Architect, who had submitted his technical site inspection report dated 28.07.2015 which is already on record. It is also coming out from the record that this report has attained finality as the objections preferred were overruled by the Ld. District Commission, which order was then upheld by this Commission and further attained finality up-to the Hon'ble National Consumer Disputes Redressal Commission, New Delhi. In this report, it is found that number of deficiencies were found by the Local Commissioner qua Internal size of the unit = RCC column 9"x12" added which is not as per sanctioned building plan. The work top slab not laid down in the kitchen; Internal size of living room was found to be Okay, however, internal window W7 not provided as per sanctioned building plan and 9"x9" RCC column in the wall of pen to sky portion not provided. The windows W5 and W8 converted into a bigger window opening of size 4'-4½"x5'-6"; in Toilet with left hand side rear bed room, Internal size found to be okay, however, position of doors from inside the bedroom and the door from outside veranda changed from the sanctioned building plan. The window W1 opening not provided; in Toilet with left hand side rear bed room Internal size found to be okay, however, position of doors from inside the bedroom and the door from outside veranda changed from the sanctioned building plan. The window W1 opening not provided and in Right hand side rear bedroom, Internal size found to be okay, 4½"brick partition of cupboard not provided at site. The window W7 opening not provided at site. The said Local Commissioner had also appended the notes on the foot of his report and pending works are shown as under :-
"1. Excavation/layout of store and toilet in the rear courtyard not started at site.
2. Floor slab of ground floor is yet to be laid.
3. Sewerage/water supply/storm water pipes work not taken up at site.
4. Earth malwa dumped in the rear court yard of the house and in the adjoining vacant plot No.338.
5. No concrete base has been provided for floor finish at plinth level."
Thus, from the perusal of report of the local Commissioner, it has been proved that there were lot of deficiencies on the part of the opposite parties while doing partial construction of the building in question and also they had deviated from agreed depth of the foundation, which forced the complainants to stop the same. The Ld. District Commission also after going through the photographs, Annexure C-62 and also while going through the report of the Local Commissioner has though held that the opposite parties have deviated from agreed depth of the foundation i.e. against the sanction plan and status as per work done at site, though held the opposite parties deficient in service, yet, at the same time, fell into an error by granting meager compensation to the tune of Rs.30,000/- as global compensation & Rs.20,000/- as compensation for mental agony and harassment, which in our considered opinion, is on the lower side. One can well imagine the plight of a person, who hired the contractor with a view to construct his/her house as per the specifications/sanctioned plans, yet, later on it was found that in order to cut the cost of labour etc., the contractor has adopted shortcut methods thereby compromising and deviating from agreed depth of the foundation etc. against the sanctioned plan, which can be one of the reasons contributing life hazardous for the occupants of the said building. The complainants have been put into so many rounds of the litigation and still, they are not able to live in their house because the construction has been left in lurch since long. The hopes of the complainants to live in their own house have been dashed to the ground. Now the cost of construction has also increased manifolds and the complainants will not be able to complete the construction work, at the cost, which they had to pay in the year 2014. In case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In our considered opinion, under these circumstances and keeping in view the settled law in case Lucknow Development Authority (supra), when it has already been proved on record that the opposite parties were deficient in providing service to the complainants, in the manner stated above, as such, if we enhance the global compensation awarded by the Ld. District Commission for deficiency in service on the part of the opposite parties to the tune of Rs.1,00,000/- from Rs.30,000/- and further enhance the compensation for mental agony and harassment caused to the complainants to the tune of Rs.50,000/- from Rs.20,000/-, that will meet the ends of justice.
In view of above, the appeal bearing RBT No.28 of 2019 filed by the opposite parties is liable to be dismissed and the appeal bearing RBT No.33 of 2019 filed by the complainants is liable to be partly accepted.
Resultantly, appeal bearing RBT No.28 of 2019 filed by the opposite parties stands dismissed with no order as to costs.
However, appeal bearing RBT No.33 of 2019 filed by the complainants is partly accepted and the impugned order of the Ld. District Commission stands modified and the opposite parties, jointly and severally, held liable and are directed as under:-
to pay a global compensation of Rs.1,00,000/- (instead of Rs.30,000/-), to the complainants for deficiency in service on the part of the opposite parties;
To pay Rs.50,000/- (instead of Rs.20,000/-) as compensation to the complainants for mental agony and harassment caused to them;
To pay to the complainant Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @12% per annum from the date of filing main consumer complaint before the Ld. District Commission i.e. 05.01.2015 till realization.
12. All pending miscellaneous applications, if any, in both the appeals stand disposed of accordingly.
13. A copy of this order be placed in the file of appeal bearing RBT No.33 of 2019.
14. Certified copies of this order be sent to the parties free of charge.
15. File be consigned to Record Room after completion.
Pronounced 23.12.2022.
[RAJ SHEKHAR ATTRI] PRESIDENT (RAJESH K. ARYA) MEMBER Ad