State Consumer Disputes Redressal Commission
Sri Sushanta Biswas vs Sri Abhik Ghosh on 22 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/200/2014 1. Sri Sushanta Biswas S/o Sri Meghnath Biswas, 41, New South Park, P.S. Jadavpur, Kolkata -700 092. 2. Smt. Shibani Biswas W/o Sri Sushanta Biswas, 41, New South Park, P.S. Jadavpur, Kolkata -700 092. ...........Complainant(s) Versus 1. Sri Abhik Ghosh Civil and Interior Contractor, Block-H, Flat no.6, Belgachia Villa, Khudiram Bose Sarani, Kolkata -700 037. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad, Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Opp. Party: Mr. Ritam Rudra, Advocate Dated : 22 Jun 2017 Final Order / Judgement Date of filing : 16.06.2014 Date of final hearing : 13.06.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of landowners against the builder on the allegation of deficiency of services on the part of OP /builder in a consumer dispute of housing construction.
Cut short of details, complainants case is that on 07.02.2011 they had entered into an agreement with the OP for the purpose of construction of a 3 storied building at plot no.100, Premises no. 372, Barakhala, Ward No.109 under East Santoshpur Housing Co-operative Society, Kolkata - 700099, District - South 24 - parganas within the local limits of Ward N o. 109 of Kolkata Municipal Corporation. As per the terms of the agreement, the building will be constructed at a total cost of Rs. 24,00,000/-. The landowners had already obtained building sanctioned plan on 04.10.2010. The complainants paid total amount of Rs.18,00,000/- on diverse dates. It was stipulated that the OP would deliver the possession of the building within 30.11.2011. The OP, however, expressed his intention to surrender the building as is where is basis upto the construction which OP already performed by demanding additional amount of Rs. 1,60,000/- being total cost of construction. The complainants paid the said amount of Rs. 1,60,000/- to the OP on 08.09.2013 and on that date one cancellation agreement was executed by and between the parties. In the said cancellation agreement, it has been agreed that in future if any assessment of job is required then it should be assessed by a Chartered Engineer in presence of both the parties. The complainants appointed one Surveyor Valuer, Calcutta High Court, who in presence of both sides inspected the building on 07.12.2013 and prepared a report whereby the said Engineer assessed the construction cost which the OP performed is Rs. 14,88,253.61 paise out of payment of Rs. 19,60,000/-. The complainant has made demand notice for refund of excess amount of Rs.4,71,746.29 paise but it turned a deaf ear. Hence, the complainants have approached this Commission with prayer for following reliefs, viz - (a) to direct the OP to make payment of Rs. 4,71,746.29 paise along with interest @12% p.a. ; (b) to direct the OP for payment of Rs. 6,71,730.21 paise being the excess amount which the complainants are supposed to bear for completion of incomplete work of the building ; (c) to pay compensation of RS. 5,00,000/- for mental agony and harassment and (d) to pay cost of Rs. 50,000/- etc. The OP by filing a written version has stated that in view of the cancellation of the agreement and amicable settlement dated 08.09.2013, the complainants have ceased to be 'Consumer' as defined in Section 2(1)(d) of the Act. The OP has submitted that if there be any dispute, the same should be technically assessed by a Chartered Engineer but the complain ants appointed one who is Valuer only. Therefore, the complaint should be dismissed.
The complainants have tendered their evidence on affidavit. Similarly, the OP has adduced evidence by filing affidavit. Both the parties have given reply against the questionnaire set forth by their adversaries. Besides oral evidence, both the parties have relied upon some documentary evidence.
I have scrutinised the pleadings and oral as well as documentary evidence including the Brief Notes of Arguments filed by the Opposite Party. I have also considered the submission advanced by Mr. Barun Prasad, Ld. Counsel appearing for the complainants and Mr. Sati Bhusan Mukherjee, Ld. Counsel for the OP.
At the outset, it should be seen whether this Commission has got (1) Pecuniary jurisdiction, (2) Territorial jurisdiction as well as (3) Jurisdiction over the subject matter of the dispute.
The complainants in the petition of complaint have mentioned the value of the complaint as Rs. 35,71,730.21 paise . The agreement between the parties was executed on 07.02.2011 for construction of the building at a total cost of RS. 24,00,000/-. As per provision of Section 17(1) of the Act, this Commission may entertain a complaint valued more than Rs. 20 lakhs but less than 1 crore. In a of late decision of Larger Bench of Hon'ble National Commission reported in I (2017) CPJ I ( Ambrish Kumar Shukla and 21 Ors. -vs. - Ferrous Infrastructure Pvt. Ltd.) it has been held that it is the value of the goods or services and compensation is the determining factor in assessing the valuation of a property. In the case beforehand, the value of the services was Rs. 24,00,000/- and the complainant has claimed Rs.4,71,746.29 paise for refund, compensation of Rs. 5,00,000/- which comes within the jurisdiction of this Commission. The property is lying and situated within the local limits of Kolkata Municipal Corpora tion and as such it is also within the territorial jurisdiction of this Commission as envisages U/s. 17(2) of the Act.
In a landmark decision reported in (2010) 8 SCC 345 (Faqir Chand Gulati -vs. - Uppal Agencies Pvt. Ltd. ) the Hon'ble Supreme Court has observed that a landowner may approach a Consumer Forum against the developer /builder on the allegation of deficiency in service claiming himself as 'consumer'.
Considering all the above, it is quite clear this Commission is competent to adjudicate the dispute between the parties.
Undisputedly, complainants are the owner of a plot being No.100, Premises No.372,Barakhola under East Santoshpur Housing Co-operative Society, Kolkata - 700 099 ,District - South 24 - Parganas within the local limits of Ward No .109 of Kolkata Municipal Corporation. In order to raise a multi-storied building over the said plot, the landowners have obtained sanctioned building plan from the Kolkata Municipal Corpora tion on 04.10.2010. It is not in dispute that on 07.02.2011 the parties entered into an agreement in which the OP agreed to construct a three - storied building at a total cost of Rs. 24,00,000/- and it was stipulated that the OP will handover the fully completed three - storied house to the complainants within 30.11.2011. It is also an admitted fact that on diverse dates complainant have paid a total amount of Rs. 18,00,000/- for raising construction.
Admittedly, the OP could not keep his promise and ultimately expressed his intention to surrender the building 'as is where is basis' by demanding an additional amount of Rs. 1,60,000/- claiming a total construction cost at Rs.19,60,000/- . Ultimately, on 08.09.2013, the complainants paid a sum of Rs. 1,60,000/- to the Op and on that date one cancellation agree ment has been executed by and between the parties dated 08.09.2013 whereby the OP surrendered his claim and/or interest over the construction site. In the said cancellation agreement, it was agreed that in future if any assessment of job is required then it should be assessed by a Chartered Engin eer in presence of both the parties.
Subsequently, at the instance of the complainants one Shri Sakti Pada Bera , a Surveyor Valuer, Kolkata High Court was appointed, who inspected the building on 07.12.2013 in presence of both sides and prepared one field report. Ultimately, the said Surveyor submitted a detailed report and along with field note etc. The said report speaks that the construction cost which the OP performed in the building of the complainant was Rs. 14,88,253.61 paise out of total payment of Rs. 19,60,000/-.
From the record it is evident that Shri Sakti Pada Bera is a Surveyor and valuer of Calcutta High Court and Approved Valuer - the institution of Valuers (1) Registered Valuer - Ministry of Finance - Government of India having a qualification of B.Sc, MIE, C .Engg(I), FIV (I). The technical person has made inspection in presence of both sides and in this regard " Field report related to joint verification " had been made. During the verification and detailed discussion and as far as said field report, the following are the observations -
(1) The building had been constructed in incomplete manner where the road side boundary wall is yet to be started; (2) The construction had been made upto plastering of wall and roof other than the boundary wall - whatever constructed;
(3) Only front gate and roof gate had been found fitted ( which is for temporary measure ), for others the door and windows are yet to be fitted although the integrated M.S. Grills are there without any leaf ;
(4) The M.S. stair balustrade had been found fitted without any Hand Rain ;
(5) There was no instance of flooring /skirting or Dado work in floors/walls or there was no work for the kitchen area ;
(6) There was no question of other finishing works like plaster of paris, laying of electrical wiring, water lines for toilet or kitchen, inside and outside painting, fitting of R WP etc . and water proofing, making pavement etc as a whole ;
(7) As a whole, for the habitation of a family, there are sizable work shall have to be undertaken for its completion.
After making comments over the same, the expert has observed that the construction cost which the OP performed till the date of cancellation of agreement i.e. on 08.09.2013 was Rs. 14,88,253.61 paise.
Ld. Counsel for the OP has strenuously argued that the technical person appointed in that case had no competency to hold inspection. He raised question as to qualification of the technical person appointed in this case. Mr. Sakti Pada Bera appears to be an Approved Surveyor and Valuer of Calcutta High Court. It is evident that the expert has inspected the site in presence of both the parties. The 'field report related to joint verification' dated 07.12.2013 also bears the signature of the OP. The OP never raised any objection against the manner of survey or inspection done by the expert. Therefore, at this belated stage such a plea on behalf of the OP raised doubt as to the genuineness of raising such objection.
Ld.Counsel for the OP has forcefully submitted that once the agreement between the parties has been cancelled, the relation between the parties as consumer - service provider has been ceased. In support of his submission, Ld.Counsel for the OP has drawn my attention to a decision reported in (2008) 5 SCC 400 ( National Insurance Co. Ltd. -vs. - Sehtia Shoes ). He has also cited another decision reported in AIR 1994 SC 853 ( S. P. Chengalvaraya Naidu ( dead ) ) by LRs -vs. - Jagannath (dead) by LRs and Ors.).
Ld. Counsel for the complainants, on the other hand, has placed reliance to a decision reported in 2013 (1) CPR 294 (NC) ( Poonam Chambers "B" Commercial -vs. - M/s. Aluplex India Pvt. Ltd. & Anr. ) and also a decision reported in 2014 (2) CPR 277 ( Tata Motors Ltd. -vs. - Shri Manoj Gadi & Anr. ).
The point arises for consideration whether on the basis of cancellation agreement dated 08.09.2013 the relation between the parities as Consumer - service provider exists or not. On perusal of the agreement in question I find a Clause where it has been agreed that in future if any assessment job is required it should be assessed by a Chartered Engineer in presence of both the parties ( appointed by the aggrieved party and the remuneration of the Chartered Engineer should be borne by the same ) and no parties should not have any objection over the technical process. The decision in the case of National Insurance Co.Ltd. (Supra) has no manner of application in our case because the referred case was related to a insurance policy in which the surveyors assessed the net loss at Rs. 2,82,301/- the respondent accepted Rs. 2,72,301/- without demur. The respondents claim of Rs. 9,00,000/- less Rs. 2,72,301/- is not barred but it has to be proved that agreement to accept a particular amount was on account of coercion. The decision in the case of S. P. Chengalvaraya Naidu ( dead ) ) by LRs (Supra ) appears to be totally irrelevant because it is not the case of OP that the complainants have suppressed any document or material fact before this Commission.
In the case of Poonam Chambers "B" Commercial (Supra) the Hon'ble National Consumer Commission has observed that once parties entered into work contract, complainant is entitled to file claim on account of deficiency of service even after termination of contract. In the case of Tata Motors Ltd. (Supra) the Hon'ble National Commission in paragr aph - 8 has observed thus :
"It can also be stated that the status of complainant as Consumer, vis-a-vis, the OPs has to be considered on the day of cause of action or filing of the complaint and a person may not lose that status merely because of the sale of the vehicle due to any reason ".
Needless to say, the parties are bound by the terms of agreement. When in the cancellation agreement there was a stipulation of assessment of job, the complainants being Consumer have rightly exercised the same. Undoubtedly, the OP was deficient in rendering the services to the complainants .
Considering the evidence on record and after giving due consideration to the submission advanced by the Ld. Advocate appearing for the parties, I have no hesitation to hold that the complainants are entitled to refund of Rs. 4,71,746.29 paise i.e. the excess amount received by OP from them. The OP without following the terms of the agreement intended to discard the report of the expert just to wash his hand and in turn it caused harassment and mental agony of the complainants and as such complainants are entitled to compensation which I assessed at Rs.1,00,000/-. The situate ion compelled the complainants to lodge the complaint, for which the complainants are entitled to litigation cost which I quantify at Rs.20,000/-.
Consequently, the instant complaint is allowed on contest in part. The OP is directed to make payment of Rs.4,71,746.29 paise plus Rs.1,00,000/- as compensation plus Rs. 20,000/- as litigation cost. The entire amount i.e. Rs. 5,91,746.29 paise must be paid to the complainants within 30 days from the date of receipt of order otherwise the amount shall carry interest @9% p.a. from date till its full realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER