State Consumer Disputes Redressal Commission
1. Mrs. Sunita Siriskar vs 1. Mrs. Sheela Camilo, on 8 December, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia ... Presiding Member Smt. Caroline Collasso ... Member. Appeal No.70/2008 1. Mrs. Sunita Siriskar Sole proprietor of M/s Simran Developers. G-2, Shubham Apartments, Behind Acdil School, Alto Betim, Bardez Goa. 2. Mr. Sanjeev Siriskar residing at G-2, Shubham Apartments, Behind Acdil School, Alto Betim, Bardez Goa, Appellants (Original Opposite Parties) v/s 1. Mrs. Sheela Camilo, wife of Mr. Santano C.I. Camilo, and her husband. 2. Mr. Santano C.I. Camilo, s/o late Ignatius Camilo, both resident of Villa No.4, Shangrilla Complex I, Combia Morod, Guirim, Bardez Goa. Respondents (Original Complainants) For the Appellants . Shri R. Narvekar, Advocate For the Respondents Shri R Kolwalkar, Advocate Appeal No.74/2008 1. Mrs. Sheela Camilo, wife of Mr. Santano C.I. Camilo, of full age, housewife, and her husband. 2. Mr. Santano C.I. Camilo, s/o late Ignatius Camilo, both resident of Villa No.4, Shangrilla Complex I, Combia Morod, Guirim, Bardez Goa. Appellants (Original Complainants) v/s 1. Mrs. Sunita Siriskar Sole proprietor of M/s Simran Developers. C-2, Shubham Apartments, Behind Acdil School, Alto Betim, Bardez Goa. and having her office at Office No.6, 4th Floor, Communidade Ghor, Angod, Mapusa, Bardez, Goa. and her husband. 2. Mr. Sanjeev Siriskar of full age, residing at G-2, Shubham Apartments, Behind Acdil School, Alto Betim, Bardez Goa, and having his office at office No.6, 4th Floor, Communidade Ghor, Angod, Mapusa, Bardez Goa. Respondents (Original Opposite Parties) For the Appellants .. Shri R Kolwalkar, Advocate For the Respondents..Shri R. Narvekar, Advocate Dated: 08-12-2009 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. These are cross appeals assailing the order dated 03-11-2008 passed by the Consumer Disputes Redressal Forum (District Forum) North Goa in Complaint no. 179/2000. Hence, a common order.
2. Mrs Sheela Camilo and her husband Santano Camilo are the original complainants while Mrs. Sunita Siriskar, sole proprietor of M/s Simran Developers and her husband Mr. Sanjeev Siriskar are the original opposite parties. For convenience, parties shall be referred as arrayed before the District Forum.
Case of the Complainants.
3. The complainants grievances relevant to the prayers are regarding the defective and incomplete works in the villa/Block No. F admeasuring 152 square meters in the complex known as Shangri-La at Guirim Bardez, Goa, agreed to be purchased by them under an agreement dated 12-01-1998 whereby the opposite parties agreed to construct the said villa on being financed by the complainant. Possession of the villa was delivered on 27-05-1999 and occupancy certificate was issued on 16-06-1999. Upon taking possession, the complainants found that construction of the villa was not done in a workmanlike manner and there were several defects/defaults found in the construction. With the intention of amicably settling the matter, the complainants served the legal notice dated 26-07-2000 setting out therein some of the defects. The notice was replied by the opposite party on 03-08-2000. Thereafter, a joint inspection was carried out on 11-08-2000 by the parties and their experts/engineers and it was decided that the experts would draw up the report in respect of the defects/defaults together with the estimated costs. The complainants procured the services of Mrs Mahadev Tuenkar while the opposite parties appointed Mr. Viraz Paras. The complainants expert Mr. Mahadev Tuenkar drew his report dated 17-10-2000 a copy where of was delivered to the opposite party. Instead of carrying out the repairs as per the expert report, the opposite parties sent an advocates reply dated 28-10-2000. The opposite parties till date has not given copy of their experts report. In addition, to the defects listed in Mr. Mahadev Tuenkars report, the complainants also listed out additional defects and default in para 17 of the complaint.
4. The complainants sought a direction to he opposite parties to rectify the defects and complete the construction of the villa as per the report of Mr. Mahadev Tuenkar or alternatively to pay an amount of Rs.1,91,112.50/- to enable the complainants to carry out the work themselves. The complainant also sought other reliefs listed at para 27 of the complaint.
Case of the Opposite Parties.
5. Per contra, the opposite parties contested the complaint and entered their written version. In brief, it is their case that the complainants took possession of the villa fully completed in all respects and after being satisfied about the standard of the construction and completion thereof. The allegation that the construction had not been done in workman like manner or that there were defects or defaults was denied. Slight leakage through the wall during heavy monsoons was admitted, though it was explained that it was a common phenomenon in Goa. Joint inspection of the villa by the parties along with their experts was admitted. However, it was agreed that both experts would prepare a joint report, but the complainants expert prepared his own report to suit the whims and fancies of the complainant. At the time of the joint inspection, it was agreed to settle the matte amicably and that certain works should be carried out by the opposite parties. The works so agreed are listed at para 12 of the written version. A majority of the works were carried out subsequent to the joint inspection. Likewise, the defects listed out at para 17 of the complaint were denied.
Order of the District Forum.
6. Parties entered their affidavit in evidence and reiterated their case set out in the pleadings. The complainant was cross examined by the opposite party by way of questionnaire. The District Forum, at the request of the opposite parties appointed Shri Jose P Carvalho Assistant Engineer PWD who inspected the site and submitted report. The District Forum, upon considering the case of the parties and the commissioners report, observed that there had been defective workmanship and directed the opposite parties to rectify all the defects as per the commissioners report and to pay costs of Rs.20,000/-.
7. At the time of final hearing, Ld. Adv. Shri R. Kolwalkar appeared for the original complainant and Ld. Adv. R Narvekar appeared for the original opposite parties. Counsel filed written submissions. We called for and perused records and proceedings of the trial forum and gave due consideration to the submissions canvassed by the Ld. Counsel.
Findings.
8. The impugned order is based entirely on the report of court commissioner Shri Jose P Carvalho. The order, at para 10 observes that the report has not been disputed by either of the parties. But the records narrate a different story. The complainants filed their objections to the commissioners report on 18-10-2004. It is their case that the commissioner was given a memo (points of reference) that was prepared by the opposite party and contained only four defects for the commissioner to give his opinion on. The various items of defects/deficiencies pleaded in the complaint were left out. There is merit in the complainants submissions on this issue. The letter of request dated 26-07-2004 issued by the District Forum to the Chief Engineer, Goa PWD requests appointment of a commissioner from the department to inspect the repairs work carried out as per the terms of reference submitted by the opposite party (copy enclosed) (emphasis ours). It is not known how and when the opposite party prepared the terms of reference submitted to the commissioner and whether these had the mandate of the District Forum. We did not find the terms of reference in the records or any mention thereof in the proceedings sheet. Be that as it may, the fact that the commissioner prepared his report within the narrow compass of the terms of reference prepared by the opposite party and excluding the numerous other defects/deficiencies pleaded in the complaint was without doubt prejudicial to the complainant and contrary to the principles of natural justice, more so in view of the reliance placed on the report by the District Forum. Likewise, the opposite party also filed its objections to the commissioners report on 18-10-2004 and sought his cross examination.
9. It is clearly apparent that the District Forums reliance on the commissioners report was misplaced as it did not consider the entire gamut of technical issues pleaded by the complainant in his complaint. In our considered opinion, in the peculiar facts and circumstances, it would be in the interest of justice to remand the matter to the District Forum with direction to appoint another commissioner to inspect the complainants villa and submit report on the defects/ deficiencies mentioned in the report of Mr. Mahadev Tuenkar dated 17-10-2000 and those pleaded in paragraph 17 of the complaint and to submit estimated cost of such repair/rectification work and to decide the matter afresh as per law. Being a long pending dispute, the District Forum is directed to dispose the matter expeditiously and in any case not later than sixty days.
Order.
10. In the result, the impugned order dated 03-11-2008 is hereby set aside. Appeal nos. 70/2008 and 74/2008 stand disposed off in accordance with our foregoing observations. Parties shall appear before the District Forum on 07-01-2010 at 10.00 am. In the circumstances, parties shall bear their own costs. Order accordingly.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member 08-12-2009 Order.
In the result, the impugned order dated 03-11-2008 is hereby set aside. Appeal nos. 70/2008 and 74/2008 stand disposed off in accordance with our foregoing observations. Parties shall appear before the District Forum on 07-01-2010 at 10.00 am. In the circumstances, parties shall bear their own costs. Order accordingly.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member