State Consumer Disputes Redressal Commission
Naik, Sh. Santosh Kumar & Anr. vs Sh. Bal Ram. on 26 February, 2019
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA.
Consumer Complaint No.: 01/2017
Date of Presentation: 22.02.2017
Order reserved on : 26.11.2018
Date of Order : 26.02.2019
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1. Naik Shri Santosh Kumar son of Shri Chajju Ram Thakur.
2. Shri Subhash Chand son of Shri Chajju Ram Thakur.
Both residents of Kandhari Niwas near Police Line Kaithu
Shimla-3 H.P.
....Complainants
Versus
Bal Ram son of Shri Joginder Shah resident/office at Hira Lodge
Annadale Shimla & also permanent resident of village and post
office Arra Patti District Saharsa Bihar.
....Opposite party
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Coram
Hon'ble Mr. Justice P.S. Rana (R) President.
Hon'ble Mr. Vijay Pal Khachi Member.
Hon'ble Ms. Sunita Sharma Member.
Whether approved for reporting?1 Yes
For the Complainants : Mr. Ravi Shankar Sood Advocate.
For the Opposite Party : Mr. Jagdish Thakur Advocate.
.......................................................................................
O R D E R:
Justice P.S. Rana (R) President Present consumer complaint is filed under section 17 of Consumer Protection Act 1986 pleaded therein that complainant No.1 i.e. Naik Santosh Kumar is Military personnel and is serving in Army and complainant No.2 Shri 1 Whether Reporters of the local papers may be allowed to see the order? Yes Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 Subhash Chand is brother of complainant No.1. It is pleaded that opposite party is a private construction contractor in Shimla town and complainants approached the opposite party for construction purpose upon khasra No.411/3 Jau Mohal Badai Tehsil & District Shimla H.P. It is pleaded that opposite party was under legal obligation to construct one residential complete storey comprised of three bed rooms, two kitchens and bathrooms with toilets as per approved plan. It is pleaded that construction was to be completed in consideration amount of Rs.1700000/-(Seventeen lac). It is pleaded that complainants paid an amount of Rs.1160000/- (Eleven lac sixty thousand) to opposite party as advance money.
2. It is pleaded that complainants took house loan from State Bank of India in the month of May-June 2015 for construction of residential house. It is pleaded that opposite party delayed the construction work of residential house and used substandard material for construction work. It is further pleaded that workmanship of opposite party was also defective in nature. It is pleaded that beams and pillars were not constructed in alignment manner and requisite quantity of steel and cement were not used for construction purpose. It is pleaded that beams and pillars were defective in order to bear further load of construction. It is pleaded that defective construction raised by opposite party required dismantlement 2 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 of three lintels for safety of human beings. It is further pleaded that complainants would incur expenditure of Rs.962750/-(Nine lac sixty two thousand seven hundred fifty) for dismantlement of defective three lintels. It is pleaded that opposite party committed deficiency in service.
3. Complainants sought relief of direction to opposite party for construction of one storey residential building comprised of three bed rooms, two kitchens and bathrooms with toilets as per approved plan and as per written agreement executed inter se parties on dated 18.08.2015 in consideration amount of Rs.1700000/- (Seventeen lac) in time bound manner within six months. In alternative complainants sought relief of payment of Rs.2122000/-(Twenty one lac twenty two thousand) i.e. advance amount paid to opposite party to the tune of Rs.1160000/-(Eleven lac sixty thousand) plus demolition and reconstruction expenditure amounting to the tune of Rs.962750/-(Nine lac sixty two thousand seven hundred fifty). Complainants also sought interest @ 18% per annum from the date of written agreement dated 18.08.2015. In addition complainants sought relief of payment of Rs.600000/-(Six lac) for causing financial loss, mental harassment and agony. In addition complainants sought litigation costs. Prayer for acceptance of consumer complaint sought.
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Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017
4. Per contra version filed on behalf of opposite party pleaded therein that oral agreement was executed inter se complainants and opposite party in the month of May 2015. It is pleaded that opposite party has completed construction works of three lintels in the month of November 2015 to the knowledge of complainants. It is pleaded that after completion of 3rd lintel construction in the month of November 2015 opposite party requested the complainants to pay balance amount of Rs.1276615/-(Twelve lac seventy six thousand six hundred fifteen) but complainants did not pay the amount and thereafter legal notice was issued by opposite party to complainants. It is pleaded that opposite party has constructed and completed three storied lintels as per request of complainants. It is further pleaded that three storied lintels were raised in the presence of complainants and complainants did not object.
5. It is pleaded that opposite party signed written agreement dated 18.08.2015 in good faith without going through contents of written agreement dated 18.08.2015. It is pleaded that disputed questions of facts and laws are involved in the present consumer complaint. It is further pleaded that consumer complaint could not be disposed of in a summary manner. It is pleaded that no permission of State Commission sought by complainants to file joint complaint by complainants. It is pleaded that entire construction material 4 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 for construction of three lintels were arranged by opposite party and complainants did not provide any construction material for construction of three lintels. It is pleaded that HPPWD rates are Rs.18100/-(Eighteen thousand one hundred) per square meter when entire construction material is provided by private contrator. It is further pleaded that how the rates of private contractor could be less than HPPWD rates when construction material was used by private contractor himself. It is pleaded that in written agreement dated 18.08.2015 executed inter se parties rate of construction material was mentioned as Rs.385 per Sq. meter which is ipso facto void recital. It is pleaded that as per oral agreement three lintels were to be constructed by the opposite party in consideration amount of Rs.1700000/-(Seventeen lac). It is further pleaded that opposite party was not required to construct one complete storey building comprised of three bedrooms, two kitchens and bathrooms with toilets as per approved plan in construction amount of Rs.1700000/- (Seventeen lac).
6. It is pleaded that managed agreement dated 18.08.2015 was got signed by complainants from opposite party on the pretext of release of house loan amount from State Bank of India. It is pleaded that opposite party has completed the construction of three lintels in November 2015. It is pleaded that material for construction work was 5 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 purchased by opposite party from M/s. Devi Ram & Sons. It is further pleaded that opposite party has spent an additional amount of Rs.200000/-(Two lac) for carriage purpose. It is pleaded that when opposite party completed construction of third lintel in November 2015 and when opposite party submitted bills for payment of balance amount of Rs.1276645/-(Twelve lac seventy six thousand six hundred forty five) then baseless objections were raised by complainants. It is further pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present consumer complaint.
1. Whether complaint filed by complainants is liable to be accepted as mentioned in memorandum of grounds of consumer complaint.
2. Final order.
Findings upon point No.1 with reasons:
9. Complainants filed joint affidavit of Shri Chajju Ram and Shri Subhash Chand Ext.C-I in evidence. There is recital in affidavit that complaint alongwith all documents attached therewith annexure-C1 to C8 be read as evidence. 6
Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 There is recital in affidavit that affidavits of Shri Lekh Ram and Shri Hukum Chand be also read in evidence. There is recital in affidavit that affidavit of Sh. B.C. Sharma M/s. Him Engineers & Archs Associates alongwith report dated 29.12.2016 be also treated as complainants' evidence.
10. Complainants also filed affidavit of Shri Lekh Ram Ext.C-2 in evidence. There is recital in affidavit that deponent is co-owner of plot situated in khasra No.411/4 at Mohal Badai Tehsil Shimla (R) District Shimla H.P. There is recital in affidavit that opposite party was entrusted with the construction work of residential house over plot situated in khasra No.411/4 at Mohal Badai Tehsil Shimla (R) District Shimla H.P in the month of June 2015 with construction material rates. There is recital in affidavit that opposite party took responsibilities to reconstruct defective three lintels raised by sons of opposite party.
11. Complainants also filed affidavit of Shri Hukum Chand Ext.C-3 in evidence. There is recital in affidavit that deponent is co-owner of khasra No.411/4 at Mohal Badahi Tehsil Shimla (R) District Shimla H.P. There is recital in affidavit that opposite party was entrusted with construction work of new residential house situated in khasra No.411/4 at Mohal Badahi Tehsil Shimla (R) District Shimla H.P in the month of June 2015 with construction material rates. There 7 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 is recital in affidavit that opposite party took responsibilities to reconstruct the defective three lintels raised by sons of opposite party.
12. Complainants also filed affidavit of Sh. B.C. Sharma Ext.C-4 in evidence. There is recital in affidavit that deponent is qualified Civil Engineer and has more than thirty years experience of construction work with HPSEB, Director General Roads and Bridges, Biffinger & Berger Company Germay, Newton Ltd. U.K. There is recital in affidavit that deponent is approved valuator with government departments. There is recital in affidavit that on the request of Sh. Chajju Ram deponent inspected three lintels construction work carried out in khasra No.411/3 at Mohal Badahi Tehsil Shimla (R) District Shimla H.P by opposite party. There is recital in affidavit that deponent took photographs, measurements and prepared plan. There is recital in affidavit that observation given by deponent as to quality of construction and other aspects is based upon factual position at site and opinion is based upon professional knowledge and experience of deponent. There is recital in affidavit that human life would be in danger if three lintels would be used to human living purpose. There is recital in affidavit that whole three lintels should be dismantled for safety of human beings. There is recital in affidavit that opposite party was associated when technical report was prepared. There is 8 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 recital in affidavit that opposite party has accepted that opposite party has no professional knowledge. There is recital in affidavit that opposite party has accepted that opposite party does not possess technical or skill staff to carry out such construction. Complainants also filed rebuttal affidavit of Sh. Chajju Ram in evidence Ext.C-5. State Commission has carefully perused all the annexures filed by complainants.
13. Opposite party filed affidavit of Shri Hem Raj Ext.OP-I in evidence. There is recital in affidavit that deponent is professional photographer. There is recital in affidavit that on dated 10.09.2017 on the request of opposite party deponent visited at Mohal Badahi Tehsil Shimla (R) District Shimla H.P and took photographs of lintels in question. There is recital in affidavit that photographs are true as per factual position at the spot.
14. Opposite party also filed personal affidavit Ext.OP-2 in evidence. There is recital in affidavit that liability of private contractor is only for six months. There is recital in affidavit that construction work of lintels were completed in the month of November 2015 by opposite party. There is recital in affidavit that no damage was caused to lintels erected by opposite party. There is recital in affidavit that opposite party has not agreed to reconstruct three lintels of the complainants. There is recital in affidavit that Sh. Lekh 9 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 Ram and Shri Hukum Chand are relatives of Shri Chajju Ram. There is recital in affidavit that Technical report submitted by Sh. B.C. Sharma Civil Engineer (Him Engineers and Arch. Associates) is not correct report and same is factually wrong report and same was prepared with the motive to help the complainants. There is recital in affidavit that if three lintels construction work was defective in nature then three lintels would not remain in its original position till two years. There is recital in affidavit that construction work of all three lintels were completed in the month of November 2015 in satisfactory manner.
15. Opposite party also filed affidavit of Shri S.K Chauhan Consultant Engineer and Valuator Ext.OP-3 in evidence. There is recital in affidavit that deponent is qualified civil engineer and is competent to give independent report of all aspects of civil construction. There is recital in affidavit that deponent is having more than twenty five years experience in civil construction work. There is recital in affidavit that on the request of opposite party deponent inspected construction work of three lintels in khasra No.413/3 at Mohal Badahi Tehsil Shimla (R) District Shimla H.P. There is recital in affidavit that deponent has submitted report annexure-OP3 and same is correct as per factual position. There is recital in affidavit that deponent has assessed total value of construction of three storied lintels to 10 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 the tune of Rs.2576000/-(Twenty five lac seventy six thousand).
16. Opposite party also filed affidavit of Shri Chander Kishore Ext.OP-4 in evidence. There is recital in affidavit that deponent is mason by profession and was engaged by opposite party for construction of three lintels. There is recital in affidavit that three lintels were completed in the month of November 2015. There is recital in affidavit that there were no defects in the construction work of three storied lintels. There is recital in affidavit that present consumer complaint has been filed by complainants in order to escape liability of payment of balance amount of construction works to opposite party. State Commission has carefully perused all the annexures filed by opposite party.
17. Submission of learned Advocate appearing on behalf of complainants that opposite party be directed to construct one complete residential storey comprised of three bedrooms, two kitchens and bathrooms with toilets as per approved plan in consideration amount of Rs.1700000/- (Seventeen lac) in view of the written agreement dated 18.08.2015 executed between complainants and opposite party is decided accordingly. State Commission has carefully perused the written agreement dated 18.08.2015 placed on record. There is recital in written agreement dated 11 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 18.08.2015 that opposite party would construct one storey building comprised of three bedrooms, two kitchens and bathrooms with toilets as per approved plan in consideration amount of Rs.1700000/-(Seventeen lac). There is recital in written agreement dated 18.08.2015 that opposite party has received consideration amount of Rs.240000/-(Two lac forty thousand) from complainants as advance money. There is recital in written agreement that construction work would be completed on 31.01.2016. There is further recital in written agreement that high quality material in construction work would be used and opposite party would not leave construction work in midway. Agreement dated 18.08.2015 is signed by complainants and opposite party and attesting witnesses in the agreement dated 18.08.2015 are Shri Gagandeep and Sh. Praveen Kumar.
18. It is proved on record that permission for construction of ground floor, first floor, second floor and third floor was granted by Town & Country Planning Department to complainants upon khasra No.411/3 situated at Mohal Badai Tehsil Shimla (R) District Shimla H.P. Site plan of ground floor, first floor, second floor and third floor has also been placed on record. It is proved on record that opposite party has constructed three storied lintels upon khasra No.411/3 situated at Mohal Badai Tehsil Shimla (R) District Shimla H.P in the month of November 2015. Construction of three storied 12 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 lintels is admitted by complainants at the spot. No reasons assigned by complainants as to why complainants allowed opposite party to raise three storied lintels.
19. There is no evidence on record in order to prove that objection was raised by complainants when opposite party raised three storied lintels. It is proved on record that entire construction material for construction of three lintels was purchased by opposite party. It is proved on record that complainants knowingly and willfully allowed the opposite party to raise three storied lintels contrary to written agreement dated 18.08.2015. No reasons assigned by complainants as to why complainants remained silent when opposite party was raising construction of three storied lintels. It is held that concept of Estoppel by acquiescence is attracted upon complainants in the present matter. It is held that complainants have voluntarily waived their legal right of residential construction of three bedrooms, two kitchens and bathrooms with toilets.
20. It is held that complainants are estopped by their acquiescences to ask the opposite party to raise fresh residential construction of three bedrooms, two kitchens and bathroom with toilets in consideration amount of Rs.1700000/-(Seventeen lac). As per law Acquiescence means if party having a right stands by and sees adverse 13 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 party dealing with matter in a manner inconsistent with written agreement and takes no objection while inconsistent act on part of adverse party was in progress then party who remains silent willingly would not be allowed to complain afterwards. There is no evidence on record in order to prove that complainants have given legal notice to opposite party not to raise lintels of second and third storied. See AIR 2004 Rajasthan 206 titled Ku. Praveen Sahani & Anr. Versus Smt. Sushila Devi. See AIR 1980 Gauhati 70 (DB) titled Sailala Versus Smt. Ngurtaiveli. See AIR 1991 SC (DB) 1055 titled Indira Bai Versus Nand Kishore.
21. Submission of learned Advocate appearing on behalf of complainants that in alternative opposite party be directed to pay a sum of Rs.2122000/-(Twenty one lac twenty two thousand) to complainants i.e. Advance amount of Rs.1160000/-(Eleven lac sixty thousand) plus demolition and reconstruction expenditure to the tune of Rs.962750/-(Nine lac sixty two thousand seven hundred fifty) alongwith interest is decided accordingly. Complainants filed affidavit of Sh. B.C. Sharma who is qualified civil engineer Ext.C-4. Sh. B.C. Sharma qualified civil engineer has inspected the lintels in question situated upon khasra N.411/3 at Mohal Badai Tehsil Shimla (R) District Shimla H.P. Sh. B.C. Sharma expert has given opinion that human life would be in danger if three lintels would be put to human residence. Sh. B.C. Sharma 14 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 expert has also given opinion that whole three lintels should be dismantled for safety of human beings. Sh. B.C. Sharma expert has mentioned in his opinion that substandard construction material was used for construction of three lintels. Sh. B.C. Sharma has mentioned in his report in a positive manner that inadequate cement and inadequate steel was used and thickness of three lintels slab is less than minimum requirement. Sh. B.C. Sharma expert has also mentioned in his report that slab thickness of ground floor lintel is 5 CM whereas it should be 10 CM in ground floor lintel. Sh. B.C. Sharma expert has mentioned in his report that ground floor lintel would collapse if it would load with wall flooring, finishing, furnishing and with human life load. Sh. B.C. Sharma expert further mentioned in his report that residential building would be of no use for human living habitation purpose in future. Sh. B.C. Sharma expert has mentioned in his technical report that an amount of Rs.962750/-(Nine lac sixty two thousand seven hundred fifty) would be required for removal of deficient lintels construction. Sh. B.C. Sharma has also filed photographs and site plan alongwith its report. Report submitted by Sh. B.C. Sharma expert is trustworthy, reliable and inspire confidence of State Commission.
22. Report of Sh. B.C. Sharma expert is also corroborated by report submitted by another expert i.e. 15 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 Department of Civil Engineering National Institute of Technology Hamirpur H.P. Department of Civil Engineering National Institute of Technology Hamirpur H.P has mentioned in the report that there are horizontal crack at slab beam junctions constructed by opposite party and there is accumulation of water due to sagging of slab. Another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur H.P has further submitted in the report that there are diagonal and horizontal crack in roof slab of lintels constructed by opposite party and there are honey combing in bottom of lintels slab constructed by opposite party. Another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur H.P further submitted in the report that there is dampness below slab caused by accumulation of water on slab due to sagging.
23. Another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur H.P further submitted in the report that there are horizontal cracks in interior column and exterior column raised by opposite party. Another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur H.P further submitted in the report that there is exposed reinforcement in waist slab and there is also inappropriate use of bricks in waist slab. Another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur 16 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 H.P further submitted in the report that lintels in question have been constructed without codal provision in deficient manner and same is risky to life and property of the owner. It is held that opinion submitted by expert namely Sh. B.C. Sharma and opinion submitted by another expert i.e. Department of Civil Engineering National Institute of Technology Hamirpur H.P are expert opinions and are relevant fact under section 45 of Indian Evidence Act 1872. It is held that report submitted by Department of Civil Engineering National Institute of Technology Hamirpur H.P could be used for corroborative purpose and report of Department of Civil Engineering National Institute of Technology Hamirpur H.P has been used by State Commission for corroborative purpose.
24. Submission of learned Advocate appearing on behalf of complainants that compensation to the tune of Rs.600000/-(Six lac) be awarded to complainants for causing mental harassment and agony is decided accordingly. State Commission is of the opinion that metal harassment and agony has been caused to complainants by way of defective construction reported by two experts in their technical reports. Both experts have mentioned in their reports that construction of three storied lintels raised by opposite party is not safe for human living and is dangerous for human 17 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 habitation. Hence it is held that complainants are entitled for reasonable compensation for mental agony and harassment.
25. Submission of learned Advocate appearing on behalf of complainants that complainants are entitled for litigation costs is decided accordingly. Complainants did not place on record Advocate fee certificate however it is proved on record that complainants have engaged Advocate before State Commission. It is held that complainants are legally entitled for reasonable litigation costs.
26. Submission of learned Advocate appearing on behalf of opposite party that after the completion of construction of three storied lintels in the month of November 2015 when opposite party requested complainants to make balance payment of Rs.1276615/-(Twelve lac seventy six thousand six hundred fifteen) then present consumer complaint was filed by complainant as counter blast and on this ground consumer complaint filed by complainants be dismissed is decided accordingly. It is held that two experts namely Sh. B.C. Sharma and Department of Civil Engineering National Institute of Technology Hamirpur H.P have mentioned in their reports in a positive manner that many cracks have been developed in the construction raised by opposite party which are dangerous to human beings. It is held that in view of reports of two experts cited supra it is not 18 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 expedient in the ends of justice and on the principle of natural justice to exonerate opposite party from liability.
27. Submission of learned Advocate appearing on behalf of opposite party that as per report submitted by Shri S.K Chauhan Consultant Engineer and Valuator there is no defect in the construction and on this ground consumer complaint filed by complainants be dismissed is decided accordingly. State Commission has also carefully perused technical report submitted by Shri S.K Chauhan Consultant Engineer and Valuator. Technical report submitted by Shri S.K Chauhan Consultant Engineer and Valuator has been contradicted by two experts namely Sh. B.C. Sharma and Department of Civil Engineering National Institute of Technology Hamirpur H.P. It is held that it is not expedient in the ends of justice and on the principle of natural justice to rely upon technical inspection report submitted by Shri S.K. Chauhan in view of two contradictory reports submitted by two independent experts. It is well settled law that when there is conflict between report of single expert and between two experts reports then reports of two experts should be prevailed on the concept of majority views of experts. In view of above stated facts State Commission has disbelieved the report submitted by Shri S.K. Chauhan being contrary to view of majority experts.
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28. Submission of learned Advocate appearing on behalf of opposite party that complicated questions of laws and facts are involved in the present consumer complaint and complainants be relegated to civil court is decided accordingly. It is held that all dispute relating to housing construction falls within definition of service as defined under section 2(o) of Consumer Protection Act 1986. The matter of housing construction falls within the domain of Consumer Protection Act 1986 vide amendment in Consumer Protection Act 1986 w.e.f. 18.06.1993. Hence it is held that present consumer complaint could be disposed of in proper and effective manner under Consumer Protection Act 1986 and it is held that it is not expedient in the ends of justice and on the principle of natural justice to relegate complainants to civil court for adjudication of dispute.
29. Submission of learned Advocate appearing on behalf of opposite party that joint complaint has been filed by complainants namely Naik Santosh Kumar and Sh. Subhash Chand without seeking permission of State Commission and on this ground consumer complaint filed by complainants be dismissed is decided accordingly. State Commission is of the opinion that permission is required under section 12(i(c) of Consumer Protection Act 1986 only when relief is sought in favour of complainants who are not impleaded as co- complainants in consumer complaint and wherein there are 20 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 numerous consumers having same interest. It is held that in personal capacity consumer complaint could be filed by two persons jointly in same cause of action without seeking permission of District Forum or State Commission. It is held that permission is required by one or more consumers only when relief is sought in favour of a person who is not impleaded as co-complainant in consumer complaint and when there are numerous consumers having same interest.
30. Submission of learned Advocate appearing on behalf of opposite party that Sh. B.C. Sharma expert has submitted Technical expert report in collusion with complainants and on this ground complaint filed by complainants be dismissed is decided accordingly. Opposite party did not send any interrogatories to Sh. B.C. Sharma expert by way of Cross-Examination. Hence adverse inference is drawn against opposite party. Plea of opposite party that Shri B.C. Sharma expert has submitted Technical expert report in collusion with complainants is defeated on the concept of ipse dixit (An assertion made without proof).
31. Submission of learned Advocate appearing on behalf of opposite party that recital in written agreement dated 18.08.2015 that opposite party would claim amounts of construction at the rate of Rs.385 per Sq. meter is void ipso facto and on this ground complaint filed by complainants be 21 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 dismissed is decided accordingly. Learned Advocate appearing on behalf of complainants during course of arguments on dated 26.11.2018 has given written statement placed on record that Rs.385 be read for Sq. foot in written agreement dated 18.08.2015. It is held that statement of learned Advocate on behalf of complainants is binding upon complainants. Point No.1 is decided accordingly. Point No.2: Final Order
32. In view of findings upon point No.1 above complaint is partly allowed. It is ordered that opposite party shall pay an amount of Rs.962750/-(Nine lac sixty two thousand seven hundred fifty) to complainants alongwith interest @ 9% per annum from the date of complaint till realization within one month from the date of receipt of certified copy of order of State Commission.
33. It is further ordered that in addition opposite party shall pay compensation to complainants for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand) within one month from the date of receipt of certified copy of order of State Commission. It is further ordered that in addition opposite party shall pay litigation costs to complainants to the tune of Rs.10000/-(Ten thousand) within one month from the date of receipt of certified copy of order of State Commission. Other reliefs sought by complainants are declined on the principle of 22 Naik Shri Santosh Kumar & Anr. Versus Bal Ram Consumer Complaint No.01/2017 natural justice and in the ends of justice and on the concept of estoppel by way of acquiescence. All amounts shall be divided equally between complainants.
34. Technical report submitted by Sh. B.C. Sharma expert qualified Civil Engineer and expert inspection report submitted by Department of Civil Engineering National Institute of Technology Hamirpur H.P dated 24.09.2018 shall form part and parcel of order. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of State Commission be consigned to record room after due completion forthwith. Consumer complaint No.01/2017 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 26.02.2019 Sunita Sharma K.D Member 23