State Consumer Disputes Redressal Commission
Vinod Kumar Sharma vs Jaskaran Estates on 6 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 02 of 2014 Date of Institution 01.01.2014 Date of Decision 06.01.2014 Sh. Vinod Kumar Sharma resident and owner of H.No.614, Sector 36-B, Chandigarh. ---Appellant/Complainant. Versus M/s. Jaskaran Estates & Builders, Plot No.79, Industrial Area, Phase-2, Chandigarh through its Proprietor Sh. Jaskaran Singh. 2nd Address : H.No.1610, Sector 36, Chandigarh-160036. ...Respondent/Opposite Party. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
Argued by:Sh. Sandeep Bhardwaj, Advocate for the appellant.
DEV RAJ, MEMBER This appeal is directed against the order dated 20.11.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant (now appellant) and directed the Opposite Party as under:-
22. Taking a reasonable view, we allow this Complaint, by burdening the Opposite Party with a consolidated cost of Rs.1.00 lac to be paid to the Complainant to carry out the defects pointed out by the Local Commissioner.
23. The above said order shall be complied, within 45 days of its receipt by the Opposite Party, failing which it shall be liable to pay the awarded amount along with interest @9% p.a. from the date of this order, till it is paid. No costs.
2. In brief, the facts of the case, are that the complainant, being the owner of Plot No.614, Sector 36-B, Chandigarh, entered into a Memorandum of Understanding (Annexure C-1) dated 14.05.2008, with the Opposite Party, for construction on Plot No.614, Sector 36-B, Chandigarh. It was stated that the complainant paid an amount of approximately Rs.72.00 lacs to the Opposite Party, for the bills raised by it, and the same was full and final payment towards the cost of construction. It was further stated that, as per the agreement, the Opposite Party was to look after the discrepancies/construction faults, towards minor defects, for two years and major defects for a period of 5 years, but it failed to rectify the defects viz. cracks developing on the boundary wall, water seepage on walls, broken/defective door/window handles, bent doors & windows, improper white cement, filling between Pushka tiles on roof, main gate wood cracking/alignment, broken letter box, broken drive way tiles, polish/melamine coating of external windows, hollow gaps in verandah flooring, damage/ineffective door closers/stoppers, water leakage from servant quarter window in rainy season, broken kitchen sink slab & tap, marble flooring of poor quality not as per contract and stair wood railings bent. It was further stated that the material used by the Opposite Party was also not as per the agreement and the same was of inferior quality, rather it was to use A Grade building material in accordance with the specifications clearly mentioned in the agreement. It was further stated that the complainant issued a legal notice dated 23.06.2011 (Annexure C-3) to the Opposite Party, but it failed to rectify the aforesaid defects. It was further stated that the complainant got all the deficiencies verified, from the Government approved Chartered Engineer, who advised him that the total estimated cost of the same was around Rs.6 Lacs, as per estimate (Annexure C-3). It was further stated that the aforesaid act of the Opposite Party, in not adhering to the agreement, entered into between it, and the complainant, and not rectifying the defects, aforesaid, amounted to deficiency, in rendering service, on its part. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Party, to either repair the defects at its own cost, to the satisfaction of the complainant, or in alternative pay Rs.6 Lacs as damages towards defects and Rs.4 Lacs as compensation for mental agony and harassment besides cost of litigation, was filed.
3. In its written reply, the Opposite Party, took up the preliminary objection, that the complaint filed by the complainant was not maintainable, as the same was barred by limitation. However, on merits, it was admitted that the Memorandum of Understanding was signed on 14.05.2008, and that the payment, as averred by the complainant, was received by it. It was stated that the said Memorandum did not contain any clause to rectify the defects for a certain period. It was further stated that the work was executed with skilled workmanship and the material was used, after due approval and satisfaction of the complainant. It was further stated that the complainant used to go alongwith the Opposite Party, to purchase the raw material. It was further stated that the possession of the building was handed over to the complainant on 20.06.2009 and it was only thereafter, that the complainant made the full and final payment, after his due satisfaction on 02.07.2009 and 04.07.2009. It was, however, denied that there was any clause, binding the Opposite Party, to rectify the defects after a lapse of two years of handing over the possession. It was further stated that the defects, as alleged, in the complaint were a matter of normal wear and tear and climatic conditions over a period of time. The Opposite Party admitted the receipt of legal notice dated 23.06.2011, which was duly replied to by it. It was further stated that the Opposite Party was not deficient, in rendering service.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
7. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellant/complainant submitted that there were defects in the construction of Plot No.614, Sector 36-B, Chandigarh. It was further submitted that as per the report dated 10.07.2011 (Annexure C-6), of Sh. R. D. Sharma, approved Valuer and Chartered Engineer, an expenditure of Rs.6 Lacs, was required for rectification and removal of the defects. It was further submitted that in Para 11 of its order, the District Forum mentioned the defects found by the Local Commissioner in the property, on inspection. It was further submitted that the District Forum gravely erred in ignoring the material evidence by not granting adequate amount required for rectification of defects, interest, litigation cost and compensation.
9. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.
10. So far as the report of Sh. R. D. Sharma, Annexure C-6, is concerned, while assessing the expenditure to the tune of Rs.6 Lacs, he did not give any details or estimates vis-a-vis quantum of work involved and rates, to arrive at the cost of Rs.6 Lacs. The construction stood completed in July, 2009, and the report is dated 10.07.2011. The Memorandum of Understanding prepared on 4th July,2011 (Exhibit C-5) is not signed by either party, and, therefore, it does not have any evidentiary value.
11. The Local Commissioner (LC) was appointed by the District Forum, on the request of the appellant/complainant. Initially, Shri Ramesh Mahajan was appointed as Local Commissioner, but on objection by the appellant/complainant, another Local Commissioner, namely, Lt. Col. A. K. Suri, Govt. & Banks Registered Valuer, was appointed by the District Forum, who submitted his report dated 19.08.2012 (Page 100 of the District Forum file). In para 10 of the appeal, the appellant/complainant has admitted that the Local Commissioner gave his independent report. The submission of the appellant, that the defects mentioned, existed at the time of filing the complaint does not establish that the same existed at the time when the construction was completed in July, 2009. The Local Commissioner, in his report, observed that the respondent/Opposite Party was too liberal to supervise the work from time to time at his own cost, and, his other observations/findings are extracted hereunder:-
i. The observed non-conformities listed at serials (e), (h), (i), (m), (n) and (o) i.e. unsettled or dislodged items, have been restored either by the second party or the first party themselves. These are no more in contention.
ii. Buckling/ warping of wood, items (d), (g), (k) and (q); windows, doors, railings and exposed woodwork, These items are due for the periodic fair wear and tear maintenance and should be able to regain their designated state after due attention.
iii. Flooring and driveway; items (e), (j), (l) and (p). What is implied is that there is insufficient bounding between the upper and lower surfaces. The remedy is dismantling and re-laying the few selected patches.
iv. Item (o);
non-functional kitchen sink. The first party is putting the sink assembly to designated use after self-rectification.
v. Item (f), the filling referred to is the flush pointing that has been done on the rooftop brick tiles. As compared to the adjoining house, less quantity of cement mortar seems to have been used. The corrective norm would be removal and redoing. So doing can cause additional cracks in the walls and give rise to seepage. As long as it is serving its purpose well it should be considered as workable. Alternatively, a fresh coat on top of the present one, can also be applied.
vi. Item (b). After seeing the drawing of the building it has been concluded that, the seepage signs on the walls are because of leakage of pipe system of the overhead tank. Effective corrective measure will be to plug leakage.
vii. Item (a); One of the main causes of cracks in different places is the relentless termite action. The city is highly infested with termites. The adopted remedial measure is, to arrange periodic anti-termite treatment of the entire plot & give attention to individual cracks on merit.(Any damage due to termite problem can not be fastened on the Opposite Party)
8. In all fairness, the grade/quality of the materials utilized, or not utilized, is not best detected by visual observation/inspection. To arrive at a conclusive opinion, expert advice has to be obtained from various standard materials testing laboratories.
Conclusion.
9. Due to non specific terms of reference having been made available, it becomes a herculean task to factor in cogent or notional costs. Here maintenance aspects are being intermingled with repair aspects. There is a marked difference in rates of labour and other inputs between the years 2008 and 2012. Regular repair and maintenance is supposed to last lifelong for the property. The Forum in consultation with the disputing parties, may adjudge on the onus and incumbency, if so considered.
12. The observations and findings of the Local Commissioner regarding the deficiencies, mentioned below, are not, in any way, attributable to the respondent/Opposite Party;
unsettled or dislodged items, have been restored either by the second party or the first party themselves. These are no more in contention, Buckling/ warping of wood, items (d), (g), (k) and (q); windows, doors, railings and exposed woodwork, are due for the periodic fair wear and tear maintenance and should be able to regain their designated state after due attention, one of the main causes of cracks in different places is the relentless termite action. The city is highly infested with termites. The adopted remedial measure is, to arrange periodic anti-termite treatment of the entire plot & give attention to individual cracks on merit,
13. The Local Commissioner also observed that maintenance aspects are being intermingled with repair aspects. He also pointed out that there has been a marked difference in rates of labour and other inputs between the years 2008 and 2012. Regular repair and maintenance is supposed to last lifelong for the property.
14. The appellant/complainant himself in the legal notice dated 23.06.2011 stated that the estimated cost for removal of defects, shall be around Rs.4 Lacs and the report of Sh. R. D. Sharma, Annexure C-6, estimated the same at Rs.6 Lacs.
15. The last payment in the sum of Rs.3,50,000 and Rs.55,875/- was made by the appellant/complainant, on 02.07.2009 and 04.07.2009 vide cheque No.069606 and 096608 respectively, as is evident from Annexure C-2. The fact that the appellant/complainant during the construction did not, at any stage, point out, any defect and he even released the full and final payment, by paying the last installment, without any objection, casts doubts on his genuineness and bona fides. The fact, that the complainant pointed out the defects belatedly almost after two years of the completion of works, cannot be overlooked. The appellant/complainant was duty bound to point out the defects, during construction itself. He did not do so, at the appropriate time, and the claim put forth by him belatedly, is apparently highly exaggerated, and value of defects multiplied with the passage of time. As per the report of the Local Commissioner, the respondent/Opposite Party is not liable for all the defects, and, therefore, the liability for all the deficiencies, could not be fastened upon it.
16. In this view of the matter, since the Local Commissioner, appointed by the District Forum, did not suggest the cost of executing the repair, and as there was difference between the rates of labour and other inputs between the year 2008 and 2012, and, for a number of defects, respondent/Opposite Party, was not held liable by the Local Commissioner, the District Forum order awarding consolidated cost of Rs.1 Lac, to the appellant/complainant, for removal of defects, pointed out by him (Local Commissioner), is just and correct. When the District Forum awarded consolidated costs of Rs.1 lac, there was no need for awarding compensation and costs separately. In any case, it (District Forum) awarded interest @9%, in default, in case the impugned order, was not complied with, within the stipulated period of 45 days.
17. The facts of the cases titled as D.D.A. Versus Krishan Lal Nandrayog, IV (2010) CPJ 7 (SC) and Faqir Chand Gulati Versus Uppal Agencies Pvt. Ltd. & Anr., III (2008) CPJ 48 (SC), relied upon by the Counsel for the appellant/complainant, are totally distinguishable and, therefore, no help, from the aforesaid cases, can be drawn, by him.
18. No other point, was urged, by the Counsel for the appellant/complainant.
19. For the reasons recorded above, the appeal filed by the appellant/complainant, is dismissed, at the preliminary stage, with no order as to costs. The order passed by the District Forum is upheld.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
6th January 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.2 of 2014) Argued by:Sh. Sandeep Bhardwaj, Advocate for the appellant.
Dated the 6th day of January 2014 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum has been upheld.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad