State Consumer Disputes Redressal Commission
Dav College Managing Committee & Anr vs Shri Sushil Sharma & Anr on 30 March, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
Consumer Complaint No: 10/2008
Date of Decision: 30.03.2012.
1. DAV College Managing Committee,
Chitragupta Road, New Delhi-110 055
Through its Regional Director,
DAV Public Schools (HP Zone-IV).
2. DAV Public School,
Rampur Bushahr, Tehsil Rampur,
Through its Regional Director,
DAV Public Schools (HP Zone-IV).
Complainants
Versus
1. Shri
Sushil Sharma,
M/S
Sharma & Associates,
Architects,
Engineers & Interior Designers,
Neelam
Bhawan, Sanjauli, Shimla-171006, HP.
2. Shri
Surjeet Kumar S/O Shri Karam Chand,
Resident
of Kalyanpur, Rampur, Tehsil Rampur,
District
Shimla, H.P.
Opposite Parties.
Coram
Honble
Mr. Justice Surjit Singh, President
Honble
Mr. Chander Shekhar Sharma, Member
Honble
Mrs. Prem Chauhan, Member.
Whether
approved for reporting?[1]
For the Complainant: Mr. Tarlok Chauhan,
Advocate
For the Opposite Party No.1: Mr. R.K. Khidta, Advocate.
For the Opposite Party No.2: Mr. Vishal Mohan, Advocate.
O R D E R:
Per, Chander Shekhar Sharma, Member:-
This complaint under section 12 of the Consumer Protection Act, 1986, has been filed by DAV College Managing Committee and DAV Public School, Rampur Bushahr (hereinafter referred to as complainants), against Sushil Sharma, (hereinafter referred to as opposite party No.1) and Surjeet Kumar, contractor, (hereinafter referred to as opposite party No.2) for deficiency in service on their part, as the service of opposite party No.1 was hired as architect and that of opposite party No.2 as contractor, for construction of a school building on the land which was taken on lease. An amount of `50,00,000/-, was invested for construction of the said building, out of which `45,00,000/-, had already been paid by the complainants. Cracks had appeared at the site and also in the building which were noticed by the Principal of complainant No.2. As such, deficiency of service viz negligence and professional misconduct has been alleged against the opposite parties in the complaint wherein direction has been sought to the opposite parties to pay a sum of `48,72,508/-, which had been spent by the complainants on the execution of the school building/project and an amount of `10,00,000/- has been sought on account of future loss incurred by the complainants for not being able to start +2 classes. In addition to this, an amount of `15,00,000/- has been sought towards future losses. An amount of `5,00,000/- has been sought towards harassment and mental agony caused to the teachers and officials of the complainants. Litigation cost, has also been claimed.
2. Facts of the case, as they emerge from the complaint file, are that the complainants had obtained a piece of land measuring about 8400 sq. meters located about 3 KMs away from Rampur Bushahar towards Jhakri at village Khanneri, on lease basis for a period of 90 years from the government of H.P., where the complainant intend to construct building to start a school with +2 classes. This work was awarded to opposite party No.1, who is a qualified architect. Agreement of contract of service was executed between the parties vide Annexure C-1, terms and conditions of which had been narrated in detailed in para 6 of the complaint. The services of opposite party was hired by the complainants as a contractor and contract agreement, Annexure C-2, was executed between the parties and as per this agreement, construction was to be got done on labour contract basis and material was to be supplied by the complainants.
3. The building of the school which was partly constructed consisted of two storeyed slabs cast over 20 columns, while the eastern wing of the main building with as many as 16 columns had been constructed upto plinth level and 14 columns upto ground floor ceiling level with plinth beams. The retaining walls had been partly constructed. The playground retaining wall had been partly constructed which was approximately 107 meters in length, while the eastern and western side walls around the main building were completed upto 25 meters and the retaining wall below main building partly completed approximately 67 meters, while the hill side retaining wall above the main building was partly completed to approximately 22 meters.
4. The Principal of the complainants had noticed some cracks at the site and the matter was brought to the notice of the opposite party No.1, who on 06.08.2006, visited the site and it was found that the cracks had appeared in the site and also in the building and detailed report about the inspection conducted by the opposite party No.1 was prepared, which is Annexure C-3, appended with the complaint. On 13.08.2006, the spot was again inspected by opposite party No.1 alongwith Principal of the complainants and Geologist J.L. Sud, had also visited the site, who had also submitted his report, which is Annexure C-4 and site report was also prepared by opposite party No.1, which is Annexure C-5.
5. During site visit on 06.08.2006, minor cracks in the ground (earth) were observed at one corner of the building, while on the second visit on 13.08.2006, these cracks had increased substantially nearly 24 centimeters. The cracks had also developed along the road 100 meters in length and the total length of the cracks was more than 250 meters. Cracks had also developed in the plinth beam on western wing. Upon such development, the complainant No.2 contacted the opposite party No.1, who instructed to stop the construction forthwith and continue monitoring the cracks.
6. It is also evident from the averments made in the complaint that on 23.08.2006, Principal of the complainants informed the opposite party No.1 that the cracks developed in the ground had become very wide and was about 85 centimeters and these cracks had developed along the road had also widened and exceeded in length and by this time the cracks had developed in the two storeyed slabs in western wing and major cracks had appeared in the plinth beams and columns of eastern wing and the retaining walls of the playground had also been partly damaged. The opposite party No.1 in its report dated 24.08.2006, recorded that all these changes which had taken place on the site, but to shift responsibility and avoid any blame, he attributed the same to reasons like erosion of land by river and formation of slip plane on uphill side, underground water springs which may have eroded the earth underneath, possibility of there being cavities at very deep strata of soil, which may be caused movement and the blasting work in progress across the river may have accelerated the sliding effect, which is mentioned in detail in the report Annexure C-3.
7. Further averments in the complaint are to the effect that since the complainants had spent several lacs of rupees though it fit to have a second opinion regarding the reasons as given by the opposite party No.1 and as such requested Satish Sagar, Chief Engineer, Retd., to visit the site and submit the report, who visited the site on 08.08.2008 and submitted his report Annexure C-6, which clearly reveals that looking into the soil over burden and sliding over the rock bed plain, the soil was saturated and therefore, it was essential to have carried out geo-technical survey to ascertain the nature of sub-soil strata, on which the building blocks were to be founded. This crucial and very important aspect had been completely over looked. The building blocks were taken up for construction after leveling the ground by hill cutting and constructing a high stone masonry retaining wall and it was but natural that the retaining structure had freshly filled material behind it which created pressure. This device was adopted by the opposite party No.1 to save the opposite party No.2 from the cost of carriage which the opposite party No.2 would have otherwise have to incur. Founding building structure on such a material not only reflected the lack of profession competence of opposite party No.1, but also shows the connivance between the opposite parties No.1 & 2.
8. Further allegation in the complaint are to the effect that opposite party No.1 did not carry out tests to see the bearing capacity of the soil where the building was constructed and arbitrariness in fixing sizes of the foundation led to differential settlement which in turn led to the cracks in the structure. The professional services given by opposite party No.1 covered the whole gamut of construction starting from planning, evolving architecture design and detailed working drawings, evolving structural design and details, appointing suitable contractors to execute the job etc. However, the gradual process of differential settlement and general subsistence of the land never came to the attention of the opposite parties No.1 & 2 and clearly shows lack of adequate supervision on the part of the opposite party No.1 and incompetence of the opposite party No.2 in executing the work.
9. Hence, negligence and professional misconduct on the part of the opposite parties have been alleged on account of various reasons, which find mentioned in detail in para 15 of the complaint clause (a) to
(i) and the further case of the complainants in the complaint is that since the complainants were absolutely non-technical and as such it was the entire responsibility of opposite parties No.1 & 2 to guide and advice them on all technical matters/aspects from time to time, which they had failed to do.
10. In this background, present complaint under section 12 of the Consumer protection Act, 1986, has been filed wherein it had been alleged that the opposite parties No.1 & 2 had committed deficiency in service and indulged in unfair trade practice, who had put the complainants to great financial loss, apart from harassment and mental agony. As such, relief to the extent as prayed in prayer clause in the complaint and referred in detail in opening para has been claimed against the opposite parties.
11. This complaint is contested and resisted by the opposite parties No.1 & 2 by filing separately replies. The opposite party No.1 had pleaded that the complaint filed by the complainant is not maintainable, since there is no deficiency in service of any kind/unfair trade practice on their part and it was also pleaded that the opposite party No.1 is a qualified architect and engineer registered with the council of Architecture, New Delhi and he has done all acts within his competence and jurisdiction and the opposite party No.1 is not responsible in any manner for the natural disaster , vis geological failure, sinking, sliding of whole area near Rampur Bushahar including the village Khanneri towards Jhakri where the complainants had purchased land for construction of school building.
12. It was also pleaded by the opposite party No.1 that as a matter of abundant precaution, the opposite party No.1 advised the complainant to take expert opinion about the geography of the area since it was neither in the scope of work of the opposite party No.1, who is not qualified to give opinion about the geography. Reference had also been made to the report of the Geologist Annexure R-7, wherein Geologist had attributed the movement due to gravity and excess of moisture etc. It has also been pleaded that the similar sinking/sliding phenomena occurred at other places in Rampur Town and some of the damages that occurred by sliding/sinking of land in Rampur Town have been mentioned in detailed in para 9 (i) to (v) of the reply of the opposite party No.1, wherein instances relating to the collapsing/sinking of land/building have been given in detail, vis Bushahar Sadan, Telecom Office Building and six houses and more-than 60 houses damaged in Lahsa area of Rampur Town and instances have been cited about the news paper reports and photographs of the damages have also been pointed out. Collapsing of 3 houses and 22 houses damaged in neighbouring Chuhabagh are, which adjoins to the site of DAV School and instances have been given relating to the damages caused to 5 houses built by Housing Board.
13. It is also pleaded by the opposite party No.1 in the reply that there was no requirement on the part of the complainants to have second opinion regarding the reasons given by the opposite party No.1 simply because of the fact that there was a natural disaster such as geological failure and the surrounding area has also slided including the Housing Colony of the Housing Board is also situated was also damaged and it was also pleaded that the report of Chief Engineer Satish Sagar, cannot be relied upon since it has been prepared to shift blame to opposite party No.1 & 2. Other averments were to the effect was also pleaded that since the scope of work is mentioned by Council of Architecture in Annexure R-11, which does not include geological investigation within the scope of work and as such there was no deficiency in service or negligence of any kind in any manner on the part of the opposite party while executing the construction work and all possible services which the answering respondent was required to do as per his competence and professional work was given. Hence, he cannot be blamed for geological failure, i.e. sinking/sliding of whole area and it was also pleaded that the map of the building was also approved by the Town & Country Planning Department and even the Forest Department had also issued NOC in favour of the complainants for construction of +2 school building vide Annexure R-3 and in the said letter Forest Department had clearly mentioned in column No.6 that there is no possibility of any damage from soil erosion.
14. The opposite party No.2 in its reply has raised preliminary objections to the effect that the complainants are not consumer as defined under the Act and they are not competent to file and maintain the present complaint and the complainants had also not verified the complaint in accordance with law and the complainant had not disclosed true facts before this Commission and they are not coming with clean hands before this Commission and there being an arbitration clause, this Commission has no jurisdiction to try the present complaint.
15. On merits, it was pleaded that answering respondent has carried out the work strictly in accordance with the specification provided and the foundation was casted atleast 15 feet below the natural ground level which was also verified on the site by the opposite party No.1., and other averments in the reply were to the effect that the cracks in the building/site had developed along the road upto 100 meters and in total the length of the cracks was more-than 250 meters, whereas, the school boundary is 105 meters and the construction has been carried out as per specification under the supervision of the complainants. Slide/cracks in the land had been caused not due to construction activity, but the entire area in the vicinity has slided as a whole, and there is no fault of any body and this is a natural calamity. Even the site had been selected by the school authorities and the replying opposite party has only done the work within the specifications and under the supervision of the complainants and as such the opposite party No.2 is not responsible for any loss caused to the complainants, since entire area has sunk due to natural calamity. It is further pleaded that the replying opposite party No.2 had constructed the building according to the specifications provided and the material supplied and as such prayer had been made for dismissal of the complaint being frivolous.
16. Rejoiner to the complaint was also filed by opposite party No.1, wherein averments made in the complaint were totally reiterated. Opposite party No.2 had also filed rejoinder wherein the averments made in the complaint were totally reiterated.
17. Brief resume of evidence led by the parties in nutshell is that the complainants in support of their case has filed affidavit of V.Singh, Regional Director of the DAV College Managing Committee and affidavit of Satish Sagar, Chief Engineer, Retd., and had placed reliance upon number of documents Annexures C-1 to C-7, vis-a-vis contract of service dated 29.06.2005, agreement dated 15.10.2005, site report dated 24.08.2006, report of geologist J.L. Sud, site report dated 17.03.2007 and report of Satish Sagar, Chief Engineer, Retd.
18. The opposite party No.1 in support of his case has filed his own affidavit and had placed reliance upon number of documents Annexures R-1 to R-12, viz scale of charge as per council of Architecture Hand Book-2007, copy of Tatima & Jamabandi, copy of letter dated 24.12.1999, copy of sketches issued by the complainants, copy of sanction letter dated 06.01.2006, an extract copy of Interim Development Plan Shimla, copy of site report submitted by opposite party No.1, newspaper cutting & photographs, Panchayat resolution and photographs, extract photocopy of work mentioned by Council of Architecture and reminder regarding payment of processional fee of Architecture Services.
19. The opposite party No.2, in support of his case has filed his own affidavit.
20. We have heard learned counsel for the parties and gone through the record of the case minutely.
21. In the present case, the complainant has filed written arguments, wherein the main stress was on the point that there is deficiency in service and negligence and professional misconduct on the part of the opposite parties. As such, complainants are entitled for the compensation and the relief as claimed in the complaint and it was pleaded that the opposite party in the present case did not carry out the test to see the bearing capacity of the soil where the building was constructed and arbitrariness in fixing sizes of the foundation, which led to differential settlement and the same in turn led to the cracks in the structure, which clearly establishes the lack of adequate supervision on the part of the opposite party No.1 and the incompetence of the opposite party No.2 in executing the work and there was connivance between the opposite party No.1 & opposite party No.2, and reliance was also placed on the report of Satish Sagar, Chief Engineer, Retd., Annexure C-6, who in his report has stated that looking into the soil over burdened and sliding over the rock bed plain, the soil was saturated and therefore before starting any construction it was essential to have carried out geo-technical survey to ascertain the nature of sub soil strata on which building blocks were to be founded and that this crucial and very important aspect had been completely over looked, the building blocks were taken up for construction after leveling the ground by hill cutting and constructing high stone masonry retaining wall and it was but natural that the retaining structure had freshly filled material behind it which created pressure.
22. It was also alleged that negligence and professional misconduct of the opposite party No.1 & 2 are clearly established on account of the wrong choice of the area for construction, use of improper construction material, serious constructional defects. Stress had also been laid on Annexure R-11, wherein scope of work mentioned by the Council of Architecture had been mentioned in detailed and it had also been pleaded that the complainants were layman while the opposite party No.1 was an expert and was required to provide to expert service as agreed between the parties, as such the opposite parties in the present have not only committed deficiency in service, but also indulged in an unfair trade practice and put the complainants to actual los of `48,72,508/-, and the complainants had also suffered loss, as detailed in the relief clause, which they are legally entitled.
23. In the written arguments emphasis was laid on the point that in the present case the opposite parties have not disputed the factual aspect and have attributed cracks solely to be act of God and natural calamity/disaster, but the onus to prove the natural calamity/disaster or an act of God lies on the opposite parties, which they have failed to do so. Reliance had also been placed in the written arguments upon number of judgments of Apex Court given in case Divisional Controller KSRTC versus Mehadeva Shetty and another (2003) 7SCC 197, wherein the expression act of God had been signified such as lighting, storm etc, and it is also held in this judgment that an act of God provides to excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence.
24. Reliance was also placed on the Full Bench decision of Kerala high Court, In case General Traders Limited versus Pierce Leslie (India) Limited AIR (1987) Kerla 62, wherein doctrine of act of God had been discussed in detail and it had been held that the defence of act of God in circumstances which no human being foresight can provide against and of which human prudence is not bound to recognize the possibility. Reliance was also placed upon Fletcher v. Rylands (1866) LR1 exch 2065-280, In Cushing v Walkar & Sons (1941) AII ER 693 and also upon Green Tileries Ltd v Clapson, (1937) AII ER 765, which clearly deals doctrine of act of God. The legal preposition laid down in these judgments is not disputed. The oral submissions which were made by Mr. Tarlok Chauhan, Advocate, were also on the similar points.
25. Mr. R.K. Khidta, Advocate representing opposite party No.1 argued that there is no deficiency in service or unfair trade practice on the part of the opposite party No.1 and there is no lapse on the part of his client in supervising the construction work, which was being supervised by him to the best of his ability and even foundation of structure were casting more than 15feet below natural ground level and even the geologist had attributed the cracks due to gravity and excess of moisture and the cracks have appeared even in the entire area of the vicinity, where no construction work had taken place. As per him, site report given by his client of the visit dated 06.08.2006, reveals that minor cracks in the ground were observed at one corner of the building and during second visit on 13.08.2006, these cracks had increased substantially and the cracks had developed along the road 100 meters in length and total length of the cracks was more than 250 and thereafter the opposite party No.1 had taken all precautions and stopped the construction work and continued monitoring the cracks and during second visit on 13.08.2006, it was observed that the cracks developed in the ground along with the main building by shifting of whole land by 24cm towards river side and the length of crack was more than 250 meters, i.e. beyond the boundary of school and the school boundary is only 105 meter in length only.
26. As per him, similar sinking/sliding phenomena occurred at other places in Rampur Town and the nearby places of the school building regarding which reference had been made in para 9 of the reply and this fact is clearly evident from the various photographs attached with the reply, which clearly depicts huge cracks and damage caused at other places in the near vicinity and large photographs appended with the reply also depicts that it is a natural disaster and as such no professional negligence can be attributed on the part of his client.
27. He had also argued that the complainants does not fall within the ambit of definition of consumer as defined in section 2(1) (d) of the Consumer Protection Act, 1986. Since, the service of his client which were hired by the complainants were for commercial purposes, i.e. for construction of school building and this fact is clearly evident from the averments made in the relief clause (b) of the complaint, wherein prayer has been made to the effect that opposite party No.1 & 2 be directed to pay a sum of Rs.10,00,000/- for the future loss incurred by the complainants for not being able to start the +2 classes and as per him the report prepared by Satish Sagar, cannot be relief upon, as he had fastened the complete liability on his client and his client has performed, his duties to the best of his ability and there is no deficiency in service and unfair trade practice on the part of his client and as such the present complaint deserves to be dismissed.
28. He further argued that the opposite party No.1 had advised the complainants to take expert opinion about the geology of the area, but the complainants informed his client that they have already taken expert opinion about geology and stability of site and this fact has not been specifically denied by the complainants in their rejoinder which means that his client had advised the complainants for also taking expert opinion about the geology of the area, as such no professional negligence can be attributed on the part of his client.
29. He also argued that since in the agreement Annexure C-1 & C-2, there is arbitration clause referring the matter to the Arbitrator for adjudication as such this Commission has got no jurisdiction to try the present complaint, in view of specific clause of arbitration in the agreement.
30. Mr. R.K. Khidta, Advocate has also placed reliance upon number of judgments viz Bangalore Water Supply v. A. Rajappa, AIR 1978 Supreme Court 548, wherein it was held that the educational institutions fall within the ambit of definition of industry. Further reliance was placed on judgment given in II(2004) CPJ 710, in case Neutral Glass & Allied Industries Ltd., versus Birla Technologist Ltd., Maharashtra State Consumer Disputes Redressal Commission, Mumbai, wherein it has been held that when the services were availed for commercial activity, then it is not a consumer dispute and the complaint is not maintainable and the reliance was also placed upon judgment given in case SMN CONSUMER PROTECTION COUNCIL & ANR VERSUS GODREJ PHOTO-ME LTD. & ANR., III (2001) CPJ 601, Tamil Nadu State Consumer Disputes Redressal Commission. Chennai, wherein it was held that where the services were hired for commercial purpose, then the complainant does not fall within the ambit of definition of consumer, as defined in section 2(1) (d) of the Act. The legal preposition laid in these judgments is not disputed.
31. Mr. Vishal Mohan, Advocate counsel for the opposite party No.2 had also submitted written arguments on behalf of his client, wherein his main thrust was on the point that the present complaint is not maintainable and it is not a consumer dispute between the parties, as the services of his client was hired for commercial activities and this fact is clearly evident from the averments made in the prayer clause, wherein the complainants had claimed compensation to the tune of `10,00,000/- for the future loss, as they were not able to start +2 classes. As such, complainants does not fall within the ambit of definition of consumer as per section 2(1) (d) of Consumer Protection Act.
32. In addition to the oral submissions made by him, he has also placed reliance upon number of judgment. He placed reliance in case Karnataka Power Transmission Corpn & another versus Ashok Iron worksPvt. Ltd, III (2009) CPJ 5 (SC), wherein the Honble Supreme Court had that the services availed for commercial purpose, does not fall within the ambit of Consumer Protection Act. In case Meera Industries versus Modern Construction, II CPJ (2009) 402 (NC), it has been held that hot mix plan purchased by a construction company, do not fall within the purview of Consumer Protection Act. In case Jagmohan Chhabra and another versus DLF Universal Ltd., IV (2007) 199 (NC), the Honble National Commission held that if the purchases are made for earning profits, they do not fall within the purview of Consumer Protection Act. He further placed reliance in case Trupti K Patel versus Rocklines Construction and another, II (2007) CPJ 300 (NC), in case Wilmco Limited versus Ashok Sekhon and others, II (2008) CPJ 210 (NC), in case Jayant Kumar Sahu versus Dr. Prasanna Kumar Patel, II (2006) CPJ 71 (NC), in case Amanchi Rajendra Parsad & others versus Dabur Ayurvet Ltd., II (2009) CPJ 388 (NC), wherein it was held that when the services were hired for commercial purposes, then the complainant does not fall within the ambit of consumer as defined in section 2(1)(d) of the Act. Lastly he placed reliance upon III (1999) CPJ 26 (SC), wherein the Honble Supreme Court held that charitable trust running a hospital, was not rendering free service, hence, not a consumer under the Consumer Protection Act. The legal preposition laid down in the aforesaid judgments is not disputed.
33. After hearing the learned counsel for the parties and examining the written arguments submitted by the complainants and opposite party No.2 and scanning the evidence, which has come on record, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the opposite parties and as such complainants are not entitled for the relief claimed in the present complaint, which had been discussed in detail in the opening para of this order, on the various reasons, which are being enumerated hereinafter.
34.(i) That opposite party No.1 was to provide the services to the complainants as per Annexure C-1 to the following effect:-
i) Planning proposed, building /building blocks;
ii) Providing architectural drawings and details;
iii) Providing structural drawings and details;
iv) Preparing the estimates of works;
v) To get the design/drawing passed by the concerned authorities;
The opposite party No.2 as per terms and conditions of the contract was to do construction work, which was to be done on labour contract basis and material was to be supplied by the complainants and as per Annexure R-11, which clearly depicts the scope of work of opposite party No.1 as mentioned by the Council of Architecture that architect has to provide the services in the following respect:
1.1 Taking clients instructions and preparation of Design brief.
1.2 Site evaluation, analysis and impact of existing and/or proposed development on its immediate environs.
1.3 Design and site development.
1.4 Structural design.
1.5 Sanitary, plumbing, drainage, water supply and sewerage design.
1.6 Electrical, electronic, communication systems and design.
1.7 Heating, ventilation and air conditioning design (HVAC) and other mechanical systems.
1.8 Elevators, escalators, etc. 1.9 Fire detection, Fire protection and Security systems etc. 1.10 Periodic inspection and evaluation of construction works.
And architect shall after taking instructions from the client will render the following services:-
2.01 Ascertain Clients requirements, examine site constraints & potential: and prepare a design brief for Clients approval.
2.02 Prepare report on site evaluation, state of existing building, if any; and analysis and impact of existing and/or proposed deveoamenion its immediate environs.
2.03 Prepare drawing and documents to enable the Client to get done the detailed survey and soil investigation at the site of the project.
2.04 Furnish report on measures required to be taken to mitigate the adverse impact, if any, of the exiting and/of process development on its immediate environs.
2.05 Prepare conceptual designs with reference to requirements given and prepare rough estimate of cost on area basis.
Hence, after taking into consideration, the aforesaid basic services which were to be provided by the opposite parties No.1 & 2, there is nothing on record to suggest that there is any professional lapse/negligence on the part of the opposite parties No.1 & 2 and they have discharged their obligations as per terms and conditions of agreement and did the duties to the best of their ability and competence as architect/contractor, while executing the construction work.
(ii) That in the present case, this fact had come on record that the site was visited by opposite party No.1, on 06.08.2006 and 13.08.2006, along with Geologist J.L. Sud, and during the first visit minor cracks in the ground(earth) were observed on one corner of the school building under construction and on the second visit on 13.0.8.2006, these cracks had increased substantially by 24 centimeters along the main building by shifting of the whole land by 24 centimeters towards river side and length of the cracks was more than 250 meters, i.e. beyond the boundary of the school (school boundary is 105 meters in length only), which damage is clearly mentioned in the site survey report Annexure R-7, given by the opposite party No.1, wherein detailed description of damage on the site on various dates, i.e. 13.08.2006, 23.08.2006 and 15.01.2007, had been clearly mentioned, from which it is clearly evident that the cracks have increased substantially during a short spell. The probable reason for shifting of land had been given to the following effect by the opposite party No.1 in his report:-
1. The crack developed in ground has become very wide due to shifting of land toward river side by 1.50 cm.
2. Some cracks developed in two storeyed slabs of western wing, major cracks in plinth beams & columns of eastern wing.
3. Minor damage to retaining walls around main building. Retaining walls of playground partly damaged.
4. Cracks has also been observed on uphill & downhill of site.
Hence, it is very clear that there was sinking/sliding phenomenon of land at the site and nearby places and even the cracks had also developed on nearby land. This sliding/sinking of land had occurred at various places in Rampur Town and the places nearby the alleged school building and substantial damage had been caused to Bushahar Sadan and Community building was totally collapsed due to sliding/sinking of land.
Telecom office building consisting of four storeys, six houses totally collapsed and more than 60 houses damaged in Lahasa area in Rampur Town. Three houses has collapsed and 22 houses damaged in neighbouring Chuhabag area and these houses adjoin the site of DAV school building, out of which 5 houses which were damaged had been built by HP Housing Board and entire nearby area has been converted into sinking/sliding, which is clearly evident from the various photographs appended with the reply filed by the opposite party No.1. All these photographs clearly depict that there was a natural disaster and it depicts an Act of God, as result of which huge damage has been caused to the school ground, building and other nearby places, near the site in question. Various photographs, news paper cutting and resolution of the Panchayat have been appended with the reply by the opposite party No.1, which are available at pages 67 to 81 of the complaint file. Hence, these cracks/damage which had developed in the structure/nearby vicinity/open land clearly indicates that they have appeared/occurred and the damage which had been caused that is an Act of God/natural disaster and not due to the professional negligence or lapse on the part of the opposite parties No.1 & 2.
Moreover, opposite parties No.1 & 2 have not been cross-examined by the complainants. Expression Act of God had been elaborately dealt with the expression by the Apex Court in case Divisional Controller KSRTC versus Mehadeva Shetty & and other (2003) 7 SCC, 197, wherein it was held that an act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence. In the present case, the extensive damage and cracks which had developed at the site and nearby places and in open land as described in detail hereinabove, makes it very clear that it was an Act of God and it was so unexpected that no reasonable human foresight could anticipate the occurrence.
(iii) That even the report of Geologist J.L.Sud, Annexure C-4, revels that there is a water spring adjoining the orchard, which also has a small structure and has sign of substance and river is doing under cutting and there is excess moisture and the probable reason mentioned in the site report Annexure C-3 & C-5 given by opposite party No.1 in the site report dated 04.08.2006 and 17.03.2006, clearly reveals the following reasons for the shifting of the land:-
1. Erosion of land by river and formation of slip plane on uphill side.
2. Under ground water springs has been found surrounding site. These water channels might have eroded earth from underneath.
3. There might be cavities at very deep strata of soil which are causing movement.
4. The blasting work is in progress across the river which might be accelerating the sliding effect.
All these underneath changes in the strata of soil cannot be expected within the knowledge of architect who is not a geological expert.
Hence, no deficiency in service/professional misconduct can be attributed to opposite party No.1.
(iv). No reliance can be placed on the report of Satish Sagar, Chief Engineer, Retd., Annexure C-6, who had fastened entire liability upon the opposite party No.1, by holding that M/S Sharma & Associates have not lived upto the requisite professional conduct and there was lack of supervision, since it is a case of vis-major/An act of God, as the cracks in the building/nearby places and other places in the vicinity of Rampur and Village Khanneri, where the school in question, was being constructed to a large extent, as such no professional negligence or deficiency in service can be attributed on the part of the opposite party No.1.
(v). In the reply submitted by the opposite party No.1, in para No.7 at page 5 of the reply in complaint file, it is specifically pleaded that in addition the replying opposite party No.1, as a matter of abundant precaution had also advised the complainants to take expert opinion about geology of the area. However, it was neither in replying opposite party No.1s scope of work nor replying opposite party No.1 is qualified to give opinion about geology. The complainants told the replying opposite party No.1 that they have already taken expert opinion about geology and suitability of the site and the same opined to be stable site.
Specific averment to this effect made in the reply, had not been specifically denied by the complainant in the rejoinder, which amounts to admission as per law of pleadings. It is pleaded that the opposite party No.1 had advised the complainants to take expert opinion about the geology of the area and despite his advice, such opinion was not sought. Hence, it is clear that there was no professional negligence on the part of the opposite party No.1, who had performed his duties to the best of his ability and had given proper professional advice to the complainants.
(vi). There appears to be force in the arguments of learned counsel for opposite parties No.1 & 2 that the complainants do not fall within the ambit of definition of consumer as defined in section 2(1)(d) of the Consumer Protection Act, 1986. Since, the services of the opposite parties No.1 & 2, were hired for commercial purposes and this commercial intent is clearly evident from clause (b) of prayer clause of the complaint, wherein it is mentioned that opposite parties No.1 & 2 be directed to pay a sum of `10,00,000/- for the future loss incurred by the complainants for not being able to start the +2 classes. Hence, present complaint deserves to be dismissed, in view of the various decisions of Honble Apex Court and National Commission, upon which reliance had been placed by the learned counsel representing opposite party No.2, which have been enumerated in detailed in para 5 of the written arguments submitted by the opposite party No.2, and various judgments relied upon by learned counsel for the opposite party No.1 have been referred in preceding part of this order.
(vii). In this case, it appears that the complaint has not been signed by the complainants and it is also not even verified by the complainants as there is only signature of counsel of complainants in the complant and no resolution authorizing V. Singh, Regional Director of DAV College Managing Committee, to file the present complaint has been placed on record and as such on this score also the present complaint deserves to be dismissed.
35. There appears no force in the arguments of the learned counsel for the opposite parties No.1 & 2 that since in the agreement Annexure C-1 & C-2, there is arbitration clause which provide for referring the matter to the Arbitrator for arbitration, as such this Commission has got no jurisdiction to try the present complaint. The complaint is legally maintainable, as per section 3 of the Consumer Protection Act, 1986, which provide that provisions of this Act are in addition to and are not in derogation of any other law.
36. In view of the aforesaid discussion and facts and circumstances of the case and the legal position, as explained above, there is no merit in the present complaint, and as such, it is dismissed. No order as to the costs.
37. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member March 30, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?