State Consumer Disputes Redressal Commission
Dr. Kirtikumar Vinodchandra Mehta vs Shri. Mangesh Phadnis on 6 April, 2011
BEFORE THE HON
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/02/683
(Arisen out of Order Dated 13/03/2002 in Case No. 110/2001 of
District Satara)
1. DR. KIRTIKUMAR VINODCHANDRA MEHTA
133, GURUWAR PETH, KARAD, TAL-KARAD, DIST-SATARA.
2. SHRI. BHARATKUMAR ALIAS BHUPENDRAKUMAR
VINODCHANDRA MEHTA
133, GURUWAR PETH, KARAD, TAL-KARAD.
SATARA, MAHARASHTRA.
...........Appellant(s)
Versus
1. SHRI. MANGESH PHADNIS
35, SOMWAR PETH, KARAD, TAL-KARAD, DIST-SATARA.
...........Respondent(s)
MAHARASHTRA.
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member
PRESENT:
MRS. ANITA MARATHE, Advocate for the Appellant
S.B.Prabhavalkar,
Advocate for the Respondent
ORDER
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
1. This appeal takes an exception to an order dated 13/03/2002 passed in consumer complaint No.110/2001 Dr.Kirtikumar Vinodchandra Mehta & Anr. V/s. Shri Mangesh Phadanis, by District Consumer Disputes Redressal Forum, Satara (the Forum in short). Consumer complaint stood dismissed and therefore, original complainants have preferred this appeal.
2. Resume of the complaint and brief history narrated in the appeal memo reflects the case of the appellant/complainant and therefore, we prefer to reproduce the same for the sake of clarity and convenience :-
Applicants are the permanent residents of 133 & 133/1, Guruwar Peth Karad Appellant No.1 and 2 are real brothers. C.T.S. No.133 & 133/1 Guruwar Peth is the property owned by appellants. Somewhere in the year December, 1998 they decided to construct the R.C.C. building in the said property after demolishing the old one. The Opponent/Respondent is also resident of 35, Somwar Peth, karad. He is architect as well as builder. It was agreed between the appellant and respondent that the respondent will prepare plan construction design and construction as per plan i.e. execution as per plan and supervision. In view of these services the appellant has paid `15,000/- advance to opponent. As per the agreement, opponent prepare the plan. It was submitted to Karad Nagarparishad for sanction. Opponent got it sanctioned from Nagarparishad. Then respondent started demolishing the old building and also started new construction in the Western side of 133 Guruwar Peth, Karad. But respondent failed to carry out the construction as agreed and also he committed grave mistakes in the construction. He committed mistake in a line out of the construction.
He committed serious mistakes in the construction. The appellant enquired and asked wherever they noted the mistakes committed by the respondent. But the respondent was giving evasive replies. Ultimately, when it was found by the appellant that to continue the services of the respondent is highly impossible and dangerous. Therefore his services were terminated by giving a notice to the opponent. The respondent committed deficiency in service and caused great financial as well as mental, physical loss and torture to the appellant. Therefore, notice through Advocate was issued to the respondent. The said notice was received by the respondent. But he failed to pay the compensation/damages as claimed by the appellant in the notice. Therefore, the appellant is constrained to file the consumer complaint.
3. We heard Mrs.Anita Marathe, Advocate for the appellants and Mr.S.B. Prabhawalkar, Advocate for the respondent. Perused the record including original Record & Proceeding called in the instant case.
4. The contract admittedly governing the relationship between the parties is oral. There is no document which reflects and could state us about the terms fixed between the parties. Complainants relied upon the affidavit of complainant No.2-Mr.Bharatkumar alias Bhupendrakumar Mehta which is nothing but the verification of the complaint sworn at the time of filing of consumer complaint. No other evidence appears to have been adduced on behalf of complainants. On behalf of respondent/original opponent (hereinafter referred to as opponent) relies upon his own affidavit dated 16/06/2001 and also affidavits of Sub-Contractor or Workers engaged by the appellants/org. complainants (hereinafter referred to as complainants) while carrying out the construction of their building or work related to it. These affidavits are of Mr.Ahmed Rajekhan Pathan, Mr.Arjun Bassappa Kattimani, Mr.Rajendra Eknath Mulay. Their affidavits do establish that they were engaged by the complainants for the construction activities and only after completion of their work or part completion of the work, they got it verified from the opponent the bill presented to the complainants. Such verification work is part and parcel of the architectural duty and even the opponent having rendered such service till his services were terminated in the early part of the year 1999. Therefore, the case tried to be advanced at the time of arguments on behalf of complainants that the work of construction of the building was entrusted to the opponent cannot be believed. Had it been a fact that the construction work including preparing structural drawing which is the job of Structural Engineer was entrusted to the opponent then, there would have been some evidence of making payment towards this job to the opponent by the complainants. Absence of any such evidence also confirmed our earlier opinion that such work was not entrusted to the opponent.
5. Learned Counsel appearing for the appellants tried to invite our attention to a certificate presented by the opponent as an Architect to the Local Authority while getting sanction to the building plan. This is a routine certificate need to be presented either by the Architect or the Engineer to the Local Authority before getting sanction for the plan of construction. Therefore, said certificate does not show that the work of actual construction of the building was also entrusted along with this architectural responsibility to the opponent.
6. It is also submitted on behalf of the appellants/org. complainants that though it was not the responsibility or job of the opponent, he had prepared structural design of the building. Some reference is made for this to the maps on appeal compilation at page118 & 120. Both these maps show that the building is designed by the opponent as an Architect and it has nothing to do with the structural designing of the building.
7. Our attention was also invited to certain Vouchers or Advice Notes issued by the opponent whereby he has certified and approved the payment to be made to the various Sub-Contractors and labourers. As earlier pointed out this was perfectly a job of an Architect to do, but it does not mean that those workers or Sub-Contractors were engaged by the opponent and that it was part and parcel of the job of the construction of the building entrusted to him.
8. Reference is also made to one report of the Court Commissioner. However, record shows that including the complainant said report was not admitted by either of the parties. It appears from the impugned order that even the Forum itself visited the site for local inspection. There is no evidence on affidavit adduced of the Court Commissioner and the report of the Court Commissioner is also not tendered in evidence. Any local investigation either by the Forum or through others is not a substantive evidence, but it can be used only for appreciation of the evidence tendered as per provisions of Section 13(4) of Consumer Protection Act, 1986 (hereinafter referred to as the Act).
9. It is further revealed from the material placed on record that in the year 1999 itself there was some dispute between complainants and the opponent and as alleged by the complainants, thereafter work entrusted to the opponent was revoked terminating the agreement by the complainants which they entered into with the opponent. This is as per the averments made in the complaint and this happened on 21/10/1999 (in Para 8). Letter dated 10/10/1999 written by the opponent to the complainants shows that he disassociated himself from the work to supervise as an Architect and it was also brought to the notice of the complainants by the opponent that construction work is not as per the sanctioned plan and that complainants told him that they would get the completion certificate on their own. Another document on record is the certificate issued by Chief Officer of Karad Municipal Council i.e. Local Authority and it shows that from 14/12/1999 consequent to the notice issued by said authority, one Mr.Ajay Mehta was engaged by the complainants for supervision work. Therefore, in any case, after 14/12/1999 opponent had no concern with the construction activities carried out on behalf of the complainants. Even according to the complainants, contractual relationship whatsoever it may be between them and the opponent came to an end, supra. Therefore, when this consumer complaint was filed on or about 05/04/2001 (complaint is registered on 11/05/2001) there exists no subsisting relationship between them as consumer and service provider. Therefore, consumer complaint would not lie.
10. The complainants miserably failed to establish their case. We find no fault with the impugned order dismissing the consumer complaint. Thus, finding the appeal devoid of any substance, we pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Record & Proceeding be sent back to District Consumer Forum.
4. Copies of the order be furnished to the parties.
Pronounced Dated 6th April 2011 [Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member dd