National Consumer Disputes Redressal
K N Kandpal vs M/S Alliance Builder And Constructions ... on 4 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 1885 of 2008 (From the order dated 03.01.208 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Appeal no. 536/SC/2005) K N Kandpal Son of Shri S R Kandpal Resident of A 206 Rajendra Nagar Bareilly Present Address Petitioner 17 C Vaibhav Suncity V istaar P S Izatnagar Versus 1. M/s Alliance Builders and Contractors Ltd. Office Neelkhanth Flats Stadium Road Respondent Manging Director Shri A S Bagga P S Baradari, Bareilly 2. Shri Ramandeep Singh Son of Shri Gurucharan Singh Director Alliance Builders and Contractors Ltd Neelkhanth Flats, Stadium Road P S Baradari, Bareilly BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr S K Ghosh, Advocate with Ms Rupali Ghosh, Advocate For the Respondent Mr Nikhil Jain, Advocate Pronounced on 4th April 2013 ORDER
REKHA GUPTA Revision petition no. 1885 of 2008 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 03.01.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (the State Commission) in appeal no. 536/SC/2005 and 591/SC/2005.
The brief facts of the case as per the petitioner are as follows:
The petitioner resides along with all members of his family at A 2006, Rajendra Nagar, Bareilly. He required a house. In order to purchase the house, the petitioner contacted respondent no. 1 who builds houses in Sun City Extension. A booklet was given about this house in which salient features of the houses were described. Respondent no. 1 assured the petitioner that best quality material would be used in the house. On this assurance, the petitioner agreed to purchase a house no. 20 C Vaibhav in Suncity Extension. House no. 20 C Vaibhav was changed as house no. 17 C Vaibhav by the respondent.
Respondent no. 1 is Alliance Builders and Contractor Ltd., who is engaged in building and selling of houses. Respondent no. 1 who is a builder who carry out the sale of plots and execute the construction work on the sold plots through their Managing Director, Director, Engineers etc., who are respondents no. 1, 2 and 3 in petition. Respondent no. 1 is responsible for the works.
Agreement was executed between the petitioner and respondent no. 1 for the sale of a house 20 C Vaibhav which was later on changed as 17 C Vaibhav at a cost of Rs.6,15,000/-. The cost of the plot was for Rs.33,414/- and the cost of building material and labour charges was Rs.5,81,586/- and in total Rs. 6,15,000/- was agreed to be paid by the petitioner to the respondent no. 1 for the plot and the cost of construction. The petitioner is the consumer of the respondent in respect of house no. 17 C Vaibhav.
The petitioner paid Rs.5000/- as advance to the respondent no. 1 on 16.02.2009 and after that he paid Rs.55,000/- to respondent no. 1. In total Rs.6,00,000/- was paid to the respondent no. 1 afterwards the sale deed of the plot whose area was 167.07 sq meter was executed and the petitioner got its possession.
On 31.05.1999 an agreement was made between the petitioner and respondent no. 1 according to which the respondent no. 1 was to construct the house on plot no. 17 C Vaibhav. An amount of Rs.5,81,586/- was to be paid by the petitioner for the construction of the house and the respondent no. 1 having got the possession from the petitioner, was to construct the house within 10 months and returns for the possession to the petitioner.
The petitioner transferred the possession of the house no. 17 C Vaibhav to the respondent no. 1 for construction on 31.05.1999. Then after 23 months from 31.05.1999 the respondent handed over the possession of the house 17 C Vaibhav on 19.05.2001 to the petitioner. During this period the petitioner had to make alternative residential arrangements.
After getting the possession of house no. 17 C Vaibhav on 19.05.2001 and coming into it to live in, the petitioner come to know that the building material which was used in the construction was of very bad and cheap quality. The cement, saria, iron, timber, bricks etc., which were used in the construction of floor, walls, doors, chaukhats, roof, outlets of water, road drainage etc., were of bad and cheap material, due to which house no. 17 C Vaibhav was not living worthy and could fall down at any time. There was continuous danger for the lives of the petitioner and the members of his family. The petitioner made verbal and written complaint about these defects several times but the respondents did not pay any attention to any complaint of the petitioner and the respondent did not remove the above said defects.
After living in house no. 17 C Vaibhav, the petitioner came to know that the respondent no. 1 used inferior and cheap building material in the construction of house, so the cracks occurred on the roof of the house. Due to cracks in the roof, it was leaking down and water leaks from these cracks due to which the water stored inside the house 17 C Vaibhav. The house is not living worthy. The walls of the house are downwards. The walls of the house are going down because bad and cheap saria, cement and cement with much sand and was under in the foundation and much sand was used in the plaster made on the walls so that the plaster is coming down from the walls and because of the walls going down. There is danger of roof falling. Surkhi, Chuna, gatta were to be provided on the roof of the house no. 17 C Vaibhav which were not provided by respondent no.1. So that water leaks from the roof because of cracks in the roof, it may fall down at any time which is not be repaired. There is a need of constructing the house afresh after dismantling it. The cracks of the roof are not fit to be repaired. Inferior and cheap timber has been used in the chaukhat, windows, doors etc, of the house no. 17 C Vaibhav so that due to rain and winter effect, door and windows do not shut properly. These do not get their place due to gaps and do not shut properly. The foundation being not good and due to use of bad and cheap cement and bricks the walls are going down into the earth which may fall at any time. Besides it, the floor of the house is not labelled because before flooring the inner side was not labelled so that the water does not flow properly and the water is stored here and there on the floor. Coloured chips were not used in the floor. More sand was used in the plaster on walls and cement was used in less quantity. Because of the sand being in more proportion the cement on roof and walls did not set properly. Sand is coming out. Two gates were to be provided in the house no. 17 C Vaibhav which only one small and light in weight gate was provided. The electric wiring and switches of cheap and inferior quality were used. The floor was incomplete and unlevelled so that water is stored and the blocks are shrinking. The floor is breaking. As such, the construction of the house 17 C Vaibhav was made of inferior building material which is not to be repaired. There is a need of dismantling it and reconstructing it, so that the petitioner is suffering mentally, economically and physically. The house hold things which are kept inside the house are decaying.
The house of the petitioner 17 C Vaibhav was constructed by the respondents, inside which the facility which are to be provided in this society, were not provided. Due to cheap and inferior building material cement etc., used in the construction, cracks have developed in the roof and it has leaned down, water is leaking. The house may fall down at any time. The plaster of the walls is coming out. Because of it the house needs to be reconstructed, for which the existing construction is to be dismantled, as such an amount of Rs.6,55,000/- will be required for its reconstruction the construction of the house is very bad because of lacking service, carelessness and using cheap and inferior building material, paint, steel, timber etc. and is not living worthy for the petitioner and the members of his family as it may fall at any time due to cracks in the roof and its leaking. So that there is a need of reconstruction for which the petitioner made complaints to the respondents several times, but they do not pay any attention and they are using delay tactics. Because of it, the petitioner has to file this complaint before the Honble Forum. An expert time of Rs.6,55,000/- is estimated in dismantling the house and its reconstructions. This may be paid by the respondents to the petitioner.
The respondents have however, has stated in their written statement that the statement of the petitioner that the house no. 17 C Vaibhav was changed in place of 20 C Vaibhav Suncity Extension by the respondent, is completely wrong and baseless for which the petitioner, himself requested the respondent for change of house no. 17 C in place of 27 C, the respondents accepted the request of the petitioner. There is no fault of the respondents and accordingly an agreement for 17 C Vaibhav was executed between the petitioner and respondents.
The statement of the petitioner that material used in the construction of the house was of cheap and inferior quality is completely incorrect and baseless, which the fact is that all the material used in the construction of house is of high quality and standard company. The statement of the petitioner that he made any complaint and the respondent did not pay any attention is completely false and baseless, which the fact is that the petitioner wants to create pressure on this petition and blackmail us.
As per the agreement executed between the petitioner and the respondents, the responsibility of the respondents was up to the roof lavel. After it the responsibility of the roof treatment was of petitioner. The petitioner has not done it till date and the petitioner is holding responsible for it to the respondent for which the petitioner has no right.
The statement of the petitioner that inferior quality saria, cement and much sand in proportion etc., was used in the foundation, is incorrect and baseless. While the respondents got all the construction done with high quality material by the standard contractors under the supervision of skilled engineers.
The statement of the petitioner that electric wiring and switches were used in the house is of very cheap and inferior quality. While the respondents provided all the electric wiring and switches of standard quality. Besides, here the most important fact the respondents have made about 1000 houses under this scheme and no complaint has been received from any one. Only the petitioner and a few other person of his group have filed this petition because of their vested interests based on false facts and just to trouble the respondents. Because all these persons collectively have threatened if the respondents do not admit their statements then they will file the suit.
According to the agreement executed between the petitioner and respondents, the house was to be white washed inside it with dry distemper but at the request of the petitioner the respondents white washed it with oil bond paint without charging any extra expenditure while the cost of oil bond painting was three times more than dry distemper.
The statement of the petitioner that this house may fall down at any time and he has to reconstruct it is completely false and baseless. The house in question is completely up to the mark and there is no need of its reconstruction and repair. As far as the roof treatment is concerned, it is the responsibility of the petitioner which he did not carry out knowingly till date for which the respondent is not bound.
The District Consumer Disputes Redressal Forum, I, Bareilly (the District Forum) has discussed the case at length in their judgment dated 28.02.2005. After hearing the counsels and going through the records, as also the reports given with regard to the house both by the petitioner and the respondents. The District Forum came to the following conclusion:
The statement of the petitioner that the house way fall down at any time, does not appear to be true. This also does not appear to be true that there is a need of reconstruction of the house after dismantling it. The report of the architect which has been filed by the petitioner does not mention that the defect of the house are beyond repair. Shri Rukmesh Kumar has mentioned that cracks in the walls have occurred due defects in the foundation and the floor has shrunk. The water out let on the roof is not proper. The work was not executed as per PWD norms. The roof treatment was not carried out. Deep cracks in the slabs occurred due to storage of water. In the opinion of forum, all these defects are repairable. The petitioner could not prove that cheap and inferior quality building material was used in the construction. But it is proved that cracks in the roof and walls have occurred due to not providing roof treatment and for its repair, the respondent is responsible. In the opinion of the forum the expenditure on repair maybe Rs.40,000/- for which the petitioner is entitled to get the compensation. Besides it, the petitioner is entitled for Rs.5,000/- as cost of the suit.
The respondent did not provide roof treatment even after realizing Rs.1,26,400/- for it from the petitioner due to which cracks occurred in the roof of the house. Due to storage of water, cracks occurred in the walls, the flooring was found defective. Because of water outlet not being proper on the roof, cracks occurred in the linter joints. In the opinion of the forum, the respondent is responsible to pay Rs.40,000/- to the petitioner for the repair of all these defects. Through witnesses it is provided that the petitioner asked the respondent several times to remove these defects but they did not pay any attention to it. The petitioner is entitled to get Rs.5,000/- from the respondent on the cost of the suit, and he is entitled to get back Rs.1,26,400/- from the respondents.
The District Forum directed that the petition is decided against the respondents and the respondent is directed to refund Rs.1,26,400/- which he realised from the petitioner for roof treatment but he did not execute the roof treatment, so that the petitioner may carry out this work. The respondent is also directed to pay Rs.40,000/- to the petitioner as compensation to remove the defects in the construction of the house and the rent @ 2,500/- for 13 months should be paid to the petitioner. The order should be complied within a month otherwise interest @ 9% per annum on the whole amount will be paid by the respondent. The respondent will also pay Rs.5,000/- to the petitioner as cost of the suit.
Not satisfied by the order of the District Forum, the petitioner has filed an appeal before the State Commission. The State Commission after hearing the counsels for the parties and perused the records and observed as under:
It is also significant to note that the complainant had entered into possession of the house in question on 19.05.2001 but did not lodge any protest at the time of taking possession on that day, although a deed was executed certifying delivery of possession. Not only this but also not within a reasonable time any notice was served upon the builders so as to bring to their notice the details of the alleged defects of the house and ask them to remove the same. The learned counsel appearing for Shri Kandpal made a reference to a letter dated 15.07.2002 which was despatched to the builders. This notice was sent 14 months after the delivery of possession and although many defects were pointed out but not an iota of mentioned was made about the roof treatment. In case the builders failed to carry out the roof treatment in accordance with the terms and conditions of the agreement, it should have certainly being recited in this letter.
The complaint was filed more than three years after the delivery of possession and prior to the filing of the complaint, no report of an architect had been obtained in support of the complainants version. A report which was procured during the pendency of the complaint (Paper nos. 15o to 154) was got without any instruction from the District Consumer Forum. It was a one sided report submitted without seeking any instructions from the District Consumer Forum. Even this report does not say that the house had been rendered to a pitiable condition within a short span of 3-4 years. It simply refers to certain defects in the plaster on walls but the defects do not appear to be so serious as to cause any threat to the very existence of the house. If there was any seepage of water through the roof, it could be very well repaired and this seepage either in the walls or the roof after four years of the house had been delivered cannot be subscribed to the defects in construction activity so as to hold the builders responsible either for repair of these defects or for awarding damages. In this context, it would be relevant to observe that if there was any defect in the roof, the water would have percolated during the first rainy season of 2001 but there is nothing on record to show that within the first year of the complainants occupation of the house any such defects came to light. We are, therefore, not convinced that the seepage in the roof or cracks in the wall or any other repairs required after four years of the delivery of the possession would be subscribed to the builder for being asked to either carry out the repairs or remove the defects. Every building is subject to the adverse effects of the weather which includes air, moisture and sunshine and if any decay happens on account of these adversaries, the occupant of a building is expected to look after them and carry out repairs. A builder cannot be held responsible to remove all the defects for all times to come. In our considered opinion, neither there is any warranty nor a guarantee of the construction work. If a house resist the water of rains, bright sun, moisture hot and cold winds for a period of one year, it can be said to have fulfilled all the qualities of a good construction. In the case in hand, the house of the complainant did not develop any defect for 14 months as can be derived from the above discussions, therefore, the builders cannot be asked either to refund the money allegedly assigned to the roof treatment or to carry out the repairs pointed out.
In the result, the appeal of Shri K N Kandpal fails and is hereby dismissed. The other appeal filed by M/s Alliance Builders and Contractors Limited is hereby allowed and the judgment in appeal quashed. Resultantly the complaint of Shri K N Kandpal is hereby dismissed.
Hence, this present revision petition.
The main grounds given are as follows:
- the State Commission erroneously recorded that the estimate of cost of construction issued by the respondents is a forged and fictitious document. Without appreciating that the said document was issued by the respondents, which were countersigned by their Chartered Engineer. That in the said document the estimate quoted by the respondent for 5 cm thick line concrete terracing on the roof of the brick ballast with white lime and surkhi in ratio of 100:32:16 and including supply of all materials labour and tools and paints etc., required for proper completion of the work was Rs.1,26,400/-. Hence, the State Commission erroneously and in a perverse manner, ignoring the documents on record, observed, . We would be at our dismay to observe that a sum of Rs.1,26,400/- was earmarked whereby for roof treatment of house, the estimated value of which was agreed to be as Rs.6,15,000/-. And in and erroneous manner set aside the order passed by the District Forum awarding the compensation for not undertaking the roof treatment by the respondent.
- the State Commission committed gross error by totally ignoring the report of the advocate Commissioner, the photographs and the videography which clearly established the deficiency of service of the respondent in constructing the house of the petitioner.
- the State Commission has committed gross error of law by observing in the impugned order that there was no warranty or guarantee of the construction work. It is submitted that the instant case is a classic example of the principle of res ipsa loquitor. The condition of the house as evident from the report of the Architect, the Advocate Commissioner, and the photograph produced before the District Forum goes to prove beyond any doubt that there is deficiency in service on the roof of the respondent in constructing the house and the respondent used substandard and poor material for the construction of the house.
- the State Commission committed grave error by observing that the since the house did not develop any defect for 14 months the builder cannot be asked either refund the money allegedly assigned to the roof treatment or to carry out the repairs. It is submitted that the aforesaid observation is not only perverse but the same contrary to the records of the case. That the petitioner have been complaining to the respondent about the poor quality of construction immediately after occupying the house, and secondly a house under no circumstances can develop cracks on the roof within a period of 14 months unless the construction is of poor quality and substandard materials for constructions was used. It is submitted that manual 2003 issued by Government of India the minimum life of land bearing structure is all least 55 years.
We have heard the learned counsel for the parties and carefully gone through the records of the case. Counsel for the petitioner insisted that the house was very poorly constructed. He however, could not explain why the written complaint regarding defects in the house were made after fourteen months. Though he kept on referring to a letter purportedly sent to the respondent in the year 2001, the same could not be produced. He could not also confirm whether the same had been filed before the District Forum. It is an undisputed fact that with reference to additional affidavit filed on behalf of the petitioner that the said premises were handed over to the petitioner on 19.05.2001. Petitioner stated that he made repeated complaints to the respondents however, there is no written evidence of the same. The first complaint is dated 15.07.2002 wherein the petitioner has written to the respondent as follows:
Dear Sir, This goes out to inform you that House no. 17 C Vaibhav, Sun City, Vistaar was occupied by the undersigned after full payment formalities.
I am facing several problems in the house now, viz., widespread cracks under and over the roof causing threat to the occupants. The cracks are getting wider and thicker and even a little rain that poured down last month has ruined the ceiling fans and electrical wirings and has caused the water to ooze out. Walls and floors on the other hand, too are showing the signs of dilapidation. At several places loose plaster has lost its grip and few squares of marbled floor have been shaking separately without any firmness with the rest of the part.
Although this has been to the notice to the concerned authorities earlier, but a deaf ear was being offered to the reminders that followed. A staff team of yours did have a look at the condition and some repair work has also been accomplished by fits and starts, but it seems that they have really not gone deep into the groove of the problem and a lot more needs to be done for rectifying the prevailing discrepancies.
I, therefore, earnestly hope you will look after the matter seriously and get the needful done at the earliest to avoid any further damage and danger. An early reply and favourable action will be appreciated.
It is also evident from the records that the complaint before the District Forum was filed on 04.06.2003 well after the two years period of limitation from the date he took possession. It is also a fact that all the reports of experts produced by the petitioner were those appointed by him. There is no evidence on record of any expert appointed by the District Forum. All the reports also were with reference to the conditions of the house in 2004, i.e., four years after he got the possession. In this context we would agree with the State Commission that if there was any defect in the roof, the water should have percolated during the first rainy season of 2001 but there is nothing on record to show that within the first year of the complainants occupation of the house any such defects came to light. Further, that every building is subject to the adverse effects of the weather which includes air, moisture and sunshine and if any decay happens on account of these adversaries, the occupant of a building is expected to look after them and carry out repairs. A builder cannot be held responsible to remove all the defects for all times to come. As neither is there any warranty nor a guarantee of the construction work in perpetuating. If a house resists the water, rain, bright sun, moisture, hot and cold winds for a period of one year it can be said to have fulfilled all the qualities of a good constructions. In the case in hand, there is nothing on record to show that the house of the complainant had developed any serious defects in the first fourteen months. Even in his complaint, before the District Forum, while the petitioner has given elaborate details of defects and the so called examples of poor construction he has not mentioned the dates on which these were brought to the notices of the respondents and action taken by them. He has also given no details of complaints in writing or reference to any letter addressed to the respondents in this regard before 15.07.2002. He has by his own admission admitted that he has been residing in the house since 19.05.2001, so it is indeed surprising to note that the house lived in by the petitioner and his family since 19.05.2001, was in such a deplorable condition and yet no repairs had been carried out by the petitioner to keep his house in a liveable condition.
As per the report dated 18.03.2004 of Ms Abha Agrawal, Addl. Commissioner. The switches were not fixed properly and were not working satisfactorily. The out let of the water was not found proper.
Water was stored in the bathroom. The condition of windows and doors were not found proper. The doors of the bed room were found unfixed. Termite was seen in the widows. The floors of the room were found downed so that the glass fitted in the floor struck the feet. Water was found stored here and there on the floor. Water taps were found loose. The drains outside the house was found flowed the out let of the water was found abstracted. This only gives evidence of a house which has not been given adequate maintenance and repairs by its owners.
In view of the foregoing reasons we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 10th May 2013 for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish