State Consumer Disputes Redressal Commission
Kesavan, S/O Sreenivasan, Technical ... vs Xavier, S/O Gnana Manickam, on 27 May, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY FRIDAY, the 27th day of May, 2011 First Appeals No.21/2006 & 22/2006 F.A.No.21/2006 Kesavan, S/o Sreenivasan, Technical Assistant (Building Division), Pondicherry Engineering College, Pillaichavady, Puducherry .. Appellant Vs. Xavier, S/o Gnana Manickam, Plot No.39, 40 Vincent Street, Gabriel Nagar, Oulgaret, Puducherry-10 Respondent F.A.No.22/2006 Xavier, S/o Gnana Manickam, Plot No.39, 40 Vincent Street, Gabriel Nagar, Oulgaret, Puducherry-10 Appellant Vs. S.Kesavan, S/o Srinivasan, Technical Assistant (Building Division), Pondicherry Engineering College, Pillaichavady, Puducherry. Respondent (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.37 of 2003, dated 13.04.2006) Consumer Complaint No.37 of 2003 Xavier, S/o Gnana Manickam, Plot No.39, 40 Vincent Street, Gabriel Nagar, Oulgaret, Puducherry-10 Complainant Vs. S.Kesavan, S/o Srinivasan, Technical Assistant (Building Division), Pondicherry Engineering College, Pillaichavady, Puducherry. Opposite Party BEFORE: HONBLE JUSTICE THIRU J.A.K.SAMPATHKUMAR PRESIDENT TMT. K.K.Ritha, MEMBER
THIRU K.ELUMALAI, MEMBER FOR THE APPELLANT IN F.A.21/2006:
Thiru K.Palaniappan, Advocate, Puducherry.
FOR THE RESPONDENT IN F.A.21/2006:
Thiru M.V.Vaithilingam, Advocate, Puducherry.
FOR THE APPELLANT IN F.A.22/2006:
Thiru M.V.Vaithilingam, Advocate, Puducherry.
FOR THE RESPONDENT IN F.A.22/2006:
Thiru K.Palaniappan, Advocate, Puducherry.
C O M M O N O R D E R (By Honble Justice President) Since both appeals arise out of one and the same order of the District Forum, Puducherry, both appeals are disposed of by this common order.
2. First Appeal 21/2006 is filed by the opposite party/appellant against the order of the District forum, Puducherry in C.C.No.37/2003 dated 13.04.2006 granting the relief of (i) Rs.1,04,968/- under the classification towards deficiency in service; (ii) Rs.50,000/- as compensation under the classification for mental agony and (iii) Rs.10,000/- as cost of the proceedings, against the claim of Rs.2,00,000/- under Section 14 (1) of the Act and Rs.3,000/- towards cost of complaint.
3. The said award amount of Rs.1,64,968/- was granted against the claim amount of Rs.2,03,000/-while dismissing the partial claim of Rs.38,032/-.
4. First Appeal No.22/2006 is filed by the complainant/appellant claiming enhance award amount of Rs.9,62,500/- under the classification (i) Rs.5,37,500/- towards refund of the amount paid by the complainant to the opposite party (ii) Rs.2,00,000/- towards the expenses to be incurred for demolishing the building, (iii) Rs.2,00,000/- towards compensation for mental agony and harassment (iv) Rs.25,000/-
towards cost of the appeal, though the appeal should have been filed only against the dismissal of partial claim of Rs.38,032/-.
5. The brief facts of the complainant is referred hereunder:
The complainant by way of a written agreement, dated 09.03.2001 entrusted the work of construction of his house to the opposite party for Rs.6,60,000/- and paid an advance of Rs.2,20,000/- on that date. The construction to be completed within seven months on receipt of schedule of payment referred in the agreement.
6. The opposite party did not carry out quality work.
Rubbish soil was used for raising the ground level for laying the foundation. Due to such filling, cracks developed on the floor of the constructed house and insects started breeding. Further, the constructions were not done according to plan but there are several deviations.
7. The opposite party used sub-standard materials for the construction. Though the opposite party estimated the cost of construction at Rs.6,10,000/-, it was only Rs.5,09,000/-
8. Since the construction is suffering out of shortcomings and the condition of the building is precarious, the opposite party is liable to the complainant a sum of Rs.2,00,000/- u/s 14(1) (d) of the Act along with the cost of the complainant.
9. The opposite party submits his defence as follows:
The building was constructed as per the norms referred in the agreement. The opposite party done the work to a tune of Rs.6,51,000/-. The complainant occupied the newly constructed house with unfinished work. The complainant himself attended to the unfinished work. The complainant did not adhere to the schedule of payment and caused much hardship to the opposite party to meet the expenses for such construction.
10. The complainant is still liable to pay a sum of Rs.1,36,000/- to the opposite party. Instead of paying the said amount, the complainant with a view to defeat the claim of the opposite party, has filed the claim petition contrary to the fact. Hence, the complaint is liable to be dismissed.
11. One witness was examined and eighteen exhibits were marked on the side of complainant. One witness was examined and two exhibits were marked on the side of opposite party. One witness was examined and one document was marked on the court side.
12. The District Forum after considering both oral and documentary evidence adduced in this case, found that the complainant is entitled to a partial claim and accordingly passed the award under dispute.
13. After hearing the arguments of both sides, the following issues were taken up for consideration and disposal on merit.
1) Whether F.A.22/2006 filed by the complainant is not in consonance with the claim in C.C.No.37/2003?
2) Whether F.A.22/2006 filed by the complainant should be only against the partial dismissal of the complaint to the extent of Rs.38,032/-?
3) Whether the District Forum has not erred in granting part of the claim for consideration of F.A.No.21/2006?
14. ISSUE NO.1:
The claim of the complainant in the complaint and in the appeal are referred hereunder:
COMPLAINT
1) To pay a sum of Rs.2.00 lakhs as compensation by virtue of Section 14(1)(d) of Consumer Protection Act, 1986
2) Award a sum of Rs.3,000/- towards cost of the complaint.
APPEAL
1) Refund a sum of Rs.5,37,500/- being the amount paid to the Opposite party for construction along with interest at 18% p.a.
2) Rs.2,00,000/- additional cost for demolishing and reconstruction
3) Rs.2,00,000/- towards compensation for mental agony and harassment
4) Rs.25,000/- towards the cost of the appeal.
15. Whereas the District forum has granted award in the following manner:
1) a sum of Rs.1,04,968/- towards deficiency in service.
2) Rs.50,000/- as compensation for mental agony and
3) Rs.10,000/- as cost of the proceedings.
16. On a comparison of the claim in the complaint and the award of the District forum, the following points revealed on the face of it without any two opinions.
a) Though the complainant claimed Rs.3,000/- only towards the cost of the complaint, the District Forum granted Rs.10,000/- towards the cost of the complaint
b) Though the complainant claimed Rs.2,00,000/- towards compensation under Section 14(1)(d) of the Act, the District Forum granted only Rs.1,04,068/-
c) Though there was no claim by the complainant for mental agony, the District forum granted Rs.50,000/- as compensation for mental agony.
17) On a comparison of the claim of the complainant both in the complaint and in the appeal the following points are revealed
i) The complainant made a claim of Rs.5,37,500/- in the appeal for refund of amount though there wa no such claim by the complainant.
ii) The complainant made a claim of Rs.2,00,000/- in the appeal towards additional cost for demolition and reconstruction though there was no such claim by the complainant
iii) The complainant made a claim of Rs.2,00,000/- in the appeal towards compensation for mental agony though there was no such claim by the complainant.
iv) The complainant made a claim of Rs.25,000/- in the appeal towards the cost of appeal though the complainant made a claim of Rs.3,000/- only towards the cost of the complaint.
18. From the materials referred above, we are convinced that the complainant made a fresh original claim in the appeal against the provisions of the Act as the State Commission has no original jurisdiction for a claim below Rs.20.00 lakhs.
19. Learned counsel for opposite party questioned the very competency of the appellate forum to decide the new materials which were not subjected by the District forum and contended that the appeal is liable to be dismissed as the State Commission cannot analyse the new facts for the first time in the appeal which were not subjected to scrutiny by the District Forum. Further, he submitted that the District Forum alone has jurisdiction to deal with the materials placed before the Appellate Forum and the Appellate Forum will have jurisdiction only after the disposal by the District forum in one way or other and that on that score also, this appeal is liable to be dismissed.
20. However, learned counsel for the complainant contended that the Appellate Forum has competency to deal with the issue on hand though the materials placed before it were not scrutinized by the District forum as the case on hand is only with respect to continued cause of action of the original claim of the complainant before the District forum and as such the State Commission has competency to deal with the issue on hand and decide the case. Further, the counsel for the complainant relied on the following decisions in support of his contention:
i) 2004(3) CPR 81 (SC) Supreme Court of India (From National Consumer Disputes Redressal Commission, New Delhi) H.P.Housing Vs.Varinder Kumar Garg & Another In this case, the Supreme Court of India decided the case on merit only the basis of the materials placed before the District Forum. The fact was with reference to sale of constructed flat and the sale of the flat was by the public body, namely the State Government to the public. There was no new materials placed before the appellate authority for consideration for a decision.
ii) 2009 (1) CPR 170 (NC) National Consumer Disputes Redressal Commission, New Delhi Smt.Asha Bharadwaj Vs. The Chairman Housing Commissioner, Rajasthan In this case, the National Commission decided the case on merit only on the basis of the materials placed before the District Forum. The fact was with reference to sale of constructed flat and the sale of the flat was by the public body, namely the State Government to the public. There was no new materials placed before the Appellate Authority for consideration for a decision.
iii) 2010(2) CPR 419 M.P.State Consumer Disputes Redressal Commission, Bhopal Ramachandra Vs. Vijaya In this case, the State Commission, Madhya Pradesh decided the case on merit only on the basi s of the materials placed before the District Forum. Facts in that case was with reference to sale of land and construction of a building over the same.
The deficiency of service was with reference to defective foundation. There was no new materials placed before the Appellate Authority for consideration for a decision.
iv) 2001(3) CPR 199 (NC) National Consumer Disputes Redressal Commission, New Delhi Maruti Udyog Limited Vs. Bhawana Sabharwal & Another In this case, the National Commission decided the case on merit only on the basis of the materials placed before the District Forum. The fact was with reference to sale of movable property namely a car and not with reference to immovable property. No new materials placed before the Appellate Authority for consideration for a decision.
21. On analyzing the cases referred above, we found that all the cases were dealt only on the basis of the materials placed before the District forum and not on the basis of new materials placed before the Appellate Authority for the first time. There was no finding rendered in those decisions that the Appellate Authority has jurisdiction to deal with the new facts also placed before it for the first time, though they were not subjected to scrutiny by the District forum.
22. The facts on hand are (i) with reference to the materials placed before the Appellate Authority for the first time, which were not subjected to scrutiny by the District Forum. (ii) Agreement is with reference to construction of a building. Payment on stage by stage basis by instalments and not a sale of a constructed building, (iii) The dealings are with individuals (iv) Appeal is based on the new cause of action and not with reference to the cause of action of the original complaint, (v) The State Commission has no original jurisdiction with reference to the facts under dispute. (vi) The complainant withheld without payment of about Rs.50,000/- till now.
23. From the narration of events, we are of the considered with that the decisions referred to by the counsel for the complainant cannot be relied on as the facts on hand and the facts of the referred cases are totally different.
24. Since the appeal is filed on the basis of new materials which were not subjected to scrutiny by the District Forum and that the State Commission has no original jurisdiction with regard to disputes below 20.00 lakhs, we are of the considered view that the appeal is liable to be rejected summarily on the point of jurisdiction.
25. Now, let us deal with the facts on hand.
The evidence of the complainant in this regard is as follows:
1) Proof affidavit filed on 26.08.2005.
The complainant reiterated the nature of the complainant in the proof affidavit
2) The complainant was subjected to cross-examination by the opposite party on 20.10.2005.
26. The material evidence of the complainant at the time of cross-examination is culled out hereunder:
we moved into the house in question on 30.11.2002 In or about April, 2002, one Kumar, an authorized engineer enlisted in the panel of L.I.C. inspected the house.
I did not have any step to conduct the soil test.
The land over which the construction was put up is clay soil.
The plan was drawn by a friend of mine working in Pondicherry Engineering College, who did not advice me to have the soil test and construction of plinth protection.
The amount of Rs.6,60,000/- was agreed to be paid in three instalments of which the first instalment was agreed to be paid as advance, the second instalment after the construction of the basement and the third instalment after the construction of the ceiling.
I did not pay the second and third instalments as agreed since the opposite party did not ask for it.
I was only making part payment As per the agreement, I should adhere to the schedule of payment and the opposite party should complete the construction within the agreed time.
When I occupied the house the plat form around the walls of the house was not laid because it was not mentioned in the agreement.
I did not ask the opposite party to provide the platform and the opposite party also not suggest to it.
I wanted the said place to make a garden I did not give any anti-termite treatment towards the completion of the construction.
I inspected during construction. The opposite party carried out the markings on the earth and showed it to me before started constructing septic tank and toilet The elevation of the building is as per the plan. The entire construction of the building is as per the plan Even before I occupied the house I noticed the defects in the construction The entire construction of the building completed in May, 2002.
I have not settled the accounts of the opposite party Rs.1,86,000/- is still to be paid is denied, but, it was only Rs.51,000/-
I have not paid even this said sum of Rs.51,000/- as there are defects in the construction
27. The evidence of the opposite party in this regard is as follows:
i) On 25.11.2005 proof affidavit was filed.
ii) The opposite party reiterated the nature of his defence in the proof affidavit.
iii) The opposite party was subjected to cross-examination by the complainant on 05.01.2006, 06.02.2006 and 13.02.2006.
28. The material evidence of the opposite party is culled out hereunder:
Rs.5.15.500/-
paid. As the complainant was not making payment, work remained suspended and while the opposite party demanded the complainant to make payment, the complainant all of a sudden in June, 2002 mala fide moved into the house even as the construction work remained unfinished and started living therein.
After deducting all payment made by the complainant, a sum of Rs.1,36,000/- is still outstanding from the complainant. The cost of construction done by me is Rs.6,51,000/-
When the complainant occupied the house, the flooring was incomplete and he started using it as it then was The complainant having occupied the house in the middle of the construction, has failed to provide the plinth protection which alone to be attributed to the cracks, if any, on the floor and it has no bearing on the quality of the soil used to raise the ground level. The plinth protection is absolutely essential to prevent the seepage, dampness and moisture content in the wall and further to avoid the settlement of the floor.
I used to visit at complainants building by evening after 5 O clock and morning also.
I admit that the complainant has attended the unfinished work I admit that I was present upto 3.00 a.m. on 03.05.2002 attending the unfinished work. But I did not know there would be house warming ceremony on that day.
It is true that when I visited the house along with the expert, I noticed some damages in the house.
The expert inspected and examined that part of the building where it was found settled I admit that it is a duty of a civil engineer like me to provide plinth protection for constructing a house. The work of the plinth protection is to be done in the first stage of the construction. The complainant has not asked me to do that work as he has occupied the house meanwhile. The complainant has not allowed me to do the work of plinth protection since he had started attending to the rest of the work.
It is an admitted fact that in general plinth protection be provided to avoid cracks and in the case of clay soil it is a must and more particularly in the house of the complainant.
29. The material evidence of the court witness (expert) is culled out hereunder:
i) The complainant cross-examined the witness on 02.12.2004 and
30.08.2005.
There are possibilities of set back defect when the building was constructed parallel to the two boundaries. This happened in this case as the nature of the plot is oblique in size.
There is a chance for air-crack even the marble used is a good quality During my inspection, the tiles were found in good condition. Therefore, item No.3 does not arise.
There are some cracks found at the edges of the three or four tiles.
There is some deviation in the rear side set back and consequently it reflects in the front side and it is bound to occupy because the plot is oblique plot Question: Whether the opposite party has done the work as per the agreement?
During my inspection there was no crack in the ceiling.
ii) The opposite party cross-examined the court-witness on 22.12.2004, 09.05.2005, 26.08.2005 and 30.08.2005. Except two deviations as stated in para 1 of my report, the construction was made as per the approved plan on observation, I could not find out which items of work done by the complainant and which other item was done by the opposite party In the damaged portion of the flooring, I found the thickness to be 100 m.m. which I had shown under item No.4 of the details of the estimate. There was no plinth protection around the building. The purpose of putting plinth protection is to arrest the penetration of water at the foundation along the walls. If there is stagnation of rain water, it will affect the foundation. The quality of the soil will have a bearing on the structural stability of the wall Both the types of foundations shown in the plan approved by the Pondicherry Planning Authority will not be suitable to the soil of the land of the complainant. For which, a different type of foundation is to be designed The cause for the crack appearing in the panel walls is due to the nature of the soil and the type of foundation laid. The workmanship of the construction is not the cause for the cracks. According to me, 2 feet wide platform is to be provided all round the building to prevent the surface water entering into the foundation. The preventive measure is taken to ensure that there is no settlement of the soil around the building. Such settling of soil will have the impact on the floor. No such provision of the plinth protection has been made in the case. There is no agreement between the parties to make such provision.
30. The material facts expressed by the expert in the report is incorporated hereunder:
7. DAMAGE IN FLOORING:
Marble stone flooring is laid in bed room, .iving and hall, mosaic tile flooring is laid in kitchen I and II store room and bed room II. Ceramic floor tiles are laid in the attached toilet and rear side toilet. On inspection it is found that there is a settlement in the floor near main entrance of living room, the total floor in hall, Kitchen I & II have settled and thereby caused damages in the marbles slabs including mosaic tiles in the kitchen room. After dismantling a small portion of damaged floor, it is noticed that, 100 mm thick PCC concrete and 100 mm thick sand filling are provided underneath the flooring. The balance depth of 670mm depth is filled with building rubbish like cement mortar, brick bats which are to be avoided for use as filling in the basement, further it is noticed that the basement filling is not properly consolidated before laying flooring. Due to using of improper filling materials and improper consolidation of under floor, the damages have occurred. It is purely due to the negligence of the opposite party in not using proper soil for basement filling. As a consequence costly flooring like marble, mosaic and ceramic tiles have suffered damages. It may involve a huge sum of money to restore the flooring.
11. CONCLUSION:
1. The probable cost of construction of the building in question excluding the items said to be provided by the complainant and accepted by the opposite party, works out to Rs.5,58,900/-
2. There are noticeable defects in the walls and damages to the flooring which are caused due to the negligence on the part of the opposite party by not taking proper precautions during construction. The tentative cost for restoration/rehabilitation of the damaged units of the said house works out to Rs.99,000/-
31. The following material facts which are useful to deal with the issue on hand are culled out hereunder:
i) An agreement has been entered in to between the complainant and the opposite party for the construction of a building in the land of the complainant at a cost of Rs.6,60,000/-
ii) The complainant had not adhered to the schedule of payment as per the agreement. The complainant had been paying the agreed amount only in instalments. The complainant is still liable to pay a sum of Rs.51,000/- according to his own admission.
iii) The approved plan was drawn by the complainants engineer being his friend employed in Pondicherry Engineering College
iv) The nature of the soil over which the building constructed is clay soil.
v) Plinth beam protection is absolutely necessary for the construction of the building under disputed clay soil land.
vi) Soil test was not conducted by the complainants engineer who drew the plan.
vii) The opposite party who is also an authorized engineer did not advice the complaint to conduct soil test before starting construction of the building.
viii) The types of construction mentioned in the approved plan drawn by the complainants engineer are not suitable for construction of a building over a clay soil land.
ix) The basement was not filled with good quality sand but filled up with debris which is not proper, leading to cracks in the flooring.
x) House warming ceremony was performed on 03.05.2002.
xi) The complainant occupied the house even before completion of construction of the building.
xii) The complainant was put to notice during the examination of the witnesses that plinth beam protection is necessary as the construction of the building was put up over the clay soil land.
xiii) The complainant had not taken any steps for provision of plinth beam protection after taking possession of the building under construction.
xiv) The complainant in fact informed the opposite party that he requires the land around plinth beam for maintaining a garden.
xv) The opposite party by his own admission received a sum of Rs.5,15,500/-
from the complainant.
xvi) According to the opposite party, cost of construction made, works out to Rs.6,51,800/-
xvii) The plinth beam protection is absolutely necessary to prevent seepage, dumpness and moisture content in the walls and further to avoid the settlement of the floor.
xviii) The complainant himself attended to the unfinished work.
xix) The expert witness inspected and examined the building and found a part of the building settled.
xx) Though the opposite party being a civil engineer, known that plinth beam protection necessary, not advised the complainant in this regard xxi) Quality of the soil will have a bearing on the structural stability of the wall.
xxii) Cracks developed in the flooring was due to filling up of bad soil in the foundation.
xxiii) The report of the expert engineer exposes the deficiency in construction of the building by the opposite party.
xxiv) The report of the expert witness is unbiased.
xxv) The expert witness inspected the disputed building only in the presence of the complainant and the opposite party.
xxvi) Both the complainant and the opposite party cannot attribute any motive against the expert witness.
xxvii) The expert estimated cost to rectify the defects at Rs.99,000/-
32. From the narration of events, we are of the considered view that the appeal has to fail on the question of fact also and accordingly, we dismiss the appeal filed by the complainant on the question of fact also.
33. In view of the findings referred above, we answer this issue against the appellant/complainant.
34. ISSUE NO.2:
The findings rendered under issue No.1 is binding on the complainant/ appellant. Hence, this issue is also answered against the complainant/appellant.
35. ISSUE NO.3:
The narration of events referred under Issue No.1 along with the report of the expert witness exposes the defects in the walls and damage to the flooring was due to the negligence on the part of the opposite party by not taking proper precaution during construction and the tentative cost for restoration of the damages works out to Rs.99,000/-.
37. The District Forum in fact rightly taken notice of the narration of events and accordingly allowed a partial claim. We do not find any error or infirmity in the finding rendered by the District Forum. Therefore, the accusation of the appellant/opposite party against the finding of the District Forum has no merit and accordingly the same is rejected. Therefore, this issue is answered against the appellant/Opposite Party.
38. In the result, F.A.No.21/2006 and F.A.No.22/2006 stands dismissed. The parties have to bear their respective costs.
Dated this the 27th day of May, 2011 (J.A.K.SAMPATHKUMAR) PRESIDENT (K.K.RITHA) MEMBER (K.ELUMALAI) MEMBER