State Consumer Disputes Redressal Commission
Gurmeet Singh vs Kings Group Of Institute on 9 March, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL No.190 of 2012
Date of Institution: 17.02.2012
Date of Decision : 09.03.2015
Gurmeet Singh son of Sukhdev Singh, resident of near Nanaksar
Thath, Gali No.2, Barnala, District Barnala.
.....Appellant/Opposite Party
VERSUS
Kings Group of Institute, Patti Road, Barnala, District Barnala, through
its Chairman, Hardev Singh.
.....Respondent/Complainant
First Appeal against the order dated
04.01.2012 passed by the District
Consumer Disputes Redressal Forum,
Barnala.
Quorum:
Hon'ble Mr.Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : Sh. D.S.Gandhi, Advocate
For the respondent : Sh. S.S.Majithia, Advocate
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/opposite party (in short 'OP') against the order dated 04.01.2012 passed by the District Consumer Disputes Redressal Forum, Barnala (in short "District Forum"), vide which the complaint filed by the respondent/complainant institute was allowed and OP was directed to pay to the complainant a consolidated amount of compensation of Rs.15,00,000/- for causing huge loss to the complainant.
2F.A. No. 190 of 2012
2. Complainant-institute, through its Chairman Hardev Singh, filed complaint before District Forum under Section 12 of the Consumer Protection Act pleading therein that it availed the services of the OP for the purpose of construction of its building, including entire electrical works, floor laying and construction of stair cases. He entered into an oral agreement with OP and agreed to construct the said building having covered area of 34,000 sq. ft. @ Rs.85/- per sq. ft. He also agreed to do entire work of electrical fittings @ Rs.3.50 per sq. ft. The affixation of fans and tubes was settled at Rs.30/- per point. The said oral agreement was reduced into writing on 27.2.2010 and the same was signed by the OP in the presence of the complainant. OP started constructing building of the institute in January, 2009 but he failed to complete even 25% of the work upto July, 2009, due to which it could not start the MBA course for the session 2009-10, resulting into a loss of Rs.4,00,000/-. It was pleaded that at the time of laying of lintel for the roof, OP did not create any place for fixation of fans and tubes and also did not install underground pipes in the lintel for supply of wires for electricity. The work was done by OP in a hap-hazard and careless manner. Some of the iron rods on the roof were not covered with cement and bajri. To cover his mistake, OP made holes in the lintel of the roof with the help of drill machine for providing underground pipes for electricity and for fixing fans and tubes. Due to this negligent act of the OP, the roof started leaking during rains from the said holes causing damage to 70 ceiling fans, valuing about Rs. 80,500/-.OP also failed to construct the building (including walls, floors, stair cases and electricity work) in proper manner due to which visible cracks 3 F.A. No. 190 of 2012 developed in the walls as well as in the roof. The raw material, including sanitary wares, cement and sand was wasted. When the complainant brought this fact to the notice of OP and asked him to repair the same, it kept putting of the matter on one pretext or the other. Ultimately, in the month of March, 2010, OP left the work of construction of building midway. The complainant approached OP time and again and made a number of requests to repair the said damage caused to the building and also to pay compensation for the damaged work but, he did not pay any attention. It was pleaded that due to the negligence on the part of the OP, it suffered financial loss worth Rs.17,00,000/-. In the complaint filed before District Forum, directions were sought to the OP to repair the damaged part of the building at his own expenses or to pay him Rs.15,00,000/- as compensation. A compensation of Rs.3,00,000/- on account of mental torture, agony and inconvenience suffered by it, besides Rs.30,000/- as litigation expenses, was also prayed.
3. Upon notice, OP appeared and filed his written reply denying therein that the complainant availed his services by entering into an oral agreement. It was admitted that an agreement dated 27.2.2010 was signed by him but denied that he started constructing the building of the institute in January, 2009 and that he failed to complete even 25% of the work of the building up to July, 2009, due to which complainant institute failed to start MBA course for the session 2009-
10. When the agreement was signed on 27.2.2010, then, how it could be assumed that the complainant institute failed to start the MBA course for the session 2009-10. It was further pleaded that the Kings 4 F.A. No. 190 of 2012 Group of Institute comprised of three blocks i.e. B-Tech Block, MBA Block and Workshop Block. It got the building of B-Tech Engineering block constructed from some other contractor; namely Darshan Singh, proprietor of DEE Buildcon Pvt. Ltd., Chandigarh, in the year 2009- 2010. The complainant gave the contract of the building of MBA Block also initially to one JS Constructions, Patti Dulat, VPO Longowal, District Sangrur, through contractor Jagdev Singh son of Jagroop Singh and a sum of Rs.50,000/- was paid to him for laying the foundation. It was somewhere in second week of December, 2009 that the complainant came into contact with him and asked him to complete the building work of MBA Block, left incomplete by the said JS Constructions. It also offered him the electrical work of the above said MBA Block, B.Tech Block and Workshop Block to him. The building area offered to him was of 34000 sq. ft. and he agreed to do the same @ Rs.85/- per sq. ft., which included plastering of the walls, handing over of a clean roof, construction of staircases and laying of the floors with tiles. The complainant also offered him electrical work @ Rs.3.50/- per sq.ft. which included the laying of the pipes, wires and switch fittings. The charges for the installation of fans and tube lights were separately settled at Rs.30/- per piece. Having fully satisfied with the pace and quality of work, complainant paid him Rs.3,00,000/- on 13.02.2010 through cheque No.742244 dated 13.02.2010. On 27.2.2010, one Gurjant Singh, authorized Officer of the Institute, obtained a written agreement from him about the rates and work referred above. He was further paid Rs.5,00,000/- on 22.3.2010; Rs.4,00,000/- on 29.3.2010 and Rs.2,00,000/- on 22.4.2010. These 5 F.A. No. 190 of 2012 payments were made on account of construction of ground floor measuring 17000 sq. ft. of MBA Block, including some other jobs connected therewith, against a bill of Rs.16,35,398/-. He also carried out planned civil work of the first floor of the said MBA Block worth Rs.1,80,625/-, which consisted of raising of 32 columns, but the complainant failed to accept bills thereof on one pretext or the other. In the meanwhile, Hardev Singh complainant and Gurjant Singh, Secretary of the Kings Educational & Welfare Society asked him to carry out the electrical work of an area of about 77000 sq. ft in building of B.Tech Engineering Block, Ground floor of MBA block and Workshop building @ Rs.3.50/- per sq.ft. The complainant also executed an agreement dated 16.4.2010, through one Gurjant Singh, Secretary of the Society, for the construction of 34000 sq. ft. and work allotted to him, vide agreement dated 27.2.2010, was also reiterated. The said new electrical work, allotted to him, was earlier left incomplete by another contractor, who was associate of contractor Darshan Singh. He laid down the under ground pipes in the lintel of the said B-Tech Block, which were later on found chocked due to its improper laying. This fact was brought to the notice of the complainant. He suggested to the complainant that there were two options for overcoming the said blockade. Either new fittings protruding out of the ceiling be laid or in the alternative underground pipes be laid by drilling through the lintel and then passing the wires through them. In second case, the said drilling holes were required to be repaired by stuffing the holes with the concrete. The complainant asked him to carry out the work by drilling through the lintel, as the wiring arrangement over the 6 F.A. No. 190 of 2012 ceiling would look odd and would spoil the aesthetic appeal of the building. Thus, with the consent of the complainant, he drilled through the lintel and laid the pipes. As stated above, the B-Tech block was not constructed by him and chocked/blocked unused pipes were still lying in the structure of the B-Tech Block. It was further pleaded that the complainant wanted him to do the extra civil works at no additional cost. He told the complainant that the said work required lot of efforts i.e. labour, material, time etc., for which complainant would have to pay for the said additional civil work, but the complainant did not agree for the same. Ultimately complainant told him that same would be done at its own level. However, no such problem surfaced in the MBA Block and Workshop Block, which was completely done by him. OP raised the bill amounting to Rs.3,86,100/- for the electric work done by him, vide invoice No.10, but the complainant paid only an amount of Rs.3,00,000/-. It was further pleaded that he was carrying out the work allotted to him efficiently and effectively, but the complainant lagged behind in making the payment. The complainant also asked him not to go ahead with the scheduled construction of the first floor of MBA Block for the reasons best known to him. He requested the complainant a number of times to allow him to carry out the construction work as he had already made the arrangements for the labour, material etc. and had already raised 32 columns as per plan. He told complainant that he would be suffering huge loss in case the construction of the first floor of the MBA Block was not allowed to be completed. Sensing no way out, complainant resorted to act of violence. On 26.5.2010, when he and his labour were working at the 7 F.A. No. 190 of 2012 site of construction, the complainant alongwith Baldev Singh, Kulwinder Singh, Neel, Pamma, Buta Singh, Makhan Bajwa and others attacked them and beat them up. One of the labourers sustained multiple injuries. An application was also moved by him before SHO Police Station, Kotwali Barnala to that effect. The act and conduct of the complainant forced him to abandon the work. Some small portion of the electric work in the MBA was left incomplete. He was helpless to retrieve the material and his equipment left behind at the site. He left the institute around 26.5.2010 and the damage, if any, was reported about a year later. Hence, by no stretch of imagination, he can be held liable for the alleged damage suffered by the complainant. The complaint was filed only to harass him and to usurp the amount due from the complainant. Receipt of an amount of Rs.17,00,000/- from the complainant was admitted. Denying all other allegations, dismissal of the complaint was prayed.
4. Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, allowed the complaint, in aforesaid terms.
5. Aggrieved by this order, the OP has come up in appeal on the grounds that the complainant on the one hand mentioned that the agreement was reduced into writing on 27.2.2010 and on the other hand he stated in his complaint in Para 3 (c) that after the agreement, OP started the construction of the building in January, 2009 and did not complete even 25% of the work upto July, 2009, due to which, the complainant failed to start the MBA course for the session 2009-10. Part payment of the contract was made by complainant after being 8 F.A. No. 190 of 2012 fully satisfied with the pace and quality of work. Since complainant institute was not successful, in order to over come its financial burden and to escape its liability, it filed the present complaint. The work was being carried out to the satisfaction of the complainant, but he was unable to execute the remaining work as the payment was not released to him. It is surprising that the complainant paid total amount of Rs.17,00,000/- to the OP for the construction of building, including electrical work and now he is demanding damages to the tune of Rs.15,00,000/- on account of its repair only. Thus, the claim of the complainant is highly exaggerated and not at all justified. No loss has been established on record by the complainant. Infact, there was no evidence of any such loss. Mere demand would not be sufficient for grant of damages against the OP. It was further submitted that material worth Rs.4 to 5 lacs was still lying in the college premises and complainant is not allowing OP to pick the same from site. The District Forum has mis-read the documentary evidence placed on record by OP and has given undue weightage to the evidence led by the complainant which resulted miscarriage of justice. Acceptance of the appeal and setting aside of the impugned order was prayed.
6. We have thoroughly gone through the pleadings of the parties, have carefully perused the evidence on record and heard the learned counsel of the parties.
7. Admittedly, the complainant availed the services of OP for the construction of the building of MBA Block and the Workshop Block of the complainant institute and for electrical work of B.Tech Block, MBA Block and Workshop Block. The complainant has proved on record an 9 F.A. No. 190 of 2012 agreement executed between him and the OP on 27.2.2010, as Ex.C- 1; in which it is specified that construction of building comprising of 34,000 sq. ft. area was allotted to OP @ Rs.85 per sq.ft., which included plastering of walls, cleaning of the ceiling, constructing of the stair case and laying of the floor. In addition, work of the electrical fittings, including laying of the pipes, providing wires and fixing of the switches, was settled at Rs.3.5 per sq. ft. Installation of the fans/tubes were settled at Rs.30/- per piece. Payment schedule was also mentioned therein. OP has proved on record another agreement dated 16.4.2010 as Ex.R-5, in which it is mentioned that work started from 18.12.2009. In this agreement, which is signed by the complainant, the covered area of the building is mentioned as 34,000 sq. ft. Electrical work was to be done in an area of 77,000 sq. ft. The rates mentioned in this agreement tallies with those stated in agreement proved by the complainant.
8. The specific grievance of the complainant is that the work of construction of MBA Block was delayed by the OP, which resulted into non starting of the MBA Classes for the session 2009-2010, as a result of which complainant suffered a loss of Rs.4,00,000/-. It is further the case of the complainant that at the time of laying of the lintel for the roof, OP did not create space for fixation of fans and tubes. Thereafter, OP made holes in the lintel with the help of drill machines for installing under ground pipes in the ceiling/lintel for the supply of electricity and for fixing fans. This work was done in a careless manner and was only meant to cover his mistake of non providing space for fans and tubes; which resulted in the leakage of rain water from the holes so created 10 F.A. No. 190 of 2012 by OP, due to which 70 ceiling fans, costing about Rs.80,500/-, were burnt. The hap-hazard manner in which the construction was done resulted into appearance of visible cracks in the walls and roofs. On the other hand, the stand of the OP is that the work started in the 2nd week of December, 2009 and included completion of the building of MBA Block left in-complete by previous contractor. The complainant also offered him the electrical work on 27.2.2010. The total area of the building offered to OP for construction was 34000 sq. ft. whereas Electrical work was to be done in 77000 sq.ft. area of building. It is contended by OP that Rs.17 lacs were received by him for the construction of the ground floor of MBA block having area of 17000 sq. ft. It is further contended by OP that he carried out electrical work in the buildings of institute including, B.Tech. Block, Ground Floor of MBA Block and Workshop block. The electrical work allotted to OP in B.Tech Block was earlier left incomplete by another contractor who was associate of the contractor Darshan Singh. He laid the underground pipes in the lintel, which were later on found to be chocked due to its improper and inefficient laying. This fact was brought to the notice of the complainant and the new underground pipes were laid in the lintel of B.Tech Block as per advice of complainant. It was the complainant who asked OP to carry out the work by creating holes in the lintel with the help of drilling machine. The said chocked/blocked unused pipes were still lying in the roof of the B.Tech Block. OP also completed the electrical work of MBA Block and Workshop Block but no such problem was existing in those blocks.
11F.A. No. 190 of 2012
9. To substantiate his case, complainant has led the evidence of an expert; namely, Er. Sushil Kumar of Hard Strata Engineers and Consultants, Barnala, as Ex.CW2/B, in which the expert stated that he inspected the B-Tech Block, MBA Block and Workshop Block of the institute and found that the conduit pipes, which were originally laid in the roofs of all building by contractor, got chocked by concrete and that junction boxes were also chocked due to poor workmanship of the contractor, in the said buildings. He further found that the OP tried to embed the conduit pipes in the roofs by chipping the slab of the building by making holes in the roof, due to which slabs/lintel were no more leak proof. Therefore, the rain water entered into the slabs resulting into burning of 70 electrical fans. He further pointed out that there was settlement of floors in MBA Block due to less compaction of the bed. The workmanship of plaster work of the walls was also found to be 30 mm thick against the required thickness of 12 mm. Even the shuttering of the columns was not got properly done on account of which concrete got extended at some points. He assessed the approximate loss as Rs.15,00,000/-. This report of the expert is supported by affidavit (Ex.CW-2) filed by Er. Sushil Kumar. But during his cross examination before District Forum, he admitted that inspection was done by him in the presence of complainant and OP was neither associated during inspection nor he was called. It was further admitted that his fee for inspection was also paid by complainant. He also admitted that he did not calculate the amount of Rs.15,00,000/- as loss suffered by complainant and stated that it was only his estimate. It was also admitted that he had not identified the 12 F.A. No. 190 of 2012 specific place where the loss had occurred and that he submitted a general estimate.
10. The OP has categorically stated that the said chocked pipes were existing in the B.Tech Block, the lintel of which was laid by some other contractor prior to handing over the work to him. It is further the stand of the OP that the fresh holes were made in the ceiling/lintel to embed the pipes in the ceiling and to install hooks for the fans as per the direction of the complainant. In such a situation, the roof/lintel was bound to get damaged. The expert has admitted in his cross- examination that he did not identify the place where loss has occurred and submitted a general estimate. Thus, it cannot be said that blocked conduit pipes were also found in the work done by OP. It was thus likely that rain water leaked through the said chocked conduit pipes. Since it is not confirmed whether chocked conduit pipes were provided by OP or the previous contractor, OP cannot be held responsible for the same.
It is further the specific case of the OP that the complainant wanted to get rectified the damaged ceiling/lintel from him without extra payments and that, it was on account of this dispute, coupled with non-payment of the dues for the civil work done by him, that the construction work was abandoned. The report of expert, which was prepared at the behest of complainant at the back of OP, cannot be said to be impartial and authentic. His own admission that he prepared the same without identifying the location and without calculations, renders this report unreliable, more so, when no details of the loss of Rs.15 lacs is provided. It is not understood how the expert reached at 13 F.A. No. 190 of 2012 this figure without making any calculations. A loss of Rs.15 lacs in a job having total value of Rs.17 lacs is beyond imagination. The report of expert is sketchy, very vague and prepared without justification. It is nothing more than a procured document and hence, is not reliable. Learned District Forum has awarded a compensation of Rs.15 lacs, as estimated by expert, without any justification, reason or rhyme.
11. The only defect, which is not challenged by the OP, is with regard to the settlement of the floors and the poor workmanship of the plaster work on the walls of MBA block, which was found to be 30 mm thick instead of 12 mm. But since no the specific details about the quantum of the loss is mentioned, the loss suffered by the complainant on this account cannot be assessed accurately. In our considered opinion a lump sum amount of Rs.1,00,000/- would be sufficient to compensate the loss suffered by the complainant on account of settled floor and Rs.25,000/- for poor quality of plaster on walls. Since the ceiling fans were got damaged due to the rain water that leaked through the abandoned conduit pipes, which were probably installed by earlier contractor, OP cannot be held liable for the same.
12. In view of the above discussion, the appeal of the OP is partly allowed and impugned order of the District Forum is modified to the extent that OP is to pay a consolidated compensation of Rs.1,25,000/- only to the complainant for the loss suffered by it.
13. A sum of Rs. 25,000/- was deposited by the appellants at the time of filing of the appeal before this Commission. Another amount of Rs.1,00,000/- was deposited by them vide receipt No.585005 dated 23.04.2012 as per directions of this Commission. Both these amounts, 14 F.A. No. 190 of 2012 alongwith interest which has accrued thereon, if any, shall be remitted by the registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
14. The arguments in the case were heard on 04.03.2015 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER March 09, 2015 KK