State Consumer Disputes Redressal Commission
Selvin John vs Jose T M on 26 May, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO. 32/16 JUDGMENT DATED:26.05.2016 PRESENT : JUSTICE SHRI. P.Q. BARKATHALI : PRESIDENT SHRI.V.V. JOSE : MEMBER Selvin John, S/o Thapasimuthu Nadar, Thottathil House, Panamaram P.O, PIN-627 072. : APPELLANT (By Adv: Sri. Balu.M) Vs. Jose T.M, S/o Mani, Thottathil House, Eachome P.O, : RESPONDENT Panamaram P.O, PIN-627 072. JUDGMENT
JUSTICE SHRI. P.Q. BARKATH ALI, PRESIDENT This is an appeal filed by the opposite party in CC.230/14 on the file of Consumer Disputes Redressal Forum, Wayanadu, Kalpetta challenging the order of the Forum dated August 25, 2015 directing the opposite party to pay to the complainant Rs.2,20,000/-/- being the cost of the construction of the compound wall and retaining wall and to pay a compensation of Rs.25,000/- and cost of Rs.5000/-.
2. The case of the complainant as testified by him as PW1 before the Forum and as detailed in the complaint in brief is this:-
The opposite party is a contractor engaged in the building construction. Complainant entered into an oral agreement with the opposite party to construct his house, retaining wall and compound wall. Complainant paid Rs.2,70,000/-. The construction was completed on October 30, 2013. On October 23, 2014 entire retaining wall fell down. On the southern side of the retaining wall the filled soil completely slided down. All these happened due to the defective construction of the wall by the opposite party. Opposite party has not provided sufficient air holes and drainage system to drain the rain water. Proper foundation was also not provided. Sufficient pillers were not constructed by the opposite party while constructing the retaining wall. Complainant had spent Rs.2,70,000/- for the construction of retaining wall and compound wall. Complainant filed the complaint claiming a compensation of Rs.4,50,000/-.
3. The opposite party in his version contended thus before the Forum. It is not correct to say that opposite party entered into an oral agreement with the complainant for the construction of house retaining wall and compound wall. Opposite party had done the construction work on coolie basis. Rs.2,00,000/- is due from the complainant. When the opposite party demanded the amount; complainant filed the complaint to escape from liability. The construction of retaining wall and compound wall was done by the complainant himself. Therefore complaint has to be dismissed.
4. On the side of the complainant he was examined as PW1 and a witness as PW2 and he produced Ext.A1 series and no evidence was adduced by the opposite party before the Forum. Reports of the commissioner were marked as Exts.C1 and C2. On an appreciation of evidence the Forum found that there is deficiency of service on the part of the opposite party and directed him to pay to the complainant Rs.2,20,000/- being the cost of construction of compound wall and retaining wall and to pay compensation of Rs.25,000/- and a cost of Rs.5000/-. Opposite party has now come up in appeal challenging the said order of the Forum.
5. Heard the counsel for the appellant and the respondent/complainant who appeared in person.
6. The following points arise for consideration:-
Whether there was any deficiency of service on the part of the opposite party?
Whether the impugned order of the Forum can be sustained?
7. Though initially the opposite party disputed the construction of the compound wall and retaining wall by him subsequently in the additional version filed by him before the Forum, he admitted the construction of the same. Complainant examined one witness PW2 also to prove the oral contract between the complainant and opposite party. Therefore it is proved on the side of the complainant that the compound wall and retaining wall was constructed by the opposite party.
8. The specific allegation of the complainant is that immediately after one year of construction the compound wall and the retaining wall collapsed due to defective construction. The counsel for the appellant argued that the complainant unloaded granite stone in tipper lorry in his compound which resulted in falling of the compound wall but no evidence was adduced by him before the Forum to prove the same. Commissioner in his report Ext.C1 and C2 stated that 25 meters of retaining wall was in a collapsed stage and 5 meters length still existed which will collapse at any time. He also reported that there was no way provided for free passage of water and that wall collapsed due to non providing of proper drainage. He also found that wall on the northern side is totally collapsed. No evidence was adduced by the opposite party to show that there was no defect in the construction. Therefore Forum is perfectly justified in coming to the conclusion that there is defect in the construction of retaining wall and the compound wall and the wall collapsed due to the defective construction on the part of the opposite party.
9. Complainant as PW1 testified before the Forum that he had spent Rs.2,70,000/- for the construction of retaining wall and compound wall. It is not seriously disputed. Forum found that complainant can utilize some granites from the collapsed wall which can be valued at Rs.50,000/- and therefore Forum directed the opposite party to pay to the complainant Rs.2,20,000/- being the cost of the construction of compound wall and retaining wall and to pay compensation of Rs.25,000/- and a cost of Rs.5000/-. We find no ground to interfere with the said finding of the Forum.
In the result appeal is dismissed with a cost of Rs.5000/-.
JUSTICE P.Q. BARKATHALI : PRESIDENT V.V. JOSE : MEMBER VL.