State Consumer Disputes Redressal Commission
Mr. Rosario Colaco vs Agnelo Cornelio Percy Gonsalves, on 29 March, 2010
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Appeal No.47 of 09 Mr. Rosario Colaco r/o H. No.71, Cupem, Nuvem, Salcete Goa. Appellant (Original Opposite Party) v/s Agnelo Cornelio Percy Gonsalves, Represented by Power of Attorney, Mrs. Amelia Mariquina Zuzarte r/o H. No.514, St. Anthony Waddo, Colvale, Bardez Goa. Respondent (Original Complainant) For the Appellant Shri G Agni, Advocate and Advocate A. Fernandes present at the time of order. For the Respondent ..Shri P. Vengurlekar, Advocate Dated: 29-03-2010 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The quality of construction entrusted by the respondent to the appellant is at the centre of the controversy between the parties. The respondent is the complainant and the appellant is the opposite party before the forum below.
2. The complainant agreed to entrust the construction of a bungalow in his plot of land at Siolim Goa to the opposite party to the opposite party, a civil contractor, by an agreement for construction dated 17-09-2002. An amount of Rs. 8,05,000/- was paid as on December 2003. After casting the second slab, the complainant doubted the quality of construction of the bungalow and approached the Department of Civil Engineering, Goa College of Engineering to assess the quality aspect of the bungalow. The institution deputed two engineers, namely Dr K G Gupta and Prof V Chodankar for the purpose and date of inspection was fixed. The opposite party was notified, but he refused to attend the inspection and questioned the authority of the complainant to appoint the engineers; he refused to consent to the inspection until an amount of Rs. 1,00,000/- was paid. The inspection was finally conducted on 04-03-2004 in the absence of the opposite party. The said engineers pointed out certain defects in the construction work and quantified the value of work done at Rs.
7,03,010/-. Due to poor quality of construction and apprehending further poor quality of work, the complainant terminated the contract by legal notice and called upon the opposite party to refund the excess amount of Rs. 1,01,990/- and to pay compensation of Rs. 2,00,000/- on account of poor work. As the opposite party failed to comply with the notice, a complaint came to be filed in the Consumer Disputes Redressal Forum (District Forum) North Goa registered as Complaint no. 46/2004.
3. But the opposite party refuted the complainants claim of poor quality of construction done by him. In his written version, he raised preliminary objection that the complainants claim required detailed evidence and consequently a civil suit was a proper remedy. Receipt of Rs. 8,00,000/-
was admitted as on December 2003. The report of Goa Engineering College was dubbed as bogus and several incongruities were pointed out. The construction was supervised by two engineers who never questioned the construction work. Two engineers, namely Shri P C Gupta and Shri Pascoal Noronha inspected the work and perused the Engineering College report and had submitted their respective reports. The cost of work executed was about Rs. 10,00,000/-. The legal notice issued by the complainant was replied to by the opposite party and a counter claim of Rs. 4,30,360/- was raised. The allegations of defective construction were raised to deprive the opposite party of his legitimate dues and unjustly enrich him. The complainant had commenced construction activities, not to rectify the defects, but to complete the construction of the bungalow. The opposite party submitted that termination of the agreement was illegal.
4. The report of Goa Engineering College generated a lot of controversy and heat in the course of the trial. The opposite party sought and was permitted to cross-examine Prof Vikas Chodankar by questionnaire to be answered on affidavit; however the reply was on the letter-head of Goa Engineering College and signed by Dr K G Gupta, Asst Professor. This was objected by the opposite party, and the District Forum specifically directed Prof Chodankar to file affidavit by order dated 12-01-2005. A reply on affidavit was filed, but answered/executed jointly by Prof K G Gupta and said Prof Chodankar. The opposite party again objected. The District Forum allowed the objection and again directed Prof Chodankar to file reply on affidavit, which was done. But the controversy was not over yet; the opposite party noticed divergent signatures of Prof Chodankar on the joint affidavit filed earlier with Dr Gupta and that on the subsequent affidavit and called for forensic report by a handwriting expert. The plea was disallowed, but the opposite party produced a report by a handwriting expert opining that the signatures were not of the same person. An objection was raised regarding identification of the deponent; that he ought to have been identified by an advocate if not personally known to the notary and relied on AIR 1992 Bombay
149. After a plethora of applications and replies and the issue being tossed to this Commission and back in revision petitions preferred by the opposite party, the issue was finally settled by this Commission in order dated 20-02-2007 in Revision Petition no. 14/2006.
5. During the pendency of the trial, the opposite party filed a civil suit against the complainant in the Court of Civil Judge Senior Division at Mapusa, and placed copies of the plaint etc before the District Forum. When the matter was ripe for final arguments, the opposite party raised an objection that the complaint was filed through power of attorney holder and called for its dismissal on this count. But the objection was rejected by the District Forum by an order dated 22-11-2007. Another revision petition before this Commission (R.P. no. 16/2007) preferred by the opposite party against the said order came to be dismissed.
6. The complaint was finally disposed by an order dated 01-05-2009.
The District Forum relied on the report of Goa Engineering College and observed that quality of construction work was of poor quality and unsatisfactory and that the opposite party received excess amount of Rs.
1,01,990/- and that the facts were confirmed by various documents. The opposite party was directed to refund to the complainant the sum of Rs. 1,01,990/- and pay further aggregate sum of Rs.
1,25,000/- as compensation for poor work and damages.
7. We heard Ld Adv Shri G Agni on behalf of the appellant and Ld Adv Shri P Vengurlekar for the respondent at some length. Prior to that, Ld Counsel filed synopsis of arguments. We called for and perused the records and proceedings of the lower forum.
8. Ld Counsel for the appellants submitted that the District Forum was not in a position to appreciate the complicated questions of facts and law and it was appropriate for the civil court to decide the matter. Though the preliminary objections were dismissed on merits, no reasons were given for the same. Complaint in a consumer forum through power of attorney was not maintainable. The impugned order was illegal and bad as there was no material to arrive at a finding of poor work. The forum could have appointed an independent surveyor to ascertain the factual position. No reasoning was given by the District Forum on the finding on excess payment allegedly received by the opposite party. Likewise, there was no reasoning for the compensation granted. The District Forum erred in relying on the joint affidavit of Dr Gupta and Prof Chodankar when the affidavit was struck out by an order dated 28-04-2005. Incongruities in the Engineering College report were pointed out. The District Forum erred in not considering the reports of the opposite partys engineers P C Gupta and Pascoal Noronha.
9. On the other hand, Ld Counsel for the respondents took us through the facts of the case and the report prepared by Goa Engineering College. The opposite party chose not to remain present for the inspection by the two professors of the Engineering College though intimated. The opinion of experts on poor quality construction is set out in the report. The complainant had to spend about Rs. 2,00,000/-
to rectify the defective construction. The opposite party was duty bound to complete the construction without any fault or shortcomings. He took us through clauses nos. 1 & 5 of the agreement which made it amply clear that the opposite party had to execute the work in accordance with the plans and construction of the bungalow was his full responsibility.
10. In view of the rival contentions, the first question that arises for our consideration is whether the complainant proves that the construction work done was poor and sub-standard. The complainant has relied on report of Department of Civil Engineering, Goa Engineering College.
The observations and conclusions of the team are at pages 3 & 4 of the report. Photographs of the construction have also been annexed. On the other hand, the opposite party relied on reports of Shri P C Gupta and Pascoal Noronha, both Consulting Civil Engineers that purportedly supported his case. On perusal of the three reports, we found that the devil lay in the details. On many aspects, there is consensus amongst the three experts. Let us examine these points.
a.
In the case of GECs observation regarding one of columns on rear side of the building is not in plumb, the fact is admitted by both Gupta and Noronha. Hence, a construction deficiency confirmed.
b.
GECs next observation is that none of the walls and the offsets in the building is in proper plumb. Photograph (fig-2) shows the position. Though the fact is denied by both opposing engineers, the observation that all walls are out of plumb may be exaggerated. But nonetheless, when the column on the rear side is not in plumb, then the walls abutting it would invariably not be in plumb, or there would be an offset between the column and the wall. In any case, a construction deficiency.
c.
GECs next observation is several honeycombing in concrete. There is contradiction in the observations among the two opposing engineers. While P C Gupta observed that honeycombing is very rare and negligible, Pascoal Noronha stated that honeycombing is observed at many places especially at member junctions. The construction deficiency is confirmed. It is well known that honeycombing is a construction defect/shortcoming caused by improper shuttering, improper concrete mix and poor workmanship.
d.
GEC team next observed unevenness of the slab (soffit) at several places. Thickness of plaster as much as 20-25 mm is required to make slab even. Pascoal Noronha observed surface unevenness in many places. P C Gupta observed that such things do happen in construction; his observations reminisce a chalta hai attitude. To our mind, such unevenness would be caused by improper centering & shuttering of the slab and/or deficient centering material coupled with poor workmanship. A construction defect confirmed.
e.
Cracking of cantilever projection of chajja provided at lintel level in first floor and it being supported on several props is the GEC teams next observation. While P C Gupta denied any cracks and stated that the supports by 4 props are redundant, they can be removed anytime neither he nor Pascoal Noronha have commented on the continued existence of the four props long after normal stripping time. Neither did they think it proper to remove the four props in their presence at the time of inspection. We can only conclude that the cantilever slab would come crashing down had that been done.
f.
GECs test on a cored sample of the slab showing that reinforcement provided was improper is the last observation. Though both opposing engineers have belittled the test result only on the count that the minimum number of three core samples were not taken as per IS guidelines, in our view, the test result on the samples cannot be totally ignored. The two samples taken and tested by GEC show mean compressive strength of 98 kg/cm2 which is well below the required compressive strength of 150 kg/cm2 and minimum limits prescribed in IS 456:2000. In our opinion, the complainant has succeeded in casting a doubt on the quality of the concrete used in the building; concrete being the major component of the work done by the opposite party.
11. The opposite party argued that the GEC report is bogus and that the inspection never took place on 19-02-2004 as alleged in the report and there was no mention of the other date i.e. 04-03-2004 on which date the second inspection is stated to have taken place. It is seen from the records that the opposite party was notified about the impending inspection by the GEC team but he declined to remain present; in such circumstances, there is no merit in the objection. The date of second inspection on 04-03-2004 is mentioned at page 1 of the report. The objection that Prof Chodankar did not sign the report does not hold any water since the said witness has admitted in cross that he had prepared the report alongwith Dr Gupta and had signed the same.
12. In the light of the foregoing, we unhesitatingly hold that the complainant has proved deficient and sub-standard quality of construction work done by the opposite party.
13. The next issue that arises for our consideration is the quantum of compensation that the complainant is entitled in view of our finding regarding deficient and sub-standard work. The complainant prayed for an amount of Rs. 2,00,000/- for rectifying the defects and Rs. 50,000/- on account of mental agony, inconvenience, etc on account of poor quality of construction.
The fact that some of the defects/deficiencies can be rectified is admitted by the two experts examined by the opposite party, though the exact cost of such rectification has not been ascertained by either party. But the fact remains that the defective works have to be rectified, albeit at a cost that would have to be borne by the complainant. One must also consider the additional cost of plastering to cover-up the unevenness of slab soffit, out-of-plumb walls, etc. Taking into consideration our findings on deficiencies in specific items of work, the cost of construction work undertaken by the opposite party and all other relevant aspects of the matter, we are of the considered opinion that the amount of Rs. 1,00,000/- awarded by the District Forum on this count is fair and reasonable and would be adequate to cover the cost of rectification works.
14. Insofar as the claim for compensation for mental agony, inconvenience etc is concerned, columns and walls out of plumb, severe honeycombing in concrete, unevenness of slab soffit, weak cantilever slab and concrete strength much below acceptable standards etc must have undoubtedly caused much anguish and pain to the consumer building his own house. No prudent person would accept such work moreso in the construction of his own house. In the facts and under the circumstances, the nominal compensation of Rs. 25,000/- awarded by the District Forum is adequate and would meet the ends of justice.
15. The next point that arises is regarding the complainants claim for refund of the amount of Rs. 1,01,900/-. It is his case that the GEC team had valued the construction done by the opposite party at Rs.
7,03,010/- which was Rs, 1,01,990/- short of the amount paid to the opposite party. The opposite party has contested this claim and submitted that he had actually spent about Rs. 10,00,000/- on the construction work. The parties had settled the payment terms in clause 3 of their agreement dated 17-09-2002. Inter-alia, it was agreed that the amounts would be paid as per completion of work. Prima-facie, it appears that the work done by the opposite party is more than the amount of Rs. 8,05,000/- paid by the complainant since, admittedly, the second slab has been cast and some masonry and plastering work has been completed. On the other hand, it is the complainants case that he withheld payments on account of sub-standard work done by the opposite party. Although the GEC team has assessed the value of work at Annexure I of their report, they have not provided any basis for or source of the rates of the respective items of work. Nonetheless, since the parties had already agreed on payments in stages as per progress of construction, we would presume that the instalments were fixed after mutually valuing the cost incurred at each stage. In our view, the complainant has not made out a case for refund of such alleged excess amount received by the opposite party.
16. That brings us to the opposite partys contention that a complaint cannot be filed by a power of attorney of the complainant but has to be filed by the complainant himself. Reliance was placed on Sourabh Offset Printers vs. K S Gupta II (2002) CPJ 441.
The objection was not raised in the written statement but only at the fag end of the proceedings i.e. at stage of written arguments of the opposite party. The opposite party was well aware of this fact and a copy of the power of attorney was placed on record alongwith the complaint. Nonetheless, the complainant stated in paragraph 14 of the complaint that on account of his employment abroad he has given power of attorney to Mrs Amelia Zuzarte who is aware of the facts of the case. Said Amelia approached the Goa Engineering College to conduct the assessment of the construction. In these circumstances, in our view, there would be no bar to the complaint being filed by the duly constituted attorney of the consumer. Besides, the Honble National Consumer Disputes Redressal Commission, while dealing with the point in Consumer Education & Research Society vs. New India Assurance Ltd R. P. 2721/2007 held as follows:
Unfortunately, in the present case, an over-technical view has been taken by the State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act).
This is erroneous. It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties.
Repeatedly it has been observed that complaint alleging defects in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action.
If required, it can be entertained after recording statement of the Complainant and if grounds are made out, notice is required to be issued to Opposite Party.
This is forgotten and we still erroneously try to adhere to the procedure prescribed under the C.P.C. or elsewhere.
17. The last issue that we shall touch upon is the opposite partys submission that the civil court would be the appropriate forum to deal with the matter. We do not agree. The dispute, simply put, is one of sub-standard and defective construction work. The case of the parties is based on the reports of their experts which are on record, there being a consensus amongst the experts on many issues. The case did not require voluminous evidence to be recorded or any complicated questions of fact and law to be decided.
18. In the result, the appeal is partly allowed. The impugned order dated 01-05-2009 stands partly modified to the limited extent that the direction to the opposite party to pay the complainant a sum of Rs. 1,01,990/- is set aside. The remainder of the impugned order shall remain unchanged. The appellant/opposite party shall pay the amount awarded to the respondent/complaint within thirty days from today; in default, the same shall be paid alongwith interest @ 12% p.a. thereafter till full payment. In the circumstances, the parties are left to bear their own costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member