State Consumer Disputes Redressal Commission
S.R.Bashyam, No.6/11, Venkateswara ... vs P.Chengalvarayan, No.394 (New No.711) ... on 7 March, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Honble Thiru Justice M.THANIKACHALAM, PRESIDENT Thiru.A.K.Annamalai, M.A., M.L., M.Phil., JUDICIAL MEMBER Thiru.S.Sambandam, B.Sc., MEMBER F.A.No.124/2011 [Against order in C.C.No.301/2009 on the file of the DCDRF, Chennai (North)] WEDNESDAY, THE 7th DAY OF MARCH 2012. S.R.BASHYAM, No.6/11, Venkateswara Nagar, 2nd Street, Adayar, Chennai 600 020. .. Appellant/Complainant /Vs/ P.CHENGALVARAYAN, No.394 (New No.711) EVR High Road, Opp. to Anna Arch, Chennai 600 106. .. Respondent/Opposite party The Appellant as complainant filed a complaint before the District Forum, against the opposite party praying for the direction to the opposite party to rectify all the defects, (or) in the alternative to pay a sum of Rs.5,00,000/- towards the cost of rectification of the defects, to pay a sum of Rs.20000/- towards damages to the interiors, to pay a sum of Rs.3,00,000/- for loss and mental agony on account of negligent and deficiency in service together with interest and to pay costs. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dated 1.12.2010 in C.C.No.301/2009. The appeal coming before us for hearing finally on 23.2.2012, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for Appellant/Complainant : M/s. A.Thayaparan, Advocate. Counsel for Respondent/Opposite party : M/s. S.Manohar, Advocate. ORDER
A.K.ANNAMALAI, JUDICIAL MEMBER
1. The unsuccessful complainant is the appellant.
2. Complainant filed a complaint against the opposite party claiming direction for to rectify all the defects such as cracks in the ceiling, plastering of walls, and ensure arrest of seepage of water in the ceiling and walls, all at the cost of the opposite party (or) in the alternative directing the opposite party to pay to the complainant a sum of Rs.5,00,000/- towards the cost of rectification of the defects, to pay a sum of Rs.20000/- towards damages to the interiors, viz., false ceiling and wood works caused to complainants building due to water dampness and seepage through wall, to pay a sum of Rs.3,00,000/- for loss and mental agony on account of negligent and deficiency in service together with interest and to pay costs.
3. Complainant who is the owner of the site at No.6/11, Venkadeswara Nagar, 2nd Street, Adayar, Chennai 20 entered into an agreement dated 24.5.2006 with the opposite party for construction of a residential building at a consideration of Rs.41,59,894/-. Even though majority of the amount except a paltry sum of Rs.6,00,000/- was paid to the opposite party he has not completed the construction in time and the construction was also not done in terms of the CPWD specification.
When the building was handed over to the complainant during May 2008 by the opposite party, the complainant was shocked to note the quality of construction and the defects as found in the building. There were several visible cracks in the ceiling, leakages and occurrence of dampness of water in the walls in several parts of the building where there. Due to the leakage in the ceiling and walls, rusting of iron structures which would weaken the masonry work would takes place.
There defects occurred only due to the using of poor and sub-standard quality materials used by the opposite party.
Due to the cracks in the ceiling and walls and due to the leakage of water it caused severe damage to the wooden floorings and the plywood works at home theatre room was damaged. The would work paneling and false ceiling work at master bed room also got damaged and the painting work in the wall also got stained and appears ugly.
In spite of these defects were brought to the notice of the opposite party on several occasions, the opposite party failed to rectify the defects but sought for payment of balance amount of Rs.6,00,000/-. In an inspection arranged with the opposite party along with architect even though the opposite party agreed to rectify the defects he failed to rectify the defects as such the complainant sent a letter dated 4.12.2008. The opposite party issued a reply dated 31.12.2008 stating that he is not responsible to rectify the defect and he also demanded for payment of Rs.6,20,221/- towards balance. Again the complainant issued a legal notice dated 22.1.2009 calling upon the opposite party to rectify the defects and repudiated the claim of opposite party towards balance. The opposite party again sent a reply dated 14.2.2009 with false allegations. If the concrete reinforcement was properly done and the plastering was done in a perfect manner there would not be crack and dampness in the wall and room. The weathering course is only an extra protection as such the opposite party is responsible for the sufferings of the complainant. Even after making payment of Rs.40,00,000/- the complainant was not able to use the building satisfactorily. Hence the complainant has come forward with this complaint seeking the relief as stated above.
4. The opposite party denied the allegations of the complainant that the opposite party entered into an agreement only with Mrs.Niranjani Bhasyam wife of the complainant. It is admitted that the opposite party has constructed and delivered the constructed building by May 2008. It is false to say that the complainant paid the major amount and he is yet to pay Rs.6,20,221.50 as per the account. It is false to say that the opposite party has constructed the building with poor quality. The construction was completed only as per specification given by the complainants architect M/s.CTC designers and the same was completed to the entire satisfaction of the architect and in the complainant. The defects of cracks, leakages and dampness in the walls are not due to any defect in the opposite party construction. The complainant utilized the services of several persons, for completing the work of water proofing and weathering course in the room.
The complainant also engaged other contractors for completing the wood work, interior works, electrical works and plumbing works. Water proofing and weather proofing is done to avoid leakages seepages of water and to protect the walls from getting cracks. When these works were done by some other contractors and when more than 5 contractors were involved in the construction, the complainant has come forward with this complaint against this opposite party alone in order to avoid payment of balance. This opposite party was responsible only to raise the super structure and the finer aspect of water proofing and whether proofing having been done by some other contractors. This opposite party cannot be held responsible for the cracks developed and water leaking. Only complainant had come forward with the issue of defects in the construction.
There was no defect or deficiency in service on the part of the opposite party. The rectification advised during the inspection also relate only to the work of water and weather proofing and not for construction. The construction was approved and certified by the architect as early as on 6.3.2008. During inspection it was explained that due to wrong weather proofing and water proofing improper slopes over roofs and defects in plumbing and electrical works, the cracks and dampness occurred. In spite of such explanation the complainant has come forward with the claim that too without adding the other contractors as a party to the proceedings. Hence the opposite party prayed for the dismissal of the complaint.
5. On the basis of both sides materials and after an enquiry the District Forum dismissed the complaint by stating that the complainant failed to prove the negligence and deficiency in service on the part of the opposite party.
6. Aggrieved by the order of the District Forum the unsuccessful complainant come forward with this appeal and contended in the grounds of appeal among other things that the District Forum erred in considering the complainants case and when the opposite party admitted the defects as per the documents relied upon there is no need for any appointment of Advocate Commissioner or qualified Civil Engineer to note down the defects.
Regarding the water proofing is done for additional protection and weathering course is done to prevent hit conduction prove the roof. The District Forum without considering the same to fix the responsibility and liability of the opposite party dismissed the complaint and there is no need for impleading other contractors since there is no grievance against them. Hence the complaint to be allowed.
7. While considering both sides arguments, averments and contentions it is the admitted case of both sides that the complainant has entrusted certain works under Exhibit A1 for the construction of a residential building to the opposite party for the consideration of Rs.41,59,894/- of which the complainant admitted a sum of Rs.6.00,000/- is due for payment to the opposite party and alleged defects in the building like deep cracks in the ceiling and side walls leakage of ceiling and dampness in the eastern wall of home theatre at the first floor and the master bed room and other cracks in the ceiling of stair case head room and dampening over north wall in the second bed room and drip of water. Due to the leakage the wooden works like wooden flooring paneling and other works in the rooms got damaged. Hence the complainant required the opposite party to rectify the defects and under Exhibit A2 the defects were pointed out and the opposite party failed to do the same.
Under Exhibit A2 it is reported that in the meeting held on 28.11.08 regarding the various defects between opposite party and other contractors interior architect, advocate and the parties have participated in which the defects pointed out or said to have been admitted to be rectified by giving consent by the contractor and under Exhibit A4 for the letter sent by the complainant to the opposite party by way of reply it is stated by pointing out the repairs in (1) Kitchen service area, ground floor (2) Home Theatre room (3) Master bed room (4) Head room north wall Sewerage line (5) Sons bed room (6) General notes in which for the defects in Serial No.1, the opposite party agreed to attend the defect and to rectify the same. Regarding the item No.2, and 3 it is pointed out that they have not executed any roofing and tiling work both at first and second floor level terraces. Therefore they are not responsible for the defects.
Regarding the item 4 it is pointed out that they were asked to stop their roofing works in stair cases/Gym room terrace mid way, while brick coba only were completed they were not allowed to complete finishing and testing of roofing. Hence they are not responsible for damages caused. For item No.5, it is pointed out due to improper fixing of granite sill slab leaving small gap between granite and wooden frame the granite slab was not fixed by them. Hence they are not responsible. Regarding the serial No.6 relates to general note it is mentioned in general visible dampness at various location electrical plumbing and floor or roof tiled works were not in their scope and they will attend all external cracks or flaking of plaster and these will be attended and rectified only after receiving the payments due to them as on date. From this document it is clear that all the defects pointed out not related to the opposite party and for certain items relating to the roof as pointed out in serial No.4 they were asked to stop work and were not allowed to complete the work and thereby the were not in a position to attend the defects and regarding the documents relied upon by the opposite parties concerned under Exhibit B1, the statement related to the work done and payment details there is no mention about the alleged water proofing and other related work, entrusted with the opposite party. Under Exhibit B2 and B3 it is stated relating to the bill for the work done estimated for a value of Rs.5,09,200/- by the architect designer in which also water proofing related works are not pointed out and further under Exhibit B3 and as per the document under Exhibit B4 the spot inspection made by the architect stated in his affidavit in para 6 it is stated the water proofing and weather proofing are not done properly thermal cracks and to avoid leakages seepages of water during the rainy day and because of inadequate work and not properly done such leaks and damages happened in November 2008 and the water proofing and weather proofing etc., on roof terrace were executed by another agency who was engaged by the complainant directly and the opposite parties contended for the purpose of construction work apart from the opposite party by 5 other contractors (1) for water proofing (2) for weather proofing (3) for interior works (4) for electrical works (5) For plumbing works and this is not denied by the complainant. In those circumstances the complainant failed to prove by inspection of building for defects through the Advocate Commissioner along with qualified engineer inspection regarding the defects in the building relates to the works done by the opposite party alone as the complainant has not come forward to segregate the works done by the opposite party in the construction for which alone he sought the relief. But as pointed out by the opposite party when the complainant failed to implead other contractors as necessary parties to decide the liabilities and responsibilities of each of the contractors with reference to the defects alleged and in view of the details as found in under Exhibit A4 since the opposite party alleged that they were not allowed to attend the roof work and other works and the works were stopped by the complainant and these details are not denied and further on payment of balance amount alone the opposite party agreed to attend the defects which are to be attended by them alone. The complainant admitting the balance payable has not come forward to prove that the balance was paid and the reasons for the same if not paid and in those circumstances the District Forum considered all the relevant aspects from the materials placed before it by either parties and came to the conclusion that the complainant has miserably failed to establish the negligence or deficiency on the part of the opposite party with this finding we are in full agreement in view of the foregoing reasons and the discussions made and thereby this appeal deserves to be dismissed as devoid of merits by confirming the order of the District Forum.
8. In the result, the appeal is dismissed by confirming the order of the District Forum, Chennai (North) in C.C.No.301/2009 dated 1.12.2010. No order as to costs in this appeal.
S.SAMBANDAM, A.K.ANNAMALAI, M.THANIKACHALAM, MEMBER JUDICIAL MEMBER PRESIDENT INDEX : YES / NO sg/B-I/aka/Construction