State Consumer Disputes Redressal Commission
Er. G.Raja 196, H/1, Sundar Nagar Thiru ... vs M. Kamaraj 3-2/1, Kirubai Illam 1St, ... on 24 March, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.97/2006 (Against order in O.P.NO.264/2004 on the file of the DCDRF, Madurai) DATED THIS THE 24th DAY OF MARCH 2010 Er. G.Raja 196, H/1, Sundar Nagar Thiru Nagar Madurai 625 006 Appellant/Opposite party Vs. M. Kamaraj 3-2/1, Kirubai Illam 1st, Street, II Cross Street Appadurai Nagar Koodal Nagar Madurai 625 018 Respondents/Complainant The Respondent as complainant filed a complaint before the District Forum against the Appellant /opposite party, praying for the direction to the opposite party to award Rs.45000/- being the expenses incurred by the complainant, to pay Rs.15468/- towards the loss of pay, Rs.50000/- for mental agony and to pay cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.8.2005 in COP No.264/2004. This petition coming before us for hearing finally on 5.03.2010. Upon hearing the arguments of the counsel on either side, this commission made the following order: Counsel for the Appellant/Opposite party: M/s. Kavinilavu, Advocate Respondent/ Complainant: Mr. K. Ganesan, Advocate M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The complainant/ respondent, knocked the doors of the District Forum, seeking certain reliefs on the following grounds.
3. The opposite party undertook to arrange, and to supervise the construction, engaging labourers also, to arrange for the purchase of the building materials, on the basis of the agreement, that the complainant had agreed to pay service charge of 3% to him, as demanded. Pursuant to the same, construction work commenced in January 1999, completed by December 1999, and possession was handed over.
4. The complainant noticed cracks in the wall on 8.12.2003, and other damages, which were caused due to non-construction of earth beem or other supporting base underneath the two walls, thereby the opposite party, who undertook to supervise the construction, failed to do so, resulting deficiency, thereby causing damage to the building, which gave mental agony to the complainant, thereby putting him to loss, which should be compensated. The complainant, spending a sum of Rs.45000/-, re-constructed the damaged portion, and for attending the said work, the complainant and his wife have applied earned leave, thereby there was a salary loss of Rs.15,468/-, in addition for mental agony also, and the complainant is entitled to Rs.50000/-.
5. The appellant/ opposite party, denying the averments in the complaint, would contend that as a friend of the complainant, though at request of the complainant, he had agreed to supervise the construction work, and rendered possible help, in purchasing the materials, there was no remuneration of any kind or service charges or percentage, received, as falsely alleged. The building if at all had damaged, only because of the negligence committed by the complainant, for which, a claim is made after 4 years, which is barred by limitation. There was no privity of contract between the complainant and the opposite party, and at any point of time, this opposite party had not undertaken to perform service, and in this view, the case filed is not at all maintainable, thereby praying for the dismissal of the complaint.
6. The District forum, while evaluating the materials placed before it, felt that there was deficiency on the part of the opposite party, since he had agreed to perform service, that because of the ineffective supervision, and to provide service efficiently, the complainant was put to a loss of Rs.45000/- in repairing the house, and for the same, the complainant is entitled to a compensation of Rs.20000/-. Thus issued a direction to pay the above said amount, with interest, including the cost, as per the order dt.10.8.2005, which is impugned in this appeal.
7. Heard, the learned counsel for both parties, perused the written submissions, lower court records and the order passed by the District Forum also.
8. The learned counsel for appellant would contend that there was no privity of contract between the complainant and the opposite party, for rendering any service for consideration, and this being the position, without any supportive materials, the District Forum, has issued an erroneous order, as if the opposite party was a service provider, which should be set aside. It is the further submission that the claim was made after 4 years, from the date of taking possession, which is clearly barred by limitation, not properly considered by the District Forum, resulting injustice, which should be redressed by this commission. Elaborating the above submissions, drawing our attention to various documents relied on by the parties, a forcible submission was made further to allow the appeal.
9. on the other hand, it is the submission of the learned counsel for the respondent/ complainant, that even as per the case of the opposite party, he had rendered service, which were proved to be ineffective, resulting damage, properly considered by the District Forum, not to be interfered. The further submission is, that from the date of cause of action viz.
when the complainant had noticed the cracks in the building, repaired and within two years, the case has been filed, and therefore question of limitation will not come to the aid of the opposite party, to nevative the claim of the complainant.
10. We have given our anxious consideration, to the above submissions, and by perusing the documents, as well as scanning the pleading meticulously, we are of the considered opinion, that the District Forum has not properly approached the case, based upon the pleadings, and evidence, and therefore allowing the order to stand as such, may amount to injustice to the opposite parties, and in this view, our conclusion is the appeal deserves to be accepted, and the reasons are hereunder.
11. In the complaint, in paragraph 3, it is alleged that the complainant agreed to pay a service charge of 3% to the opposite party, as demanded, and also agreed to remit all the payment to the employee through the opposite party. Thus alleging, an attempt was made to say that the opposite partys service was hired, and he failed to perform the service effectively, amounting to deficiency, since according to the complainant, in the building, there were cracks, causing damage to the extent of Rs.45000/-, for repair. Neither in the complaint, nor in the affidavit, it is alleged that pursuant to the said agreement, service charges were paid, to the opposite parties or he had received the hire charge, or service charge, as the case may be.
Admittedly, there is no written agreement also, between the parties, incorporating the terms and conditions, for rendering service. This being the position, in our considered opinion, prima-facie, the complainant has failed to prove the privity of contract between him and the opposite party, which should follow the opposite party cannot be termed as service provider or a builder who alone will come within the meaning of service provider.
12. In the written version, the opposite party had admitted, that he had agreed to supervise the work, as well he helped as far as possible to purchase materials, for the construction of the building. At the same time, it is the specific case of the opposite party, that there was no agreement between himself, and the complainant, for rendering service, and in fact, it is the further case of the opposite party, that he had not received any fee by way of charge or commission etc. This plea, or the defense, as the case may be, was not properly considered by the District Forum, could be seen from the careful reading of the order, as well as the document referred by the Fora also. If the opposite party had agreed to supervise the construction, he should be a party to the document viz. in preparing the plan, estimate, and other related document, being the qualified engineer. But as seen from Ex.A4, one Mr.Mohan, has prepared the plan, for the construction of the house, in the property belongs to the complainant. In para 4 of the complaint, it is said, the damage was caused due to non-construction of any earth beem or other supporting base, underneath the walls. The building appears to have been constructed as per Ex.A4. It is not the case of the complainant, that being the supervisor, the opposite party deviated Ex.A4 plan. Therefore, while preparing the sketch or drawing, when supporting base or beem, were not provided, it cannot be the fault of the opposite party, who is said to have been supervised the work, and it should be the fault of the complainant in choosing the civil engineer, who had prepared Ex.A4, plan.
13. Ex.A5 is not the estimate for the building, whereas it is the estimate for the construction of the compound wall, which took place after the construction of the building, and in the compound wall, there is no defect, as seen from the complaint.
Therefore, the fact that the opposite party had prepared the estimate for the construction of the compound wall, which has nothing to do with the allegations made in the complaint, will not improve or advance the case of the deficiency against the opposite party.
One Mr. M. Balamurugan, was the labour contractor, as seen from Ex.A8, wherein, as engineer, this opposite party had signed, as per the schedule. It seems through the opposite party the said Balamurugan had collected money from the complainant, for which Balamurugan has given a statement, as mason, wherein also, we find no incriminating evidence, implicating the opposite party, as if he was also paid the service charge or anyother charge. Therefore, assuming that the opposite party has provided labours, in the absence of any specific proof, that the opposite party was paid separately higher charges, or he was solely entrusted, the construction for which defective construction if any, he cannot be held responsible, as incorrectly accused, which was improperly accepted by the District Forum.
In the payment receipt also, though the same was in the letter pad of the opposite party, Balamurugan signed, for the receipt of the payments, wherein we find nothing implicating the opposite party, as if he had also taken commission, which can brought him within the meaning of service provider. Therefore, only on the basis that the opposite party had rendered some help, that too in the absence of any material to prove that the opposite party had benefited himself or the complainant had paid any service charge, it is not at all possible to conclude, that the opposite party had failed in his duty, in not properly supervising the work, that too in not providing the beems, which alone appears to be the cause for the cracks in the building, as stated by the engineer, engaged by the complainant, therefter.
14. If really the building got damaged, due to alleged deficiency, said to have been committed by the opposite party, while preparing estimate or inspecting the premises by somebody, the matter should have been informed to him, which was not done in this case. On 18.12.2003, a notice has been issued to the opposite party, wherein it was alleged that cracks have been developed in the wall, kitchen, dining hall, and the wall sunk in the flooring etc., and the reason stated was, that the failure on the part of the opposite party to put up, a concrete lintel on the floor level, for that wall and adjoining the walls. In the said notice, it is not the case of the complainant, that the complainant had agreed to pay 3% of service charge or paid so, giving the details. Only when the case came to be filed before the District Forum, to attract the provisions of the Consumer Protection Act, belatedly as an after thought, as extracted above, 3% service charge included and the absence noticed, would suggest that was false, thereby taking the opposite away from the service provider, which should follow the complainant was not a consumer. In the notice, reason given for the crack is something different from the averments available, in the complainant. Even in Ex.A6 also, it is not the case of the engineer, who inspected the premises, that the building was not constructed, as per the plan prepared. It is also not made known, whether such beem was provided in the plan, and failed to be followed by the supervisor. In the absence of any contract between parties, for the service to be rendered for consideration, taking in to account, that the opposite party provided labourer alone, or helped the complainant to purchase certain materials, if there was any damage to the building, that will not come within the definition of deficiency in service, and in this view, the complaint is not maintainable, which is not properly analysed by the District Forum, warranting our interference.
15. The Consumer Protection Act, mandates the Fora, not to take the case on file, if the claim is made after the lapse of two year, for which it is mandatory for the complainant to plead, what is the date of cause of action. Unless the cause of action is pleaded and proved, one cannot say the claim is within the time or not. In this case, even according to the complainant, construction over, and possession handed over in the month of December 1999, and therefore that should be the cause of action for laying a claim for any deficiency, unless there is any contra contract between the parties, for which there is no plea. If the building had developed cracks after several years, that will not give cause of action, against the builder, and therefore generally the cause of action must be, in this kind of cases, from the date of taking possession of the building, on which date, the owner is expected to inspect the building, satisfying himself and take possession. In this case, admittedly even as pleaded, cracks noticed on 8.12.2003, for which even assuming that the opposite party had agreed to supervise, he cannot be held responsible, after four years, and in this view, it should be held, that the claim is barred by limitation. For the reasons recorded above, we have no hesitation, except to say, the appeal is meritorious, to be accepted.
16. In the result, the appeal is allowed, setting aside the order of the District Forum in C.O.P.No.264/2004 d.10.8.2005, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Miscellaneous