State Consumer Disputes Redressal Commission
Smt. P. Subbulakshmi W/O. R. ... vs S. Pachaimuthu S/O. Solaimuthu 555/1, ... on 24 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSSAL COMMISSION, BEFORE THE STATE CONSUMER DISPUTES REDRESSSAL COMMISSION, MYLAPORE, CHENNAI 600 004 PRESENT: HONBLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT THIRU J. JAYARAM, M.A.,B.L., MEMBER
(JUDICIAL) THIRU. SAMBANDAM MEMBER II F.A.NO.214/2007 Dated this the 24th day of JANUARY 2011 (Against the order in O.P.No.137/2003, on the file of the District Forum, Coimbatore) S. Pachaimuthu S/o. Solaimuthu 555/1, Gandhi Nagar Ganesh Nagar Extension, GN Mills Post, Coimbatore-641 029 Appellant/ Opposite party Vs. Smt. P. Subbulakshmi W/o. R. Padmanabhan SPM Nagar, Site No.13, G.N.Mills Post Coimbatore- 641 029 Respondent/ Complainant The respondent as complainant filed a complaint before the District Forum, against the appellant/opposite party, praying for a direction to the opposite party to pay the cost of repairs, to deliver the sale deed, Rs.1300/- per month towards water charges, alongwith compensation and cost. The District Forum allowed the complaint. Against the said order the appeal is preferred praying to set aside the order of the District Forum in O.P.No.137/2003 dt.15.3.2007.
Counsel for the appellant/Opposite party: M/s. P.D.Audikesavalu Counsel for the respondent/Complainant : M/s. S. Kumaradevan JUSTICE M. THANIKACHALAM, PRESIDENT
1. The opposite party is the appellant.
2. The opposite party published a booklet, announcing a housing scheme, and attracted by the same, the complainant had agreed to purchase house site No.13, and entrusted the construction work also to the opposite party, fixing total cost of Rs.450000/-. The site area was 1144 sq.ft., and building area agreed was 610 sq.ft. In addition to the above cost, for staircase and additional room, the complainant paid a sum of Rs.79000/-. The opposite party who had agreed to construct the building, as per the specification, committed defect in construction, as detailed in paragraph 5 of the complaint, in addition not providing athikadavu drinking water, resulting the complainant incurring expenses of Rs.1300/- p.m for purchasing water. Though the sale deed was executed, that was not delivered to the complainant, in addition to the defective construction. Thus the opposite party had committed deficiency, causing mental agony, that should be rectified, issuing proper order, for which this complaint is filed.
3. The opposite party admitting that he had rendered service to the complainant, as well the purchase of site and construction agreement, in a way admitting the total payment also, resisted the complaint, that he has given extra land, measuring 528 sq.ft., for which he is entitled to extra cost, that for the construction of additional room, though a sum of Rs.79000/- was fixed, that amount was not paid, that there was no portico, and mosaic tiles in the specification, but was provided, for which the opposite party is entitled to a sum of Rs.79,442/- from the complainant, that within the specified time, possession was handed over, that when the amount payable to the opposite party, demanded, without any basis, a consumer complaint came to be filed, which is liable to be dismissed, that even without prejudice to the above said defence, the complainant is willing to rectify the genuine defects, if found, thereby praying for the dismissal of the complaint.
4. The District Forum, by its order dt.15.3.2007, based upon the commissioner report, concluded that there was deficiency in the construction, causing mental agony to the complainant, for which quantifying a sum of Rs.55000/-, directed the opposite party to pay the same, in addition to handover the sale deed, which are challenged in this appeal.
5. It is the common case of the parties, that the complainant had purchased a house site, from the opposite party, and had handed over the said site also, for the construction of a building, for which the agreed price was Rs.450000/-, which was paid admittedly, evidenced by Ex.A2 also, not in dispute. Though the complainant had claimed, as if he had given another sum of Rs.79000/-, for additional construction, on that basis, no relief is sought for. The main grievance of the complainant appears to be, that the construction was defective in nature, causing mental agony, that should be rectified, in addition the sale deed should be handed over to her. On the above basis, the prayer sought for are :
1. Order for the cost for the repairs of the defects prevailing on the building (the actual quantum can be as per the commissioners report)
2. Direct the opposite party to deliver the sale deed in original immediately
3. Cost of water purchased from private party Rs.1300/- per month till the regular supply is provided by the opposite party
4. A compensation of Rs.25000/- for the severe mental agony caused to the complainant The District Forum, accepted the prayers 1 and 2, as well as prayer 4 also, to some extent. The opposite party alone has challenged the order, not the complainant. Therefore, in this case, the purpose will be served, if we decide the defects if any in the construction, since the opposite party is willing to rectify the defects, if they are genuine, though it is alternative defence, without prejudice to other defense.
6. The opposite party, as seen from the written version, would contend that the complainant is liable to pay a sum of Rs.79,422/-, as per the account maintained by him, which account has not seen the light of the day, since that was not filed before the District Forum. Therefore, we are not going to decide about the amount payable by the complainant, and if at all the opposite party has to workout the same, independently, according to law.
7. In order to find out the discrepancy or the defects detailed in paragraph 6 of the complaint, upon application, a qualified engineer was appointed as commissioner, who had inspected the premises, and submitted report, without quantifying the amount, required for rectification of the defects. As seen from Ex.C1 defects, including improper design, defects in door, sump, drainage work, etc., which alone are catalogued in the complaint. For this commissioners report, no acceptable objection was brought to our notice. The opposite party based upon this commissioner report, obtained a certificate from a builder, as if to rectify the defects, noted by the commissioner, the amount required was only Rs.5000/-, which appears to be ridiculous, and inadequate.
Therefore, the District Forum reissued the warrant, or requested the same commissioner to value the cost for the rectification of the defective construction, and accordingly he estimated the same at Rs.1 lakh. The District Forum has not accepted the engineers report, as such, whereas it reduced to the extent of Rs.50,000/-, as seen from the judgement, though details are lacking. When the qualified engineer has stated, that the total cost required for the rectification will be more than a lakh, the District Forum reduced to 50%, for which the opposite party cannot have any grievance, and if at all the complainant can have grievance, which is not so before us. In this view, we find no error in the direction issued by the District Forum, directing the opposite party to pay a sum of Rs.55000/-, to rectify the defects in the construction, in addition a further sum of Rs.4000/-, nominal compensation for mental agony.
8. An attempt was made to say extra land was given to this complainant, for which we do not have any particulars, and in fact, even as per the written version, for the entire land, on which the construction was made, cost was worked out, and fixed as pleaded, not very much challenged. Therefore, on the basis of the extra land, said to have been given, or on the basis of the extra construction, said to have been made, the opposite party is not entitled to reduce the amount, which was quantified, only to rectify the defects in the construction. Therefore, there is no merit in this appeal, is liable to be dismissed.
9. In the result, the appeal is dismissed, confirming the order of the District Forum in O.P.No.137/2003 dt.15.3.2007. There will be no order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M. THANIKACHALAM MEMBER II MEMBER (JUDL) PRESIDENT INDEX: YES/ NO Rsh/d/mtj/Bench-I/Miscellaneous