State Consumer Disputes Redressal Commission
Shiv Charan Singh Bhandari vs Shaheed Ahmed on 8 February, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 193 / 2012
Sh. Sayeed Ahmed S/o Late Sharif Ahmed
R/o Village Mehuwala Mafi, Dehradun
......Appellant / Opposite Party
Versus
Sh. Shivcharan Singh Bhandari S/o Late Gabar Singh Bhandari
R/o 181, Van Vihar, Dehradun
......Respondent / Complainant
Sh. Musa Khan, Learned Counsel for the Appellant
Sh. J.P. Kansal, Learned Counsel for Respondent
AND
FIRST APPEAL NO. 194 / 2012
Sh. Shivcharan Singh Bhandari S/o Late Gabar Singh Bhandari
R/o 181, Van Vihar, Dehradun
.......Appellant / Complainant
Versus
Sh. Sayeed Ahmed S/o Sh. Sharif Ahmed
R/o Village Mehuwala Mafi, Dehradun
......Respondent / Opposite Party
Sh. J.P. Kansal, Learned Counsel for the Appellant
Sh. Musa Khan, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 08/02/2017
ORDER
(Per: Mrs. Veena Sharma, Member):
These two appeals, one by the opposite party and another by the complainant filed under Section 15 of the Consumer Protection Act, 1986, arise out of the order dated 26.11.2012 passed by the District Forum, Dehradun in consumer complaint No. 19 of 2010, whereby the District Forum has partly allowed the consumer complaint and directed the opposite party to 2 pay Rs. 2,00,000/- towards compensation, Rs. 20,000/- for mental agony and Rs. 10,000/- towards costs of litigation to the complainant, within one month from the date of order, if the aforesaid amount is not paid within stipulated time, then the complainant shall be entitled to get interest @ 9% per annum from the date of institution of consumer complaint till the date of payment.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are that in the month of February, 2005, the complainant had purchased a plot of land measuring 257.77sq.yards situated in Mehuwala Mafi, Dehradun for construction of a residential house thereon. He got a building plan prepared by a qualified Architect and sanctioned by Village Pradhan and arranged loan from bank for construction of a residential house. The opposite party met with the complainant and offered to construct residential house as per the sanctioned plan @720/- per sq.ft. to be measured from the top of the roof to which the complainant had agreed. Thereafter, the opposite party got an agreement dated 16.12.2008 prepared and signed by the complainant and had given a copy of the same with promise to give its original after having signatures of the witnesses thereon, but the original agreement is still with the opposite party. The complainant had given a copy of the sanctioned building plan to the opposite party to commence the construction of house expeditiously. The complainant has no knowledge of the construction of residential house. The opposite party after inspecting the site, had assured the complainant to construct a good qualitative house. The opposite party was fully aware that the house is of two floor, viz. ground floor and first floor, though he was given contract for construction of only ground floor. The opposite party had not used building material as per specification. He had used scrap and spare material available with him and that too of inferior quality. The total constructed area of the house is 1907sq.ft., the total cost of which at the agreed rate of Rs. 720/- per sq.ft. comes to Rs. 13,73,630.40ps. Besides, the complainant got additional construction worth Rs. 1,13,265/-. Thus, in all Rs. 14,86,895.40ps. was payable to the opposite party, of which Rs. 14,73,000/- had paid to the opposite party by the 3 complainant. Remaining balance of Rs. 13,895/- was agreed to be paid after completion of the remaining work including construction of left out pillars and rectification of defects already crept up in the building like cracks in walls, leakage of water pipe lines, proper roof finishing etc. Despite of assurances given by the opposite party and repeated request made by the complainant verbally and in writing on 07.11.2009, the opposite party deliberately and negligently has failed to complete the remaining jobs and set right the defects, resulting complainant and his family members have been suffering mental and physical agony/torture and injury for which the opposite party is liable to pay loss and damages. As a Peshbandi and to deter the complainant, the opposite party served notice dated 21.11.2009 through his counsel Sh. Musa Khan falsely, illegally and wrongfully demanding a sum of Rs. 4,78,760/- together with cost of notice Rs. 2,000/-. After receiving the notice, the complainant got the house inspected by well qualified, experienced and licensed engineer, Building Planner, Surveyor, Structural Designer and Consultants to look at the gravity of cracks developed in the walls, various aspects and to suggest remedial action, if any, vis-à-vis to evaluate cost thereof. From the report of Engineer, it is evident that the opposite party has used building material of very poor and inferior quality and standard. The workmanship of the construction of the house is also very poor. He has utterly failed to maintain his performance in the required manner and he is guilty of gross negligence and deficiency in service rendered to the complainant. As a result, the complainant and his family members are living in the house with great fear and have suffered great mental shock, physical injuries, losses and damages, which at the moderate rate are assessed at Rs. 5,00,000/-. The said house suffers from basic defects which can hardly be set right without its demolition. Even to make the house habitable, substantial repairs are required to be carried out, for which the complainant shall have to incur atleast a minimum sum of Rs. 7,00,000/-. Besides, the complainant is also entitled to Rs. 7,000/- incurred by him in getting inspections of the house made by above engineers/consultants and Rs. 2,500/- as cost of demand notice dated 21.12.2009 served on the opposite party, total sum of 4 Rs. 12,09,500/- together with interest thereon @12% per annum from the opposite party, but the opposite party has failed to pay despite of service of the demand notice. The cause of action for this complaint arose to the complainant against the opposite party in December, 2008, when the opposite party met the complainant, offered to construct the house and both the parties had agreed on the terms and conditions mutually agreed upon between them. On 16.12.2008 when an agreement to this effect was executed on various dates till 07.10.2009 when the complainant made total payment of Rs. 14,73,000/- to the opposite party, leaving a balance of Rs. 13,895/- agreed to be paid to the opposite party on completion of the remaining work and necessary repairs by him. On 07.11.2009 when the complainant sent a letter to the opposite party to complete the remaining work and repairs within 15 days of the receipt of the letter. On 22.12.2009 on service of notice dated 21.12.2009 on the opposite party demanding him to pay Rs. 12,09,500/- within 20 days of the date of notice and on failure of the opposite party to pay the same. The complainant prayed that the opposite party be directed to pay to the complainant a sum of Rs. 12,09,500/- together with interest @ 12% per annum till actual date of payment and Rs. 10,000/- as cost of complaint.
3. The opposite party-Sh. Sayeed Ahmed has filed objections/written statement before the District Forum and has denied the alleged sale deed and its particulars for want of knowledge. That the contents of para No. 2 of the complaint is wrong and baseless and not admitted. In fact no building plan was ever prepared, shown to objector and no such alleged building has ever been part of the contract and no building plan was ever sanctioned by the Development Authority under the U.P. Act No. XI of 1973, rather the said land is situated within the development area of Dehradun Development Authority under Section-3 of U.P. Act No. XI of 1973 and no building plan ever sanctioned by the Mussorie Dehradun Development Authority (M.D.D.A) nor even any such building plan was ever shown or possessed by the complainant. The colony known as Van Vihar is not approved by the M.D.D.A. No village Pradhan is competent to sanction any such building 5 plan and the objector has not seen even any such building plan as alleged. Complainant is not a consumer within the meaning of Consumer Protection Act and has no locus-standie to file the complaint. About agreement of loan from any bank, the answering opposite party has no knowledge. Agreement dated 16.12.2008 is admitted. In fact the complainant had approached and persuaded to the opposite party for the contract which was ultimately entered into on the stipulated rates. The story about complainant for taking of the original agreement from the complainant for signatures of witnesses is totally false and baseless which is emphatically denied. The complainant neither gave any copy of any such allegedly sanctioned or unsanctioned building plan to the opposite party at any point of time nor any such building plan has ever been shown or given by the complainant to the opposite party nor has ever been part of the alleged agreement. The facts are that there was a contract of agreement dated 16.12.2008 in between the complainant and the opposite party under which the construction work according to the specifications and desire and design of the complainant was to be carried out by the opposite party on the stipulated rates from the opposite party's labour and the building material. In fact, it is the complainant who had to get the work done according to his choice and specifications from the opposite party's labour and building material under the supervisions, directions and skill of the complainant's own technical experts for his satisfaction during the course of working at the site. The complainant had made the running payments to the answering opposite party during the course of the development work carried according to the stipulated rates. It may be stated here that the complainant is bound to pay the final payment by clearance the entire amount of the extra work got done by him out of the objector/opposite party's labour and building material with interest thereon. No such alleged approved building plan was ever shown by the complainant to the opposite party. It may be stated here that the entire development work of the house was carried out by the complainant himself but the labour and building material supplied by the answering opposite party according to his choice, manner style and design and the complainant being fully satisfied from the labour work as well as 6 from the building material used according to his approved quality and standard of the building material so used by the labour, the complainant had made running payments to the answering opposite party. That it is important to state here that an amount of Rs. 13,73,630.40ps is the cost of work got done out of the answering opposite party's labour and cost of building material according to the specifications under the agreement. The cost of the extra work done comes to Rs. 4,78,760/-, as such the complainant had to pay a total sum of Rs. 18,52,390/- to the answering opposite party out of which the complainant has only paid Rs. 13,73,630.40 to the answering opposite party and has not paid Rs. 4,78,760/- being the cost of the extra work got done. Accordingly, the answering opposite party had requested the complainant to pay the balance amount of Rs. 4,78,760/-, but the complainant most malafidely, mischievously and vexatiously filed the present complaint against the answering opposite party instead of making payment of the said demanded amount. The present complaint is mischievously filed by the complainant against the answering opposite party so to somehow malafidely and illegally create undue pressure upon the answering opposite party and to circumvent the answering opposite party's demand of the said amount. It is wrong and afterthought to allege that the building material was not used as per specifications and scrap and spare material of inferior quality was used. It is totally false to allege that the cost of the additional work done comes to Rs. 1,13,265/- and the only amount of Rs. 13,895/- remained due and payable by the complainant to the answering opposite party. It is also wrong to allege that any remaining work of construction was left or any defect in the building like cracks in wall, leakage or water pipe-line or proper roof finishing is to be carried by the opposite party as wrongly alleged in para No. 6 of the complaint. In fact no work was left to be carried out and no alleged defects have occasioned or to be carried out by the answering opposite party. The complainant had acquired possession over the house after the completion of the entire work according to the agreement with extra work got done, entirely to the complainant's own utmost satisfaction. In fact the contents of the alleged notice dated 07.11.2009 from the complainant is totally false and 7 against the facts which the opposite party by his advocate the detailed reply cum notice dated 21.11.2009 has not only challenged and denied the allegations of the complainant but vide the said reply cum notice dated 21.11.2009 had called upon the complainant to pay the balance amount of Rs. 4,78,760/- with cost of the notice amounting to Rs. 2,000/-. The said reply cum notice of the opposite party objector was duly served on the complainant, but despite service of the said reply cum notice of the objector opposite party, the complainant did not pay the demanded amount to the objector opposite party and the complainant had then falsely, malafidely and mischievously got replied the said reply cum demand notice of the objector opposite party by sending to the objector's counsel Sh. Musa Khan a reply dated 21.12.2009 which is based on absolutely false, baseless and afterthought concocted story. It may be stated here that in case, the complainant had any grievance for the alleged incompletion of jobs or about removal of defects and about use of inferior quality of building material and use of scrap of spare material or about defect in the building as subsequently alleged in the reply dated 21.12.2009 and the present complaint then the complainant would have stated the same in his maiden statement in his notice dated 07.11.2009. That mere inspection by some alleged qualified engineer, the alleged engineer created miracles and defeated the method of scientific laboratory investigations for analyzing the evaluation of the quantity, quality and nature of the building material used in a particular building. It is astonishing that the complainant has not mentioned even the name of such miracles creating engineer nor has mentioned the date of such magical inspection in para No. 9 of the complaint. That in fact no person on earth can give any report by mere making inspection of the building with regard to the nature, ratio and the quality of building material used without making scientific laboratory analysis which is provided only in the Government Investigation Laboratory. The quality and workmanship is absolutely according to the specifications and the entire work was carried out under the complainant's supervision to his utmost satisfaction. The alleged complaint is illegal and void and the District Forum has no jurisdiction under law to grant 8 any relief to the complainant as wrongly illegally and arbitrarily claimed by the complainant against the opposite party. That further without admitting anything and without prejudice to the above facts, it may be stated here that present proceedings before the District Forum are the summary proceedings and the alleged dispute as concocted in the complaint and denied by the objector opposite party in the written statement, involves complicated and controversial issues of facts too, warranting evidence, as such under law, such disputes can be legally decided only by the Civil Courts; as such the District Forum has no jurisdiction to try the present case. The consumer complaint is liable to be rejected.
4. The complainant has filed replication in the form of affidavit (paper No. 15Ka/1 to 15Ka/6 on the District Forum's record). The deponent had taken loan from Housing Development Financial Corporation Ltd. for construction of residential house on the aforesaid plot of land. It is wrong and denied that it was necessary to have the building plan sanctioned by MDDA. It is also wrong that Van Vihar Colony is not approved by the MDDA. In any case the objections raised by the opposite party are not relevant for decision of this complaint. The facts given in para No. 3 of the complaint are true and reiterated. The opposite party had constructed the house itself a proof that he had the building plan. It is absolutely wrong and denied that the deponent had to get the work done according to his choice and specifications under the supervision, directions and skill of the deponent's own technical expert for his satisfaction during the course of working at the site. Neither the deponent had knowledge of the construction of house nor it was possible for him to be on the site every time. Since he is in service and it was not possible for him to take leave for the construction period. The deponent was not to provide any technical expert at the site.
5. The opposite party has filed his affidavit (paper No. 23Ka/1 to 23Ka/13 on the District Forum's record), where he stated that the story about complainant for taking of the original agreement from the complainant for signatures of witness is totally false and baseless. The opposite party has 9 never shown such building plan. The fact is that, work done according to the complainant's choice and specifications from the opposite party's labour and building material under the supervisions, direction and skill of the complainant's own technical experts for his satisfaction during the course of working at the site. The complainant's affidavit is totally false. In fact no person on earth can give any report by mere making inspection of the building with regard to the nature, ratio and the quality of building material used without making scientific laboratory analysis which is provided only in the Government Investigation Laboratory. No consumer dispute within the meaning of Consumer Protection Act, 1986 is made out in the present complaint against the opposite party without any legal sanction of building plan. The opposite party has not constructed the house No. 181 in question against the mandate of law, which is unauthorized and unapproved colony named 'Van Vihar Colony' situated at Mehuwala Mafi, Dehradun. Report dated 16.12.2009 of Sh. P.K. Chamoli is totally wrong, baseless and fabricated inclusion of the complainant, so that it is not admitted as well as report dated 15.12.2009 of Sh. R.P. Sangal is totally false and not admitted.
6. The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 26.11.2012 in the above manner. Aggrieved by the said order, the opposite party has filed First Appeal No. 193 of 2012 and complainant has filed First Appeal No. 194 of 2012, thereby assailing the propriety and legality of the impugned order passed by the District Forum.
7. We have heard Sh. Musa Khan, learned counsel for the appellant in First Appeal No. 193 of 2012 & respondent in First Appeal No. 194 of 2012 and Sh. J.P. Kansal, learned counsel for respondent in First Appeal No. 193 of 2012 & appellant in First Appeal No. 194 of 2012. We have also perused the entire record of the District Forum as well as material placed on record.
108. So far as the First Appeal No. 193 of 2012 filed by the appellant- opposite party-Sh. Sayeed Ahmed is concerned, learned counsel for the appellant has submitted that the impugned judgment passed by the District Forum is against the facts on record and against the natural justice. The District Forum has made gross negligence by rejecting the application dated 02.03.2012 to cross-examine the complainant. In the same manner, the District Forum has rejected another application dated 16.07.2012 which is against the law and the said order passed by the District Forum on 26.11.2012 is liable to be dismissed. The District Forum has not took concern about the affidavits of those suppliers, who supplied their material in the disputed building. All the complaint/allegations are based on false allegations.
9. In the First Appeal No. 194 of 2012 filed by the appellant-complainant- Sh. Shivcharan Singh Bhandari, learned counsel for the appellant has submitted that the District Forum has erred in law and on facts in partially rejecting the complaint of the appellant. So far the appellant has neither got removed the defects reported upon by the Engineer nor got completed the remaining incomplete work due to paucity of funds as also to avoid any technical objection that may be raised by the respondent. The District Forum has erred in law and facts on record in not allowing Rs. 5,00,000/- claimed for injury and damages caused on account of great fear and mental stress and strain caused to the appellant and his family. The house was unsafe for the appellant and his family members. The District Forum ought to have allowed total sum of Rs. 12,09,500/- and Rs. 10,000/- as cost of litigation.
10. On 12.11.2011, the District Forum has allowed the application of the opposite party to cross-examine the engineers Sh. P.K. Chamoli and Sh. R.P. Sangal. The cross-examination was conducted on 12.12.2011 by engineer Sh. R.P. Sangal (paper Nos. 34Ka/1 to 34Ka/5 on the District Forum's record). He stated on oath that he is a Civil Diploma Engineer and has authorized to make building plan by MDDA. He visited the disputed house of Sh. Shivcharan Singh Bhandari first time on 04.12.2009. His aim was to 11 inspect the cracks of building and to inspect its causes. He saw that the beam of the building was broken and there were cracks in the beam. He further apprised the Court that in the photographs, cracks are easily visible in the wall (paper No. 18Kha/12 on the District Forum's record). The second cross- examination of Sh. P.K. Chamoli was done (paper Nos. 35Ka/1 to 35Ka/3 on the District Forum's record). He also stated on oath that on the basis of his degree he was registered for working as Design Technical Structure Consultant. He also design building plan. He has a lab to inspect the building material, which is authorised by NCCBM. He visited the house of the complainant on 14.12.2009. He took sample of soil and Mortar. He inspected both the samples in his lab. Mortar means the concrete mixtures, strength was below M15. Mixture was excavated from the foundation of the building. He conducted the said inspection according to the normal building code. He did not take any sample from inside the room, but cracks were found in the building, which were diagonal. These cracks occurred due to 'sinking of support', means due to foundation. He did not take any sample of the floor. He saw the depth of beam, but has not seen the TMT bars. He has not done any Sieve analysis that is required to check the kind of material. Soil test was done according to the direct shear test sieve analysis and soiling pressure. During the test, it was discovered that it was mixture of clay and silt. He took the sample from the foundation, which was found to be call sand. He has submitted final report on the basis of small samples collected from the building, which is technically sound. All these informations are given under the guidelines of N.B.C's. structural volume. It is wrong to say that he has not physically inspected the disputed house and drafted the report by sitting in the office.
11. After cross examinations of the experts (paper Nos. 34Ka/1 to 35Ka/3 on the District Forum's record), the opposite party moved an application on 02.03.2012 to cross examine the complainant, which was rejected/dismissed by the District Forum. Aggrieved by the said order, the opposite party filed revision petitioner No. 06 of 2012 before this Commission. This revision 12 petition was dismissed on 27.04.2012. The opposite party moved another application on 05.06.2012 before the District Forum for getting the building material used in the property in question and quality thereof tested from a Government laboratory. The District Forum vide impugned order dated 16.07.2012, dismissed the said application. Aggrieved by the said order, the opposite party has filed revision petition No. 08 of 2012 before this Commission, which was dismissed at the stage of admission.
12. The opposite party has filed affidavit of Sh. Zakir Hussain-Grill Maker; affidavit of Mohd. Rizwan-Plumber; affidavit of Sh. Kalpanath-Brick Supplier and affidavit of Sh. Pradeep Kumar-Electrician (paper Nos. 52Ka/1, 53Ka/1, 54Ka/1 & 55Ka/1 on the District Forum's record). All the four deponents stated in their affidavits that they have supplied the building materials to the satisfaction of the complainant and gave their services in the building of the complainant and also stated that at the time of payment complainant scuffled with Sh. Sayeed Ahmed-contractor.
13. On the other hand, the complainant has filed his own affidavit (paper Nos. 56Ka/1 to 56Ka/2 on the District Forum's record) and denied all the allegations made in four affidavits filed from the side of opposite party for the purchase of grill, gate, sanitary goods or electrical goods after his full satisfaction. He further stated that he mostly remained on duty during construction of the house and whenever deponent-complainant to be on the construction site, none of them had met him there.
14. From the perusal of the material on record filed by both the parties, it is clear that the complainant-Sh. Shiv Charan Singh Bhandari has wrote a letter on 07.11.2009 to complete the pending work and to rectify the defects of construction work done by the opposite party-Sh. Sayeed Ahmed. Instead of completing/finishing the work, the opposite party sent a notice through his advocate on 21.11.2009 and demanded Rs. 4,78,760/-. After receiving the notice from the opposite party, the complainant got the house inspected by 13 experienced and licensed Engineers, Building Planner, Surveyor, who inspected the building work and excavated pits for description of soil and filed their reports.
15. According to the reports filed by the Engineers, a total cost of Rs. 4 to 6 lacs is required to complete the remaining work and to rectify the defects of the house. The opposite party has not filed any rebuttal or any expert evidence against these reports. On opposite party's request both experts were called for cross examination before the District Forum, but no new facts came during these cross examination to disbelieve their reports.
16. According to the complainant, the total constructed area of the house is 1907.8sq. ft., the total cost of which at the agreed rate of Rs. 720/-per sq.ft. comes to Rs. 13,73,630.40ps. Besides the complainant got additional construction worth Rs. 1,13,265/-. Thus, in all Rs., 14,86,895.40ps. was only payable to the opposite party, of which the complainant had paid Rs. 14,73,000/- to the opposite party. The balance amount of Rs. 13,895/- was agreed to be paid to the opposite party after completion of the remaining work (paper No. 18Kha/9 on the District Forum's record).
17. Besides this, the opposite party is demanding Rs. 4,78,760/- from the complainant for extra work and complainant is asking for Rs. 7 lacs with interest @12% per annum for completion and to rectify the defects. No consumer complaint has been filed by the opposite party and, therefore, the opposite party has failed to prove his expenditures by any cogent evidence.
18. Thus, we are of the view that the District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference and both the appeals being devoid of any merit are liable to be dismissed.
1419. For the reasons aforesaid, the First Appeal No. 193 of 2012 filed by the opposite party-Sh. Sayeed Ahmed and First Appeal No. 194 of 2012 filed by the complainant-Sh. Shiv Charan Singh Bhandari are dismissed. Impugned judgment and order dated 26.11.2012 passed by the District Forum, Dehradun is hereby confirmed. No order as to costs.
20. Let the copy of the order be kept on the record of First Appeal No. 194 of 2012.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)