Indian Kanoon - Search engine for Indian Law

8.            Heard the counsel for the appellant and no arguments were advanced by the respondent.

9.            Now the point for consideration is, whether the order of the District Forum is sustainable ?

10. The contention of the complainant association is that the OP builder failed certain amenities to its members as described in the construction agreement and also used inferior quality of material in constructing the flats, whereas, contention of the OP is that there was no deficiency in service on its part in constructing the apartments that they sticked on to the specifications described in the construction agreement. Since there was no expert opinion in the said context this Commission vide orders in FA 792/2004 remanded the matter for fresh disposal with a direction to appoint Advocate Commissioner/civil Engineer to assess the defects and the amount required rectification of the said defects and accordingly Mr. G. Vijayamohan, Advocate was appointed as commissioner to assess the defects pointed out by the Complainants Association, Renuka Residency Flat Owners association constructed by OP and to estimate the amount required for rectification of the defects. He was entrusted with the said work with a direction that he shall execute the warrant with the assistance of a qualified Engineer and accordingly he took the assistance of Mr. N. V. Ramanandasagar, Chartered Engineer, Visakhapatnam. The said advocate Commissioner after giving notice to both side counsel visited spot on 1.2.2009, noted down the physical features there of and the alleged defects. It appears that after due exercise the said Chartered Engineer prepared latest estimate keeping in view of the old estimate and escalation of prices. According to the said Chartered Engineer, total cost for rectification of defects to be carried out was made at Rs.3, 41, 632/- as against old estimate of Rs.2,25,550/- shown by the complainant. Accordingly the commissioner submitted his report dt. 30.03.2009 enclosing the said latest estimated prepared by the said Chartered Engineer after due memos and work memos. The OP filed objections dated 6.4.2009 to the said Commissioners report alleging that Advocate Commissioner failed to answer the work memo filed on behalf of the Op and that the Commissioner and Engineer exceeded the scope of the warrant and did not choose to work done by the OP and failed to obtain the expert report for assessing the exterior painting in a scientific manner and that released the Commissioner report after 55 days without filing notes and therefore Commissioner report cannot be accepted. The said objections are not in the shape of affidavit and therefore no importance need to be given for it. The said Chartered Engineer who has about 15 years experience in the field so also the Advocate commissioner has absolutely no reason to submit a false report favouring the complainants association. OP did not impeach credit of the said report of the Commissioner and estimates submitted by the chartered Engineer by any convincing means. In detail, the Consumer Forum discussed item wise with reference to second quoting of painting to the apartment, improper arrangements of telephone connections, post boxes and also painting of the names of the owners of the apartments not done by the builder, so also soil testing, structural defects, sanitary and plumbing defects etc. With reference to the estimates submitted by the said Chartered Engineer in the order under appeal. Absolutely there are no reasons to find fault in the said appreciation. The OP submitted an application vide IA 251/2009 to permit the OP to inspect the plots and common areas along with an expert to show the alleged defects made in order to enable the OP to file his report in the said context. But the said IA was dismissed on 7.5.2009.holding that earlier the Commissioner was appointed who took assistance of chartered Engineer and made observations as to physical features and other details to the knowledge of the OP and in his presence. Thereafter, it appears that One Kolapalli Udayashankar ( DW.2) filed his evidence affidavit in support of the OP describing certain aspects. He was cross examined by the Complainant ,. He did not file the notes, so also, sketch. He did not obtain signatures of residents of any flats to show that he visited the premises on such and such date and noted down the physical features. According to him, he applied for renewal of the licence but it was not yet received. He did not submit any documents evidencing that he applied for such renewal. Evidence of DW. 2 discloses that certain defects were rectified by the time of his visit possibility of getting the same rectified by the Complainant after the Commissioners visit and before DW. 2s alleged visit cannot be ruled out. No efforts were made to summon the commissioner for cross examination. In such circumstances, there is acceptable force in the contention of the complainant that the affidavit of DW.2 was got prepared by OP to support his contentions and that simply he subscribed his signature there on. Thus we are satisfied to hold that DW.2 was pressed into service by OP and hence no credence is need to be given to his affidavit evidence In view of the expert evidence no much importance need to be given to the evidence affidavit of the parties to the proceedings as it amounts to oath against oath. However, in spite of repeated requests made by the complainants association OP did not rectify the defects in such circumstances no useful purpose will be served in again giving direction to OP to rectify the defects. In order to put a full stop to the litigation rightly District Forum directed the OP to pay the amount described below in stead of giving directions to OP to rectify the defects and in the said aspect also we did not find any fault.