O R D E R Sri. Santhosh Kesavanath P. President. Case of the petitioner filed on 31..7..2007 is as follows: Petitioner had entered in to an agreement with the opposite party on 14..10..2005 for the construction of a residential building for the petitioner. According to the petitioner, as per the agreement, opposite party is bound to construct the entire building having an area of 1400 Sq.ft. for an amount of Rs. 7,00,000/-. Petitioner states that on 23..12..2006 the agreement between the petitioner and the opposite party was terminated. Petitioner paid the entire agreed amount and opposite party handed over the building to the petitioner. Petitioner states that entire construction work was done by the opposite party without following the terms of the agreement. There is leakage of roof slab, Cracks are seen throughout the outer and inner sides of the walls. There was inadequacies in the construction of the roof slab and building. Wooden works are of low quality. The sapti tank was not constructed properly and there was leak in the tank. According to the petitioner opposite party committed deficiency in service with regard to the construction of the building. Petitioner claims damages in the tune of Rs. 11,378.50 with 12% interest along with cost and compensation. -2- Opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the opposite party the building constructed by the opposite party for the petitioner’s son is a pucca building. Opposite party had not paid the entire agreed amount. An amount of Rs. 1,50,000/- is pending to the opposite party as construction cost from the petitioner. This petition is only filed for evading from the payment due to the opposite party. According to the opposite party the petitioner was personally present in the construction site during the entire period of construction and he was satisfied with the construction works carried out by the opposite party. Opposite party contented that the entire construction work was done in full perfection and there is no deficiency in service on their part. So, they pray for dismissal of the petition with their costs. Points for considerations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs? Evidence in this case consists of deposition of PW1 to PW2 and DW 1 Ext. A1 and A2 documents on the side of the petitioner. C1 and C1(a) Commission report. Point No. 1 Crux of the case of the petitioner is that due to the inadequacies in the construction there is leakage of roof slabs and cracks are seen through out roof slabs. Doors and windows are not made as per the specification in the agreement etc. Expert commissioner appointed by the Forum filed a report and the same is marked as Ext. C1(a). Since the report was not based on the commission application forum directed the commissioner for re-inspection of the site and to file a new report by seeking the assistance of a value assessor. Subsequently filed report of the commissioner is marked as Ext. C1. In Ext. C1 the commissioner observe certain discrepancies in the construction of the building including inadequacies in construction. Commissioner reported cracks in the outer and inner side of the walls. Commissioner pointed out water mark due to the leakage of the roof slabs etc. As per Ext. C1 report commissioner -3- assessed the damage with the help of value assessor as Rs. 77,800/-. Commission is examined before the Forum as PW2. During cross examination commissioner stated that commission report is based on the visual inspection and no scientific methods were used for the purpose of assessing the damage. Counsel for the opposite party argued that since the report is without any scientific basis it is not reliable. PW2 during cross examination stated that estimate is taken by value assessor appointed by this Forum. The damages are shown and explained by the commission to the value assessor and the method of assessment of damage is adopted as per the instruction of the expert engineer. Counsel for the opposite party vehumently argued that since the petitioner was personally present during the construction and he is satisfied with the entire construction work. So, he is estopped from saying that the construction of the opposite party is defective one. We rely on C1 and C1(a) report filed by the expert Civil Engineer. In our view even without any scientific assistance the report made by the visual examination of an expert Civil Engineer, having Master Degree structural Engineering, is reliable. So, in our view act of the opposite party in constructing a defective residential building to the petitioner is a clear deficiency in service. So, point No. 1 is found accordingly. Point No. 2 In view of the finding in point No. 1. Petition is allowed and the petitioner is entitled for the reliefs sought for. In the result the opposite party is ordered to pay the petitioner an amount of Rs. 77,800/-, being value of estimate calculated by the expert commissioner for carrying out the remedial measures, since there is no evidence with regard to loss and sufferings no compensation is ordered. Opposite party is also ordered to pay an amount of Rs.3,000/- as cost of the proceedings. Order shall be complied with within one month of the receipt of the order. If the order is not complied as directed the petitioner is entitled for 9% interest for the award amount till realization. Dictated by me transcribed by the Confidential Assistant corrected by me and -4- pronounced in the Open Forum on this the 15th day of July, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N. Radhakrishnan, Member Sd/- APPENDIX Documents for the Petitioner: Ext. A1: Article agreement Dtd: 14..11..2008 Ext. A2: Copy of title deed No. 2300/05 C1: Commission report Dtd: 12..5..2009 C1(a) Commission report Dtd: 12..6..2008. Documents for the Opposite parties Nil. Witness of the petitioner Pw1 K.P Velayudhan Nair PW2: Dhanya B.S Witness of opposite parties DW`: A. Mohan Kumar. By Order,
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
