DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 15th day of December, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 11/05/2018
CC/66/2018
Manikandan,
S/o. Ramankutty,
Madappallath House,
Neduvakkode, Kannadi (PO),
Palakkad. - Complainant
(By Adv. M/s John John & Chenthamarakshan)
Vs
Biju,
S/o. Swaminathan,
Kannath House,
Polpully (PO), Palakkad. - Opposite party
(By Adv.K.K.Sudheer)
O R D E R
By Sri. Vinay Menon V., President
- Complainant is aggrieved by the alleged deficiency in service on the part of Opposite party in carrying out construction of a residential building for complainant in accordance with the terms and conditions of Ext. A1 agreement. Complainant grieves that even though substantial amounts to a tune of Rs.19,75,000/- was paid to the OP, various items of works including fixing of windows, grills and allied works, lintel work, slab of first floor and plastering are carried out in a haphazard manner causing losses to the complainant to a tune of Rs. 8,00,000/-. This complaint seeks Rs. 8,00,000/- together with interest @12% and costs for the deficiency in service on the part of opposite party.
- OP filed version contending that Rs.19,75,000/- was paid for works already carried out and additional works that were not included in the agreement. The allegations regarding substandard work and those specifically alleged were all denied. The complainant never effected timely payments due to the opposite party. Complainant has not effected payment of Rs.8,25,000/- for works already carried out by the O.P. Work was terminated by the complainant himself. He sought for dismissal of the complaint.
- The following issues arise for consideration:
- Whether the construction carried out by OP is defective?
- Whether any amounts are due from the complainant to the opposite party?
- Whether there is any deficiency in service on the part of the opposite party?
4. Whether the complainant is entitled to any of the reliefs sought for?
5. Any other reliefs?
4. (i) Complainant’s evidence comprised of proof affidavit and marked Exhibit A1 through proof affidavit. Complainant was examined as PW1.
(ii) O.P. filed proof affidavit and marked Ext. B1. OP was examined as DW1.
(iii) 1st preliminary commission report filed by the Adv. Commissioner was marked as Ext. C1. 2nd preliminary report filed jointly by the Adv. Commissioner and Expert
Commissioner were marked as Ext. C2. Final reports of Adv. Commissioner and Expert Commissioner were marked as Ext.C3. Advocate Commissioner was examined as CW1.
Issue No.2
5. In the facts and circumstances of the case, Issue No.2 is being considered before considering issue No.1.
6. Complainant is aggrieved by the deficiency in service on the part of the opposite party in carrying out the construction of a residential building. He has made a list of works that has gone wrong. To the allegations raised by the complainant the opposite party filed version stating that the works carried out were of high standard. But the major contentions and objections and defense revolved around the payments that were allegedly due from the complainant to the opposite party.
7. Per pleadings of the opposite party, an amount of approximately Rs. 8,25,000/- is due from the complainant to the opposite party. At the time of evidence and hearing counsel for the complainant argued vehemently on the basis of the endorsement made on the reverse portion of Ext.A1 agreement to draw attention to his case that actual amounts due from the complainant to O.P. were not paid in a timely manner as agreed in Ext. A1 agreement and that amounts were due from the complainant to the opposite party. Documentary evidence on the part of opposite party is the certified copy of a memorandum of plaint in O.S. 322/2018 on the file of the Munsiff’s Court, Palakkad. This is a suit for money amounting to Rs.8,25,000/- together with interest claimed from the complainant herein.
8. We can find that there are two different streams of pleadings flowing in this complaint.
(1) One is wherein the complainant alleges deficiency in service on the part of O.P. in the construction of the building already carried out.
(2) Second one is the part wherein the opposite party alleges non-payment of amounts due to him from the complainant.
For the second stream, the O.P. has already filed a suit before the Munsiff’s Court. In view of the pendency of a suit for the amounts claimed by the opposite party in a separate proceeding before a Civil Court, we find that any decisions or findings arrived at by us would be detrimental to the free and fair conduct of the O.S.
Therefore we are refraining from dealing with the issue of amounts, if any due from the complainant to opposite party and direct the parties to thrash out their dispute in this regard before the Munsiff’s Court, Palakkad in O.S. 322/2018.
In the following discussions, we will fence ourselves in discussing matters that would assist in appraising stream number 1, ie. the part regarding the alleged deficiency in service on the part of O.P. in the construction of the building.
Issue No.1
9. As already stated supra, complainant’s grievance revolves around the alleged inferior construct of the residential building. In order to substantiate his contention, the complainant filed an application as I.A. 126/2018 for appointment of an Advocate Commissioner and Advocate Manoj Ambat was appointed as Advocate Commissioner. Thereafter at the request of the Advocate Commissioner, Mr. Saji Mon, a civil engineer was appointed as Expert Commissioner to assist the Advocate Commissioner with the technical matters that were to be ascertained.
10. The following matters were sought to be ascertained in IA 126/2018.
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11. Pursuant to being appointed as the Advocate Commissioner, he inspected the property on 18/5/2018 and filed his report dated 18/5/2018. This report is marked as Ext.C1. Subsequent to appointment of Expert Commissioner, they revisited the property on 5/10/2018 and both the Commissioners filed their reports on 13/12/2018. Since the site visit report prepared by the Expert Commissioner was not detailed, an additional final joint report dated 17/4/2019 was also filed. The reports dated 13/12/2018 and 17/4/2019 were marked as Exts. C2 and C3 respectively.
12. Complainant had no objection to the said 3 reports.
13. To Ext.C1, opposite party filed objection stating that the house looked uneven because plastering was not carried out and therefore the variance in thickness cannot be found to be a cause for arriving at a conclusion that the construction is defective. Further the statement made by CW1 that the plastering was peeled off is false. Usage of pipes instead of metal bars is in terms of agreement entered into between the parties. The pipes used are costlier than the bars.
To Ext.C2, the opposite party filed objection stating that the report purporting to be made by the Expert Commissioner is not prepared by him as it does not contain the seal or signature of the Expert Commissioner and sought for setting aside the said reports.
To Ext.C3 final report, the opposite party filed objection stating that CW1 had failed to append the work memo handed over by the OP in Ext.C3. It should have formed part of Ext.C3 report. The contention in Ext.C3 that Ext.C2 is a short report is false. The estimates in Ext.C3 are not prepared by the Expert Commissioner. Report of Expert Commissioner is not at all valid and cannot be accepted as an authenticated document. The measurement and extents stated in Ext.C3 report are false. Items 1 to 5 made mention of in the schedule prepared by Expert Commissioner are to be carried out alongwith plastering and therefore are totally disconnected with and will not affect the works already carried out. In items 6 to 8, the fact that 16 mm steel rods are used is not mentioned. The items stated in column 9 are to be carried out after plastering. Contents in items 10 to 16 are to be carried out only after payment. The amounts stated in Ext.C3 report by the Expert Commissioner are only liable to be dismissed.
14. Subsequent to filing of Ext.C3 report, on 17/04/2019 the OP filed an application as IA 212/2020 seeking to set aside the Ext.C3 Commissioner’s report. This Commission had made the following order in I.A. 212/2020 on 26/2/2021:
“Examination of Expert Commissioner is necessary to ascertain whether there are sufficient reasons to set aside the commission report. For steps, Call on 22/3/2021. ”
But O.P. failed to take any steps till the culmination of proceedings in this complaint to cross examine the Expert Commissioner.
15. Instead of examining the Expert Commissioner, the opposite party examined the Advocate Commissioner as CW1. It would not be an overkill to say that the Advocate Commissioner was negligent and least enthusiastic in carrying out the warrant. The Commissioner failed to consider the fact that his report is the sole material before this Commission to come to a conclusion as to the facts in the case. The Commissioner failed to act as a responsible officer of the Commission.
As to why we make such a caustic observation, a reading of the deposition of CW1 would suffice.
Page 2 line 3: “Partially construct Bbncp¶p BZyw. B kab¯v ag Dmbncps¶m F¶p HmÀ½bnÃ. Wet Bbncp¶p. Building wet Bbncp¶Xv \\ªXpsImmtWm F¶v F\n¡dnbnÃ. Seepage in Ceiling F¶p]dªncn¡p¶Xnsâ reason F\n¡dnbnÃ. Wall \\ªncp¶p. t]mIp¶ kab¯p work \S¡p¶pmbncp¶nÃ.”
Page 2 line 12: “Opposite party Hcp detailed work memo X¶Xmbn report  ]dbp¶pv. AXn ]dbp¶ work memo report sâ IqsS tImSXnbn s_m[n¸n¡mXncn¡m³ ImcWw H¶panÃ. B work memo bnse `qcn`mKw Imcy§fpw expert sâ klmbt¯mSpIqSn am{Xsa sN¿m³ km[n¡pIbpÅp F¶p ]dªn«pv.”
Page 3 lines 5 : “Work memo bnse details expert s\ sh¨p ]cntim[n¸n¨ncp¶p. AXnâv report expert F\n¡v X¶n«pv. At±lw X¶ report Ext.C2 sâ IqsS ImWp¶nà F¶v ]dªm icnbmWv. Ext.C2 sâ IqsS lmPcm¡nb expert report complainant sâ work memo sb ASnØm\s¸Sp¯n sImpÅ observation Dw BtWm F¶p tNmZn¨m AÃ. Expert sâ observation BWv.”
Page 3 line 13: “Ext.C2 se expert report se Serial No.1 GXv work memo sb ASnØm\s¸Sp¯nbmtWm F¶p tNmZn¨m complainant sâ `mK¯v \n¶p defects note sN¿m³ ]dªX\pkcn¨mWv. 2, 3, 4, 5 ChsbÃmw defects note sN¿m³ ]dªn«pÅ observation BWv.”
Page 4 lines 11: “expert sâ column wise report AÃmsX At±l¯nsâ observation H¶pw X¶n«nà F¶p ]dªm icnbmWv. Ext.C2 report epÅ 1..)o as¯ deficiency Hcp grouting Dw water proofing Dw sNbvXm s]mIpsa¶mWv observation F¶p ]dªm icnbmWv. Serial No. 2 defect cv coat Birla or Asian paints C«m s]mIpsa¶pw ]dªn«pv. _m¡nbpÅ Imcy§Ä FÃmw detailed survey thWsa¶p ]dªn«ps¶p ]dªm 4,5 & 6  detailed survey thWsa¶mWv ]dªn«pÅXv. 3rd Dw detailed survey ]dªn«pv. Ext.C3 report file sN¿p¶Xn\p ap³]v Rmt\m, FIvkvs]Àt«m Øe ]cntim[\ \S¯pI Dmbn«nÃ. Øe ]cntim[\ \S¯msXbmWv Ext.C3 report t_m[n¸n¨n«pÅXv. Ext.C3 bpsS IqsS Hcp expert report lmPcm¡nbn«pv. AXnepw Ht¸m, kotem designation t\m Cà F¶p ]dªm icnbmWv. “
16. Aforestated depositions are only part of the statement that would prove the carelessness of the Commissioner while carrying out the duties vested upon him by this Commission. A duty was cast upon the CW1 to conduct the inspection so as to assist this Commission to come to a conclusion as to the nature of the property or matters that were sought to be examined.
17. Be that as it may, the vital question that requires answering is whether the entire Exts.C1, C2 & C3 reports are to be set aside in toto because CW1 and Expert Commissioner had made some mistakes. In short we need to ascertain whether the mistakes are so intricately interwoven with the portions that are correct and accurate that a separation between the two is rendered impossible warranting rejection of the entire contents in the reports. Such a microscopic attempt of the contents in Exts. C1 to C3 has become necessary as the complainant had, during the pendency of this complaint, completed construction of the building after obtaining leave of this Commission, leaving any chance of further inspection futile.
18. It goes without saying that both the Commissioners had failed to ascertain the matters that the opposite party had sought to ascertain by way of filing memo before CW1. After taking into consideration all the material facts that would hit adversely upon the integrity of Exts.C1 to C3, the opposite party had filed IA 103/2019 seeking appointment of another Expert Commissioner to ascertain the matters that the opposite party had to be reported. The said application contains 7 matters that the opposite party says were left out by the Expert Commissioner who filed Exts. C2 and C3. This Commission had by its order dated 31/7/2019 dismissed this IA 103/2019 stating that the report filed by the earlier Commissioners (Exts. C1,C2 and C3) were still in existence and that without setting aside the existing reports this Commission has no authority to appoint another Expert Commissioner.
The O.P. filed another application as I.A. 210/2019 seeking to remit the Commission Reports. This application was dismissed by order dated 18/11/2020 on the ground that the complainant had already completed construction of the building and the matters sought to be ascertained had become unascertainable.
Pursuant thereto, as already stated supra in para 14, the opposite party filed an application as IA 212/2020 seeking to set aside the Commission reports. On 26/2/2021 the O.P. was directed to take steps for examining the Expert Commissioner. But the opposite party did not take any steps to comply with this order for reasons best known to him.
During 2022, the O.P. filed yet another application as 15/2022 to with a strange prayer to get the Advocate Commissioner examined to get the dismissed I.A. 210/2019 allowed. This application was dismissed in view of the order dated 18/11/2019 in I.A. 210/2019, which had attained finality. Here in also, not to mention the illegality of the prayer, what is material is that the O.P. is assiduously changing course from the necessity to comply with the direction to examine the Expert Commissioner as per order dated 26/02/2021 in I.A. 212/2020. This Commission had granted a clear and unequivocal direction and opportunity to have their grievance regarding the Commission reports redressed by passing a favourable order on 26/02/2021. But O.P. has steered clear from this track.
At the time of evidence, the opposite party had sought leave of this Commission to cross examine the Advocate Commissioner. But they had conveniently left out cross examining the Expert Commissioner at this juncture also. Thus we can find an all out effort and attempt on the part of the O.P. to stay clear off the Expert Commissioner.
Thereafter post cross examination of CW1, without complying with the directions in I.A. 212/2020, the O.P. filed yet another application as I.A.561/2023 to get the Commission reports set aside based on the deposition of the Advocate Commissioner. Said application was dismissed on 04/10/2023.
19. We can’t perceive the reluctance/failure on the part of the O.P. to cross examine the Expert Commissioner as a mere overlooking or oversight. The O.P. was so feverishly and enthusiastically witch-hunting the Advocate Commissioner to have the commission reports set aside based on the irregularities or ambiguities in the report of the Advocate Commissioner. But they showed no similar fervor or inclination whatsoever in cross examining the Expert Commissioner. Their only contention is that the reports filed by the Expert do not bear his signature of seal and that some of the works were to be carried out after the works were completed by the O.P. But the CW1 has clearly stated that the said reports appended to his own reports in Exts. C1 and C2 were the ones issued to him by the Expert. Mere fact that report and deposition of CW1 were not made meticulously would not automatically and ipso facto render the report of the Expert Commissioner redundant.
20. The Expert Commissioner was appointed to assist the CW1 in coming to a conclusion regarding the technical issues upon which the Advocate Commissioner had no formal knowledge. Expert Commissioner is not subservient to the CW1. He is an expert in his field. It is true that the reports do not bear his signature or seal. But the CW1 has asserted that the said reports were issued to him by the Expert Commissioner. Therefore a duty was imposed on the O.P., to cross examine the Expert Commissioner to assay the reliability of the reports issued by the expert. Mere filing of objections will not nullify the Expert’s reports. They are documents with independent existence based on the expertise of the Expert Commissioner. Deposition of CW1 will not disprove or negate the contents of Expert’s reports. Assaying the admissibility or reliability of Expert Commissioner’s report ought to have been made based on the examination of the Expert Commissioner, which the O.P. willfully and deliberately veered away from.
21. The only presumption that can be arrived at regarding non-examination of the Expert by the O.P. is that cross examination of the Expert Commissioner on his report will adversely impact the case of the opposite party. We are of the opinion that opposite party was disinclined to cross examine the Expert Commissioner even after being directed and receiving opportunities is because the contents of Exts. C2 and C3 reports will stand further asserted on examination, proving the complainant’s case even further.
22. It is true that CW1 has made a series of mistakes that would seriously and adversely impact the credibility of his report. But he cannot depose on the credibility or integrity of the report filed by the Expert Commissioner.
23. Therefore we hold that the opposite party has failed to disprove the validity / authenticity / credibility of the Expert Commissioner’s report. It is safe to rely on the report of the Expert Commissioner forming part of Exts.C2 & C3.
24. Resultantly, for want of better evidence, we hold that the report and estimate arrived at by the Expert Commissioner to be valid and reliable for coming to a conclusion in the facts and circumstances of the case.
25. In Serial numbers 1 to 9 of Ext. C3 report, the Expert Commissioner has reported that rectification works would cost Rs. 5,34,800/-. In Ext. C2 report also the Expert Commissioner has stated the existence of defects, eventhough the said report is of a summary nature without quantifying the damages or the amounts required for rectification works. The sole implication that can be arrived at is that the complainant had to carry out the rectification works due to the defective construction of the building by the O.P.
26. Resultant to the discussions above we hold that the construction carried out by the O.P. is defective
Issue No. 3
27. As already stated in the preceding Issue, the construction was defective forcing the complainant to expend huge and exorbitant amounts. Ext. C3 shows that the rectification works amounted to Rs. 5,34,800/- excluding supervisory charges, profit and handling charges, which would add up to 20% of this amount. Further the O.P. has carried out works for Rs. 14,91,000/- only (whereas he had already availed Rs. 19,75,000/-). The O.P. had received additional Rs. 4,84,000/- (Rs. 19,75,000/ – Rs. 14,91,000/-) over and above the amounts he was entitled to receive. Inorder to negate these findings in Exts. C2 and C3 reports, no valid or reasonable explanation are forthcoming from the O.P.
28. Therefore we hold that there is deficiency in service on the part of the O.P.
Issue No. 4
29. Plaint reliefs sought for by the complainant is to a tune of Rs. 8,00,000/- together with interest at the rate of 12% p.a. till realization along with costs. The amount arrived at by the Expert Commissioner would add up to over Rs. 10,20,000/-. But even after receipt of the said report, and having accepted the same without any demur, the complainant has not amended the memorandum of complaint seeking enhanced claim. Hence we presume that the complainant is content with the lesser amount. Further we are not inclined to grant the interest at the rate of 12% p.a. We reduce the interest rate to 10%.
We allow that amount as sought for by the complainant with interest at 10% p.a. and compensation and cost.
Issue No. 5
30. Apropos the discussions, observations and findings above, we hereby quantify the payments to be effected by the O.P. to the complainant as herein below:
1. The complainant is entitled to receive an amount of Rs. 8,00,000/-(Rupees Eight Lakhs only)
2. The complainant is entitled to receive interest of this amount @10%p.a. from 11/05/2018 (date of filing of this complaint) till the date of payment.
3. The complainant is entitled to a compensation of Rs. 1,00,000/-(Rupees One lakh only) for deficiency in service on the part of the O.P.
4. The complainant is entitled to a cost of Rs. 50,000/- (Fifty thousand only).
5. Comply with the above direction in 45 days from the date of receipt of a copy of this order.
Pronounced in open court on this the 15th day of December, 2023. Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original agreement dated 3/11/2017
Exhibits marked on the side of the opposite party:
Ext.B1 – Certified copy of plaint in OS 322/18 on the file of Munsiff’s Court, Palakkad
Court Exhibit:
Ext.C1 – Interim report dated 16/5/2018 filed by Adv.Commissioner
Ext.C2 – Interim report dated 13/12/2018 along with site visit report of Expert Commissioner
Ext.C3 – Final Commission report dated 17/4/2019 alongwith detailed report of the expert
commissioner
Third party documents: Nil
Witness examined on the side of the complainant
PW1 - Manikandan (Complainant)
Witness examined on the side of the opposite party
DW1 – Biju (Opposite party)
Court Witness:
CW1 – Adv.Manoj Ambat (Advocate Commissioner)
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
