KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 439/2000 JUDGMENT DATED:06..08..2010. PRESENT SRI. M.V. VISWANATHAN : JUDICIAL MEMBER SRI.M.K. ABDULLA SONA : MEMBER J.M.Alikoya, S/o Ibrahim Haji, J.M.House, : APPELLANT Kuttichira, Calicut-1. (By Adv:Sri.Shyam Padman) Vs. C.Imbichi Koya, Contractor, Thanal Nagar, : RESPONDENT P.O.Thiruvannur, Panniyankara, Calicut-29. (By Adv:Sri.K.P.Balasubramanyan) JUDGMENT SHRI.M.V.VISWANATHAN :JUDICIAL MEMBER Appellant was the complainant and respondent was the opposite party in OP.743/96 on the file of CDRF, Kozhikkode. The complaint therein was filed alleging deficiency of service on the part of the opposite party in executing the construction work for constructing a residential building for the complainant and thereby the complainant claimed compensation of Rs.1,50,000/- from the opposite party. The complainant had also alleged failure on the opposite party in completing the construction work within the stipulated time; that the complainant had taken deviation from the specification given in the approved plan; that due to the defective construction cracks were developed on the walls and that the roof of the building has been leaking. 2. The opposite party entered appearance before the Forum below and filed written version denying the alleged deficiency of service on his part. He contended that he agreed for construction of the residential building for the complainant and his wife Rukia and that he received Rs.1,05,000/- for the work he had done and that the complainant and his wife were not ready to effect the payment for carrying out the construction work and so he left the work after finishing the structural work for the building. It is further contended that the work he had done was not defective and the remaining works were done at the instance of the complainant and his wife engaging other workers. Thus, the opposite party prayed for dismissal of the complaint. 3. Before the Forum below the complainant was examined as PW1 and the opposite party as RW1. Exts.A1 to A4 documents were produced and marked on the side of the complainant, Exts.B1 and B2 documents on the side of the opposite party. A witness was examined on the side of the complainant as PW2 who had submitted A4 expert report. On an appreciation of the aforesaid evidence on record, the Forum below passed the impugned order dated:4th February 2000 and dismissing the complaint in OP.743/1996 with a direction to pay cost of Rs.1500/- to the opposite party. Hence the present appeal. 4. We heard the learned counsel for the appellant/complainant and the respondent/opposite party. Advocate Mr.Shyam Padman for the appellant submitted his arguments on the strength of the grounds urged in the memorandum of the present appeal. He submitted that the Forum below passed the impugned order based on surmises and conjectures and without considering the oral testimony of RW1, the opposite party. It was submitted that the appreciation of the evidence by the Forum below was improper or erroneous and without properly understanding the evidence available on record. He relied on R4 expert report submitted by PW2, the expert Engineer and argued for the position that construction effected by the opposite party was defective in nature. On the other hand, Advocate Mr.K.P.Balasubramonyan supported the impugned order passed by the Forum below. He also relied on the testimony of PW2 and also the admission made by PW1 and argued for the position that there is no reliable evidence on record to support the allegation of the complainant that there was negligence and deficiency of service on the part of the opposite party in effecting structural construction for the residential building. Thus, the respondent prayed for dismissal of the present appeal. 5. The points that arise for consideration are:- 1. Whether there was any deficiency of service on the part of the respondent/opposite party in executing the construction work as alleged by the appellant/complainant? 2. Whether the Forum below can be justified in dismissing the complaint in OP.743/96? 6.Points:1 and 2:- There is no dispute that the respondent/opposite party undertook the construction work for constructing a house for the appellant/complainant and his wife Rukia. The aforesaid undertaking was during August 1993. Admittedly there was no written agreement evidencing the aforesaid undertaking. It was only an oral agreement. Both the parties have categorically admitted the fact that there was no agreement or understanding fixing the cost of construction or the rate for constructing the building. It is come out in evidence that the understanding was to carry out the construction work by the respondent/opposite party and that the appellant/complainant and his wife will effect the payments based on the progress of the work. It is to be noted that there is also no case for the appellant/complainant that the respondent opposite party agreed to complete the construction work on a specified amount as cost of construction or consideration. Both parties have also admitted the fact that the total of Rs.1,05,000/- was paid to the opposite party towards the construction work done by the opposite party contractor. There is also no case for the appellant/complainant that the respondent/opposite party received excess consideration or payment by receiving Rs.1,05,000/-. 7. The respondent/opposite party as RW1 has categorically deposed that he received Rs.1,05,000/- for the work of structural construction done by him and that he had only received 5% profit by doing the said work at Rs.1,05,000/-. The aforesaid evidence of RW1has not been disputed by the appellant/complainant. Thus, it can very safely be concluded that the respondent/opposite party received Rs.1,05,000/- for the work he had done and there was no excess payment effected by the appellant/complainant. 8. The appellant/opposite party alleged deficiency of service on the part of the respondent/complainant in executing the construction work for constructing the residential building. It was the case of the complainant that the opposite party/contractor failed to complete the construction of the building within the stipulated period of 3 months from August 1993. The opposite party vehemently disputed the said case of the complainant regarding the period prescribed for completion of the construction work. PW2, the expert Engineer who inspected the building has reported in his A4 report that the said building is having a plinth area of 103.91 M2 . The expert Engineer as PW2 has also deposed that the plinth area of the said building would come to 1100 Sq.Ft. It is rather impossible to complete the construction of such a building with a plinth area of 1100 Sq.Ft. within a period of 3 months. It may be correct to say that such a construction could be done by deploying so much of labour so as to complete the work within 3 months. But in ordinary course it is rather difficult or impossible to complete the construction of such a building within 3 months. This circumstance would make the case of the complainant regarding the period of 3 months provided for completion of construction of the building cannot be unaccepted. More over, there is nothing on record to substantiate the said case of the complainant that the opposite party had agreed to complete the construction work within a period of 3 months. There is no supporting evidence other than the interested testimony of PW1 to establish that allegation. On the other hand, the opposite party as RW1 has categorically denied the aforesaid oral testimony of PW1. In the absence of any reliable evidence, the said case of the complainant cannot be believed. The Forum below has rightly disbelived the aforesaid case of the complainant. 9. The Forum below has gone wrong in coming to the conclusion that the oral agreement or understanding entered into between the parties was for constructing the structural work for the said building at a cost of Rs.1,05,000/-. It can be seen that the agreement or understanding was to complete the construction of residential building for the complainant and his wife Rukia. So, this Commission have no hesitation to negative the aforesaid finding of the Forum below that the opposite party had only agreed for doing the structural construction for the said building at a cost of Rs.1,05,000/-. 10. Admittedly the respondent/opposite party did not complete the construction of the residential building for the complainant and his wife Rukia and that he had only done the structural work for the said building. According to the opposite party he left the construction work because of the failure on the part of the complainant and his wife to effect further payment for proceeding with the construction work. RW1 has also deposed to that effect. But the case of the appellant/complainant is that the aforesaid action or conduct of the opposite party in leaving the contract work would amount to deficiency of service. 11. The complainant had filed a complaint before the police in October 1994. This fact is admitted by both the complainant and opposite party. According to the complainant that police complaint was amicably settled and that the opposite party agreed before the police to complete the construction of the building. On the other hand, RW1 has deposed that there was no such agreement to complete the construction work but the said police complaint was withdrawn by the complainant through the intervention of mediators. Anyhow, it is an admitted fact that during October 1994 there was a police complaint preferred by the complainant in OP.743/96 so as to get the work completed by the opposite party and the said police complaint was closed by the police. If the case of the complainant that the opposite party agreed for completing the construction work is true and correct then what prevented the complainant to approach the police again to get the remaining work executed by the opposite party. But no step is taken by the complainant for getting the work completed by the opposite party. On the other hand, the complainant himself engaged other workers to get the work completed. This circumstance would support the case of the opposite party that there was no such assurance or agreement for completing the remaining work and that the police complaint was withdrawn by the complainant. Another important aspect to be noted at this juncture is the inaction or failure on the part of the complainant in keeping mum for 2 years. It is to be noted that complaints in OP.743/96 was filed only on 30/9/1996. This long delay of 2 years would give an inference that the complainant had given up his complaint regarding the failure on the part of the opposite party to complete the construction work. In this situation it is also to be noted that the complainant had no case that the opposite party had collected excess payment from the complainant or his wife. So, the case of the complainant in OP.743/96 that he is having grievance against the opposite party for non completion of the construction work cannot be accepted or believed. In fact, the complainant had given up the aforesaid grievance. More over, the opposite party had only received the consideration for the work he had done. PW2, the expert Engineer has also deposed that during 1994 the structural work for the said building would cost Rs.1,05,000/-. “$] Building [NL construction work 1994- O )CW D*aGfU !BbTBUC^ CX= ECW^”. Thus, it can be concluded that the complainant or his wife Rukia did not sustain any financial loss on account of the leaving or abandoning of the construction work by the opposite party. The materials on record would also give an indication that the opposite party left the construction work for valid reason. 12. The complainant has got a case that the structural work of the building was completed by the opposite party in September 1994. But the opposite party would contend that he completed the structural work by the end of June 1994. Admittedly the plastering, flooring and other finishing works were done at the instance of the complainant by engaging other workers. Ext.B2 invitation card issued by the complainant in connection with the house warming ceremony of the house would show that the house warming was performed on 28/8/1994. The complainant had no case that he performed the house warming ceremony without doing the plastering and flooring works for the building. On the other hand, it is the case of the complainant that he had done the finishing works such as plastering and flooring and thereafter performed the house warming ceremony. This circumstance would show that the case of the complainant that the structural work was completed in September 1994 cannot be true. This would in turn strengthen the case of the opposite party that the structural work was finished by the end of June 1994. The complainant as PW1 was reluctant in telling the truth regarding the date of house warming ceremony. He made an attempt that the house warming ceremony was not performed or conducted in pursuance of B2 invitation card. The aforesaid case of PW1 cannot be believed. The evidence of PW1 on that respect would give an indication that he was not prepared to divulge the true fact. Thus, the available circumstance would show that the complaint in OP.743/96 was filed with false allegations. 13. The complainant has got a further case that because of the deficiency in service on the part of the opposite party he could not fulfil the last wish of his beloved wife Rukia. It is the case of the complainant that his wife was affected by the disease of cancer and she had the wish to stay in this new residential building. But because of the delay caused by the opposite party, the aforesaid wish or desire could not be fulfilled. The Forum below has appraised the evidence on record in that respect and rightly held that the complainant has developed a false case on that respect. The complainant as PW1 was cross-examined on this aspect and the truth has come out. It is revealed that the complainant conducted the house warming ceremony and he started residing in the new residential building with his wife Rukia and she had her residence in the new building during the last period of her life. The aforesaid false case was developed by the complainant in order to gather sympathy. But unfortunately the complainant could not succeed in that attempt. The Forum below is perfectly justified in not relying on the aforesaid case of the complainant. The aforesaid circumstance is sufficient enough to hold that the complainant has no reluctancy in telling falsehood before a competent authority like the Forum below. 14. The complainant got his residential building inspected by PW2 an expert Engineer. Ext.A4 is the inspection report dated:24-3-1997 issued by PW2, Retired PWD Engineer. In A4 report the defects are enumerated by PW2. The first one is the presence of hairline cracks on the walls in most of the places. But the expert has not disclosed whether the aforesaid cracks are due to the defective plastering or due to the construction of walls with laterite stones. The presence of hairline cracks on the walls in most of the places would give an indication that the said hairline cracks are due to defective plastering. PW2 has also admitted the fact that the said cracks on the walls can also be due to the defective plastering. He has also admitted that he did not conduct any scientific test to ascertain the strength of the laterite stones used for the walls. PW2 further admitted that he reported that inferior quality materials are used only because of the presence of cracks on the walls and leakage to the roof. It is pertinent to note at this juncture that the plastering of the walls was done at the instance of the complainant by engaging other persons and that the opposite party had no role in plastering the walls for the building. So, the aforesaid defect of hairline cracks on the walls cannot be attributed to the opposite party. 15. The 2nd defect pointed out by PW2 is that the presence of heavy leakage on the RC roof as water was dripping inside the room. PW2 has not deposed that he witnessed the drip of water inside the room. It is only a report that there are signs of heavy leakage on the RC roof. It is to be noted that the inspection was conducted on 24-3-1997. There can be no doubt that the said inspection was conducted during the peak summer season. So, the opinion of PW2 that there were signs of heavy leaking of the RC roof cannot be accepted as such. It may be correct to say that there was dampness to the roofing. 16. The evidence of PW1 would show that the said building had been let out on rent. RW1 has categorically deposed the occupation of that building by an Advocate. The aforesaid testimony of RW1 has not been denied by PW1. The cross-examination of PW1 would make it clear that he had let out the said building to Advocate Harikumar and prior to that another person was in occupation of that building. The Forum below can be justified in inferring about the condition of the building. Had there been any such heavy leakage during rainy season nobody would prefer to take such a building on rent. 17. Moreover, PW2 has categorically deposed that this building is fit for human habitation. It is true that PW2 has also added that there will be the possibility of causing difficulty due to leakage to the roof. Anyhow, it can very safely be concluded that the said building is fit for occupation. It would in turn make the case of the complainant that the house is not fit for human habitation is unacceptable. 18. PW2, the expert Engineer has not deposed about the actual reason for the leakage to the roof. He categorically admitted that he is not in a position to say the reason for the said leaking. “$] building-[NL \/TM/bBada "xT7a *TC7^ "ka "<UBada =LBTN =pUDc&” The cross-examination of PW2 would make it clear that over the RCC roofing, plastering with water proof materials is to be done. He also admitted that for the said RCC roofing, plastering has been done. He further admitted that there is possibility of causing leak due to defective plastering. Admittedly the aforesaid roof plastering was not done by the opposite party; but it was done at the instance of the complainant. RW1 has also deposed about the RCC provided for the roofing and the steps to be taken to avoid or prevent leakage to the roofing. Moreover, PW2 has also admitted that the aforesaid leakage to the roof can be cured or rectified. So, it is not just or fair on the part of the complainant in finding fault with the opposite party for the so called leakage to the roof. It is also to be noted that the work was done during 1994 and the leakage was noticed only during June 1996. Had there been any defective RCC concreting for the roofing, naturally there would have been the leakage immediately thereafter. But the latent leakage would give an indication that the said leaking was due to the defective plastering provided for the RCC roofing. 19. The 3rd defect noticed by PW2 is the difference in the height of the building. Admittedly as per the plan the height of the building is 306 cms; but according to PW2 the available height is only 290 cms. Thus, there is a difference in height by 16 cms. The evidence of PW2 would make it clear that the difference in the height can occur due to the flooring given for the building. Admittedly the flooring work was not done by the opposite party. So, the aforesaid minor difference in height cannot be taken as a serious deviation made by the opposite party. 20. The 4th one is the difference in the width of the sunshade. Admittedly there is difference of 10cms between the width provided in the approved plan and the present width of the sunshade. The opposite party as RW1 has deposed about the construction of the sunshade. According to RW1 the width of the sunshade was reduced as requested by the complainant and his wife Rukia. It is to be noted that the construction of the sunshade was done prior to June 1994. The complainant had no such grievance prior to the issuance of Ext.A1 lawyer notice dated:6/9/1996. This circumstance would support the case of the opposite party that the said variation regarding the width of the sunshade was made at the request of the complainant and his wife Rukia. The evidence on record would show that the aforesaid minor variation would not reduce the value of the building. PW2 has categorically deposed about the present value of the disputed building. He assessed the value of the said building at Rs.4-4 ½ lakhs. He also assessed the monthly rent that would fetch for the said building at Rs.3000/-. So, it can be concluded that the aforesaid minor deviations had not caused any prejudice or loss or inconvenience to the complainant. 21. The 5th defect reported by the expert Engineer (PW2) is the reduction of the height for the windows by 10 cms. Admittedly the carpentry works were done at the expense of the complainant and that the opposite party had no role in doing the construction of windows or any carpentry works. So, the aforesaid defect cannot be attributed against the opposite party. 22. The 6th and the last defect pointed out by the expert commissioner is the defective construction of supporting beams. But when PW2 was cross-examined he has not stated anything about the defective construction of beams. The answers given by PW2 with respect to the beams would show that there was no such defective construction of beams. The over all study of the testimony of PW2 with reference to A4 report would make it clear that there was no defective construction at the hands of the opposite party. If that be so, the alleged deficiency of service regarding defective construction can only be negatived. The Forum below has perfectly justified in not believing the case of the complainant regarding deficiency of service on the part of the opposite party. Thus, the impugned order passed by the Forum below dismissing the complaint in OP.743/96 is to be upheld. We do not find any sustainable and justifiable reason or ground to interfere with the impugned order passed by the Forum below. These points are answered accordingly. In the result the appeal is dismissed. The impugned order dated:4/2/2000 passed by the CDRF, Kozhikkode in OP.743/96 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA: MEMBER VL. | 
