IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30th day of December, 2023
Present: Sri.Manulal.V.S, President
Sri.K.M.Anto, Member
CC No.14/2022 (Filed on 22/01/2022)
Complainant : Saji Garvasis S/o Garvasis,
Vellamattathil House,
Kothanalloor P.O, Kottayam
Now residing at
Manna Medows Haritha Homes,
Peroor P.O,
Kottayam - 686 637.
(By Adv: Avaneesh V..N)
Vs.
Opposite party : CJs Haritha Homes,
Represented by its Managing Partner,
Kumar.D,
First Floor, J Square Centre,
Athirampuzha P.O,
Kottayam – 686 562.
(By Advs: Rani Baby, Nikhil Suresh &
Lakshmi Babu
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
Case of the complainant is as follows:
In the year 2017 being attracted by the advertisement of the opposite party, the complainant contacted the opposite party. The opposite party informed the complainant that they had started a project in 2012 and it would be completed within 2020. The opposite party assured that the completed villas are constructed with high quality materials and same was reiterated by the Managing Partner of the opposite party during the discussion with him. They told the complainant that they had not compromised with the quality of materials and there would not be any problems with respect to the building arising out of manner of construction. Believing the words of the opposite party the complainant decided to purchase Villa Number 10 which is completed in 2018. All the works excluding interior works were done by the opposite party with respect to the building at that time. The complainant purchased a 4 BHK Villa named Villa 10 having a plinth area of 2949 square feet. The complainant paid an amount of Rs.69 lakhs for the building and Rs.6,00,000/- for the land as per the sale deed.
In 2018 itself the complainant shifted his residence to the villa. In 2019 some sort of bubbles were appearing on the bottom side of the interior and exterior wall portion of the building. The petitioner believed that it was due to climate change. But on 15-04-2020 there were so many bubbles appeared on the wall on various parts. Also the bubbles which appeared on the wall spread and formed a vacuum area almost all the bottom side of the wall. When the said problem was intimated to the opposite party during lockdown period, the opposite party said that there were no sufficient labourers due to lockdown, they could not attend the matter immediately. Thereafter on 1-04-2021 when the matter was intimated to the opposite party, he said that he will send a supervisor to examine the problem. But that was not done. Though the complainant directly met the opposite party on several occasions the opposite party was in a reluctant mood towards the complaint made by the complainant.
It is averred in the complaint that the condition of the house is in a pathetic condition. The plaster in most of the below portions of exterior and interior walls are detached from the walls. The using of inferior quality of goods and the defective construction from the part of the opposite party occurred these kinds of problems to the house. It is alleged in the complaint that the opposite party used rock powder instead of P sand for plastering. Also the mixing and curing was not done in a fair manner. The opposite party did not use enough materials for the construction of the house. On many portions of the wall cracks were appeared and some are threat to the building. In order to rectify the defects the complainant has to spend huge amount nearly Rs.7,00,000/-. The damaged portion has to be removed and fresh plastering has to be done. The painting is also to be done all areas including the portions where damages caused, after repair. The opposite party has completed the construction of the house without perfection. The defect in the construction has caused substantial damage to the complainant. By selling a house constructed with inferior quality of materials and in a defective manner which is against the assurance and promise given by the respondent at the time of the purchase. The opposite party has committed unfair trade practice and deficiency in service towards the complainant. Hence this complaint is filed by the complainant praying for an order to direct the opposite party to pay Rs.10 lakhs as compensation for the deficiency in service and unfair trade practice on the part of the opposite party and to pay Rs.7 lakhs for the mental agony and financial loss caused to the complainant along with Rs.25,000/- as the cost of this litigation.
Version of the opposite party is as follows:
The opposite party is a premier construction group at Kottayam for the last 15 years. The complainant approached the opposite party and she made a proposal to purchase 1 villa in the project of Manna Meadows which is one of the prime projects of the opposite party. The complainant purchased a 4 BHK Villa No.10 having a plinth area of 2949 square feet as per Sale Deed Number 468/ 2018 of Ettumanoor SRO. Prior to purchasing the villa the complainant had directly inspected the whole project and entered into the sale agreement on 25-08-2017. Thereafter he had made regular inspections for ascertaining the quality of work and materials used for the construction. He had made the purchase on 20-02-2018 as a ready to occupy basis and fully convinced about the finished villa.
The materials used for the construction are rated high and recognised super brands. The quality of materials used was personally verified by the owners and all those similar materials purchased for other villas too. There are no complaints ever raised by other villa owners except the complainant. The reason behind is due to the personal business vengeance of the complainant towards the opposite party. The opposite party purchased building materials and cement from the complainant till 2018 to 2019 and the complainant had specific knowledge about the construction work. The allegations that the bubbles began to appear on the bottom side of the interior and exterior part of the building in 2019 is false. The complainant does not explain the exact location nor the extent of damage caused to the villa. Till date no communication was ever made to the opposite party stating the alleged damage and no demand has ever been made for the said damages. It is submitted in the version that the complainant has committed negligence in taking care of his property and after very long time the complainant is trying to claim undue damages from the opposite party.
The allegation in the complaint that the bubbles appeared on various parts of the walls in April 2020 and spread almost till the bottom side of the wall is false. No intimation was even given to the opposite party as alleged in the year 2020 or 2021. The opposite party never agreed to send any supervisor to examine the complaint. After the purchase all the works on the interior portion of the building was made by the complainant without the knowledge of the opposite party and the opposite party is in no way connected with the said interior works and other repairing works done inside and outside area of the villa. The defects if any is only due to the poor workmanship of the complainant, poor quality of materials used by the complainant and lack of supervision. The allegation that the complainant suspects about the using of rock powder instead of P sand for plastering is false. The opposite party had properly done mixing and curing.
It is pertinent to note that the complainant is the sole complainant regarding any matter about the construction of Manna Meadows although there are 47 more villas in the project. All the villas started construction together and the materials for the said construction were purchased together but no such complaints ever raised by anybody other than the complainant about the materials used in the villa and about the construction. The complainant wants to do the painting as it was done five years back. The total claim of Rs.70,25,000/- is wholly exaggerated and baseless. The damage if any occurred is caused due to the latches on the part of the complainant alone and the opposite party is not bound to provide compensation. The complaint is barred by limitation. There is no deficiency in service or unfair trade practice on the part of the opposite party.
Evidence part of this case consists of deposition of PW1, PW2 and DW1 and Exhibits A1, B1 and X1. Expert Commissioner Report is marked as Exhibit C1.
On evaluation of complaint, version and evidence on record we would like to consider the following points :
(1)Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite party?
(2)If so, what are the reliefs and cost?
For the sake of convenience we would like to consider Point Nos.1 and 2 together.
POINTS 1 & 2 :-
There is no dispute on the fact that the complainant had purchased a 4 BHK Villa named Villa 10 having a plinth area of 2949 square feet in the project named Manna Meadows of the opposite party on 20-02-2018 for a total consideration of Rs.75 lakhs comprising of Rs.6,00,000/- being the consideration of the land and Rs.69 lakhs being the consideration for the residential building vide Exhibits A1 sale deed.
The specific case of the complainant is that in 2019, there were initial signs of bubbling emerging on both the interior and exterior walls of the building. However, by April 15, 2020, numerous bubbles had surfaced across various sections of the walls. Moreover, these bubbles expanded, forming a substantial hollow area along the bottom side of the wall. Most of the lower sections of both the exterior and interior walls have experienced detachment of plaster. These issues in the house were allegedly caused by the opposite party’s use of inferior quality materials and faulty construction practices. The complainant alleged that the opposite party utilized rock powder instead of proper P sand for plastering, and there were inadequacies in the mixing and curing processes.
The complaint was resisted by the opposite party stating that the villa was purchased, under the understanding that it was ready for immediate occupancy, and the complainant was entirely satisfied with the finished state of the villa. The construction materials utilized were renowned for their quality, being esteemed as top-tier brands. The complainant himself conducted a thorough personal verification of these materials, which were consistently used in similar properties without any prior complaints from other villa owners, except for the complainant.
The complainant’s sole dissatisfaction appears to be a personal vengeance against the opposite party. Until 2018-2019, the opposite party procured building materials and cement from the complainant, granting the complainant specific insights into the construction procedures. Following the purchase, all interior work carried out in the building was conducted by the complainant without any involvement or awareness from the opposite party. The opposite party holds no association or responsibility for the interior and exterior repairs or modifications executed within the villa. Any defects present are solely attributed to the complainant’s inadequate workmanship, utilization of subpar materials, and insufficient supervision. Any damages resulting from these factors are the sole responsibility of the complainant, absolving the opposite party from any obligation to provide compensation.
PW1 who is the complainant deposed that in 2017, the structure works, brick works and flooring were completed but the plastering and flooring were done after painting. He further deposed that he went during plastering and after painting and was convinced to see the painting was done after using the putty. Complainant has stated before the Commission that only wooden cupboard works were done by him.
In order to prove his case the complainant filed an interlocutory application to appoint an Expert Commissioner to ascertain the defects of the building and the same was allowed by this Commission. Expert Commissioner filed C1 commission report. In C1 commission report Expert Commissioner has reported that plaster is blistered and almost detached from the walls in the outside northwest side to a height of 2.10 metre, outside northeast side to height of 1.5 metre, outside southeast side to a height of 1.5 metre, northeast side of both porches to a height of 1.5 metre, three sides of bedroom 1 to a height of 1.5 metre, three sides of bedroom 2 to a height of 2.10 metre, northeast wall of drawing and staircase area to a height of 1.20 metre, northeast side of dining room to a height of 1.20 metre, SE and SW side of dining room to a height of 2.10 metre. PW2 who is the Expert Commissioner deposed before the Commission that plaster detaches itself from walls of the mix is too lean (not enough cement used). Also improper curing can cause the same is due to the use of quarry sand. She further deposed that the matter is quarry dust, not the proportion, and there is no need to look at the ratio of the cement, where the dust should not be used. She further deposed that the damages are due to the defective materials being used. When quarry dust used for plastering it was necessary to use more cement, this was not done. In the rooftop plaster it looks like no grout was used for extra adhesion of cement mortar on roof. So defective curing added to the damage.
The opposite party opposed the commission report mainly on the ground that the commissioner purposefully not given notice to the opposite party prior to her visit and not collected necessary information from the opposite party before the instruction. But the DW1 who is the opposite party has deposed that the commissioner gave the notice saying that there is a complaint. DW1 testified that wherever the plaster has been disturbed, it has been noted in the commissioner’s report as a black coloured line. DW1 has also deposed that the complainant has stated in the complaint that what are the defects.
The counsel for the opposite party relied upon the decision of the Hon’ble High Court of Kerala in Thankamani Vs. Vasanthi and others(2020(4) KH C 578) “Wherein it has held that court has a duty to examine relevant records of the commission report and sketch and see whether they are sufficient or not to elucidate matter in dispute for which commission was deputed”.
Herein case on hand the commission was appointed to ascertain and report about the damages caused to the exterior and interior walls of the building and to report the actual cause of damages. In C1 report, Expert Commissioner has reported the damages caused to the building and the actual cost of the damages. On going through the C1 report we can see that commissioner reported the details necessary to elucidate the damage and causeway of the damage for which the commissioner was appointed.
In Yudathadevus Vs. Joseph 2021 (5) KHC 668 Hon’ble High Court of Kerala held that “a court can very well set aside a commission report as well as plan when an application is filed to set aside the same if proper reason is shown in the application”. On going through the objection filed by the opposite party to the commission report he has not stated any reason other than which was stated in the version to set aside the report of the expert commissioner. The only objection which raised by the opposite party to set aside the commission report that the cost arrived at by the commissioner for rectifying the damages is incorrect. We are of the opinion that only due to the wrong calculation by the expert commissioner is not sufficient to set aside the report of the expert commissioner.
On the evaluation of the commission report and evidence on record we are of the opinion that the opposite party has committed unfair trade practice and deficiency in service by selling villa constructed with inferior quality of materials and in a defective manner against the assurance and promise given by the opposite party at the time of purchase by the complainant.
No doubt a new house is a dream of every person and any defect in construction would cause much mental agony to the owner of the said house. On going through the detailed estimate in C1 commission report we can see that the Expert Commissioner has calculated Rs.15,000/- for plastic sheets to protect the floor from damage, Rs.84,850/- for removing blistered plaster and disposing of waste material outside the property, Rs.99,952/- for plaster work in 1:4 cm ratio, Rs.30,699/- for applying a waterproofing coat during plastering in 1:4 cm ratio, and Rs.4,82,832/- for painting two coats over putty. But she had not explained how she arrived a calculation of Rs.15,000/- for plastic sheets and Rs.84,850/- for removal of the waste outside the property. Moreover during the cross examination she did not depose how she had arrived an amount of Rs.7,25,000/- for the repair. Therefore we are not inclined to allow the amount calculated by the expert commissioner for the repair works. But it is evident from the deposition of the PW1 that he had carried out some repair work in the villa. Being the owner of a newly constructed house the complainant had put into much severe mental agony and hardship due to the defect in the house for which the opposite party is liable to compensate. Considering the salutary principles of the Consumer Protection Act we are of the opinion that allowing a compensation of Rs.5,00,000/- will meet the ends of justice.
In these circumstances we allow the complaint in part and direct the opposite party to pay Rs.5,00,000/- (Rupees Five Lakhs only) to the complainant as compensation for the deficiency in service and unfair trade practice on the part of the opposite party and to pay Rs.3,500/- (Rupees Three Thousand and Five Hundred only) as the cost of this litigation.
The order shall be complied within 30 days from the date of receipt of copy of this order failing which the compensation amount shall carry 9% interest per annum from the date of this order till realisation.
Pronounced in the Open Commission on this the 30th day of December, 2023
Sri.Manulal.V.S, President Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witnesses from the side of the complainanats :
PW1 - Saji Garvasis
PW2 - Amala Mathew
Witnesses from the side of the Opposite parties :
DW1 - Kumar.D
Exhibits from the side of the Complainants :
A1 - Copy of Sale Deed dated 20/02/2018 executed between
the complainant and the opposite party
C1 - Commission Report
Exhibits from the side of Opposite parties :
B1 - Copy of Tax Invoice No.TXN/508/20147-18 dated
15/02/2018 issued by M/s.Vellamattathil Cements,
Kothanalloor
By Order,
Sd/-
Assistant Registrar
