IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Smt. Emilda Gonsalves w/o. Wilfred Jacob Gonsalves, aged 45 years, resident of Betoli Village, Virajpet Taluk, Kodagu District with a payer to direct the opponent to pay the present damages worth Rs.20,00,000/- and the cost of this proceedings.

2. The opponent Mr. C.N. Gangadhara s/o. Nanu Kuttan, aged 51 year, resident of Virajpet is the Building Contractor.  The complainant is the owner of the house site in Sy.No. 406/8 situated within the limits of Betoli Village, Virajpet Taluk.  That on 28/08/2013 the complainant and opponent were entered in to written agreement to construct the complainant’s RCC residential building in the above site as per the plan prepared by the qualified Civil Engineer.  The cost of the construction of the residential building is Rs.14,51,500/- which included labour charges, building materials, fittings and fixtures etc.

3. The opponent has constructed the residential building by receiving an amount of Rs.14,25,000/- from the complainant under different dates.  The opponent has constructed an extra one bed room, bath room and a toilet for which he has received extra amount of Rs.2,40,000/- from the complainant.  The opponent has delivered the possession of newly constructed residential building to the complainant on 13/07/2014.

4. It is alleged in the complaint that the opponent has not constructed and finished the residential building as per the terms and conditions of the written agreement.  The opponent has filled boulders in the foundation without any packing to the voids nor with cement mortar by unskilled workers.  The opponent has not maintained the quality at the time of work and used low quality building materials.  Due to weak foundation and use of low quality materials within a year of completion of the building work cracks have developed in the walls and foundation started sinking.  Further due to use of low quality building materials dampness in the walls from the roof and cracks on vertical and horizontal line.  The opponent has used plywood instead of Nandi wood contrary to the agreement entered between the parties.  An account of damages to the entire building RCC residential building is not fit for living.

5. It is further case of complainant that she has invested her and her husband’s hard earned money and also obtained loan of Rs.11,50,000/- from the State Bank of India, Virajpet Branch to construct the said building for their own residence with great expectation.  On account of the defective construction and deficiency in service by the opponent she become desperate and suffered physical and mental stress.  Now the RCC residential building is beyond repairs, not safe and dangerous to life.  The said house has to be demolished and to reconstruct for human living and at present the cost of construction is increased and an amount of Rs.35,00,000/- is required for reconstruction and finishing of the house.  Therefore, the complainant has got issued legal notice dated 20/08/2015 to the opponent calling upon him to reconstruct the residential building or to pay the present cost of the building a sum of Rs.35,00,000/-.  That on 26/08/2015 the opponent has replied to the said notice in vague manner.  The complainant has restricted her claim maximum to the extent of Rs.20,00,000/- hence, this complaint.

6. After the service of notice the opponent put in appearance through his learned counsel and filed written statement admitting that he is Building Contractor and entered in to an agreement with the complainant on 28/08/2015 for the construction of the house on site situated in Sy.No.406/8 at Betoli Village, Virajpet Taluk.  When the construction work was under progress as per the agreement the complainant by appreciating his work has requested him to construct an extra bed room, bath room and toilet attached to the main house for an amount of Rs.2,40,000/-.  The extra construction was done after the completion of main house building as such the crack quite naturally arose between the main house and extra room constructed subsequently.

7. The opponent contention is that he is involved in construction for the past 22 years and he has constructed many houses in the locality.  During construction the complainant never questioned with regard to quality of work, quality of materials and work done by labourers.  The opponent has delivered the possession of the new constructed house on 13/07/2014 by complying with all the conditions set forth in the agreement.  The complainant has made some delayed payment and not paid last payment of Rs.26,000/-.  Despite his several request to make the payment of balance amount due under agreement the complainant to avoid the said amount has filed this false complaint.

8.  The opponent has denied the rest of the allegations made in the complaint that the house constructed by him is not fit for residence.  The construction was done as per Sri.Erappa, Engineer plan and there is no deficiency in service and this opponent has not used low quality building materials.  The complainant got damage report from Sri. Ragupathy, Engineer who is no way concerned to the construction work and the said Engineer prepared report on the behest complainant for making illegal gain.  The opponent has prayed for counter claim of Rs.26,000/- with interest.

9. The complainant filed objections to the counter claim of opponent that there is no scope to file counter claim under Consumer Protection Act.  The opponent asked counter claim which is to recover money from the complainant.  This Forum has no jurisdiction to entertain money recover dispute which is civil in nature.

10. The complainant’s husband Wilfred Jacob Gonsalves filed his affidavit in lieu of evidence as General Power of Attorney Holder of his wife and produced nine documents.  On behalf of complainant M.A. Ragupathi s/o. late Achaiah, Civil Engineer, Virajpet filed his affidavit evidence.  On the same line opponent filed his affidavit in lieu of evidence and got marked exhibits R1 to R4 documents.  On behalf of opponent RW2 M.K. Erappa s/o. M.M. Kuttappa, resident of Devanageri Village, Virajpet Taluk filed his affidavit in lieu of averments.

11. We heard the arguments advanced by the learned counsel for the complainant and opponent and the points that would arise for determination are as under;

1. Whether the complainant proves that the opponent has made defective construction and committed deficiency in service while constructing her residential building?

2. Is complainant entitled to the relief sought for?

3. What order?

12. Our findings on the above points is as under;

• Point No.1:- In the Affirmative
• Point No.2:- In the partly Affirmative
• Point No.3:- As per final order for the below

R E A S O N S

13. Point No.1 to 3 :- The learned counsel for the complainant vehemently argued that the defects which crept in the new constructed building cannot be noticed in overnight.  The opponent has used low quality building materials and the building foundation is weak as such the building cannot be repaired since the plinth itself is weak.  As against this, the learned counsel for the opponent urged that infact the construction work made by the opponent was not satisfactory the complainant would not have asked him to construct an extra bed room, bath room and toilet for an amount of Rs.2,40,000/-.  The second contention of opponent learned counsel is that the report of Ragupathy, Engineer is not referred in the complaint.  The complainant estimated the present cost of the building at Rs.35,00,000/- as on the date of filing complaint but restricted her claim to an amount of Rs.20,00,000/- itself shows her intention to get wrongful gain from the opponent.

14. In the case on hand the opponent has not disputed an agreement entered between him and the complainant vide exhibit P2 and exhibit R-1 original agreement entered on 28/08/2013 for construction of the residential building in Sy.No.406/8 of Betoli Village for Rs.4,51,500/- and construction of extra bed room, bath room and toilet for Rs.2,40,000/-.  The opponent has not disputed the receipt of Rs.14,25,000/-, and Rs.2,40,000/- from the complainant on different dates and it can be find on back page of exhibits P2  and R1 agreement.  The complainant and opponent have made endorsement for payment and receipt of the amount.  The complainant in addition to her oral say has relied upon the report of Sri.Ragupathy, Engineer who filed affidavit evidence as CW2.  On the other hand the opponent apart from his affidavit evidence relied upon the affidavit evidence of Sri. Erappa, Civil Engineer who prepared blue print of the residential house of the complainant.

15. The opponent has moved an application for appointment of Court Commissioner and this Forum by allowing the said application was appointed Assistant Executive Engineer, PWD, Virajpet and on inspection AEE, PWD, Virajpet filed detailed report.  However the complainant and opponent have filed objections to the Commissioner’s Report and on hearing both the parties the then President of this Forum has rejected the Commissioner’s report vide order dated 21/11/2016.  Again on 05/01/2017 the opponent had filed another application to appoint an Engineer to make local inspection and submit report to this Forum.  On hearing both the sides the then President rejected IA 3 holding that qualified PWD Engineer was previously appointed as such no necessity to appoint another Engineer for the same work.  There after again one more application was filed by opponent on 23/06/2018 under order XXVI Rule 1 and 2 to appoint an Engineer to make local inspection of the said building.  The said application came to be rejected on 28/07/2018 holding that similar application was already rejected by this Forum and the same has attained finality since the opponent has not challenge the said order by filing appeal or revision before the proper Forum.

16. There is no force in the contention of learned counsel for the opponent that the complainant has not referred the report of Sri. Ragupathy, Engineer in the complaint.  The complainant has produced building damage estimate report with photos and enclosures submitted by Sri.Ragupathy, Engineer which is at Sl.No.7 of the list of documents dated 14/09/2015 the day on which the complaint had filed before this Forum.  The opponent in the written statement/ version filed on 20/01/2016 in paragraph no.12 referred the report of Sri.Ragupathy, Engineer.  It is stated in paragraph no.12 that the complainant got the damage report from Sri. Ragupathy, Engineer who is no way concerned to the construction work and the Engineer prepared the report on the behest of the complainant for making illegal gain.  The said Sri. Ragupathy, Engineer had visited the house of the complainant on 10/07/2015 and submitted his report dated 21/07/2015.  The report of Engineer and photos are marked at exhibits P7 and 9.  The said Engineer had taken as many as 23 photographs of the building.  It shows that the complainant has referred the report of Sri. Ragupathy, Engineer in the complaint and produced his report along with photos and enclosures along with the complaint.  Mr. Ragupathy, Engineer has visited the house of the complainant nearly two months prior to filing the complaint as such there is no force in the arguments of learned counsel for the opponent that Sri Ragupathy, Engineer has not visited the house of the complainant and submitted report to the complainant before filing this complaint.

17. CW2 Sri. Ragupathy, Engineer passed Diploma in Civil side in the year 1969 and produced his qualification documents as per interrogatory asked by the complainant.  The report of Ragupathy, Engineer is reliable as he is Civil Engineer and aged 75 years.  The opponent has not attacked the report of the Ragupathy, Engineer that he without visiting the house of complainant has given false report.

18. The evidence of RW2 Sri M.K. Erappa, Engineer could not be relied upon though he prepared blue print of the complainant house.  RW2 on seeing progress of the construction work has reported to the State Bank of India, Virajpet Branch for release of installments amount.  RW2 M.K. Erappa to the interrogatories asked by the complainant given reply  that he has not supervised construction of the house of the complainant.  On the contrary he has given reply that when work was in progress he used visit the spot and reporting to the bank.  Therefore, evidence of RW2 is not helpful to the opponent since he did not supervise the construction work nor checked the efficiency of the labours and quality of the building materials used by the opponent. RW2 in his evidence admitted that he noticed hair line cracks due to atmospheric conditions and sometime due to use of poor quality of sand and he noticed water leakage in bath room due to improper joining of pipes.  RW2 admitted that cracks between main wall and extended wall due to construction time gap between main wall and extended wall.  RW2 has not taken photographs of the building including the foundation though stated that he gave visit to the house of complainant after completing construction of the house.  Therefore, the evidence of RW2 cannot be relied upon that the hair line cracks and other defects can be cured by spending more than Rs.50,000/-.

19. Mr.Ragupathy, Engineer has filed exhibit P7 detailed report with regard to damage, cause for damage and remarks.  According to CW2 and complainant foundation work is not properly done by the opponent.  According to exhibit P2 and R1 agreement the opponent shall use size granite stones for foundation and they shall be filled with cement mortar and mud.  Sri Ragupathy, Engineer has produced photos of foundation and before taking photos they have dug foundation at some points and on perusal of photos we may found that the boulders (rubbel stones) used for foundation work.  No package has been done in between the boulders used for foundation.  Though commissioner’s report is rejected the commissioner has also taken photos of foundation wherein also the same picture can be seen.  It shows that the opponent has laid the foundation contrary to  exhibit R1 agreement by using boulders instead of granite size stones.  Further the opponent has not filled the space or locked the gaps of boulders with cement mortar or mud.  Due to gap in the boulders seepage has taken place inside the gap as a result there is sinking in the building.  On perusal of the report of Sri.Ragupathy and photos it can be safely come to the conclusion that the foundation of the residential building is very weak as a result there is sinking consequently, cracks have developed in all the walls of the building.

20. The opponent has used low quality wood for doors and windows. According to the agreement the opponent shall use Nandi, Jack and Hebbalasu wood for windows and doors of the building.  On the contrary the opponent has used hard plywood, readymade doors and jungle wood for the windows.  The opponent has taken defence that when he brought two parts door of Nandi the complainant asked him to bring single door then he told that such big size wood is not available in the market.  The opponent has not produced any document or photos to show that he has prepared two parts door of Nandi wood and the complainant told him to fix single door to her building.  Therefore, the version of the opponent is not reliable that on the say of complainant he has fixed hard plywood doors and jungle wood windows.  Plywood wood doors would attack fungus and white ants due to atmospheric condition in Kodagu District as it is noticed that heavy rains is falling in Kodagu District compared to other parts of the state. 

21. The 23 photos produced by Sri Ragupathy are perused we may see number of cracks on the walls of building.  They are not hair line cracks but they are big cracks in all the walls including joint wall of the main house and extended portion.  Due to poor quality construction there is seepage of water from the roof and black spots can be seen on the walls of the house.  By seeing photo no.21 to 23 any one can say that there are small and big cracks in the foundation and basement of the residential building.  On overall appreciation of the evidence of complainant, Sri.Ragupathy, Engineer and report along with enclosures it is evident that due to weak foundation work number of cracks have developed in the walls of the house because sinking of the foundation.  The said house is not fit for living for a long period as there is every chance of widening of present cracks and leakage in the entire house which could not be repaired at any time.  Therefore, it is evident from the records that the entire building has to be demolished and reconstruction to be made since the first floor cannot be constructed on the existing building due to weak foundation.

22. The learned counsel for the opponent urged that due to satisfactory construction made by the opponent, the complainant had given the work for construction of extended portion. The complainant to the interrogatories of the opponent on this point gave reply that the opponent did not construct two bath rooms and two toilets as per the plan and agreement by assigning reason of vastu.  On account of this he asked the opponent to construct an extra bed room, bath room and toilet.  It is clearly mentioned in the plan and agreement that one Indian toilet and another western commode shall be made attached to the bed rooms.   Therefore, the version of complainant is reliable for giving additional work to the opponent but not seeing his satisfactory work.   

23. The learned counsel for the complainant on the point of defective construction relied upon the case of Milroc Development Company and others v/s Antonieta Ribeiro De souza, I (2013) Consumer Protection Judgments 65 (National Commission) wherein under Sections 2(1)(f) (g), 14(1)(d) and 21(b) of the Consumer Protection Act, 1986 held that defects in construction – dampness in outer and inner walls.  Lack of clean and potable water.  Rectification sought – District Forum allowed complaint – State Commission dismissed appeal.  Hence revision – report of expert reveals so many defects – walls are incapable to tolerate cool air coming from air conditioner.  It shows poor quality of material used there – impugned order upheld.  On the same point the complainant relied upon the case of D.S. Yadav v/s Indian Railway Welfare Organization and another I (2011) CPJ 109 (NC) and Shriji Infrastructure India Pvt. Ltd. V/s Vimal Kumar Shukla I (2011) CPJ 328 (Chhattisgarh State Consumer Commission, Raipur).  In the above cases the complainant has challenged defective construction of house and use of low quality materials.  Defects supported by technical report from expert.  The facts of the above citation are applicable to the case on hand.

24. The complainant has restricted her claim to an extent of Rs.20,00,000/- though the present cost of construction may come to Rs.35,00,000/-.  The complainant has paid Rs.14,25,000/- as per original agreement plus Rs.2,40,000/- for extended portion total sum of Rs.16,65,000/- to the opponent.  At present the complainant is residing in the said house with difficulty on seeing cracks and seepage of water from the roof.  Considering the amount paid by the complainant to the opponent she is entitled for a sum of Rs.17,00,000/- from the opponent for defective construction, deficiency in service and use of low quality building materials.  As already observed that the cracks which have developed cannot be rectified since foundation is very weak.  The complainant has

suffered physically and mentally due to poor construction and she has to pay EMI’s with interest.Therefore, the opponents shall liable to pay a sum of Rs.1,50,000/- as compensation to the complainant towards physical and mental sufferings. In the result, we proceed to pass the following;

O R D E R

1. The complaint filed by Smt. Emilda Gonsalves w/o. Wilfred Jacob Gonsalves is partly allowed directing the opponent to pay a sum of Rs.17,00,000/- to the complainant for reconstruction of the residential building.
2. It is further ordered that the opponent shall liable to pay a sum of Rs.1,50,000/- as compensation to the complainant towards physical and mental sufferings.
3. In addition to the above the opponent shall pay a sum of Rs.25,000/-as cost of this proceedings to the complainant.
4. It is ordered that the opponent shall pay the said amount within two months from the date of order otherwise, it carries interest at the rate of 10% per annum from the date of complaint till realization.

5. Furnish copy of order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 16^th day of FEBRUARY, 2019)

                                                    (C.V. MARGOOR)

                                                          PRESIDENT 

                                                    (M.C. DEVAKUMAR)

                                                             MEMBER