Mr.Dhanraj Khamatkar – Hon’ble Member:
(1) These two appeals take an exception to an order passed by the Consumer Disputes Redressal Forum, Mumbai Suburban District, in Consumer Complaint No.955/1998 on 29.06.2007. Appeal No.1184/2007 is filed by the original Opponent No.1 and Appeal No.1412/2007 is filed by the original Opponent No.3. Since both these appeals have been filed against the order dated 29.06.2007, both the appeals are clubbed together and common order is being passed.
(2) The facts leading to these appeals can be summarized as under:
The Respondent No.1/original Complainant in both the appeals wanted to construct a house. He had entered into an agreement with the original Opponent No.1, who is an Architect by profession. Opponent No.2 is a Contractor and Opponent No.3 is a structural Engineer. The Opponent No.1 had accepted to work as an Architect vide his letter dated 09.12.1997. On 07.03.1998 the Respondent No.1/original Complainant entered into agreement with the Opponent No.2 for the construction of house and the Opponent No.1 and Appellant in the Appeal No.1184/2007 had signed the agreement entered with the Opponent No.2. Similarly, the Respondent No.1/original Complainant appointed original Opponent No.3, Appellant in Appeal No.1412/2007 as structural Engineer. The original Opponent Nos.1, 2 and 3 visited the site of construction on 08.03.1998 and accordingly trial pit at the construction site was taken. During the period 08.03.1998 to 28.03.1998 excavation was taken on the site. After 08.03.1998 till 28.03.1998 the original Opponent Nos.1 and 3, the present Appellants had not visited the site.
On 07.04.1998 the Respondent No.1/original Complainant had received the notice from MHADA stating that unauthorized excavation has been done at the construction site and while doing the excavation they have encroached on the adjacent plot and the same be refilled immediately. Accordingly, he had informed the Appellant/original Opponent No.1 in Appeal no.1184/2007, however, he had not taken any cognizance. As against this, he had received letter dated 01.04.1998 from the present Appellant/original Opponent No.1 stating that the excavation made be immediately refilled. The Respondent No.1/original Complainant informed the Appellant/Original Opponent No.1 in Appeal no.1184/2007 that he is not supervising the construction work and requested him to start the refilling work. The Complainant had informed the same to the original Opponent Nos.2 and 3. After 08.03.1998 the original Opponent Nos.1 and 3 had not visited the site. However, the Opponent Nos.1 and 2 had not taken any action. The Opponent No.2 had refilled 50% excavation work. However, he had not refilled the excavation of adjacent plot and the Opponent No.2 had asked for the payment. The Opponent No.3 had denied his responsibility vide his letter dated 22.04.1998. The Opponent No.2 replied to the original Complainant that the original Opponent Nos.1 and 3, present Appellants had agreed to pay him additional amount. However, he had not received the same and the Complainant had told him to do the excavation work unauthorisedly.
The original Complainant further contended that the original Opponent No.1/present Appellant in Appeal No.1184/2007 is responsible for the construction of work and proper coordination between original Opponent Nos.2 and 3. Hence, they are jointly and severally responsible for the deficiency in service. To extract the additional amount from the original Complainant they had done the unauthorized excavation. The original Complainant/Respondent No.1 informed the original Opponent Nos.1, 2 and 3 why their contract should not be terminated. However, he had not received any response and he had filed the consumer complaint for following reliefs:
a) To declare that the Opponent Nos.1 to 3 are guilty of deficiency in service.
b) To declare that the Opponent Nos.1 to 3 are guilty of indulging in unfair trade practices.
c) To direct Opponent Nos.1 to 3 to pay Complainant the amount set out in paragraph 25 above along with interest @18% up-to-the date of payment as deemed fit.
d) To pay costs of the complaint and pass such other order as may deem fit and proper.
The District Forum after hearing both the parties has passed an order directing original opponents to pay an amount as stated under:
a) within 45 days the Opponent No.1 to pay an amount of `20,000/- taken as an advance to the Complainant.
b) the Opponent NO.2 to pay an amount of `40,000/- taken as an advance from the Complainant.
c) Opponent No.3 to pay `2,500/- taken as an advance to the Complainant.
d) Opponent Nos.1 to 3 to pay to the Complainant `60,000/- jointly and severally for the inconvenience and mental agony and `5,000/- as costs.
e) If the amount is not paid within 45 days the amount will carry interest @18% per annum from the date of order till the realization of the amount.
(3) Aggrieved by the order the original Opponent Nos.1 and 3 have filed present appeals.
(4) We heard Counsels for the Appellants and the Respondent No.1/original Complainant.
(5) Admittedly the Respondent/original Complainant wanted to construct the house. The Appellant/original Opponent No.1 in First Appeal No.1184/2007 is an Architect. The Appellant/original Opponent No.3 in Appeal No.1412/2007 is a structural Engineer and both have challenged the order. The Opponent No.2 who was a contractor has not challenged the order and the order dated 29.06.2007 has achieved finality in respect of original Opponent No.2.
(6) The original Opponent No.1 and the Appellant in Appeal No.1184/2007 had accepted the offer of the original Complainant for payment of `25,000/- as an Architect. Similarly, the Opponent No.2 had accepted the contract of the construction on 7th March, 1998 and the Appellant in Appeal No.1 had signed the contract and the Opponent No.3 had been appointed as a structural Engineer. Both the appeals and the original Opponent No.2 visited the site on 08.03.1998. The excavation work carried out from 08.03.1998 to 28.03.1998. It is the contention of the original Complainant that after 08.03.1998 till 28.03.1998 the Appellants had not visited the site. On 07.04.1998 the original Complainant/Respondent No.1 had received the notice from MHADA that there is an unauthorised excavation at the construction site and while doing the excavation, unauthorized excavation had been carried out in the adjacent plot No.100. The MHADA Authorities further directed that the unauthorized excavation be filled immediately. It is the contention of the original Opponent No.1 and Appellant in Appeal No.1184/2007 that the unauthorized excavation was carried out at the instance of the Complainant. He further contended that the Respondent No.1/original Complainant wanted to construct basement at the site and hence, he had instructed the original Opponent No.2 to do the excavation. The Appellant in Appeal No.1412/2007 had contended that he was not called on the site. The Opponent No.2 also tried to pass the blame of unauthorized excavation on the Complainant. The Appellant in Appeal No.1184/2007 had tried to invite our attention on the letter written by him to the Complainant on 29.03.1998, wherein he has stated that the Complainant had given instruction to excavate full plinth upto murum level with an intention to have an unauthorized basement as corporation may not approve the basement and Appellant had given advice for unauthorised basement. The letter is dated 29.03.1998, in fact the work of the excavation was carried out during the period 08.03.1998 to 28.03.1998. This letter pointed out by the Appellant will not help him. It proves that, during that period when excavation work was going on he had not visited the site. Both the Appellants are trying to shift the blame on the Complainant. For any construction work the approved plan by the Corporation is basic document and the construction is to be carried out as per the plan approved by the Corporation. In the instant case, original Opponent Nos.1 and 3/present Appellants, are the service providers in construction work and the role of Architect and structural Engineer is very very important. They were legally bound to see whether the Opponent No.2 contractor is doing his job as per the sanction plan. Both of them failed miserably to discharge their lawful duty. They have not produced any credible evidence to prove that they have discharged their duty. Not only this during the excavation they have not visited the site.
(7) From the aforesaid facts, we are of the opinion that, as the service provider they have failed to discharge their responsibility and this amounts to deficiency in service, the Forum after taking into consideration the facts and circumstances of the case has passed the order and we do not find any infirmity in the order passed by the District Forum. There is no substance and merit in the appeals. We hold accordingly and pass the following order:
O R D E R
(i) Both Appeal Nos.1184/2007 and 1412/2007 are dismissed.
(ii) Order of the District Forum passed in Consumer complaint No.955/1998 is hereby confirmed.
(iii) No order as to costs.
(iv) Inform the parties accordingly.
Pronounced on 4th August, 2011.
