DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 16^th day of January 2018

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P. Member                                  Date of filing:  23/03/2015

               : Sri.V.P.Anantha Narayanan, Member

(C.C.No.37/2015)

Chinnan Narikot,

S/o Chinnan Nair,

‘Janaki’,

Nagaripuram (PO),

Palakkad Taluk,

Palakkad District.                                                                                 -           Complainant

(Adv.John John)

 V/s

Gopakumar,

S/o T.Govindankutty Kurup,

Kallat House,

Kattukulam (PO),

Ottappalam,    

Palakkad.                                                                                             -           Opposite parties
(Adv.E.Krishnadas)

O R D E R

By Smt.Suma.K.P. Member,

The complainant entered into an agreement with the opposite party on 11.12.2011 wherein the opposite party undertook to complete the construction work of the residential building of the complainant which included laying of tiles which was specified in the sub head as Flooring.  As per the terms of the agreement, the complainant paid an amount of Rs.7,50,000/- as advance on the date of agreement, and the complainant undertook to make further payments in 6 installments as stated in the agreement and the 7^th installment was agreed to be paid on the submission of statement of accounts of the total expenses.  Opposite party undertook to complete the construction work @ Rs.647/- per sq.ft and agreed to complete the construction within 6 months.   The above said residential building of the complainant was having 9 apartments, which were constructed by the complainant for the accommodation of the doctors in Narikkot Medical Centre situated adjacent to the said building.  The complainant herein is the proprietor of the said hospital named Narikkot Medical Centre.  Out of the above 9 apartments in the said building, one apartment bearing door no.IX/1039 was occupied by the complainant himself for his residential purpose and the complaint is with respect to the said apartment.  As per the terms of the agreement, opposite party started the work and as the work progressed the complainant paid the entire amount to the opposite party as stated in the agreement.  The complainant was working abroad during the construction of the said building and he was not in a position to inspect the construction work on each and every stage.  The opposite party was liable to complete the construction work within 11.06.2012 as per the agreement but, he failed to adhere to the stipulation of time in the agreement.  Hence another agreement was executed on 01.09.2012, whereby the opposite party undertook to handover the building on 30.09.2012, after completing the entire works as signed to the opposite party.  The complainant inspected the above apartment on 10.11.2012 along with the opposite party and found several patent as well as latent defects in the construction work.  The defects noted by the complainant were as follows.

1. Leakage of rain water throughout the apartment
2. The locks of the aluminium windows were found detected
3. The floor tiles were having different shades due to inferior quality
4. Doors are not provided in the pooja room
5. The bathroom doors are not properly fixed
6. The doors also not fixed properly in its frames
7. The water connection including its fittings are not properly fixed and the fixed materials are not properly done
8. Telephone sockets are not provided except one apartment
9. Tiles in the front and back court yards are not replaced
10. The wooden work were not properly done
11. Electrical works were not completed

The opposite party was also convinced that the said defects are therein the construction work and he promised the complainant that he will rectify those defects at the earliest.  Inspite of repeated request made by the complainant, the opposite party failed to rectify those defects and however partly completed the construction work in the month of November 2012.  The opposite party constructed a total area of 7066.00 sq.ft and as per the agreement the complainant has to pay a total amount of Rs,45,71,702/-.  But, the opposite party obtained an amount of Rs.51,70,800/- from the complainant.  As per the terms of the agreement, the opposite party is also duty bound to do any extra works necessitated during the course of construction, which are part of the job mentioned in the agreement without any extra costs.  Since the opposite party failed to rectify the defect, the complainant issued a registered letter on 16.11.2012 to the opposite party calling upon him to rectify the defects and to settle the issues with the concerned departments of the Govt.  But the opposite party had not taken any steps to rectify the defects.  The complainant alleges that the shortcomings of the work done by the opposite party in the apartment bearing door no.IX/1039 which is used by the complainant for his residential purpose amounts to deficiency of service on the part of opposite parties.  He further alleges that he had suffered both mental and financial loss due to the above.  Hence the complainant had approach before this Forum seeking an order to grant compensation of Rs.1 lakh and also to grant Rs.2 lakh to rectify the defects in the construction work of the complainant bearing door no.IX/1039.   

The complainant had already filed a complaint before this Forum as CC 95/2014 with respect to entire construction work of the flat.  After considering the preliminary issue of maintainability, the Forum dismissed the said complaint for the reason that, with respect to the construction of entire flats, the complainant will not come under the perview of consumer as defined under Consumer Protection Act.  Now the complainant had approach before this Forum with respect to the apartment, which is used by him for his residential purpose. 

Notice was issued to the opposite party for appearance.  Opposite party entered appearance and filed version stating the following. 

The complainant had filed a similar complaint against the opposite party as CC No.95/2014 and the said complaint was dismissed on the ground that the same is not maintainable.  Hence the above complaint is barred by Resjudicata and the complainant cannot file this complaint on the same cause of action.  The complainant has also file a Civil Suit and the case involves intricate and complicated facts which can be tried only before a Civil Court.  Entire construction work was made for the purpose of a hospital and the same is for a commercial purpose and therefore this complaint ought to be rejected on that ground alone.  It is true that an agreement was entered into but, the averment that the building is a residential building is absolutely false and hence denied.  The opposite party was made to believe that the building permit was a residential one and agreement was to complete the work which already has a foundation, structure and slab which was already constructed up to the 2^nd floor and staircase room and RCC roofing up to the said stage was already completed when the opposite party took over the work.  It was only subsequently understood that the permit obtained by the complainant was not for residential purposes but for commercial purposes.  Further averment that as per the terms of the said agreement, the complainant paid an amount of Rs.7,50,000/- as advance on the date of the said agreement and the complainant also undertook to make further payments in six installments and to made the final payment on the submission of statement of accounts of the total expenses was admitted  by the opposite party.  Opposite party undertook to complete the construction work @ Rs.647/- per sq.ft was also admitted but to complete the construction within six month was admitted on the condition subject to the availability of the complainant providing water and electricity.  The opposite party faced difficulty due to water shortage in the summer months.  The opposite party further submits that the said residential building was having 9 apartments which were constructed for the accommodation of the doctors of Narikkot Medical Centre situated adjacent to the said building is true and that one apartment was occupied by the complainant for his residential purpose was false and incorrect.  It was learned that the complainant has his own house situated in the address shown in the cause title and nobody had occupied the building to the knowledge of the opposite party as the work was not even started.  According to the opposite party the complainant had not paid the entire amount as per the agreement and an amount of Rs.2,65,694/- is due from the complainant.  The complainant used to visit the site at every stage of the work and more over he had atleast 6 managers who were supervising the work and reporting him daily.  The plan, design and execution of the work including the selection of materials used to was personally done by the complainant himself.  The complainant himself claim to be a person who has experience in construction of hospitals and the choices he made was even against the advice given by the opposite party.  The opposite party had carried on the work sincerely and in a transparent manner and the complainant was personally briefed about each stage of work and he was satisfied with the same.  The complainant had entered into a supplemental agreement on 01.09.2012 to carry out additional work and the period of the time was mutually extended.  The complainant had delayed the payment of Rs.4,53,300/- and it was agreed in the supplemental agreement that the payments for the completed work would be made in 2 installments.  Additional work was delayed only due to the latches and financial issues of the complainant.  The building work was completed as per the agreement on 28.09.2012 and the opposite party had approached the complainant for the balance payment.  The averments regarding the defects noted by the complainant is absolutely false and was denied by the opposite party.  The opposite party has only done the wall work and the entire column work, beems, foundation etc. were completed by some other contractor.  As per the initial design no provisions were made for proper sunshades and the opposite party had no option but to complete the work as on what was present on site.  According to the opposite party there is absolutely no fault or deficiency or negligence on his part.  The only attempt of the complainant is to see that the opposite party does not seek the amounts due to him. The Forum had already decided the matter in CC 95/2014 and this complaint is clearly barred by resjudicata.  The only look out of the complainant seems to be financial game due to the acts of commission and omission by the complainant himself.  The complainant is not entitled to any relief and the compensation claimed is without any basis.  Hence, the complaint has to be dismissed with compensatory cost. 

Opposite party had raised a question of maintainability in their version.  Hence the preliminary issue regarding maintainability was heard and found in favour of complainant vide separate order.  Complainant filed application for appointment of an expert commissioner to note down defects stated in the complaint.  Expert Commissioner had inspected the schedule properties and a detail report was filed.  Complainant filed objection to the commission report and also filed application as IA 270/2016 to remit the commissioners report.  Opposite party also filed objection to the commission report and a counter to the application for remitting the commissioners report.  After hearing the IA 270/2016 the Forum feels that more clarification is necessary for the proper adjudication of the case.  Hence, IA was allowed and commission report was remitted to the same commissioner for filing a detail report.  Accordingly commissioner visited the properties and another additional report was also filed along with photographs.  Complainant also filed chief affidavit and opposite party filed application as IA 149/2017 seeking permission to cross examine the complainant.  Application was allowed and complainant was examined as PW1.  Both the commission report was marked as Ext.C1 and C2.  Opposite party also filed chief affidavit Ext.B1 was marked form the part of opposite party.  Complainant filed application is seeking permission to cross examine the opposite party.  Opposite party was cross examined as DW1.  Evidence was closed and the matter was heard. 

The following issues that arises for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties ?
2. If so, what are the relief and cost?

Issues No.1 & 2

We have perused the commission reports as well as affidavits filed from both sides.  The

expert commissioner had produced photographs of the alleged building along with his report.  The expert commissioner has stated that the defects raised by the complainant was the cracks on the northern side of the building the outer wall is constructed at the edge of the candy lever beam and slab.  The candy lever beam and the slab may sag after some time due to the imposed wage, unless it is reinforced with sufficient reinforcement.  The minute crack may appear and through these crack, water can penetrate at the junction of masonry and the RCC.  These cracks may wide after some time of the construction, and may stop getting further wider, once the reinforcement steels arrest the sagi.  To stop the seepage of water completely is difficult and only way is to provide a sunshade over the cracks.  The cracks can be replastered. 

It was stated by the opposite party that the structural was done by another agency and only the brick masonry and plastering, flooring etc. was done by him.  According to the commissioner minor defects after construction with usually develop and is not to be considered as construction defects.

The main contention of the opposite party was that the complainant had filed a similar complaint against the opposite party before this Forum as CC No.95/2014 and the said complaint was dismissed on the ground that the same is not maintainable.  Hence this complaint is barred by resjudicata and the complainant cannot file this complaint on the same cause of action.  The entire construction was made for the purpose of a hospital and the same is for a commercial purpose and therefore the complaint is ought to be rejected on that ground alone.  More over complainant was having other residences near the hospital.  The permit obtained for the building is that of a commercial building.  During cross examination the complainant has admitted that “]cmXnbn t_m[n¸n¨n«pÅ hnemk¯nemWv Rm³ Xmakn¡p¶Xv.”  He had also admitted in the cross examination that “Xmgs¯ ^vtfmÀ thsd BfmWv sNbvXXv.  Rm³ Xs¶bmWv sNbvXXv.  ]WnsbSp¯Xv ]Wn¡mcmWv.  s{Ku­v ^vtfmÀ, ^ut­j³ ^nÃÀ FÃmw Rm³ sN¿n¸n¨p.  Fsâ Izmfn^nt¡j³ Fkv.Fkv.FÂ.kn bmWv.  F\n¡v I¬kv{S£s\ kw_Ônt¨m, F©n\nbdn§ns\ kw_Ônt¨m FPypt¡j\ Izmfn^nt¡j³ CÃ.  {]mIvSn¡Â FIvkv]ocnb³kv D­v.  F{Knsaâv  GÀs¸Sp¶ kabw {Ku­v ^vtfmÀ se Ém_v hÀ¡v AS¡w Ignªncp¶p.  BÀ.kn.kn dq^nMv Ignªv apIfnes¯ ^vtfmÀ sI«m\mWv F{Knsaâv sNbvXXv”. 

So according to the opposite party the complainant has constructed the above building only for commercial purpose and he is residing in the address as show in the cause title.  The above construction was done only for commercial purpose and the complainant is not residing in the said apartment.  Moreover the work was entrusted only after completing the ground floor.  Hence, even if there are any defects with regard to the alleged building it cannot be burdened upon the opposite party since the defects might have occurred due to the negligence of the construction in the foundation work itself.  In view of the above submission, we cannot attribute deficiency of service on the part of the opposite party. 

Hence the complaint is dismissed without cost. 

Pronounced in the open court on this the 16^th  day of January 2018.

                       Sd/-

                 Shiny.P.R.

                   President 

                       Sd/-     

                   Suma.K.P.

                    Member

                       Sd/-

    V.P.Anantha Narayanan

                    Member

Exhibits marked on the side of complainant

Nil

Exhibits marked on the side of Opposite parties

Ext.B1  -  Photo copy order dated.29.11.2014 of the Consumer Dispute Redressal Forum,

               Palakkad Ordrer No.CC-95/2014

Witness examined on the side of complainant

PW1    -  Chinnan Narikot

Witness examined on the side of opposite party

DW1    -  Gopa Kumar

Commission Report

Ext.C1 -  Expert Commissioners report dated.08.04.2016 with photographs of the

                Building

Ext.C2 -  Expert Commissioners report dated.15.11.2016 with photographs of the

                Building

Cost   

            Nil