IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 20th day of June, 2011. Present : Sri. Jacob Stephen (President). Sri. N. Premkumar (Member) C.C. No. 85/2010 (Filed on 14.06.2010)Between: Sankaramoorthy Reddiyar, Erathu Village, Adoor Taluk. (By Adv.P.K. Alexander) ..... Complainant. And: Jose Thomas, Kripa Engineering Works, Vadakkadathucavu, Adoor. (By Adv. Bindu. N. Rajan) ..... Opposite party. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite party for getting a relief from the Forum. 2. The complainant’s case is that the opposite party is the Proprietor of an institution in the name and style ‘Kripa Engineering Works’ at Vadakkadathucavu, Adoor. The complainant and the opposite party made an oral agreement for constructing aluminium roof over the complainant’s house. Accordingly, the opposite party given written consent on 20.12.2006 to the complainant’s son for the said work. At the time of undertaking the work, the opposite party promised to use quality materials and the construction will be substantive by using anglair having good gage with necessary galvanized pillars with aluminium sheets manufactured by Everlasting Company. The opposite party completed the work during 2008 December. But the opposite party used law quality materials without sufficient pillars and giving proper slope inspite of his assurance. So the central portion of the roof bend down due to the stagnation of rain water during the rainy seasons. Thereafter, the complainant approached the opposite party on several occasions to rectify the defects of the roofing works. But the opposite party evaded the complainant’s demand. While so, on 06.04.2010, the central portion of the roof damaged due to rain and the entire roofing was dislocated. The above said damage to the roofing was due to the using of law quality materials and due to the poor workmanship. It is also noticed that the roofing sheet used is not manufactured by the Everlasting Company. Thereafter, the complainant approached one St. Thomas Industries situated at Pannivizha for the reconstruction of the destroyed roofing who had given an estimate for ` 1,92,660 for the said works. The complainant was compelled for the reconstruction due to the deficiency of service of the opposite party. So the complainant issued a legal notice on 28.04.2010 to the opposite party demanding ` 2 lakhs for the loss and damages sustained by the complainant from the hands of the opposite party. After getting the said notice, the opposite party sent a reply with false allegations. The opposite party is liable to compensate the complainant. Hence this complaint for the realisation of ` 2 lakhs as compensation with 6% per annum from the date of filing of this complaint from the opposite party for the deficiency of service committed by the opposite party. 3. Opposite party entered appearance and filed his version with the following contentions. The opposite party admitted that he is conducting an institution in the name and style “Kripa Engineering Works” and it is a workshop and among other works they are also undertaking the work of fixing aluminium sheets on roof tops of buildings. The opposite party does not have any connection with the materials used, as the materials for the roof works are selected, purchased and supplied by the concerned party. In this case, the materials used were purchased by the complainant from Gerogesons, Adoor and the quality of the materials is not known to the opposite party. The opposite party denied that he had not executed any written agreement with the complainant for the work. But a receipt was issued by the opposite party as insisted by the complainant for availing a loan from the bank. The opposite party has not committed any delay in the completion of the work. The fixing of middle pillars was avoided on the request of the complainant as he told that such works will go beyond his budget, though the opposite party had told the necessity of the middle pillars. The allegation that rain water got trapped in the roof due to the absence of middle pillars is false. On 05.04.2010 and 06.04.2010, heavy rain and strong winds occurred through out Adoor Taluk and the said calamity caused heavy loss to the public. The damage of the roofing of the complainant was due to the said calamity and is not due to the defective works done by the opposite party as alleged by the complainant. The said fact was also enumerated in the legal notice issued by the complainant. It is true that the complainant had informed the opposite party regarding the damages and loss caused to his roof and the opposite party asked him to wait for one week, since he was engaged in another work. The complainant was not willing to wait. The claim of the complainant that he was compelled the reconstruction through St. Thomas Industries by using new materials is false. They have only done some repairing works by fixing 3 pillars in the middle portion of the roof. All old materials are re-used and the old anglairs are painted so as to give new look to the construction. The opposite party is not liable for the loss sustained by the complainant due to natural calamities. The materials and its quality is not known to the opposite party, since it was not supplied by him. The works done is also according to the plan and design suggested by the complainant. With the above contentions, the opposite party prays for the dismissal of the complaint with his cost as he had not committed any deficiency of service to the complainant. 4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not? 5. The evidence of this complaint consists of the oral testimony of PWs.1 and 2, DW1 and CW1 and Exts.A1 to A5, B1 to B4 and C1 and C2. After closure of evidence, both sides were heard. 6. The Point: The complainant’s allegation is that the roofing works done by the opposite party was defective and the materials used were of low quality as against the assurance given by the opposite party at the time of their oral agreement for the construction work. Due to the use of the low quality materials and due to the workmanship of the opposite party, the roofing done by the opposite party was damaged and the opposite party is liable to compensate the complainant for the same. 7. In order to prove the complainant’s case, the complainant had filed a proof affidavit in lie of his chief examinations and produced 5 documents. On the basis of the proof affidavit, the complainant was examined as PW1. One witness was also examined as PW2 from the side of the complainant. The documents produced were marked as Exts.A1 to A5. Ext.A1 is a consent letter dated 20.12.2006 issued by the opposite party in favour of S. Nagendra Kumar stating that he is prepared to carry out the roofing works of the complainant’s house for ` 1,15,000 having an area of 1889 Sq. feet by using Everlast Aluminium sheets. Ext.A2 is the land tax receipt in the name of one Nagendra Kumar. Ext.A3 is the building tax receipt in the name of the complainant. Ext.A4 is the reply notice dated 06.05.2010 sent by the opposite party in reply to the complainant’s legal notice. Ext.A5 is the receipt dated 10.08.2010 for ` 1,46,540 issued by St. Thomas Industries, Pannivizha, Adoor. 8. The report and the mahazar prepared and submitted by the Advocate Commissioner is marked as Ext.C1 and C2 through PW1. 9. The Advocate Commissioner appointed by this Forum as per the order in IA.96/10 who had inspected the site and prepared a mahazar and report regarding the condition of the roof works was also examined as CW1 and the report and mahazar marked as Exts.C1 and C2 through PW1 is also admitted by CW1. 10. The contention of the opposite party is that the materials used for the roof work was purchased and supplied by the complainant and the construction work was done as per the direction and the design of the complainant and the damages of the roof works was due to the heavy rain and wind occurred during April, 2010, i.e. after 3 years from the date of construction and hence he is not responsible for the alleged damages as he had not committed any deficiency in service. 11. In order to prove the contentions of the opposite party, the opposite party filed a proof affidavit in liue of his chief examination. On the basis of his proof affidavit opposite party was examined as DW1 and the documents produced along with the proof affidavit were marked as Exts.B1 to B4. Ext.B1 is the advocate notice dated 24.8.10 issued by the complainant. Ext.B2 is the answers dated 18.3.11 given by the Public Information Officer and Addl. Tahsildar to the opposite party under Right to Information Act pertaining to the details of the natural calamities occurred at Adoor Taluk during April, 2010. Ext.B2(a) is the photocopy of the application dated 25.2.11 submitted by the opposite party before the Public Information Officer of Adoor Taluk Office. Ext.B3 is the Malayala Manorama daily dated 6.4.10 showing the news report in respect of the natural calamities occurred at Adoor Taluk on 05.04.2010. Ext.B4 is the Malayala Manorama daily dated 7.4.10 showing the news report in respect of the natural calamities occurred at Adoor Taluk on 06.04.2010. 12. On the basis of the contentions and arguments of the party’s, we have perused the materials on record and found that there is no dispute between the parties with regard to the construction of the roof. The questions to be decided is whether the roofing work was done by the opposite party as per his design and the materials used in the construction was purchased by the opposite party and whether the works done by the opposite party is defective or not. According to the complainant, the purchase of materials was done by the opposite party and the plan and the design was also of the opposite party. In order to prove the said aspects, the complainant is relying on Ext.A1 consent letter. But the opposite party’s contention is that the materials was purchased and supplied by the complainant and the construction was done as per the direction of the complainant and Ext.A1 is given to the complainant’s son for availing a loan, as insisted by the son of the complainant. 13. The nature and wordings of Ext.A1 seen to be an undertaking for carrying out the roof works. But it does not contain any details regarding the design and the type of materials to be used other than the roofing sheet. The complainant’s argument is that there was an undertaking for a perfect and strong construction by using quality materials. But the complainant has not adduced any other evidence other than, Ext.A1, to show that there was an undertaking or understanding between the parties for a specific design by using specific materials other than the aluminium sheets. Further if an assurance was there from the part of the opposite party, as claimed by the complainant, why the complainant allowed the opposite party to carry out and complete the work as against the said assurance and What prevented the complainant from giving necessary and specific directions to the opposite party for using the materials offered and changing the defective design then and there. Why the complainant paid the entire amount to the opposite party if the work was found defective and the materials used is not up to the standard and the works done by the opposite party was not to the satisfaction of the complainant. Further the works were done on the terrace of the house of the complainant where the complainant is permanently residing with her wife and the works were completed not within 2 or 3 days. What prevented the complainant from insisting the terms and conditions of Ext.A1. So we find that Ext.A1 is not an actual agreement for the work as claimed by the complainant. So the contention of the complainant that the works were defective and law quality materials were used in spite of the undertaking and assurance of the opposite party is not sustainable. Hence we find that opposite party is not responsible for the quality of the materials and the design of the work. 14. Both parties have a dispute regarding the period taken for the completion of the work. But there is no dispute with regard to the time of starting the work. According to the complainant, the work was completed in the year 2008 whereas the opposite party’s contention is that the work was completed in the year 2007. Anyhow there is no dispute that the damage caused to the roof work was during April, 2010 i.e., after 2 or 3 years from its completion. The complainant’s argument is that the damages of the roof work was due to the defective work by using law quality materials whereas the opposite party’s contention is that the damages was not due to the fault of the opposite party and it was due to the heavy wind and rain occurred in that place. Ext.B2 based on Ext.B2(a), the answers given by the Public Information Officer and Addl. Tahsildar, Adoor and B3 and B4 paper reports clearly shows that there was heavy rain fall and wind occurred at Pallickal, Enathu and Erathu villages on 05.04.2010 and 06.04.2010 caused heavy damages to many buildings and other properties. As per Ext.B1 advocate notice issued by the complainant also clearly shows that the damage to the roof of the complainant was occurred due to the rain fall on 6.4.10. The complainant had no dispute regarding the natural calamities occurred during these days. He also admitted in his advocate notice that his roofing works sustained damages due to the rainfall on 6.4.2010. But his contention is that the said damages were due to the defective works by using poor quality materials. In this juncture, the date of completion of the work is very important. Though there is a dispute in respect of the date of completion of the work, the damages were occurred not less than 2 years from the date of completion of the work. If the complainant’s allegations are admitted for argument sake, we have a doubt, how the structure withstand the rain and wind occurred during the past 2 or 3 years. So, also we find no justification in the complainant’s argument. 15. Then coming to Ext.C2, commissioner’s mahazar, the commissioner reported that the Aluminium roofing of the complainant’s building is seen bended downwards and water is seen stagnated in the middle portion of the terrace. The said part of the commissioner’s mahazar also supports the occurrence of natural calamities. From the above said mahazar of the commissioner, it can be seen that the entire materials used for the roof is not damaged completely and is not beyond reuse. So the complainant’s claim based on Ext.A5 receipt for ` 1,46,530 issued by St. Thomas industries, that he had spent a huge amount for the reconstruction of the roof is also not sustainable. 16. In the facts and circumstances and from the available evidence, the damages to the complainant’s roof were occurred after 2 years from its construction and that too was occurred due to heavy rain and wind. Further, the complainant has not adduced any cogent evidence supporting his contentions. Based on Ext.A1, A5 and C2 and oral testimony of PWs.1 and 2, we cannot find any deficiency of service against the opposite party as alleged by the complainant. Therefore, we find that this complaint is not allowable and is liable to be dismissed. 17. In the result, the complaint is dismissed. No cost. Declared in the Open Forum on this the 20th day of June, 2011. (Sd/-) Jacob Stephen, (President) N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Sankaramurthy Reddiar PW2 : John Thomas Exhibits marked on the side of the complainant: A1 : Agreement dated 20.12.2006 issued by the opposite party. A2 : Land tax receipt dated 15.6.09 issued by the Village Officer in the name of one Nagendra Kumar. A3 : Building tax receipt dated 17.6.09 issued Erathu Grama Panchayat in the name of the complainant. A4 : Reply notice dated 06.05.2010 sent by the opposite party to the complainant’s legal notice. A5 : Receipt dated 10.08.2010 for ` 1,46,540 issued by St. Thomas Industries, Pannivizha, Adoor. Witness examined on the side of the opposite party: DW1 : Jose Thomas Exhibits marked on the side of the opposite party: B1 : Advocate notice dated 24.8.10 issued by the complainant. B2 : Reply letter dated 18.3.11 given by the Public Information Officer and Addl. Tahsildar to the opposite party under Right to Information Act. B2(a) : Photocopy of the application dated 25.2.11 submitted by the opposite party before the Public Information Officer of Adoor Taluk Office. B3 : Malayala Manorama daily dated 6.4.10 showing news report in respect of the natural calamities occurred at Adoor Taluk. B4 : Malayala Manorama daily dated 7.4.10 showing the news report in respect of the natural calamities occurred at Adoor Taluk. Court Witness: CW1 : Muraleekrishnan. R. Court Exhibits: C1 : Commissioner’s Report C2 : Mahazar. (By Order) Senior Superintendent Copy to:- (1) Sankaramoorthy Reddiyar, Erathu Village, Adoor Taluk. (2) Jose Thomas, Kripa Engineering Works, Vadakkadathucavu, Adoor. (3) The Stock File. | 
