KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.316/2006 JUDGMENT DATED 5.8.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Elambilayi Suresan, S/0 Sankaran, Dayaroth Kunnumpurath House, -- APPELLANT C/0 Ranjith C.K; Kattukandi Vayal, P.O.Muzhappilangad, Kannur District. (By Adv.M.Sasindran) Vs. Kariath Sekharan, S/0 Ramunni, Kariath House, -- RESPONDENT Muzhappilangad amsom desom, P.O.Muzhappilangad, Kannur District. (Adv.O.P.Raveendran & Ors) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is directed against the order dated 27th February 2006 of the CDRF, Kannur in OP.No.155/02. The aforesaid complaint was preferred by the respondent herein as complainant against the appellant/opposite party alleging deficiency in service on the part of the opposite party in executing the work with respect to the construction of upstair for the residential building of the complainant. It was alleged that the roof of the upstair started leaking and that the said leakage occurred only due to the negligence and deficiency in service on the part of the opposite party in executing the said work. The complainant claimed Rs.1 lakh for rectifying the defects and Rs.50,000/- as compensation for the mental agony and inconvenience suffered by the complainant. 2. Opposite party was served with notice in the said complaint and he entered appearance. He filed written version denying the alleged deficiency in service. He also raised the contention that the complaint is not maintainable as the same is barred by limitation. It was further contended that the opposite party supervised the work and collected the labor charges from the complainant and that the materials for the construction work were purchased and supplied by the complainant. Even if, there was any defect in the construction, it is only due to the in-sufficiency of the materials and poor quality of the same. The opposite party has also claimed an amount of Rs.4500/- by way of labor charges due to him from the complainant and that the complaint is only filed to avoid payment of the balance of the labor charges. Thus, the opposite party prayed for dismissal of the complaint. 3. Before the Forum below, the complainant was examined as PW1, and the opposite party as DW1. Exts.A1 and A2 documents were also marked on the side of the complainant. At the instance of the complainant an expert commissioner was deputed to inspect the disputed work of construction of upstair for the residential building. The expert commissioner conducted the inspection and submitted commission report. The expert commissioner was examined as PW2 and his report was marked as C1. No documentary evidence was adduced from the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite party to pay a sum of Rs.12,920/- for rectification of the work and also to pay compensation of Rs.25,000/- with cost of Rs.3000/-. Hence, the present appeal by the opposite party therein. 4. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that the defect or leaking of the roof of the upstair of the building was only due to the poor quality of materials purchased and supplied by the complainant. He also relied on C1 expert report to that effect. It is further submitted that the complaint in OP.155/02 is barred by limitation. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below. 5. There is no dispute that the respondent/complainant entrusted the work for constructing upstair to his residential building with the appellant/opposite party. The opposite party as DW1 has categorically admitted that the construction of the upstair of the residential building of the complainant was undertaken by him and that the entire construction work for the upstair was done by him and the said entrustment was based on a contract and that he was in full charge of the construction of the upstair to the residential building of the complainant. The contention of the appellant/opposite party that the complainant failed to supply the required quantity of materials for construction and that the complainant purchased and supplied poor quality of building materials cannot be accepted as such. There is nothing on record to show that at any point of time the appellant/opposite party being the contractor raised any objection regarding the quality of the materials supplied or about the inadequacy of the building materials supplied by the complainants. DW1 further admitted the fact that if there was any such inadequacy of building materials or that the materials supplied were of poor quality he could have relinquished the contract work. It is also admitted by DW1, in the ordinary course if such default occurred on the part of the owner, naturally the contractor will relinquish the work. The execution of the construction work with poor quality materials and insufficient building materials would amount to deficiency in service on the part of the opposite party. DW1 has categorically admitted that he was having vast experience in executing contract works and he had the experience in constructing multi-storied buildings. If that was the capacity and competency of the opposite party, it was not just or proper on the part of the opposite party in executing the work with insufficient building materials and poor quality building materials. If there occurred any leakage to the roof of the upstair of the building, it would make it clear that there was deficiency in service on the part of the appellant/opposite party (contractor) who executed the work. 6. The complainant as PW1 has deposed that he got inspected the work of the upstair of his residential building by a PWD Engineer and the said Engineer Mr.V.V.Usman issued A1 certificate. It is true that the said inspection was conducted by PWD Engineer V.V.Usman without the knowledge or junction of the opposite party. So, much reliance cannot be placed on A1 certificate dated 3.5.02 issued by PWD retired Engineer V.V.Usman. A1 certificate would show that the upstair of the residential building of the complainant has been constructed with slopped roof and the said roof is leaking. He could notice dampness in the said slopped roof. He also opined in A1 report that the leaking of the roof is due to excess usage of water, during the casting of RCC slab. It is also reported that the leaking can also be caused due to lack of sufficient quantity of cement. In A1 report, PWD Engineer has also suggested rectification of the defect by providing a layer of cement plastering with rich proportion of cement and sand. 7. An expert commissioner was deputed from the Forum below to inspect the work done by the opposite party/contractor and also to assess the cost for rectifying the defects if any. Ext.C1 is the report dated 7.6.04 submitted by the expert commissioner Mr.Sebastin.P.G, BSC Engineering, Engineer-A, Master Builders, Thalassery. The expert commissioner Mr.Sebastin was examined as PW2. He deposed about the leaking of the upstair of the roof of the residential building owned by the complainant Kariyath Sekharan. He categorically reported that the leakage of the roof slab can be due to the poor quality of materials used and also due to the poor workmanship. He also reported about the probability and possibilities for causing the leakage. Thus, it can be concluded that the roof of the upstair of the building has been leaking. It can also be concluded that there was defective construction as far as the casting of RCC roof for the upstair of the said building. It would in turn attribute negligence and deficiency in service on the part of the appellant/opposite party who executed the work for constructing the upstair to the residential building of the respondent/complaint. The Forum below is perfectly justified in holding that there was deficiency in service on the part of the opposite party/contractor. 8. PW2, the expert Engineer who submitted C1 expert report has also quantified the cost for executing the rectification work. Thereby, the expert commissioner assessed the cost for executing the rectification work at Rs.12,920/-. The aforesaid assessment made by the expert commissioner can be accepted. PW2, the expert commissioner has also deposed about the cost required for rectification of the said work. There is no reason or ground to doubt the testimony of PW2 and Ext.C1 report submitted by him. The Forum below is perfectly justified in directing the opposite party to pay the said amount of Rs.12,920/- to the complainant for doing the rectification work to prevent the leakage to the roof slab. The aforesaid order passed by the Forum below regarding payment of rectification cost at Rs.12,920/- is upheld. 9. The respondent/complainant claimed Rs.50,000/- as compensation for mental agony and inconvenience suffered by him. The Forum below awarded a compensation of Rs.25,000/-. Considering the nature of the deficiency in service and also the cost required for rectification of the defect, it can be concluded that the compensation of Rs.25,000/- awarded by the Forum below is on the higher side. It is also come out in evidence that the respondent/complainant is using the upstair of the building and the same defect can be rectified or cured by doing the work of applying cement concreting by spending a total of Rs.12,920/-. The case of the complainant that he suffered serious mental agony and inconvenience due to the dampness to the roof of the upstair of the building cannot be accepted as such. This Commission is of the view that an amount of Rs.10,000/- as compensation will be sufficient to meet the ends of Justice. This Commission is pleased to reduce the compensation of Rs.25,000/- awarded by the Forum below to Rs.10,000/-. The cost of Rs.3000/- awarded by the Forum below can be treated as just and reasonable. Hence the same is upheld. Thus, the impugned order is modified to that effect. 10. Appellant/opposite party has got a case that the complaint in OP.155/02 is barred by limitation. It is the admitted fact that the work for constructing upstair to the residential building of the complainant was entrusted with the appellant/opposite party during January 1998. According to the complainant, the roof of the upstair of the building started leaking before the expiry of 2 years from the date of construction of the upstair to the said building. It is also the definite case of the complainant that the opposite party/contractor had given guarantee and assurance for the work. The opposite party as DW1 has also deposed that for RCC concrete building 60 years guarantee can be given. But in the present case on hand, the roof of the upstair to the building started leaking within 2 or 3 years. The complaint was filed in the year 2002. It is alleged that the roof started leaking during the last mansoon. Thus, it can be inferred that the leakage to the roof started during June 2001. So, the cause of action for the complaint had arisen during June 2001. The complaint in OP.155/02 was filed on 12.6.02. Thus, it can be seen that the complaint was filed within one year of the cause of action. If that be so, the complaint has been filed within the stipulated time. It is also to be noticed that the complainant has got a case that he informed the opposite party regarding the leakage to the roof slab and that the opposite party assured to rectify the aforesaid defect and thereby the complainant was waiting for the rectification of the defect. In all respects, it can be concluded that the complaint in OP.155/02 was filed within the period of limitation and the same is not barred by limitation. 11. The Forum below can be justified in awarding Rs.12,920/- to the complainant towards the cost of rectification work with cost of Rs.3000/-. The compensation of Rs.25,000/- awarded for the mental agony and inconvenience suffered by the complainant has been reduced to Rs.10,000/- with the aforesaid modification the impugned order passed by the Forum below is upheld. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. In the result, the appeal is allowed partly. The impugned order passed by the Forum below awarding compensation of Rs.25,000/- to the complainant (respondent) is modified and thereby the compensation of Rs.25,000/- is reduced to Rs.10,000/-. The impugned order passed by the Forum below directing the opposite party (appellant) to pay an amount of Rs.12,920/- for doing the rectification work with cost of Rs.3000/- is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. The decreed amount is to be paid within one month from the date of receipt of copy of this Judgment, failing which this amount will carry interest at the rate of 9% per annum from the date of this Judgment till payment/realization. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
