Karnataka

Kolar

CC/64/2016

Smt.Bhagyamma - Complainant(s)

Versus

M.Lakshminarayana - Opp.Party(s)

Sri.B.Sadasivachari

30 Nov 2017

ORDER

Date of Filing: 18/10/2016

Date of Order: 30/11/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 30^TH DAY OF NOVEMBER 2017

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO.64 OF 2016

Smt. Bhagyamma,

W/o. Basavaraju,

Tea Stall, Lawyer Krishnappa Building,

Kolar-Chikkaballapur Road,

Gulpet, Kolar Town.                                          ….  COMPLAINANT.

(Rep. by Sri. B. Sadasivachari, Advocate)

 

- V/s -

Sri. M. Lakshminarayana,

Mestri Kittappa,

Building Contractor,

1^st Main Road,

Palasandra Layout,

Kolar.

(Rep. by Sri. V.K. Prashanth, Advocate)                 …. OPPOSITE PARTY.

 

-: ORDERS:-

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act”) has sought relief against opposite party, for issuance of direction to refund Rs.12,55,000/- (Twelve Lakhs Fifty-five Thousand Rupees) which was paid by her to OP with interest at the rate of 2% per month.  And to pay a sum of Rs.3,00,000/- (Three Lakh Rupees) for the mental agony and hardship.  And also alternatively, sought relief of issuance of direction to OP to reconstruct the building by demolishing the existing building at OP’s cost as per the terms and conditions of the agreement entered by them.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, she being a tea stall owner entered in to an agreement of Construction of building with OP, a Civil Contractor, on 19.11.2015 in property bearing No.35, V.P. Katha No.462/1, Assessment No.01/129/1, measuring East-West 60 feet, North-South 23 feet, bounded on East by 25 feet road, West by Private property, North by Site No.33 & 34, South by Raja Kaluve, out of which, 19x39 feet dwelling house and compound to be constructed at the cost of Rs.12,60,000/- with standard quality of cement, bricks, steel and carpentry works and OP had paid by her a sum of Rs.20,000/- as advance according to the terms and conditions of the agreement.  Accordingly she has paid as below:-

On 20.11.2015	Rs.20,000/-
On 27.11.2015	Rs.50,000/-
On 05.12.2015	Rs.80,000/-
On 19.12.2015	Rs.40,000/-
On 30.12.2015	Rs.10,000/-
On 05.01.2016	Rs.50,000/-
On 13.01.2016	Rs.2,15,000/-
On 17.01.2016	Rs.20,000/-
On 20.01.2016	Rs.2,65,000/-
On 20.03.2016	Rs.3,40,000/-
On 28.04.2016	Rs.1,00,000/-
On 15.05.2016	Rs.45,000/-
On 30.05.2016	Rs.20,000/-
IN TOTAL	Rs.12,55,000/-

 

(b)    Further she has contended that, OP by violating the terms and conditions of agreement has constructed the house with sub-standard materials, which caused (i) cracks in walls, (ii) moulding and flooring sinkened, (iii) Vetrified tiles of floor have raised up due to sinkage of foundation, (iv) Plasting fallen down higher and thinner, (v) Cracks on overall walls of building due to misappropriate usage of cement and sand (vi) Cracks in compound wall, which was done in a period of three months.  When the same was brought to OP’s notice, but he has given an evasive reply.

 

(c)    Further she has contended that, in this regard she had lodged a complaint before S.P., Kolar, and also caused legal notice to OP dated: 22.09.2016 which was duly served to him on 26.09.2016, for which no reply and due to the act of OP as negligence, hopeless and substandard construction amounts to deficiency in service.  So contending, she has come up with this compliant on hand to seek the above set-out reliefs.

 

(d)    Along with complaint the complainant has submitted following 06 documents:-

(i) Copy of the Agreement dated: 19.11.2015.

(ii) Receipt Book

(iii) Copy of the police complaint dated: 16.09.2016

(iv) Copy of the Legal Notice dated: 22.09.2016

(v) One postal acknowledgement

(iv) Photos with C.D.

 

03.   In response to the notice issued by this Forum, OP has put in his appearance through his said learned counsel and has submitted written version.

 

(a)    It is the version of the OP that, specifically denied that, OP is not a Civil Contractor, he is only a Mason Supervisor and OP admits the agreement date of construction of building.

 

(b)    And to the agreed part of his work he was done only at the discretion, directions, governance of the complainant and entire material management was done by the complainant and there was no independence of OP in the work as per agreement and also there was no warranty or guarantee written in agreement. 

 

(c)    It is submitted that, there was no approved plan from any Authority or Engineer to direct the construction, it was only complainant and her husband given the plan and instructed to do the work.  At the request of complainant he had done extra works apart from the agreement and she promised to pay the amount of Rs.65,000/- for the below mentioned extra works:-

 

Amount due from the complainant apart from the agreed terms
01	To install steel stand for overhead tank 105 Kgs at the cost of Rs.76/- per kg is Rs.8190/- plus transportation Rs.510/-, Plus Labour to install Rs.1,000/- with mason work materials in total which cost to OP is Rs.9700/-	Rs.9700/-
02	Solar water connection Ashirwad CPVC hot and cold pipes, elbows, brass nipples, Valves ..etc with labour which cost to OP is Rs.15,000/-	Rs.15000/-
03	Additional Bathroom and toilet with door fittings under the stair case out-side the house material with labour cost to OP is Rs.19800/-	Rs.19800/-
04	Pipe line from trace to sump for rain water collection to sump material cost with labour to OP Rs.9000/-	Rs.9000/-
05	20 Tractors Mud each load at the rate of Rs.500 x 20 = 10,000 for loading outside the house for foundation and labour Rs.1,500/- total cost to OP Rs.11500/-	Rs.11500/-
06	Agreement amount is Rs.12,60,000/- where as complainant has paid Rs.12,55,000/- due amount of Rs.5000/-	Rs.5000/-
Total due amount due from complainant		Rs.70,000/-

 

(d)    Further OP submitted as, after completion of said extra work complainant refused to pay the amount of Rs.70,000/-.  Even after many panchayaths also complainant ignored to pay and filed a complaint before S.P., Kolar, on 16.09.2016, same was referred to Gulpet Police Station, Kolar, and they have taken statements of both of them, there also the complainant ignored to pay the amount.  After interrogation, Sub-inspector of Police, Gulpet Station, Circle Inspector of Town Station, Kolar, and DYSP, Kolar, have closed the complaints as the complainant stated to file a complaint in Consumer Forum. 

(e)    Further OP submitted as, when work started as per the instructions of Complainant, when asked about approval plan or Engineer to direct the work, complainant showed the marking, accordingly foundation level was done and complainant ignored to leave the foundation for three months to get it settle.

 

(f)     OP specifically contends as, the property in which the said dwelling house built is within the limits of CMC, Kolar/KUDA, Kolar and building plan is not approved by the CMC, Kolar/KUDA, or any authority and said property is next to Rajakaluve which is encroached, any constructions without permission from the approving authority is (Akrama) illegal construction, it can be demolished by the authorities.  So there is a denial of deficiency of service as contended by the complainant and prayed for dismissal of complaint with costs has been sought and also sought for issuance of direction to complainant to pay the entire dues.

 

04.   The complainant has submitted her affidavit evidence along with below mentioned documents and citations:-

(i)    Complaint to S.P., Kolar.

(ii)   Complainant’s Statement before Police, Kolar

(iii)  OP Statement before Police, Kolar.

(iv)   Police Report to S.P., Kolar.

(v)    Reply notice of OP with postal receipt dated: 17.10.2016

(vi)   Photos of four side of house of the complainant with Memo of OP.

(vii)  Endorsement issued by the Arahalli Grama Panchayath pertaining to no building plan was approved or E-Katha was existing in the name of the complainant in the records of Arahalli Grama Panchayath.

(viii) AIR 2008 SCW 5216 between FAQIR CHAND GULATI V/S M/S. UPPAL AGENCIES PVT. LTD & ANOTHER.

(ix)   AIR 2004 SC 2141 between GHAZIABAD DEVELOPMENT AUTHORITY V/S BALBIR SINGH.

(x)    AIR 2004 SC 4168 between HICHAL PRADESH HOUSING BOARD V/S VARINDER KUMAR GARG & ANOTHER.

(xi)   Registered Sale Deed dated: 25.10.2012

(xii) Demand Register Extract Form No.12 for the year 2012-13.

(xiii)          Annexure-1

(xiv) AIR 2001 SC 996, LEKH RAJ V/S MUNI LAL & OTHERS

 

05.   The OP has submitted his affidavit evidence and below mentioned documents and citations:-

(I)    The judgment of High Court of Chhattisgarh at Bilaspur in SAN No.178/2012, Saroj Bai V/s Ramdas Lahre & Others, order dated: 05.12.2014.

(II)   Judgment of H.P. State Consumer Disputes Redressal, Shimla in CC 10/2008, DAV College Managing Committee & Another V/s Shri Sushil Sharma & Another, Decision dated: 30.03.2012.

(III) Judgment of the HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side. F.M.A. No.1194 of 2009 Sital Chandra Bodhak Versus Howrah Municipal Corporation & Others with M.A.T. No.558 of 2009 Sital Chandra Bodhak Versus Sukumar Dey & Ors. Judgment on 28.02.2012.

(IV)  Judgment of Karnataka High Court in K. Ananda Mohan And Another V/s The Corporation of the City of …. On 1^st July, 1998 Equivalent citations: 1999 (1) Kar LJ 507 Bench: Chandrashekaraiah.

(V)   Judgement of Karnataka High Court in M/s Pais Educational And Rural … V/s The Commissioner on 24^th September 2012 WRIT PETITION Nos.15920-15922 & 16083 of 2011.

(VI)  Judgement of Allahabad High Court in Smt. Bimla Devi And Another V/s Allahabad Development Authority … on 6^th November 1996 Equivalent citations: AIR 1997 All 224.

(VII) Section 23 of Indian Contract Act 1872 – An analysis.

(VIII)         Vijayavani Kannada Daily News Paper dated: 10.10.2017 in Page No.2A Kolar Urban Development Authority has published that, unauthorized constructions will be demolished.

(IX)  Udayavani Kannada daily news paper dated: 10.10.2017 in page No.3 Kolar Urban Development Authority has published that, unauthorized constructions will be demolished. 

       

06.   The below mentioned witnesses have submitted their affidavit evidence on behalf of OP:-

1. Syed Kalander (mason Worker)
2. Sumathi (Mason Coolie)
3. Kalavathi (Mason Coolie)
4. Babu (Mason Worker)
5. Thipanna (Mason Worker)

 

07.   Both the counsel appearing for both parties have submitted their written arguments respectively and heard the arguments as advanced by the learned counsel appearing for both parties.

 

08.   Therefore the points that do arise for our consideration in this case are:-

(1)  Whether the OP could be held as guilty of deficiency in service?

(2)  If so, to what relief the complainant is entitled to?

(3)  What Order?

 

09.   Our findings on the above stated points are:-

POINT (1):   In the Negative

 

POINT (2):   Does not survive for consideration.

 

POINT (3):   As per the final order

                    For the following:-

 

REASONS

POINT (1) & (2):-

 

10.   To avoid repetition in reasonings and as these points do warrant common course of discussion the same are taken up for consideration at a time.

 

(a)    As per Annexure-OP.2 the statement of the said complainant before PSI, Gulpet Police, Kolar, dated: 01.10.2016 the very complainant specifically says that, the said site No.35, V.P. Katha No.462/1, assessment No.1/129/1, East-West 60 feet, North-South 23 feet, South Rajakaluve belongs to R.G. Layout, Arahalli Grama Panchayath.  The same is contended in this complaint also with regard to whereabouts of the said site along with other contentions as in her pleadings.

 

(b)    Contrary to this, as per Annexure-OP.7 which was submitted by OP, the endorsement dated: 06.02.2017, issued by Arahalli Grama Panchayath Office, clearly reveals that, the said complainant’s site will not come within the jurisdiction of Arahalli Grama Panchayath which comes within the jurisdiction of Kolar Urban Development and as per the records there is no availability of documents with regard to plan approval or E-katha pertaining to the said site.  With this it is clear that, the construction of house itself is illegal. 

 

(c)    The allegation of complainant that, the OP has constructed the said house by using sub-standard materials being a Civil Contractor had violated the terms and conditions of the agreement dated: 19.11.2015, thus caused the said damage to her.

 

(d)    Contrary to this OP specifically contended that, OP is not a Civil Contractor he is Mason Supervisor and worked as per the instructions of complainant and her husband and the entire material was supplied by the complainant and her husband itself. 

 

(e)    When the complainant pleaded so specifically it is her bound duty to prove her contention with evidence, but she failed to submit any oral or documentary evidence in support of her pleadings.  Hence only oral pleadings of complainant is not sufficient to believe her version.

 

(f)     The OP has come up with the affidavit evidences of witnesses, Syed Kalander, Sumathi, Kalavathi, Babu, Thippanna are all co-workers of OP, confirms the version of OP.  Therefore we believe that, the OP is just a Mason Supervisor, worked as per the instructions of complainant and her husband and entire materials were supplied by the complainant and her husband. 

 

(g)    On perusal of the Commissioner Report dated: 12.06.2017, it cannot be taken in to consideration because it is incomplete report, has not given report with regard to E-katha, Plan approvals of the said building and not answered for the instructions of Op dated: 22.05.2017 and also the Mahazar of the report does not bear the signature of OP.  Therefore since it is incomplete report, we cannot consider the same.

 

(h)    On behalf of the complainant her learned counsel has relied on the below discussed citations which reads thus:-

(i) AIR 2001 SC 996 between LEKH RAJ V/S MUNI LAL & Others,

 

the principle enunciated in this citation is that, “Civil Procedure Code, 1908-Section 115-Revision-Scope-Demised premises unfit for human habitation-Question of fact-Interference permissible when revealed from report of Local Commissioner.”

This citation is not applicable to the present case since Commissioner report is incomplete as discussed above.

(ii) AIR 2008 SCW 5216 between FAQIR CHAND GULATI V/S M/S. UPPAL AGENCIES PVT. LTD., & ANOTHER –

 

The principle enunciated in this citation is that, land owner is a Consumer Under the Act. 

This citation is not applicable to the present case since there is no dispute with regard to Whether complainant is Consumer or not.

 

(iii) AIR 2004 SC 2141between GHAZIABAD DEVELOPMENT AUTHORITY V/S BALBIR SINGH –

 

The principle enunciated in this citation is that, compensation for mental agony, inconvenience caused can be granted under Sections 71 & 21 of C.P. Act.

 

Which does not applicable to the case on hand.

 

(iv) AIR 2004 SC 4168 between HICHAL PRADESH HOUSING BOARD V/S VARINDER KUMAR GARG & ANOTHER –

 

The principle enunciated in this citation is that, when an defective flat sold and in which major defects are confirmed by the Architect report and was of a poor quality construction.  In such case buyer is entitled for claim for the loss.

 

This principle is not applicable to the case on hand because since the Commissioner report is incomplete one.  In spite of clear direction from this Forum, Commissioner has not been given complete report as per the instructions.  Therefore this citation cannot be taken in to consideration to the present case in hand.

 

(i)     On behalf of the OP his learned counsel has relied on the below discussed citations:-

(i)       SAN NO.178/2012, between Saroj Bai V/s. Ramdas Lahre & Others-

 

The principle enunciated in this citation is that, Commissioner appointed Under Order 26 R-9 CPC cannot get the spot inspection carried out by a third person and any such report would not be proper and legally acceptable.

 

(ii) C.C. 10/2008, DAV College Managing Committee and Another V/s Shri Sushil Sharma and Another-

 

The principle enunciated in this case is that, “Act of God/natural disaster and not due to the professional negligence.

 

(iii) FMA NO.1194/2009 between Sital Chandra Bodhak V/s Howrah Municipal Corporation & Others – with MAT No.559/2009 between Sital Chandra Bodhak V/s Sukumar Dey & Others –

 

The principle enunciated in this case is that, order of demolition passed for unauthorized construction.

 

(iv) Judgment of Karnataka High Court in K.Ananda Mohan & Another V/s The Corporation of the City, 1999(1) Kar LI 507-

 

The principle enunciated in this citation is that, order of demolition passed for unauthorized construction.

 

5. W.P. No.15920-15922 & 16083/2011 M/s Paris Educational and Rural V/s The Commissioner –

 

The principle enunciated in this citation is that, order of demolition passed in unauthorized construction

 

6. AIR 1997 A11 224, SMT. BIMLA DEVI & Another V/s Allahabad Development Authority –

 

The principle enunciated in this citation is that, unauthorized construction cannot be compounded.

 

(j)     The citation AIR 1997 A11 224 between Smt. Bimla Devi and Another V/s Allahabad Development Authority, relied by the learned counsel of OP, this citation speaks about unauthorized construction cannot be compounded.  This citation attracts the present case since there is no authorization from the concerned department to construct the said house as discussed in detail above.  Therefore we come to the conclusion that, there was no deficient in service on the part of OP.

 

(k)    Rest of the principles in the citations submitted by the counsel of complainant does not applicable to the case on hand.  Hence not considered. 

 

(l)     Once there is specific contention it requires to be proved and we cannot imagine the link to come to the conclusion.  So this complainant has failed to prove the contended negligence against the OP.

 

POINT (3):-

 

11.   Hence under these circumstances as discussed above, we proceed to pass the following:-

ORDER

01.   For forgoing reasons the present complaint stands dismissed with costs of Rs.1,000/- for being paid by the complainant to the OP.

 

02.   Send a copy of this order to both parties free of cost.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 30^th DAY OF NOVEMBER 2017)

 

 

LADY MEMBER                                PRESIDENT