CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 15th day of May 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing: 11/11/2015
: SMT. SUMA K.P, MEMBER
: SRI. V.P. ANANTHA NARAYANAN, MEMBER
CC/172/2015
Surendran
S/o. Appukuttan,
C/o. Krishnankutty, Nanu Nivas,
Mucroni Road, Kanjikkode,
Palakkad. : Complainant
(By Adv. C.Vaidyanathan & R. Jothir Mayan )
Vs
The Managing Director
Ultra Redimix Concrete P. Ltd.
Pusussery West, Palakkad. : Opposite party
(By Adv. K. V .Sujith )
O R D E R
By Smt. Suma K.P.Member
The complainant in the above case has constructed a house and for the purpose of concreting the roof of the newly constructed house extending 1300 Sq. feet approached the opposite party and entered in to an agreement with the opposite party on 16/8/2015 by which the opposite party agreed to bring and lay concrete mixture consisting of metal, sand etc in the correct proportion on the roof of the house. The workers of the complainant laid the steel bars and centering the 1300 Sq. feet roof . After verifying and satisfying the same the workers of the opposite party brought concrete and laid it in the roof of the house on 18/08/2015.
An amount of Rs. 62,400/-(Rupees sixty two thousand four hundred only) was paid by the complainant to the opposite party on 18/8/2015. After the
curing period of 21 days the centering materials were dismantled. Water was poured in the roof regularly during the curing period. On 15/09/2015 the complainant found that there is leakage in the concrete roofing. The complainant immediately contacted the opposite party and the officials of the opposite party arrived and found the leakage. In order to cure the defect the opposite party laid some chemicals on the top of the concrete roofing. But still the leakage is continuing. The leakage is due to the laches and defect in the service provided by the opposite party. The complainant submits that in order to cure the leakage in the roof and the estimated expense of Rs. 75,000/- is required. Until and unless the defects are rectified the complainant will not be able to occupy the house. The above the act of opposite party amounts to deficiency of service on their part. The complainant had suffered mental agony and hardship and he submits that an amount of Rs. 50,000/- is necessary to compensate the same. Hence he had approached before the forum seeking an order directing the opposite party to pay Rs.75,000/- in order to cure the leakage in the roof and also to pay of Rs. 50,000/- as compensation for the mental agony and hardship suffered by him .
Opposite party entered appearance upon notice from the Forum and filed their version contenting the following. The claim projected in the complaint does not constitute a dispute amenable for adjudication by this forum and the complaint is not a complaint defined under Consumer Protection Act. The allegation in the complaint are baseless. Neither there
is any contract between the complainant and the opposite party , nor any understanding on 16/08/2015 as alleged in the complaint. It is true that the opposite party has agreed to provide OPC 53 grade cement as per Indian standard . Except the supply of cement the opposite party has not under took any work as alleged in the complaint. More over the entire
work was done by the complainant with his workers. The opposite party has supplied OPC cement mixture as per Indian standard. The allegation in the complaint that the concrete is filled by the opposite party’s workers is false and cooked up for this complaint. The opposite party has not provided any workers except the supply of concrete mixture. It is also false to allege that the opposite party has done the concrete work negligently. The alleged crack, if at caused to the concrete, may be due to so many reasons. If the crack is because of the substandard of the concrete mixture, it will appear within a day. Crack due to other reasons (other than concrete) is known as “ Structural defect” this may due to a) poor workmanship, b) Structural defect, c) settlement of Building , d) absence of proper curing . e) Overloading of structure. If the opposite party has used poor quality of cement the crack will appear on the top, in this case as per the version of the complainant the crack has appeared not on the top of concrete is a pointer that the cement mixture used by this opposite party is as per Indian standard. The crack as alleged, if at all there , it may due to failure to provide proper cover block in reinforcement. It is also false to allege that this opposite party has spread some Chemicals on the top of the concrete on 30/10/2015. If at all any crack is appeared on the concrete, it is due to structural defect, and not due to the
deficiency of quality of cement mixture . The allegation in the complaint that to rectify the alleged mistake the complainant has to spend 75,000/- is false and is resorted to evidently with a view to create an artificial cause of action for the complaint. The claim made or mental agony to the tune of Rs. 50,000/- is without any basis. The complainant is not entitled to get any compensation. There is no deficiency of service, and there are no defects in the concrete mixture supplied by this opposite party. This complaint is not maintainable in law and is not entitled to get any relief. Hence the complaint has to be dismissed.
Complainant filed application for appointment of an expert commissioner to examine the property and filed detailed report. Application was allowed and an expert commissioner was appointed to inspect the property and to filed a detailed report. Commissioner inspected the property and a detailed report was filed. Opposite party filed objection to the Commissioner’s Report. Complainant filed chief affidavit. Opposite party filed an application seeking permission to cross examine the complainant. Application was allowed and complainant was crossed examined as PW1. Ext. A1 to A4 was marked and Ext. A5 was marked with objection. Expert commissioner’s report along with photos and CD were marked as C1 series.
Opposite party also filed proof affidavit. Complainant filed an application seeking permission to examine the commissioner. Application was allowed and the commissioner was examined as CW1. Complainant was filed another application for cross examination of opposite party. The Application allowed and the opposite party was cross examined as DW1. Evidence was closed and the matter was heard.
The following issues that arises for consideration:-
- Whether there is any deficiency of service on the part of opposite party?
- If so, what is the relief and cost entitled to the complainant?
Issue 1 & 2 :-
The opposite party has denied any contract with the complainant and alleges that the complainant workers has done the job of laying the concrete mixture. PW1 while examine as a witness has also admitted that there was no written agreement between the parties . The opposite party alleges that the crack will appear on the top of the concrete and can be due to structural defect, settlement of building, absence of proper curing or overloading of structure. The commissioner in his report has stated that there are so many cracks with leaks on the concrete slab. During a examination he has deposed that “without conducting rebound hammer test I cannot say that the concrete mixture used in the disputed premises is substandard.”
Admittedly there is crack in the alleged construction. During cross examination complainant has admitted that he has constructed 1st floor above the alleged effected area and now there is no leakage. He also deposed that he has constructed the upstairs by submitting a revised plan. But he has not produced the revised plan before the Forum . This Forum has granted amble opportunity to settle the matter and the opposite party was ready to do the necessary repair work at their cost. But the complainant was not prepared for the settlement and he has not disclosed that he has constructed upstairs. Only during cross examination he had admitted that he has constructed the upstairs. Both opposite party’s as well as the complainant produced two quotations for the rectification of cracks. Complainant has produce quotation showing that Rs. 60,000/- is required for the rectification and the opposite party’s has produced the quotation stating that it can be rectified for Rs. 35,100/- . Since the complainant has willfully concealed the fact that, he has constructed upstairs and now there is no leakage, he needs only the cost of the repair
incurred by him. There is no specific evidence before the Forum about the expenses incurred. However the opposite party admitted the fact that there are crakes in the concrete and it require repairs to the tune of Rs. 35,100 we admit the expenses to that extant and we allowed the complaint to the above limit.
From the above facts and circumstance of this case we direct the opposite party to pay an amount of Rs. 35,100/- to the complainant as the expenses incurred for repairing the cracks . We also direct the opposite party to pay Rs. 10,000/- as compensation for the mental agony suffered by the complainant due to the deficiency of service on the part of opposite party along with Rs. 3,000/- as cost of this proceedings.
Complaint is allowed in part as above.
This order shall be executed within a period of one month from the date of receipt of the order; failing which interest @ 9% per annum should also be paid to the complainant from the date of the order till realization.
Pronounced in the open court on this the 15th day May 2017
Sd/-
Shiny.P.R
President
Sd/-
Suma. K.P
Member
Sd/-
V.P.Anantha Narayanan Member
Exhibits marked on the side of the complainant
Ext. A1 - Receipt No. 1566 dated 18/08/2015 given by the opposite
party for Rs. 62,400/-
Ext.A2 - Purchase order No. 544 dated 18/08/2015issued by the opposite
party to complainant.
Ext.A3 - Tax Invoice cum delivery challan Sl.No. 1383 (Original copy)
Ext.A4 - Tax Invoice cum delivery challan Sl.No. 1384 (Original copy)
Ext.A5 Series - Video – DVD ( with objection )
Exhibits marked on the side of the opposite party
Nil
Witness examined on the side of complainant
PW1- Surendran
Witness examined on the side of opposite party
DW1- John Britto
Commission Report
CW1- Er Johnson George
C1 Series – Photographs along with receipt dated 18/04/2016
Cost allowed
Rs. 3,000/-
