SMT. RAVI SUSHA  : PRESIDENT

         Complainant has filed this complaint  U/S 35 of Consumer Protection Act 2019  seeking to  get an order, directing  the opposite party to  rectify the defects and the root cause of the damages in the residential building  of the complainant and its surrounding compound wall and  well area  under the supervision of a qualified engineer, to the satisfaction of the complainant with a warranty of minimum 10 years  and  to pay Rs.10,00,000/- towards compensation  for mental agony and  cost of the proceedings of this case.

   Brief  facts of the complainant’s case are that on believing the words of  OP, the complainant  purchased a  villa to be constructed by OP.  An agreement was entered between the complainant and OP  dtd.12/3/2017 for a total amount of Rs.41,00,000/-.  The construction was to be completed within a period of 10 months and the  complainant has to pay money accordingly.  Later the complainant added an extra room in the building after consulting with  the OP and the  complainant paid an extra amount of Rs.1,78,000/-.  The construction was completed in the month of November 2018 and the villa was handed over in the month of April 2019.  Within two months of handing  over of the villa, during the  first rainy season, rain water started seeping inside through the sunshade area and the water was logging inside the bedroom. After one year of the completion of the construction the  complainant began to notice several racks and defects in the building.  Several cracks began to appear on several parts of the building and walls and paint was also peeling off.  So the complainant informed all these matters to the OP, but they have given a deaf ear.  As the OP has not  made rain water  gutters, during  rainy season the rainwater seepages and the dampness on walls adjacent to the  sunshade and flat roofs increased, resulting in the peeling of paints and decomposition of the wooden  frames of windows.  That made the situation worse and the complainant  several times approached the OP with a demand to rectify the defect.  But the OP did not made any response to the  demands of the complainant.  The complainant, who had spent  her and her husband’s hard  earned  money for their house, as the life time saving  for the  family was totally depressed and shocked by the turn of events.  The complainant made several oral requests and written complaints.  But the OP has not done anything to repair  or rectify the defects began to grow up to a larger extent.  The OP has not complied with the terms and conditions and they are not ready to redress the grievances of the complainant.  Hence  this complaint.

    After receiving notice  OP has entered appearance and filed version admitting that  the  complainant  purchased a villa on 12/3/2017 with an agreement  executed  and for transaction Rs.41,00,000/- and  paid Rs.1,78,000/- for additional  construction  and also admitted the  construction was  completed  and  the villa was handed over  to the complainant  in the month of   April 2019.  The OP denied the allegations  that he has not made rain water gutters, during rainy season the water seepaged and the dampness on walls occurred adjacent to the  sunshade and flat roofs increased, resulting in the peeling of paints and decomposition of the wooden  frames of windows. Further denied that the OP has not complied the terms and conditions and  is not ready to redress the  grievance s of the complainant.  Hence prayed for the dismissal of the  complaint.

    Complainant’s power of  attorney (brother) has filed chief affidavit and documents.  Complainant was examined as PW1 and marked Exts.A1 to A4.   One  more witness Mr.Nijesh who has prepared structural inspection report  Ext.A4 was  examined as PW2.  Through PW2, Exts.A5 series &A6 were marked.  The complainant produced one more document marked as Ext.A7.  On the side of OP, though OP has filed chief-affidavit, he has not entered into the witness box for tendering evidence.

   Complainant alleged that within two months of handing  over of the villa, during the  first rainy season, rain water started seeping inside through the sunshade area and the water was logging inside the bedroom. After one year of the completion of the construction the  complainant began to notice several racks and defects in the building.  Several cracks began to appear on several parts of the building and walls and paint was also peeling off.    The details of defects were  explained in para 4 of the complaint.

  For substantiating the allegation of defects, the complainant has produced the report of  Mr.Nijesh.C, Asst. Professor, Govt. College of Engineering Kannur who  inspected the premises and filed a detailed report with photos.  The report prepared by the engineer is marked as Ext.A4.  He has been examined as PW2.  Though PW2 was subjected to cross-examination for the OP, the observation of the expert engineer could not be challenged by OP.   Hence there is no reason to discard the findings of expert engineer PW2 in Ext.A4 report.

   Moreover though PW1 was also cross-examined  in  details by the learned counsel of OP, PW1 has given evidence in tune  of the allegations against OP as mentioned in the complaint.

    In the instant case, though OP filed proof affidavit, he has not entered in to the witness box to tender evidence.  Without facing  cross examination, mere contentions in the version and chief-affidavit, cannot be taken  as an  evidence of the  party.  Hence the contentions of OP in his version cannot be accepted.  From the evidence given by  PW1 and observations of  PW2 in Ext.A4, complainant has proved her case that there are major defects found on the residential building in dispute within a short of its delivery, and which had not been rectified by OP despite received request from complainant to rectify the defects through Ext.A3 lawyer notice dtd 22/10/2021.

   Hence from the aforesaid facts and  circumstances of this case, we are of the considered view that there is gross deficiency  in service on the part of  OP and the  complainant is entitled to get relief. 

   The expert Engineer has observed that most of the cracks seen during the  inspection can be attributed  in adequate quality control during the construction stage and therefore, rectifying all these defects without any possibility of recurrence during the service life  is almost impossible.  Expert has given his opinion as “  based on the visual inspection, residential building needs urgent structural repairs followed by non-structural repair and maintenances.  Since most  damages are of  cumulative and irreversible in nature lack of  immediate action will trigger secondary damages to the  structure.  In future  , it is recommended to conduct proper maintenance works at regular intervals.  Structural stability and strength of the building need to be checked regularly by continues monitoring of the crack formations and propagations in future.”

   Moreover there is no dispute that the complainant has not paid the entire agreed amount Rs.4100000+Rs.178000/- the purchasing value of villa and extra amount  for constructing an additional room.

   In the result complaint is allowed in part.  Opposite party is directed to (a) rectify the defects as observed by PW2 in Ext.A4 report, under the supervision of a qualified engineer, with a  warranty of 10 years.(b) to pay Rs.1,00,000/- as compensation towards mental agony and  also to pay Rs.10,000/- towards cost of the proceedings of this cse.  Opposite party is directed to comply the order within 45 days from the date of receipt of the certified copy of this order, failing which , opposite party shall pay Rs.20,00,000/- to the complainant for the rectification work of the building along with interest @9% per annum  for the compensation amount  Rs.1,00,000/- from the date of order till realization.  Complainant can execute the order as per the provision  in Consumer Protection Act 2019.

Exts:

A1-Agreement for sale

A2-letter issued by OP dtd.10/11/17

A3-letter sent by complainant to OP

A4-Structural inspection report

A5 series- e mail communication and brocure

A6- receipt issued by PW2

A7-tax receipt

PW1-Vijith Valsalan-P.A. holder of Complainant

PW2-Nijesh.C-witness of PW1

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR