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 take back the building and to refund the amount invested in the property and the building by the complainant with interest 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.2,62,000/-. 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.2,62,000/- 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.
At the evidence stage complainant was examined as PW1 and marked Exts.A1 to A5. PW1 was subjected to cross examination for the OP. One more witness Mr.Nijesh who has prepared structural inspection report Ext.A4 was examined as PW2. Through PW2, Exts.A4 &A5 were marked. 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 Exts.A4&A5. 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.A5 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.A5, complainant has proved his 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 series letters.
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.2,62000/- 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 take back the building in dispute and to refund the amount Rs.41,00,000/- + Rs.2,62,000/- invested in purchasing the property and the building by the complainant. Opposite party is also directed to pay an amount of Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of this cse. Opposite party shall comply the order within 45 days from the date of receipt of this order, failing which , the amount of Rs.41,00,000/- + Rs.2,62,000/-+Rs.1,00,000/- carries interest @7% per annum from the date of order till realization. Complainant is at liberty to execute the order as per the provision in Consumer Protection Act 2019.
Exts:
A1- sale agreement dt.12/3/17
A2-copy of letter dtd.10/11/17
A3(series)-letters sent by complainant to OP
A4-Expert engineer site inspection report 31/8/2021
A5- Engineer report
PW1-Vijith Valsalan-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
