DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 3rd day of January, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 09/11/2017
CC/161/2017
Safna P.K.,
W/o. Muhammed Harish,
Ambalakkandi House,
Mundappalam, Kondotty,
Malappuram - 673 638 - Complainant
(By Adv. K. Dhananjayan)
Vs
Mohammed Salih,
‘ARCHITEKTON’,
Architectural Designer & Engineer,
Al-Fayida Tower, Opp. Municipal Bus Stand,
Mannarkkad, Palakkad – 678 582. - Opposite party
(By Adv. Ragesh N.)
O R D E R
By Sri. Vinay Menon V., President
- Essential pleadings are that the complainant entrusted the opposite party, a friend of her husband, with the works of the foundation of a residential building and that of a boundary wall to be constructed by way of an oral agreement. Considering the long standing relations between the complainant’s husband and the opposite party, there was implicit trust and an amount of Rs. 3,54, 870/-was paid to the opposite party in various installments spanning over a couple of months. But construction of the foundation and basement of wall were defective and cracks developed all over. This complaint seeks Rs. 4,00,000/- for reconstruction of the foundation, and compensation.
- The opposite party entered appearance and filed version. The opposite party repudiated the complaint pleadings alleging that he did not carry out any work as alleged by the complainant. He had only arranged workers for the work and handed over money that was sent by the complainant’s husband to the workers so engaged. This opposite party had not entered into any agreement nor supervised construction of the residential building and sought for dismissal of the complaint.
- This complaint was subsequently amended to include a pleading that the opposite party had not carried out the works that can be valued at Rs.3,54,870/- and sought for return of the amount.
The opposite party filed additional version maintaining that such pleadings are false and vexatious.
4. The following issues arise for consideration:
- Whether the opposite party had constructed the foundation and basement of the boundary wall?
- Whether the complainant could prove that there is deficiency in service on the part of the opposite party?
3. Whether the complainant is entitled to any of the reliefs sought for?
4. Reliefs, if any?
5. Evidence comprised of Exhibits A1 to A4 on the part of complainant. There was no objection to marking of the documents. Even though cross examination of complainant was permitted by way of order dated 10/4/2018 in IA 98/2018, the complainant failed to appear before this Commission. Hence cross examination of complainant was closed with liberty to opposite party to resort to any adverse inference that can be availed, if any need arises. The opposite party adduced no evidence.
Issue No.1
6. Complainant’s case is that she handed over Rs.3,54,870/- as part payment to the opposite party for construction of the foundation of a residential building and basement of a boundary wall. The agreement was an oral agreement. Spaces between the foundation were filled with sand. But cracks developed on various parts of the foundation. The condition of the construction is pathetic.
Opposite party has denied the complaint contention in version pleadings and alleged that he had not carried out any works as alleged except effecting payments that the opposite party received from the husband of the complainant to labourers who carried out the works.
7. Since there is a blanket denial of the complainant pleadings, in the normal course of action, it was incumbent upon the complainant to undertake an expert commission to prove her case. In fact, the complainant had belatedly filed an application as 127/2022, after nearly 5 years after filing the Complaint. As the application was filed at the fag end of trial, and considering the overall lack-lustre and unenthusiastic conduct of the case by the complainant, that application was dismissed. But it has to borne in mind that an Expert Commissioner might be able to report on the nature of the foundation and basement but not as to who the builder is. Hence, insofar as the task is to identify the author of construction, this Commission is forced to take resort to other evidence adduced by the parties to the dispute.
8. Ext.A1 is a communication issued by the complainant to the opposite party complaining about the defective construction of the foundation of the building and basement of the wall. The complainant has also sought for reconstruction of the foundation. Ext.A2 is a reply issued by opposite party to Ext.A1. Reproduction of two paragraphs of Ext.A2 is relevant in this context.
1. Paragraph 1 (lines 4 to 8) :- “The undersigned had successfully completed the foundation upto your satisfaction in the prescribed time limit and budget. It is pertinent to note that I had never committed any construction for the boundary wall; the deal between us was only for construction of foundation for your proposed house and not for Boundary wall”.
2. Paragraph 4 (lines 2 to 8) :- “The crack in the foundation of your proposed house is caused only due to the pressure of immense soil loaded on the foundation as part of the construction of the boundary wall and also pressure of rain water has caused the cracking in the foundation. It was happened due to the lack of supervision in construction of boundary wall. As you know, the foundation is newly constructed and it has the limit to resist the pressure of soil loaded on it, and therefore the pressure of rain water in wet soil has created it, for which the undersigned is not responsible at any manner”.
9. We are not blind to the fact that the vital statements regarding the “deal” between the parties, construction of the foundation, development of crack and cause of the crack (the ones reproduced in paragraph 8 supra as stated in Ext. A2) is not seen stated in the versions filed by the opposite party. From the time of issuance of Ext. A2 to filing of the versions, the opposite party has evolved from admission of role to total denial of any role that he had played in the construction. In view of the vital and material nature of these contentions, we are unable to perceive this omission to mention the facts stated in Ext. A2 in the version of the opposite party as an accidental one. This omission, in our view, is deliberate and tantamount to willful suppression of material facts to misguide and mislead this Commission. There are no reasons why the opposite party should resort to such illegal activity, unless he has something to hide from this Commission, revelation of which can be damaging to his case.
10. The opposite party has expressly admitted that there was a “deal” between the complainant and the opposite party. And that deal was to complete the foundation for the building. Admittedly, as per Ext. A2, the opposite party had “successfully completed” the construction of the foundation. But the opposite party has denied the allegation that the basement of the wall was built by him.
Thus we safely conclude that the opposite party had constructed the foundation of the building. But there is no evidence to prove that the opposite party carried out any work related to basement of the boundary wall.
Issue No.2
11. As already stated supra, in paragraph 7, the complainant had not taken out an Expert Commission in a timely manner to ascertain the damages sustained by the foundation. Yet herein also the admissions made by the opposite party in Ext. A2 comes to aid the case of the complainant.
12. In Ext. A2, opposite party claims that cracks developed due to immense weight of the sand that was kept on the foundation, for construction of the boundary wall, which subsequently got drenched. The opposite party has not denied the allegation regarding the development of cracks. Hence developments of cracks stand proved.
13. Ext. A3 series of photographs, marked without any objection, shows that the foundation was constructed with belt.
14. The next question is whether a foundation, whether belted or not would develop cracks under the weight of drenched sand?
15. Burden of proof is cast on the person who alleges the existence of a fact. Complainant had proved through admissions made by opposite party in Ext. A2 document that cracks had developed in the “successfully completed foundation”. Burden of proof had thereafter shifted to the opposite party to prove the extent of weight that the foundation in question can bear. But the opposite party has failed to prove his case by way of cogent evidence that the foundation was of enough weight bearing capacity.
Even otherwise, considering the admitted pleadings, we can arrive at a fairly reasonable picture regarding the weight bearing capacity of the foundation in question. Total extent of the plot is only 5.10 cents and its boundary for the purpose of construction of boundary wall also would not add up to much. After reducing space for boulders for basement and bricks for top layer, the sand will not be much in quantity. At the most, it might come to 1 or 2 loads of sand. Even added weight of retained water to the weight of this sand will not be enough to develop cracks in a properly built foundation. If drenched sand can develop cracks to the foundation of this building, one can only wonder what a super-structure can do to the foundation ‘successfully completed’ by the opposite party.
16. Hence we find that a “foundation that was constructed successfully” (to adopt the words of the opposite party), is built successfully in the eyes of the opposite party alone and not in facts and circumstances of the case.
17. Thus we hold that cracks developed in the foundation of the residential building due to the faulty, defective and imperfect nature of construction of the foundation wall by the opposite party. There is deficiency in service on the part of the opposite party.
Issue No.3
18. Having found that there is deficiency in service on the part of the opposite party, we are to decide on the amount that the opposite party has to repay.
19. Cause of cracks in the basement for boundary wall is not proved. Hence repayment of amounts expended for the same is not allowed.
20. It is the construction of the foundation of the building that is proved to be defective. If construction of a foundation itself is defective, it would always be dangerous and fatal to any further construction upon that foundation. Lives of the residents of a building to be constructed thereon will be at peril. It would be travesty of justice to partly allow the complaint in so far as the amount expended for construction, in the facts and circumstances of the case. A duty was cast on the opposite party to take a reasonable care to see that the work on the foundation is completed effectively so that it can withstand weight. The opposite party has failed to carry out his duties, thereby putting the life of future residents of the building at peril. Only a complete reconstruction of the foundation would suffice to bear the weight of the entire construction of the residential building.
21. On these afore-stated raison d’etre, we hold as below:
- The opposite party is ordered to repay an amount of Rs. 2,46,220/- along with interest at the rate of 10% per annum from 09/03/2017 (date of payment of the last instalment) till date of repayment.
- The opposite party is directed to pay an amount of Rs. 50,000/- as compensation.
- The opposite party is directed to pay an amount of Rs. 10,000/- as the cost of these proceedings.
4. The complainant is entitled to an amount equivalent of 20% per annum on Rs. 2,46,220/- compounded annually, being the amount that would be the annual escalation on the rate of construction of a residential building.
5. The aforesaid orders shall be complied within 45 days of receipt of a copy of this order, failing which the complainant shall be entitled to a solatium of Rs. 250/- per month or part thereof till the date of final payment of the amount stated above.
Pronounced in open court on this the 3rd day of January, 2022. Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of communication dated 04/08/2017.
Ext.A2 – Copy of reply to Ext. 1.
Ext.A3 - 6 photographs
Ext.A4 - Bank statement.
Exhibits marked on the side of the opposite party: Nil
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
