D.O.F. 22.02.2006 D.O.O. 12.05.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K.Gopalan : President Smt. K.P.Preethakumari : Member Smt. M.D.Jessy : Member Dated this the 12th day of May, 2011. C.C.No.45/2006 Terrance Herbert Patterson, S/o. W.J. Patterson, Rep. by his P.A. holder, : Complainant William Joseph Patterson, S/o. Charles, Pillavullathil House, Pallikunnu Road, Thalassery (Rep. by Adv. John Joseph) N. Rajesh, S/o. Late A.N. Ramachandran, ‘Natyala House’, Chettamkunnu, : Opposite party P.O. Thalassery, PIN : 670 101 (Rep. by Adv. C.R. Rajeendran) O R D E R Smt. K.P. Preethakumari, Member. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of ` 5 lakhs towards compensation or to cure the defects in the construction to the satisfaction of the complainant with cost. The facts in brief of the complainant’s case is that he is the owner in possession of 15 cents of landed property comprised in R.S.No.206 of Thalassery amsom and Vadikkakam desom as per a registered deed having No.630/02 of SRO, Thalassery. The opposite party constructed a residential building in the above property for the complainant as per an agreement dated 31.08.2002. The complainant has paid a total sum of ` 23,27,195 including ` 54,680 as supervision charges for additional works done by the opposite party, which amounts to ` 6,83,505 and the construction was almost completed by the month of June, 2003. The opposite party has agreed to use best quality material available in the market for the proposed construction and to build under his direct personal supervision. The opposite party is also bound to complete the entire construction work as per the specification in the agreement dated 31.08.2002. The house warming ceremony was on 13.06.2003 soon after the completion of the construction, several cracks have developed on the walls and due to this the appearance of the wall become awkward. Gradually the cracks are being widened. This defect was caused due to use of substandard materials and poor workmanship of opposite party. During monsoon 2004, many areas of the house started leaking and persistent dampness inside the house through several walls. During monsoon water is oozing inside the house through the north-west wall of the dining room as well as the south east wall of the bed room in the ground floor. Similarly there is water leakage through eastern wall of bedroom on the south east corner as well as the northern wall of the bed room situated on the north west corner of the first floor water is oozing inside the house through the walls as well as roofs of all the bathrooms situated on the first floor and hence the appearance of walls become ugly. Due to leakage of water through the bathroom walls the complainants family members are under a perpetual threat of electric shock during rainy season. All these are caused due to the poor qualities of the materials used and poor workmanship and lack of proper suspension and proper guidance to the workers. The opposite party has not provided proper slope in the terrace roof area and necessary water proofing works. The planks used for paneling stair case were widened and gaps have developed in the stair case. So the complainant was constrained to fix a few wooden pieces over the stair case area to conceal the gaps. The door shutters and window shutters lacks screws. The woods used for the entire wood works are unseasoned and substandard and not properly polished. Water is stagnating all bathrooms since no proper slope is provided in the bathrooms and the tile works are not finished. The tiles used and the workmanship are of substandard quality. There is leakage in the terrace and formed fungus all over the open terrace area; eventhough the opposite party has charged 13,500 for weather proof concreting over the open terrace. The painting work is also of substandard and hence the house appears to be very old and shabby. The word primer coats and finishing coats are not used. Sufficiently, hand rails are not provided to the terrace. The floor tiles used and its workmanship are very poor and the complainant realized the above defects after a few month after the house warming. Cracks are developed on pedestal wash basin and on some of the European closets. The electric switch board as well as the E.L.C.B. is not functioning properly. All these problems are caused due to the use of substandard materials and poor workmanship and due to lack of proper supervision and proper guidance. The complainant was away from India and hence his father made several requests to opposite party to rectify the above defects and on all such occasions the opposite party assured him that he will rectify the defects. He was evading his liability by saying same excuses such as non-availability of workers, unfavourable climate etc. So the complainant issued a registered lawyer notice dated 24.11.2005 to opposite party and the opposite party approached the complainant as soon as he received notices and assured that he will rectify the defects after Christmas. Since there exists an arbitration clause in the agreement, the complainant issued another notice to express his consent for arbitration proceedings within 7 days. But the opposite party issued a reply with false contention and expressed that he has no interest to refer the dispute for arbitration. Hence this complaint. In pursuance to the notice issued by the Forum, the opposite party appeared and filed his version with a contention that the complaint is barred by limitation. According to opposite party the entire construction of the building was completed in accordance to the satisfaction of the complainant in June, 2003 and the complainant settled the account with opposite party only after he had satisfied that the entire works of the building was completed as per the agreement. The opposite party denied the averments that at the time of house warming ceremony there are several minor works to be completed, a few months after the completion of the construction work, innumerable number of cracks have developed on the walls in all areas of the house, water is oozing inside the house through the north-west wall of dining room, southwest wall of bedroom in south west corner, northern wall of the bedroom in north west corner, water is oozing inside the house through the walls as well as roofs of all the bathrooms in first floor and due to this the complainant’s family members are under a perpetual threat of electrical shock during rainy season etc are false and hence denied. The opposite party further denies the allegation that the opposite party has not provided proper slope and water proofing work in the open terrace within a span of one year, the planks used for paneling the stair case had widened and gaps have developed and the defects are caused due to use of substandard quality and poor work manship etc. The opposite party carried out the work using materials of standard quality. The opposite party had completed the entire work in June 2003 and till 3 years the complainant have not raised any complaint or pointed out any defects. The allegations now raised is with an ulterior motive to tarnish the opposite party. The opposite party had provided necessary number of screws for fixing the hinges of the doors and shutters and provided necessary and sufficient slope in bathroom for drainage. The flooring works was completed by using unity standard quality tiles suggested by the complainant and there is no defects in fixing the tiles. Formation of fungus in open terrace are natural things and hence opposite party cannot be blamed for the same after 3 years of completion of work. The opposite party has used standard quality of wash basins and European closets and hence opposite party is not liable for the cracks. If any cracks are developed, on wash basin and closets the same are caused due to the improper use of the same by the complainant. The electric fittings are liable to be serviced periodically and the opposite party is not liable for the periodical service of the electrical fittings. Repainting is required for the proper maintenance of a house especially concrete building in every two years. But complainant has not done periodical maintenance. Either the P.A. holder of the complainant or the complainant has not raised any complaint or request to opposite party to rectify the defects and the opposite party never assured the complainant to rectify the defects before Christmas, 2005. Since there was no defects in work carried out by opposite party, the opposite party is not liable to pay any compensation. The opposite party has strong objection in condoning the delay. Since there is no deficiency of service on the part of opposite party, the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. 1. Whether the complaint is barred by limitation? 2. Whether there is any deficiency of service on the part of opposite party? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence in the above case consists of the oral testimony of the PW1, PW2, CW1, CW2, DW1 and Exts. A1 to A13 series. Issue No.1 The complainant’s case is that the house construction was almost completed by June, 2003 and the house warming ceremony was solemnised on 13.06.2003 and after a few months of the completion of construction work innumerable number of cracks have developed on the walls in all areas of the house and after the onset of monsoon in the year 2004, many areas of the house started leaking and persistent dampness inside the house. According to the complainant cracks have developed by March, 2004 and leakage developed by July, 2004. The complainant further contended that with regard to some defects or deficiency of service on part of opposite party, the limitation applies as the house warming ceremony of the house was on 13.06.2003 and the major portion of the construction work was finished by July, 2003. From the face of the record it is seen that the complaint was filed on 22.02.2006. But the opposite party disputed the cause of action of the complaint. But the Section 24A of Consumer Protection Act prescribes the period of time for filling a complaint before the Consumer Forum as two years from the date of cause of action. But cause of action is a bundle of fact that has given raise to action against other party. In Narayan Sivaji Vs Gurumath Gouda AIR 1939 Bombay, the Bombay High Court gave the meaning of cause of action as “A cause of action briefly means right and the infringement of that right” where a party has an undoubted right and that right is infringed, a cause of action at once accrude to him. Several facts which are necessary constituents of a cause of action may not occur at one and the same time and in such an event complete cause of action can arise only when last of such facts occurs. In this case it is seen that the house warming ceremony is on 13.06.2003 and thereby the complainant acquired right, since the subject matter of the case is with respect to the defects caused in construction of the house. Cause of action arose only at the time of the infringement of this right. Similarly several facts constitutes cause of action in this case and hence cause of action arise only when last of such facts occur. So in our view the last fact occur during 2004 July and hence the cause of action was arised during July, 2004. The complaint was filed during February, 2006 which is within the time limit prescribed by Section 24A of Consumer Protection Act and hence we hold the view that the complaint is not barred by limitation and the Issue No.1 is found in favour of the complainant. Issue No.2 to 4 : The further case of the complainant is that the house constructed by opposite party as per the agreement dated 31.08.2002 and the additional work done as per bill dated July, 2003 has several minor and major defects, which were caused due to the substandard materials, poor workmanship and lack of supervision and the opposite party has received ` 54,680 as supervision charge for additional work eventhough he has received separate payment from the complaint for the work and has not carried out the weather coating work inspite of the fact that he has received ` 13,500 for the same. In order to substantiate this case the complainant has produced documents such as agreement dated 31.08.2002, bill of additional work, lawyer notice, postal receipts, acknowledgment cards, report by the Commissioner as well as expert with its annexures. Municipal approved plan, photographs, CD’s etc and examined PW1, PW2, CW1 and CW2. Earlier the complainant has taken out an exparty commissioner and the report filed by him was set asided at the instance of the complainant and another expert with advocate commissioner had inspected the impugned house and filed the report and they were also examined. The opposite party was examined as DW1 in order to disprove the case of the complainant. The Ext.A1 agreement, Ext.A2 bill for additional work along with the admission of opposite party proves that the opposite party has constructed the house as per Ext.A10 plan in Re. Sy. 206 of Thalassery amsom Vadikalkam desom. Eventhough so many defects are pointed out by the complainant the opposite party contended that he had done all the works with standard quality of materials with good workmanship under his direct supervision and all the defects are caused due to the lack of maintenance and improper use by the complainant. He also contended that the complainant had settled the account with opposite party only after satisfying the work done by opposite party. The complainant brought into the notice of the Forum the fact that the normal life span of a concrete building is more than 80 years. But the defects are seen within one year of its construction. The complainant deposed that “hoSnsâ ]Wn Ignªv Hcp hÀjT Ign-ªmWv crack ImW-s¸-«Xv”. The complainant contended that there are so many through cracks and hairline cracks are noticed on the walls of bedrooms, on down stairs, dining room and in all areas. The Ext. A13 series photos substantiate that the walls have both through and hair line cracks. The PW2 photographer identified that these photos are the photos of the different walls of the house of the complainant which was taken by him. The advocate commissioner in her Ext.X1 report, reported that she found the following defects such as on the ground floor, there were cracks on the western and southern wall of centre hall, and also on the outer area of the same. In the bed room there are cracks on the adjacent face walls and leakages and due to leakage ugly scars are sprouted all over the wall. In the dinning room as well as in the kitchen there are cracks and leakages. The tiles fixed on the walls of the kitchen were not properly fixed and hence gaps formed. The wood has been decayed and there were gap in the cutting. Tiles attached to the stair case were not properly laid and which has a shaggy appearance. There was leakage on the southern wall of the living room. The southern wall of the upstair bedroom on the southern side has cracks and leakages. The ceiling of the bathroom of the bedroom is totally wrecked. The bathroom attached to the northern side of the bed room was also having cracks and leakages. All the windows and doors were not having the required and sufficient quantity of screws, have hole, doors, furniture and cupboards were not properly polished. This report is accompanied with the report of Expert Engineer including annexures showing the details regarding rectification work, plan etc. The expert is a retired Civil Engineer from Neyveli Lignite Corporation having 30 years of practice as a Civil Engineer and is now also practicing as a Chartered Engineer. He reported that the defects like thorough cracks, seepage of water etc are due to usage of substandard materials and poor workmanship. According to him the work should have been done directly under the supervision of the contractor, but he has engaged a subcontractor for executing work. According to him, the building required urgent rectification works to prevent further damage. The Expert who was examined as CW2 deposed that “Cu ho«n IqSp-X IXv through crack Bbn-cp¶p. Through crack hcp-¶Xv foundation unequal settlement Bbm-ep-T, substandard material use sNbvXm-ep-T, poor workmanship Bbm-epT Dm-IpT. Hairline crack surface expand sN¿p-t¼m-gp-m-Ip-¶-XmWv. Hairline cracks poor workmanship sImpT, plasteringþ\v substandard material D]-tbm-Kn-¨m-epT, plastering tijT Bh-i-y-amb shf-fT \\-¡m-Xn-cp-¶m-epT hcmT. Crackssâ F®T ]cm-aÀin-¡m-Xn-cn-¡m³ Imc-WT crackssâ F®T IqSp-X-em-bXp sImmWv”. From these deposition it is very clear that there are so many hair line and through cracks on the walls of the house. He further deposed to the effect that there is seepage of water in all areas of open terrace and ugly scars are seen on the walls and the original colour of the paint is also faded. The Expert also deposed that “weather proof-\v separate charge hm§n-b-Xmbn tcJ-IÄ t\m¡n-b-t¸mÄ a\-Ên-em-¡n-bn-cp¶p. IrX-y-ambn weather proof \S-¯n-bm damages and leakage Dm-hnÃ. Open terraced areabn undulations, water presence F¶nh Dm-bn-cp¶p. Weather proof sNbvX-Xmbn tXm¶n-bnÃ. So from this it is clear that the opposite party has not done the weather proofing work eventhough he had received an amount of ` 13,500 for this as per Ext.A2. Regarding the wooden panels and stair case the expert deposed that “alm-KWn D]-tbm-Kn¨ Øe¯v gap Dm-bn-cp-¶p which shows that the wood is not hard and seasonal. Stair case Ibdn floor touch sN¿p¶ Øe¯v tile loosened and broken Bbn-cp¶p. Kitchensâ wall tiles CfIn InS-¶n-cp¶p. Wooden articlessâ polishing ImWp-t¼mÄ hfsc tami-am-bn-cp¶p. doors, windows and cupboards surface finishing\v Fsâ A`n-{]m-b-¯n sNbvX polishingsâ workmanship poor Bbn-cp¶p. So from the above deposition of the expert witness, it is proved undoubtedly that the defects were caused due to the use of substandard materials with poor work manship. Moreover the Expert Commissioner unambiguously states that “Building I-Xn \n¶pT AXn-\p-mb defects properly maintain sN¿m¯Xp sImà constructionsâ XI-cmdp sImp-m-b-Xm-sW¶v a\-Ên-embn”. Above all the Commissioner submitted that Indian standard concrete building life span 80 years BWv. ISI AT-Ko-I-cn¨ life span BWv. This words substantiate the case of the complainant. Above all the opposite party deposed that “km[m-c-W-K-Xn-bn workmanshipt\m material usedt\m XI-cm-dn-sÃ-¦n buildingsâ DÄ`mK¯v CuÀ¸T hcp-hm-\p-ff km[-y-X-bnà F¶p ]d-ªm icn-bmWv”. Moreover the opposite party contended that the defects are caused due to earth quake. But he deposed that “Xe-tÈcn Cu building construction\p tijT `qI-¼T Dm-bn-cpt¶m F¶v sXfnhv lmP-cm-¡m³ Ign-bnÔ. The complainant further contended that the materials used for construction are substandard. As per the first condition shown in Ext.A1, agreement it is very specifically stated that “the contractor will at the first instance and his own costs and expenses, arrange for all bricks, lime, sand, cement, stone, timber, iron rods and other materials what so ever necessary for the said works. All such materials being of the best quality available in the market, sound and well seasoned and also tools, implements and scaffolding, whatsoever necessary for carrying out and completing of the said work”. So at the time of entering into the contract itself the opposite party agreed for using goods best available in the market for completing the work. But the complainant contended that the opposite party had used substandard materials. So the burden of proof is upon the opposite party to prove that the materials used are standard qualities available in the market at that time. Opposite party has not taken any steps to prove the same. So we upheld the contention of the complainant that the materials used for construction was of substandard quality. So from the above discussion we are of the opinion that the materials used are of substandard qualities, workmanship is poor and lacks supervision and hence there is deficiency of service on the part of opposite party for which he is liable to compensate the complainant and to pay the amount required for the rectification work with cost of this proceedings. Regarding the amount required, it is already found that the opposite party has not done weather proof work and hence he is liable to return ` 13,500 which was received by the opposite party towards weather proof work. The Expert Commissioner reported the details of rectification works as shown below. 1. The total area to be rectified due to through cracks and seepage of rainwater is 104 M2 for which ` 60,112 is required. 2. Rectification work due to stagnation of water and seepage of rain water is 85 M2 and for which ` 62,900 is required. 3. Amount required for painting work is ` 52,424. 4. Amount required for polished wooden door and window frames, shutter and cupboards = ` 10,175 5. Rectification of stair case wooden lining and painting and for replacing missing screws for shutter, rectification of tiles in stair case, kitchen etc. = ` 10,000 6. Rectification of electrical wiring = ` 20,000 7. Supervision and certification = ` 9,389 Total = ` 2,25,000 But out of these above stated amounts the item No.6 ie the amount shown as rectification of electric wiring as ` 20,000. The complainant deposed that “voltage fluctuation DÅXv sImv bulb burn Bbn-t¸m-Ip¶p. Switches amän-bn-cp¶p. Leakage sImv amtä-n h¶-XmWv”. But there is no supporting evidence before us. Commissioner also keeps mum with respect to this. Thus there is no reliable evidence before us. So we are discarding the item of ` 20,000 as shown as rectification of wiring work. So the complainant is entitled to get ` 2,05,000 towards rectification work from the opposite party. The complainant alleged that the opposite party had received ` 54,680 as 8% supervision charges for the additional work and the complainant is entitled to get back the amount from opposite party. In Clause VII of A1 agreement it is specifically states that in case owner shall desire for any additional works to be executed, the contractor shall duly executed such deviations or additional work in a proper, substantial and work man like manner, as mutually agreed to the satisfaction of the owner. The Expert Commissioner deposed before the Forum that “Supervision charge extra Bbn charge bills ImWn-¨n-cp¶p. Cu Imc-yT agreement specify sNbvXnÃ. Agreement specify sNbvsX-¦n am{Xsa C§ns\ supervision charge CuSm-¡m-dp-ffq”. Regarding the cost for additional work the agreement says that “The additional cost of such deviation, alterations and additions shall be estimated and paid to the contractor in the manner provided in this schedule of payment “Nothing is stated in this Clause regarding supervision charge. Moreover the opposite party deposed before the Forum “Already specify sNbvX Imc-y-§Ä¡v Rm³ estimate X¿m-dm-¡-bn-«mWv Rm³ Ext.A1se amount fix sNbvXXv. Additional works\ kT-_-Ôn¨v Rm³ estmate X¿m-dm-¡n-bn-cp-¶nÔ. The opposite party stated in his chief affidavit that “hoSnsâ \nÀ½m-W-¯n\v thn Dm-¡nb agreement DÄs¸-Sm¯ {]hr-¯n-IÄ ]e-XpT {]kvXp-X-`-h-\-¯n \S-¯n-bn-cp-¶p. {]kvXp-X-{]-hr-¯n-IÄ sNbvXXv ]cm-Xn-¡m-c³ tF¸n¨ tPmen-¡mÀ Xs¶-bm-Wv. {]kvXpX {]hr-¯n-IÄ supervise sN¿p-¶-Xn-\mbn agreementse XpIbv¡p ]pdta {]tX-y-I-amb kT-Jy F\n¡p Xcp-¶-Xm-sW¶v ]cm-Xn-¡m-c³ tF¡p-I-bpT Bb-Xp-{]-Im-cT \nÝ-bn¨ XpI-bmWv supervision charge F¶ \ne-bn ]cm-Xn-¡m-c³ F\n¡v X¶Xv”. So from the statement it is clear that there is no stipulation for supervision charge for additional work in the agreement. The opposite party has not produced any documents to prove that the complainant had assured him to give supervision charge. The opposite party had deposed that he had not prepared any estimate before doing the additional work and he had prepared only the Ext.A2 bill after the work had been executed. Above all the opposite party deposed before the Forum that “Additional work\v Hcp amountDT fix sNbvXn-cp-¶nÔ. This statement is against the statement made in chief affidavit that the complainant had assured him to give supervision charge also”. Moreover in Ext.A2 bill for additional work, the opposite party had levied labour charge for each and every work. So from the above discussion it is clear that the opposite party is liable to refund 54,680 received by him as service charge. It is found that there is deficiency of service on the part of opposite parties in constructing the house. It is a fact that the complainant had suffered so much of mental, physical as well as financial hardships due to the act of opposite parties and the gravity of such type of mental agonies are beyond words. So we are of the opinion that complainant is entitled to compensation also and we assess ` 25,000 as compensation and ` 3,000 as cost of the proceedings. So the opposite party is liable to compensate the complainant by giving the value of rectification work as ` 2,05,000, to refund ` 13,500 received by opposite party for weather proof work and ` 54,680 received as supervision charge along with ` 25,000 as compensation and ` 3,000 as cost of the proceedings and the complainant is entitled to receive the same. In the result the complaint is allowed directing the opposite party to pay ` 2,05,000 (Rupees Two lakh five thousand only) as the value of rectification work, to refund ` 68,180 (Rupees Sixty eight thousand one hundred and eighty only) received by opposite party as supervision charge and weather proof work along with ` 25,000 (Rupees Twenty five thousand only) as compensation and ` 3,000 (Rupees Three thousand only) as cost of the proceedings within one month from the date of order, otherwise the complainant can execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Agreement A2. Copy of bill for Additional Work A3. Copy of lawyer notice dated 24.11.2005. A4. Postal order A5. Postal Acknowledgment A6. Lawyer notice A7. Postal order A8. Postal Acknowledgment A9. Reply letter dated 28.01.2006 A10. Building Plan A11. Cash bill issued by Shyam Photos A12. CD A13 series. Photos . Exhibits for the opposite parties Nil Exhibits for the Court X1. Commisssion Report. X1 (a) to (f). Report, Annexures and Plan. Witness examined for the complainant PW1. Complainant PW2. M. Shyam Witness examined for opposite party DW1. N. Ragesh Witness for the Court CW1. V.V. Devadasan CW2. K.M. Gopinath /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | |
