KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANATHPURAM APPEAL.No. 638/05 JUDGMENT DATED : 29.01.2010 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER R.Sivarajan, : APPELLANT R.L.Engineers, Near Balarama, Kottayam. (By Advs.Sri. Sajeevu Mathew & A.Sagunaraj) Vs 1. N.Surendran, Chaithram (H), Velloor.P.O., Kottayam. : RESPONDENTS 2. Usha Surendran, Chaithram (H), Velloor.P.O., Kottayam. (By Adv.Sri.K.Karjet ) JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Kottayam in the file of O.P.No. 4/2002 dated 25/04/2005. The appellant is the opposite party in the above O.P. In short the opposite party was awarded to contract for the construction of the residential house of the petitioners, as per the plan in the property comprising surveey No.101 of Block No.175 in Veloor village. After starting the work, the petitioners and the opposite party entered into an agreement on 01.01.98. As per this agreement, opposite party agreed to construct the house at the rate of Rs.420/- per square foot. The total plinth area of the house is 1529.75 square feet and the agreed contract amount was Rs.6,42,495/-. As per the agreement, the work was to be completed within one year. The opposite party was paid instalments in advance. As on 23.12.98, an amount of Rs.6,40,000/- was paid to the opposite party. But he has not completed the construction of the house. The period of agreement expired on 31.12.98. Even though the petitioners approached the opposite party with request to complete the construction work, the opposite party failed to do so. He completed the construction except some work by March 1999. But during that mansoon season, leakage was noticed from the roof of the house. Apart from this cracks also developed in the walls. More over at the eastern side of the house there was uneven settlement as a result of which the house slanted towards east and sun shade was bent. Apart from this, cracks developed in the front beam. The opposite party did some work and told the petitioners that thereafter no cracks will develop. But during June July 2000, leakage occurred in the terrace. Opposite party did not take action to stop the leakage. But January 2001, cracks increased and leakage became more and the house has become useless. As per the agreement, materials were to be supplied by the opposite party himself. The opposite party has constructed the house negligently as a result of this house has become useless. The act of the opposite party is deficiency in service and unfair trade practice. Hence the petition. The opposite party entered appearance and contended through the written version that he was the contractor of the construction of the residential house of the petitioners. The stipulation regarding the cost of construction per square foot is not correct. Further total expense claimed by the petitioner as Rs.642495/- is also not correct. The opposite party contended that the claim of the petitioners that during monsoon season cracks occurred on the roof concreted and consequently damage was sustained to the house is not correct. Construction was completed to the full satisfaction of the petitioners. No maintenance work was done by the opposite party after handling over the key to the petitioner. Even if any damage was caused, due to the carelessness of the petitioners opposite party is not liable for it. There has been no deficiency in service or unfair trade practice on the part of the opposite party. A separate contract has been entered into between the petitioner and opposite party for additional alteration work, during the course of the construction work. It is not correct to say that the petitioner had provided wood worth Rs.50,000/-. Opposite party had never agreed to provide wardrobe. Opposite party has prayed to dismiss the petition. The Forum below raised three issues. 1. Whether the original petition is barred by limitation? 2. Whether there is deficiency in service or unfair trade practice on the part of the opposite party? 3. Reliefs and costs? The complainant filed proof affidavit and produced six documents and one marked as Exts.A1 to A6. There is no document produced by the opposite party. The Commission report is marked as Ext.C1. The Forum below considered all the evidence in this case and answered all the points raised in this court. The Forum below found that the opposite party has contended in the version that there has been an agreement for additional work and opposite party has to realize an amount of Rs.44,361.06/- from the petitioners. But he has not adduced any evidence to substantiate his contentions. So his claim on this account cannot be considered. Ext.C1 Commission report sufficiently proved that for rectification amount of Rs.107546 will be needed. It is pathetic that petitioners after spending Rs.6,44,595/- had to live in a house with so many defects. The act of the petitioner is nothing but a deficiency of a service. The Forum below directed the opposite party to pay an amount of Rs.1,07,546/- to the complainant for rectifying the defects of the house. It is also directed to pay an amount of Rs.25,000/- as compensation and cost of Rs.1,500/- which includes the commission batta of Rs.750/-. The appellant prefers this appeal from the above order passed by the Forum below. On this day this appeal came before this commission the counsels for both appellants and respondents appeared and argued the case in detail. Both the appellant and respondent filed their detailed argument noted that the counsel for the appellant argued on the basis of appeal memorandum that the complaint was filed after the limitation period, from the complaint itself. It will be revealing that the complainant noticed the deficiency in service in the attention of the opies on March 1995. No action was initiated. But after the limitation period the complainant was initiated on 31.12.01. The reply to the argument forward by the respondent/opposite party. Before the lower Forum that was contented that it is filed after the period of the limitation. That was not appreciate by the Forum below. In this aspect the counsel for the appellant side cited a decision (III) 2004 CPJ 407, Kamal Jit Kaur Versus New India Assurance Company Ltd . Sec.3 of C.P Act preserves the right of the party to approach civil court also. Since allegations in this case are complicated issues they are to be discussed before civil court. The complainant /respondent has to approach a civil court. The Counsel for the Appellant side cited another decision is AIR 2008 SC1108;para 8(5)page110, if any substantial question of law can be heard though it was not formulated, if the court is satisfied that the case involves such question. The Counsel for the appellant argued on the ground of the appeal memorandum that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is illegal and liable to be set aside. These contention that the complainant was not maintainable due to limitation as per the Limitation Act and such a dispute involved and such a substantial question of law, it shall not be maintainable before the Consumer Forum as per the Consumer Protection Act. But this contentions strongly upheld by the counsel for the respondent through his argument. The argument that the complainant is barred by limitation is totally false and hence denied. The cause of action for the complaint, complaint is a part and parcel of continuing cause of action and even now it is continuing. The defects in the building became more and more evident day by day and increasing. The construction of the building was not completed. So there is no question of limitation arised. However the plea of limitation was not raised in the written version filed by the appellant/opposite party. No objection was filed by the appellant on the report of the Expert Commissioner even before the court further appointed a commissioner on the basis of the application of the appellant/opposite party. The Exts.C1 and C1(a). Commission report is correct and acceptable in evidence. He argued that the order of the Forum below is legally sustainable and accordance with the law and evidence. This Commission heard both sides in details and perused all the evidence from the case bundle. It is seeing that all the points arised in this case is rightly answered by the Forum below. The original objection was filed on 01/01/2002. The crack appeared in the front beam of the house according to the petitioners, the opposite party did repair the materials. But during rainy seasons of June, July the leakage reappeared if the roof slab and cracks undeveloped in the wall. Even though the petitioners approach the opies. He did not take any action to rectify the defects to January 2001, the cracks multiplied and leakage increases. From the records and evidence it is very clear that even though the defects appear during the mansoon season of 1999. The appellant did some repair working and the defects continued and increase during June, July and January 2001. In the written version the appellant/opposite parties has not raised any contention about the question of limitation. In other words it is an admitted fact by the complainant that he attended cracks. The expert Commission report Ext.C1 is a very cardinal piece of evidence to support the case of the complainant/respondent. It seen in the case records that there is no steps taken by the appellant/opposite parties to adduce any evidence including oral and documentary evidence. The appellant/opposite parties is not taken any steps to examine the Commissioner or to file any objection against the commission report later raised the contention in this appeal by the appellant/opposite parties is estopped by the law of estoppal. In other words it is an admitted fact that the crack was occurred in the residential building of the complainant is nothing but a deficiency in service committed by the appellant/opposite party. Another contention raised by the opposite parties that this dispute involved huge compound question of laws. It is not acceptable. It is a deficiency service in construction of a residential building. It was also an admitted fact this complainant is maintainable in accordance with the provisions of Consumer Protection Act. This commission is not seeing any reason to interfere in the order passed by the Forum below. The order passed by the Forum below is strictly accordance with the law and evidence. It is legally sustainable upheld the decision of the Forum and we decided to modify the quotation of compensation awarded by the Forum below. We think it is highly necessary for the interest of justice. In the result this appeal is allowed in part and the opposite party is directed to pay Rs.1,70,505/- to the complainant. The compensation of Rs.25,000/- is set aside. The appeal disposed according to the above modification. The points of the appeal answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT Kb. | 
