BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.44/2006

Dated this the 31^st day of August 2015.

Manimaran, S/o.Gnanavelu

Ganapathy Nagar, Dr.Radhakrishnan Nagar Extension

Moolakulam, Pondicherry-10.                                                      ….       Complainant

Vs.

Nagarajan, S/o.Basuvalingam

NO.6, Kuyavar Veethi, Murungapakkam,

Pondicherry-4.                                                                                  ….     Opposite Party

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT                      :  Thiru,K.Palaniappan, Advocate.

FOR THE OPPOSITE PARTY                  : Thiru. M. Lakshmi Narasimhan, Advocate

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite party to pay to the complainant towards the cost of rectification of defects a sum of Rs.10,19,000/- with interest at 18% p.a. from the date of complaint till payment.
2. Direct the opposite party to pay to the complainant a compensation of Rs.5,04,600/- with interest at 18% p.a. from the date of complaint till payment.
3. Direct the opposite party to pay to the complainant a sum of Rs.25,000/- towards the cost of the complaint.

2.  The case of the complainant is as follows:

            On 11.02.2004 the opposite party had entered into an agreement with the complainant agreeing to construct a residential house over his plots bearing nos.19 and 20 measuring an area of 2400sq. ft. situate in Ganapathy nagar comprised in R.S.No.90/1, correspondent Cad No.376.  The tentative cost of the buildings as on the date on the date of agreement was arrived at Rs.16,00,000/-.  In the course of construction the opposite party had revised the cost and received from him on various date a sum of Rs.18,50,000/- total inclusive of certain additional items of work done by the opposite party.  The complainant had availed a loan of Rs.3,00,000/- from the Indian Bank, Mudaliarpet, Puducherry at the rate of 12% per annum.   After completion of the construction, the complainant found the following defects in the building.

3.         The design, the thickness of the steel rods in the framing of balcony construction in the first and second floor and the reinforcement of the cement concrete are not proper and the stair case. The balconies in the first and second floor in their entirety and the stair case have been completely damaged requiring reconstruction at a cost of Rs.2,61,000/-.   The sealing of the first floor is profusely leaking due to poor quality of the construction as the roof concrete is not properly laid, no chemical treatment is done, Kerala tiles have not been properly laid and they have not been pointed.  Therefore to make good of the said defect a sum of Rs.60,000 is required.  The complainant intended to lease out the first floor and due to the said defect there is loss of earning at the rate of Rs.2600/- p.m. for the period from October 2004 to June 2006 amount to Rs.54,600/- and a sum of Rs.1,00,000/- is claimed as compensation towards future loss of earning.  The wall inside and outside the first and second floor are developing full of crakes day in and day out as there is no proper mixing of the cement mortar and the standard of mixing is far below in the process of plastering and further there is no water curing therefore the entire walls of the first and second floor inside and outside require re-plastering at a cost of Rs.4,50,000/-.  The frames and the plants of the doors and the windows in the house are warped due to usage of tiny plants leaving huge gaps between them and not seasoning the timber, which require replacement at a cost of Rs.1,50,000/-. 

4.         It is further submitted by the complainant that the opposite party has not made the construction according to the specification as per agreement and the first floor balcony and stair case are to be laid with grey mosaic as per agreement but the opposite party has laid only Kerala tiles, therefore to lay grey mosaic flooring a sum of Rs.35,000/-.  Further, the rusted steel was not treated before painting and only 1 coat of painting instead of 2 coats as agreed, has been done.  A sum of Rs,35,000/- is required to give one more coating. Ceramic tiles laid in the ground floor including the car parking area at a cost of Rs,15,000/- including labour charges and to make good the main entrance at a cost of Rs.3000/-.   Apart from the above, the opposite party has not used standard materials in the process of construction and even the materials used in the construction is not as per the agreed specifications. The construction of the building was completed in  August 2005 and as there is a delay of 10 months in completion of the construction and the delivery of the house for which the complaint claims a compensation of Rs.1,00,000/- from the opposite party.  The construction has endangered the safety to the life of the complainant and his family members and their household articles, he suffers mental agony and distress for which he claims a compensation of Rs.2,00,000/-.  Hence this complaint.

5.         The following are the averments narrated in the reply version filed by the opposite party:

            The opposite party denies all the allegations made out in the complaint except those that are specifically admitted in the reply version. The opposite party had started works immediately on agreement.  He had done all agreed works with very good quality material on most reasonable cost.  He had completed several alterations in plan.  The complainant had also changed specifications for tiles for internal floor and for door into owner's choice on extra cost.  The opposite party and the complainant were in good relationship and smooth functioning for all purposes of said construction. Several extra works were also directed by complainant but without any instant payment as agreed.  Yet the opposite party had continued to complete all agreed and extra works within specified time and submitted a bill with all details of expenses for construction by clear listing of specifications of date and description of works and on quantity and amount spent thereon.  Such accounts showed that complainant is liable to pay Rs.2,61,571/- as on date of delivery of possession of property and in addition to pay orally agreed service charges at 10% of total cost of construction.  The opposite party had attended 'Grahapravesam' of house with all good wishes.  He was then repeatedly and politely requesting complainant to pay said dues.  He was also courteously assuring to do so but remained evasive for long.

6.         The opposite party was forced to insist on said payment with strict words of warning for legal action.  For the advocate notice sent by the complainant, this opposite party has given reply notice dated 07.01.2006 by narrating all truths that the complainant is legally liable to pay Rs.2,61,571/- and service charges @ 10% of total cost of construction.   The opposite party had completed all works despite several difficulties like huge escalation of costs due to subsequent variations of works and materials by amicable and oral negotiations during construction.  The opposite party had done all needful in bonafide performance of all his duties and obligations in work.  There is no truth or bonafide or merit in claims as alleged in complaint as there is no legal or factual scope to allege any delay or deficiency of service by the opposite party in any manner.  The disputes as in purported complaint are wholly civil in nature to require a judicial adjudication by a competent civil court as per all laws.

7.         The counter claims of the opposite party as against the complainant is that the complainant is legally liable to pay Rs.2,61,571/- to the opposite party as on date of delivery of possession of property and in addition to pay agreed service charges @ 10% of total cost of construction Rs.18,61,570/- as per accepted bill between parties.   Such non payment for long imposes legal obligation to pay sum with just and minimal interest thereon atleast 12% per annum from the date of delivery of house and till date of complete payment.  Thus said non-payment had directly caused severe losses as interest on loans and are thus causing continuous suffering of physical and mental agony to the opposite party.  The opposite party estimates the compensation at Rs.1,00,000/-.    To direct the complainant to pay Rs.5000/- as cost of the proceedings.  Hence pray to dismiss the complaint.

8.         On the side of the complainant, Thiru.S.Sekar, Assistant Engineer, PWD, Puducherry has been examined as CW.1 and marked Exs.X1 and X2. Dr.G.Ramakrishna, Assistant Professor has been examined as CW.2 and Exs.X3 and X4. The complainant has been examined as CW1 and marked Exs.C1 to C3.  On the side of the opposite party, he has chosen to examine himself as RW.1 and marked Exs.R1 to R3.

9.         Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether the complainant is entitled for a sum of Rs.10,19,000/- towards the cost of rectification of defects?
3. To what relief the complainant is entitled for?

10. Point No.1:

The complainant has entered into an agreement with the Opposite Party for Construction of a house at plot Nos. 19 and 20 Ganapathy Nagar comprised in R.S. No. 90/1 and Cad. No. 376 on  11.02.2004 for valid consideration of Rs.16,00,000/- vide Ex.C1. Hence the complainant is consumer for the opposite parties.

          11. Point No.2:

We have carefully perused the Complaint, reply version, documents on both sides, depositions of both parties and the opinion  given by the Experts.  The complainant submitted that he entered into agreement with the opposite party to construct a house on 11.02.2004 for Rs.16,00,000/- vide Ex.C1, and the construction work should be completed within 8 months from the date of agreement. The complainant further submitted  that apart from the agreed amount of Rs. 16,00,000/- the opposite party revised the cost during the time of construction and received totally a sum of Rs. 18.50 lakhs inclusive of additional items of work done by opposite party. The complainant alleged that he found the following defect in the construction made by opposite party.

1. The balconies of 1^st and 2^nd floor are leaning against ground and to prevent the same the OP has made dummy pillars using cement pipes.
2. The ceiling of the 1^st floor caused leakage due to poor quality of the construction and improper laying of Kerala tiles.
3. The walls inside and outside of 1^st and 2^nd floor and compound wall are full of cracks.
4. The frames and the planks of the doors and windows are warped due to usage of tiny planks, leaving huge gaps between them and not seasoning the timber.

It is further alleged that the opposite party has not made construction according to specification and as per agreement. The staircase and the 1^st floor balcony are to be laid with grey mosaic but OP laid only kerala tiles. Rusted steel was not treated before painting and only one coat of painting instead of two coats has been made. It is also alleged by the complainant. He laid ceramic tiles in the ground floor including car parking area and made the entrance good to a cost of Rs. 18,000/-. It is also submitted by the complainant that the opposite party has used sub-stranded material and a workmanship and the quality of construction is very poor.

12. On the other hand, The Opposite Party filed the Reply Version and adduced evidence.  The opposite party admitted the entering into an agreement by him with the complainant. The Opposite party alleged that he started work immediately after the agreement and have done all the works with good quality materials and also increased the height of basement from 4 feet as agreed to 7 feet and both the complainant as well as the OP had good relationship throughout the construction and carried out extra works without instant payment and for such extra works, the complainant is liable to pay Rs.2,61,571/- apart from orally agreed service charges of 10% of total cost of construction.  It is further stated by the Opposite Party that when he insisted such payment, the complainant issued legal notice dated 24.12.2005 which is marked as Ex.C2 for which the Opposite Party sent a reply on 07.01.2006 vide Ex.C3.  The Opposite Party had voluntarily approached for amicable negotiations in interest of Goodwill of his business and to settle for peace at loss and the same was failed.  The Opposite Party further alleged that there is no truth or bonafide in the complainant and there is no delay or deficiency in service. 

13. The Opposite Party counterclaims as follows:

            The complainant is legally liable to pay Rs.2,61,571/- to the Opposite Party in addition to the agreed Service charges at 10% of total cost of Construction of Rs.18,61,570/- and such non-payment caused severe loss and damages to him.  Further it is alleged by the Opposite Party that the complaint is wholly civil in nature and require judicial adjudication by a competent Civil Court as per all Laws and thus the complaint is misconceived and liable to be rejected and also prayed  to direct the complainant immediately to pay a sum of Rs.2,61,571/- together with interest at 12% per annum from 28.6.2006 and also prayed for 10% of service charges of Rs.1,81,157/- and a sum of Rs.1.00 lakh towards compensation for loss and damages and Rs.5000/- towards cost.

14.  Heard both sides and records and evidence were carefully perused.  It is very clear from the available records i.e. Complaint, reply version, documents and depositions of both parties that the complainant and the opposite party had entered into a building construction contract agreement Ex C1 as per the terms and conditions of the contract agreement, the amount has to be paid at the various stages of the construction work without any delay or default by the Complainant.  Accordingly, the complainant has paid the agreed amount.  The dispute arose only when the Opposite Party demanded the cost of extra works done by him as per Ex.R3 (which was objected by the learned counsel for the complainant for marking the same) and also the service charge of 10% on total construction cost.  On perusal of records, there is no documentary evidence that the complainant agreed for extra payment for extra works and also the service charges.  The learned counsel for the complainant argued that if there is any amount pending to be paid to the Opposite Party, the OP might have filed a suit for recovery of the same.  But, so far he had not done so and also the Ex.R3 has no legal validity, since there was no signature or acceptance by the Complainant and it has created for the purpose of this case.  The Opposite Party also admitted in his cross examination that "Apart from Ex.C1, there is no written agreement, but there is oral agreement."  Further in the cross-examination, the OP has stated that "a third party was present while drawing Ex.R3 and he did not obtain the signature of the third party in Ex.R3.    Hence, it is found by this Forum that the extra amount and the service charges to be paid by the complainant will not come under the purview of this Act since there is legal remedy available in the Civil Court of Law.   Hence, the allegation and the counter claim made by the Opposite Party are rejected.  

15. Coming to the next aspect of deficiency in service, this Forum carefully perused the evidence and the reports filed by the Experts CW1 and CW2.   The CW1 Thiru S. Segar, Engineer engaged for Commission work by this Forum has stated in his Report Ex.X1 that             "some cracks have developed on the eastern side in the balcony area in first and second floor and this court have been due to improper design of the structural elements of the portico and also improper reinforcement assembly".    Further stated that the Opposite Party had tried to prevent the cracks from further development by providing circular dummy columns."

            16. Further, the CW1 has stated that "the terraced was examined and found the terrace pressed tiles was not laid properly, the joints are not laid uniformly and filled.  Because of improper laying of terrace tiles leads to leakage in first floor roof slab and it needs rectification. 

            17. With regard to the Cracks in inside and outside walls, the CW1 has stated in Ex.X1 that "On west side wall, south side for about 5.00 m length to the total height of building abnormal cracks is found which need rectification.  Similarly, the plastering on the top of parapet wall and on the side of stair steps needs rectification."

            18. With regard to warping due to usage of tiny planks in the door and windows shutters, the CW1 has stated in Ex.X1 that "Because of small sized frames used for such a big size single shutter, some of the shutters are found to be slightly bend, which need some rectification."

            19. As far as the compound wall is concerned, the CW1 the Expert has stated in his report Ex.X1 that there are cracks in the compound wall which need rectification.

            20. Further, the CW1 in his report Ex.X1 has stated that "during inspection, it is noticed in some location, the workmanship and quality of construction is poor especially 1. Plastering the outside wall on west side;  2. The joint filling and gaps in terrace tiles and 3. Staircase side plastering. "

            21. This Forum has appointed another Expert Dr. G. Ramakrishna, Assistant Profession of Department of Civil Engineering from Pondicherry Engineering College who inspected the building and filed a detailed report Ex.X3 along with Ex.X4 series photographs.  In Ex.X3 at page No.2 under the head STRUCTURAL DAMAGES in Point No.3, he has stated as

            "The balcony spans approximately by 1.2 m on north face, bearing a load of parapet wall of one brick thickness.  The balcony has cracks near north east corner and in the north face on the first floor slab.  This is due to the excess weight of the parapet wall on the cantilevered slab." 

            22. Further, under the head ROOF SLAB the CW2 has stated that …"weathering course is constructed with a wider mortar joints, i.e. more than half an inch, which made the rain water seeps through these joints and stagnates at the corners of the building, ultimately, this water further seeps into the brick walls and found at every former of walls of the building both at east and west of the buildings.  It is also found that at some places, the water seeps to the bottom of the wall and leaked through the switch boards, whenever there is heavy rain fall.  The complete leakage problems in the first floor is only minimized by proper construction of the weathering course on the terrace floor slab."

            23. With regard to the cracks on the walls, the CW2 has stated in his report Ex.X3 that  "The wall inside and outside has developed hair line cracks on the plastered surface.  There cracks are called shrinkage cracks due to improper curing of the surface."

Finally, the CW3 has opined that the following component are to be repaired

1. Plastered Cracks on wall surface (both for inside and outside walls)
2. Removal and relaying of weathering course
3. Removal and relaying of parapet wall in the front balcony both in the first floor and terrace floor.

On perusal of Ex.X2, the CW1 has estimated the Rectification cost for defective works as Rs.65,677/-.  His report is dated 26.03.2007.

            24. In order to fortify the contents of opinion of Experts, the CW1 and CW2 were duly examined by this Forum.  During cross-examination of CW1 he has stated that "The OP has provided two dummy columns on either side of the balconies in the ground and first floors filled with plain cement concrete.  It has been done to arrest further cracks developing on the balcony and prevents the balcony from falling down. "

            25. Further he has stated that "The nature of balcony construction is cantilever construction and its object is to ensure that no support from the ground should be given.  The provision of dummy columns has defeated the very purpose of construction.  The staircase construction is an integral part of the balconies as a monolith construction.  So, the damage to the balcony will have an impact on the staircase wall damage it."

            26. Further, he has stated that "The leakage of first floor ceiling is due to improper laying of terrace tiles in the sense that the pointing of the tiles was not done and consequently the rain water gets stagnated on the cement concrete between the tiles and penetrates into the roof slabs leading to leakage.  Such penetration and leakage will affect the steel rods used for reinforcement of the concrete in due course and in turn the roof slabs itself.  According to me, the defects can be rectified by removing the existing cement mortar in the joints and replacing the same with cement mortar mixed with hardened materials."

            27. Further in this cross-examination he has deposed that "The defect in the balcony in first and second floors could be due to improper design of structural elements of the portico and improper reinforcement assembling."

            28. Further at page No.3, the CW1 has deposed that "The provision of dummy column is an act of deficiency in the construction of cantilever projection."

            29. The Expert of Pondicherry Engineering College, Civil Department i.e. CW3 also reiterated the same.

30. The learned Counsel for the Opposite Party has produced a judgment reported in CDJ 1999 SC 532 [STATE OF HIMACHAL PRADESH vs JAI LAL] wherein, the Hon'ble Apex Court has held that

            "….An expert is not a witness of fact.  His evidence is really of an advisory character"

It is true that an Expert is not a witness of fact.  The Expert is appointed in this case to help the Forum to come to a correct conclusion as Commissioner of the Court.  Hence, the CWs1 and 2 were appointed as Expert / Commissioner by this Forum and they had submitted their reports submitting  the defects and deficiency in service of the Opposite Party.  In this case also, this Forum has very carefully scrutinized all the materials available on records. 

            31. The learned Counsel for Opposite Party also relied upon a judgment reported in CDJ 2000 SC 1326 with regard to damages for breach of contract.  The case on hand is not for any damages of breach of contract.  It is only for the negligent and deficient in service.  Hence, this authority is not applicable to the present case.

            32. Hence, this Forum has come to the conclusion in the light of the Experts Reports that the Opposite Party was negligent in some works carried out by him in the building of complainant as per the agreement Ex.C1.  From Ex.X2, it is very clear that the Rectification cost of defective works would come around Rs.65,677/- and the said estimate is of the year 2007. 

33. In view of the discussions made supra, the  complainant established the negligent act, deficiency in service of the opposite party and thereby caused some loss and suffering to the complainant.  To meet the ends of justice we are inclined to allow this complaint and the opposite party is liable to rectify the defects and to pay the loss and injuries suffered by the complainant and also he has to rectify the defects on his own costs since the estimation given in Ex.X2 is being for the year 2007 of Puducherry Scheduled Rates.

34.       Point No.3:

            In view of the decision taken in Point No.3, this complaint is hereby allowed with the following directions:

1. The Opposite party is hereby directed to plaster the cracks on wall surface both inside and outside of the walls on his own cost.
2. The Opposite Party is directed to remove the weathering course and re-lay the same properly on his own cost.
3. The Opposite Party is hereby directed to remove the parapet wall in the front balcony both in the first floor and terrace floor on his own cost.
4. To pay a sum of Rs.25,000/- as compensation to the complainant for the negligent act.
5. To pay a sum of Rs.5,000/- as cost of the proceedings to the complainant.

               The Opposite Party is directed to comply the directions within three months from the date of the receipt of this order.

Dated this the 31^st  day of August 2015.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1              11.01.2008                S.Sekar, Assistant Engineer.

CW.2              02.05.2008                Dr.G.Ramakrishna, Assistant Professor

CW.3              21.10.2008                G. Manimaran

OPPOSITE PARTY'S WITNESS: 

RW.1              15.05.2012                Nagarajan

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF COURT EXHIBITS:

1. ASOKAN)

  PRESIDENT

(V.V. STEEPHEN)

MEMBER