IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            Dated this the    24^th  day of April 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Sri. M.Praveen Kumar, Bsc, LL.B ,Member

       CC.No.107/2014

1.Digal                                                        :         Complainants

   S/o James

   Kattuvila Veedu, Mangad P.O,Kollam.

2.  Sunitha John

     W/o Digal

     Kattuvila Veedu, Mangad P.O,Kollam.

    [By Adv.Nazeer.S]

V/s

1. Naveen                                              :         opposite parties

Site Engineer

Habitat Technology Group, Near Krishnan kovil

Punalur, Kollam

2. Manager

Habitat Technology Group, Near Krishnan kovil

Punalur, Kollam

3. Manager

Habitat Technology Group, Pallimukku, Kollam

4. General Manager

Habitat Technology Group, Head office, Thiruvananthapuram.

[By Adv.B.Syamaprasad]

ORDER

E.M.MUHAMMED IBRAHIM , President

                This  is a case based on a consumer complaint filed by the  complainant  Degal  and his wife against four opposite parties under Section 12(1) (a) of the Consumer Protection Act seeking to direct  the opposite party  to reconstruct the 2^nd floor of the house building belongs to the complainants by the opposite parties and also seeking  direction to the opposite party to pay Rs.5 Lakhs as compensation  for the loss and mental pain and sufferings due to the improper construction of the house building along with costs of the proceedings.

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The averments in the complaint in short are as follows.

1^st and 2^nd complainants are husband and wife respectively.  They are having joint ownership possession and enjoyment over 1.21ares of property in Survey No.289/27/3/2 in  Block No.15 of  Mangad  village, Kollam taluk.  The complainant intend to construct  a house building for which they had constructed basement in the said property. The 1^st opposite party is the site engineer of the 2^nd opposite party.  The 3^rd opposite party is the manager of the Head office of 2^nd opposite party.  The opposite parties use to construct buildings on contract basis.  By attracting the advertisement effected by the opposite party and also for the purpose of completing the house  building construction the complainants entrusted  the work to the opposite party by way of an agreement for constructing  the  house  building  having  plinth area  of  1145 Sq.feet  at the estimated cost of Rs.12,59,500/-  which has to be paid on four phases of the construction.  6% of  the  estimated  cost of  construction  has

been fixed as the fee of the opposite party (not specified the fee of which opposite party).  As per the agreement the fee has to be paid in advance  before starting construction of each phase.  The opposite parties have constructed the 1^st  three  phases but not properly constructed the roof of the 1^st floor which has created defects in the construction.  The 1^st opposite party has not supervised  at any stage of said roof construction.  Neither the 1^st opposite party nor any other engineer deputed by the 2^nd opposite party  has  supervised the construction work of the 1^st  floor and therefore the employees deputed by the opposite parties  carried out the work according to their whims and fancies.  Even when making the plat form for the construction of roof it has fallen  down at the eastern side of the kitchen.  They have carried out the work so rashly and negligently and therefore the construction of 1^st floor is defective and is about to fallen down and hence the complainants having fear in residing at the above house and the same has caused much mental pain to the complainants.  There is

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leakage from the roof of the 1^st floor and water has been flowing towards the rooms.  There is damage to the roof, pillar that has been attached to the pillar and that portion is found broken and water has been flowing towards the broken portion.   There is difference in the level of the roof  on the eastern side of the  kitchen.  There is altogether  loss of strength to the 1^st floor of the building which has created much harassment to the complainant.  As all the defects of the building has been caused due to the lack of supervision  on the part of the 1^st opposite party and also due to the in competency of the  laboures deputed by the opposite party and therefore all the opposite parties are equally liable for the same.  Though the defects in the construction of the house building has been brought to the notice of the opposite parties and they have not  set  right  the  defects.  The above acts of the opposite parties is in violation of the provisions of the agreement and also deficiency in service  due to the improper and inferior construction of the house building by the opposite parties.   The complainants have sustained financial loss mental agony and sufferings and also caused defamation  to the complainants.  In the circumstance the opposite parties are liable to pay loss and compensation to the complainants.

          The 1^st opposite party resisted the complaint by filing a written version by raising the following contentions.

The petition is not maintainable and there is no ”Privity of contract” between the parties. The petition is not maintainable in the consumer redressal forum. The opposite party had not entered into any valid agreement with the petitioners to effect a construction or had not agreed to depute any workmen to effect the construction of the proposed building of the house of the petitioners. Therefore there is no “privity of contract” between the parties. The usual practice of the opposite parties is that they shall enter into a valid written contract in stamp paper  with  parties  and  in  this  particular  case  there  is  no

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written contractual agreement between the parties and hence the petitioner is not entitled for any of the reliefs, claimed through the petition.

The petitioner at his own accord effected construction of the building with the labours and masons at his own choice according to his whims and fancy. The construction work of the house had never entrusted with the opposite parties through any valid agreement. The petitioners at their own accord and with their own responsibility constructed the building with the workmen engaged at their own choice who are not having any technical expertness  at  all  and  hence  the  opposite  parties  cannot  be  blamed for any damages if any sustained to the building constructed. It is only due to the engagement of unskilled and inexperienced workmen by the petitioners and due to their lack of experience and negligence the damages if any might have caused.

The opposite parties are not at all responsible for the construction work which effected by the petitioners at their own choice and that there was  no contract for construction of the work with the labourers of the opposite parties, and hence there is no cause of action on the part of petitioners to institute this petition.

For the construction of the proposed building the petitioners had not taken any steps to fully entrust the work to the opposite parties. None of the workers like masons, carpenters etc, was not deputed at the instance of the opposite parties and that there is no agreement for the supply of workers between the parties. There is no express or implied deficiency of service from the part of opposite parties because there is no written contractual agreement between the parties.

                In view of the above pleadings the following points arise for consideration.

1. Whether there is any privity of contract between the complainant and the opposite parties?
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2. Whether there is any deficiency in service/unfair trade practice on the part of the opposite parties?
3. Whether the complainants are entitled to get an order against the opposite parties as sought for in relief No.1?
4. Whether the complainants are entitled to get compensation as claimed in relief No.2?
5. Reliefs and costs.

Evidence on the side of the complainants consists of the oral evidence of PW1 and Ext.P1 to P6 documents.  Evidence on the side of the opposite parties consists of the oral evidence of DW1.

Report filed by the Advocate Commissioner  and Expert has been marked as Ext.C1 series and C2 series respectively.

Heard both sides.  Both advocates have filed notes of arguments also.

Point No.1

The specific case of the complainants is that they  availed the service of the opposite parties for the construction of  their dream house in to 1.21 ares of property belongs to them situated in Re Survey No.289/27/3/2 in  Block No.15 of  Mangad  village, Kollam taluk.  According to the complainants opposite parties are famous building construction groups and the complainants  hired the service of opposite party’s service for  their house construction.  But due to their lack of supervision and care and inefficiency of the employees deputed by the opposite parties the house building construction was became defective for which they seeks compensation and also seeks to rectify the defects by the opposite parties.  The specific contention of the opposite parties is that the complaint is not maintainable as there is no privity of contract between the parties.  It is further contented  that there was no express or implied contract between the complainants and the opposite parties and that there was no deficiency in service on the   part  of  the  opposite  parties.  According  to  the

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opposite parties the usual practice of the opposite parties is that  they shall enter into a valid written contract in stamp paper with parties  in this particular case there is no written agreement between the parties and hence the complainants are not entitled to get any of the reliefs claimed in the complaint.  It is further contented on behalf of the opposite parties that the complainants on their own accord effected construction of the building with the  labourers  and  masons at their choice and according to their own whims and fancies.  The construction work of the house building  has never been carried out by the  opposite parties  through any valid agreement that as the complainant engaged their  work  men

who are unskilled and inexperienced and due to their lack of experience and negligence damages if any might have caused and therefore the opposite parties are not at all responsible.  According to the opposite parties none of the workers like masons, carpenters etc. were deputed by the opposite parties and there was no agreement for the supply of workers between the parties.  The learned counsel for the opposite parties has further argued that none of this documents (Ext.P1 to P6)  which reveal any agreement between the parties as under law.  Hence there is no privity of contract between the parties.

          Now question to be considered is whether the complainants have entrusted the construction work with the opposite parties.  In order to substantiate the above case complainants rely on the oral evidence of PW1 coupled with Ext.P1 and P3 documents and also the admissions of DW1 when he was in the witness box.  PW1 who is none other than the 1^st complainant in this case has sworn in paragraph 4 of the proof affidavit that they have been attracted by the advertisement made by the opposite parties and they entrusted the house construction to the 1^st and 2^nd opposite party on the basis of the agreement.  It is further sworn in at the beginning of paragraph 5 of the proof affidavit that the opposite party is well known institution carrying out the construction work on the basis of contract.   The complainants was  attracted by

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seeing the advertisement made by the opposite party and also hearing the details of the construction work done by the opposite parties entrusted the work to them.  According to the PW1 they have entered into contract for the construction of house building of  1145sq.feet plinth area and for a total estimated construction cost of 12,59,500/- which has to be paid on 4 phases.  It is also sworn by PW1 that 6% of the total estimated cost has to be paid as  their if for the construction.  Complainant has got marked Ext.P1 by claiming that it is the original agreement between the complainants and the opposite parties and Ext.P2 is receipt shown 6%  of  the  construction  cost  as  agreed in Ext.P1.  On

perusal of Ext.P1 it is clear that it has been issued by Habitat which is the 2^nd opposite party.  It has been addressed to the 1^st complainant.  Though it is claimed to be an agreement,  it is not actually an agreement but it is a statement showing the calculation of fee for the preparation for the relevant architectural drawing and on site technical support.  The total plinth area, estimated cost, and calculation of rate and schedule of payment etc. are stated in Ext.P1 Manager of the 2^nd  opposite party is seen signed on Ext.P1.  Ext.P2 series are receipt evidencing  the payment  of amount  shown in Ext.P1 document.  Ext.P3 is admittedly issued by 2^nd opposite party.  It is a document containing  the approval of labour rates for masonry works with effect from 1.1.2010.  Over all rates applicable from the starting of the brick work to the completion of masonry work excluding floor finishes stated in Ext.P3 statements  are as follows.

Ground floor        -        Rs.138/Sqft

First floor             -        Rs.149/Sqft

          The terms and conditions stipulated in Ext.P3 would clearly indicate that the construction work has been carried out by the opposite parties and it is not a mere statement issued to the complainants quoting the labour charges as contended by the opposite parties.   If  it  contains  only  the rate of wages to be

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paid to the labours and masonry work why condition No.1  which states as follows  is incorporated in Ext.P3 document condition No.1 reads as follows:-

Soon after the basement work is completed, the site engineer and the masonry contractor is to measure plinth area of the building in the presence of the client.  Similarly another condition stated in Ext.P3 would show that  for items not mentioned in this,  please  clarify  with  our  site  engineer  before  the

execution of the item.  Similarly the last condition stated in page no.1 of Ext P3 would clearly indicate  that  before  starting each stage of work such as Foundation/basement, superstructure and finishing, the site engineer will  asses

the total labour cost as per square foot rate or item wise and inform the client about the advance payment to be paid to the masonry contractor.  Similarly another clause in Ext.P3 documents would read in addition to this an extra of Rs.33/Sqft will be charged for slope roof for the slopping area separately.  The next clause in page no.2 of Ext.P3 is that the daily wage rate of mason is Rs.425 and labourer is Rs.375/-.  Do not pay more without the permission of the Habitat representatives.  Any advance payment made without the written sanction of the Habitat engineer will not be our responsibility.  The above clause itself would make it clear that the labour including mason were supplied by the Habitat and Habitat representatives and engineers were supervising the work and payment to the masons and other labourers are being affected as directed by the Habitat and advance payment if any has to be made it with the written sanction of the Habitat engineer.  The terms and conditions regarding the site clearance earth work excavation etc would indicate that the work has been carried out at the instruction of the opposite parties and payment has been made for each work at each stage on the stipulated rate by the complainants.

          In view of  the oral evidence of PW1 coupled with Ext.P1 and P3 documents it is clear that there is clear agreement between the complainants and the  opposite  parties  to  carry  out   the   construction   work  of  the  building

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constructed at the property of the complainants and there is privity of contract between the complainants and the opposite parties.

          DW1 is none other than the 1^st opposite party who is the site engineer of the Habitat technology group.  He would admit during cross examination  by  the  learner counsel for the   complainants  that  the  opposite party No.2,3 and 4 are well aware of the existence of this case.  But they have not filed any Vakalath  or  written  version  in  this  case  and  there  by remains

exparte.  They have also not adduced any evidence either oral or documentary.  Though DW1 would claiming that he has been filed proof affidavit on behalf of

opposite party No.2 to 4 and also for himself,  there is no material before the court to show that opposite party No.2 to 4 have authorized DW1 to give evidence on their behalf.  However he would admit that he is the staff of the Habitat which is well known Architectual Consultancy.  There are 4 official workers and 2 site workers and labour sources being outsourced that himself and other staff would inspect the site on request.  DW1 would further admit that Ext.P5 plan has been drawn by  opposite parties and they have been charging 6% of the total constructing cost for drawing plan elevation work in drawing window shutters, Plumbing, electrical drawing etc.  That the total construction cost of the complainants building was Rs.12,59,500/- and they have levied the 6% of the construction cost as their fee that Ext.P1 documents has been issued by the opposite parties and it has been signed on the accountant of their institution.  DW1 would further admit during cross examination that if labourers are locally available they would make an agreement with owner of the building and local labours were employed for the purpose of house construction of the complainants.  But DW1 would claim that the owner of the house building has arranged labourers and effected payment of labour charges directly.  DW1 would further admit that as directed by his supervisor he visited by the building site by two occasions that  Praveen  and  Vishnu  where  the  supervisors.  It is

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further admitted by  DW1 that “Ipän ASn-¡p-hm³ site superviser BWv t]mb-Xv.    Further down he would admit that R§Ä NnehpIpdª hoSp-I-fmWv prefer sN¿p¶Xv. R§Ä¡v material supply tbm labour supply tbm CÃ. NnehvIpdª km[-\-§Ä In«p¶ Øe-¯v- D-S-a-س t\cn«p t]mbnhm§n.  Cu materials  In«p¶

Øew ]dªpsImSp-¯p.  hmZn AhnsS t]mbn hm§nImWpw. DW1 would also admit that Habitat sâ staff BWv  supervisors.

It is clear from the above admissions of DW1 itself that supervisors of the Habitat has  supervise the construction work and as instructed by them he has also visited the construction site. If drawing plan and extending technical support alone  has been given why DW1 has visited the construction site on two occasions as instructed by the supervisors and why the two supervisors of Habitat supervised the construction work.

In  view of the materials discussed above it is clear that there is privity of contract between the complainants and the opposite parties and the  house construction of the complainant has been carried out as per the labour supplied by the opposite parties at the rate specified in Ext.P3 terms and conditions and the two supervisors Praveen and Vishnu supervised the entire construction work and DW1 also visited the construction site and supervise the construction as he being the engineer in charge  of the construction work of the Habitat.  It is also proved through admission of DW1  that materials for the construction of the building belongs to the complainants has been purchased by the complainants at the places suggested by the Habitat and labour has been out sourced by the Habitat and the payment has been effected by the complainants as stipulated in Ext.P3 terms and conditions.

          It is true that there is no express agreement prepared in stamp paper and signed by both sides. But the admission of the 1^st opposite party when he was in the witness box as DW1 coupled with Ext.P1 and P3 documents would

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well establish that there is an agreement between  the Habitat and the complainants to construct double storied building consisting of 1145 sq.feet in the property of the complainants at an estimated cost of Rs.12,59,500/-.  The point answered accordingly.

Point No.2 to 4

For avoiding repetition of discussion of materials these 3 points are considered together.  According to the complainants due to the lack of proper care and supervision  and also as the opposite parties have  deputed  inefficient

and un skilled labour the construction works of the  house building was defective and the complainants have sustained heavy financial loss apart from mental agony and the defects in the building are still there which  is to be rectified or else the complainants cannot reside in the building peacefully.

Inorder to substantiate these aspects the complainants would rely on the oral evidence of PW1 coupled with Ext.C1 series Commission report and Mahazar and Ext.C2 series Expert report and Ext.P5 Photographs.  Ext,C1 series Mahazar report and notice would clearly indicate that the Commissioner has visited the building defective after giving notice to both sides  that  the expert engineer who is none other than the Retired Assistant Engineer PWD building Section, Kollam has also accompanied the commissioner and prepared Ext.C1 series and Ext.C2 series Mahazar and reports.  In Ext.C1 series it is clearly stated by the commissioner that while  the commissioner and expert visited the building for preparing Mahazar the two complainants and the Advocate Vishnudas on behalf of the opposite parties were present and matters have been ascertained in their presence.  The commission in  Page No.3 of Ext.C1 series (c) Mahazar has noted the following defects in the building.

Sn hoSn-sâ  Xmgs¯ \ne-bn-epÅ sX¡v Ing¡v `mK-¯pÅ ASp-¡-f-bpsS Ing-t¡m«v Hcp Ncnhv ImWp-¶p.  IqSmsX Sn ASp-¡-f-bpsS  taÂ`m-K¯v  ]m¨v hÀ¡v sNbvX-Xmbn ImWp-¶p.  apI-fn-es¯ \ne-bpsS hS-¡p-]-Sn-ªmtd aqe-bn  ImWp¶

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s_Uvdq-ansâ Ing-¡p-`m-K-¯pÅ `n¯n-bn sX¡v hS¡v Aäw hsc hnÅ-ep-IÄ  ImWm-hp-¶-Xm-Wv.  AXn-eqsS ag-shÅw Hgp-In-bn-d-§n-b-Xnsâ ]mSp-IÄ ImWp-¶p.  sX¡p-]Sn-ªmtd `mK¯v ImWp¶ s_Uvdq-anepw CtX ØnXn Xs¶-bmWv ImWp-¶-Xv.

The expert engineer has also noted the very same defects in  Ext.C2 series(a) expert report.  The expert has noted the following defects.

{]kvXpX sI«nS¯n\v 2 \ne-I-fm-Wp-Å-Xv. Xmgs¯ \ne-bpsS sX¡v Ing¡v `mK-¯pÅ ASp-¡-f-bpsS sXt¡ `n¯n-bn X«-Sn-¨-Xnsâ  ]ng-hp-aqew   Ing-t¡m«v

Ncnhv D­v.  IqSmsX ta¡q-c-bpsS ]m¨v hÀ¡v (c-­m-aXv tIm¬{Ioäv sNbvXp) sNbvX-X-mbn ImWp-¶p.  H¶mw \ne-bpsS ]Sn-ªmdp `mK-¯pÅ c­v InS¡ apdn-I-fp-tSbpw Ing-¡p-`m-K-¯pÅ `n¯n sX¡v hS¡v Aäw hsc hnÅ-ep-IÄ aqew ag-shÅw Igp-In-bn-d-§nb ]mSp-IÄ ImWm-hp-¶-Xm-Wv.  sI«n-S-¯nsâ a[-y-`m-K-¯pÅ sÌbÀ ]mtk-Pnsâ dq^v aäv apdn-I-tf-¡mÄ Xmgv¶ seh-en BWv tIm¬{Ioäv sNbvXn-cn-¡p-¶-Xv.  InS¡ apdn-I-fpsS Ing-t¡-`n-¯n-bn tIm¬{Ioäv _oap-IÄ \nÀ½n-¡msX  dq^v Ém_n\p apI-fn I«-sh¨v sI«n-s¸m-¡n-bn-cn-¡p-¶-Xn-\m-emWv B `mK¯v hnÅ-ep-IÄ D­m-b-Xv.  IqSmsX c­p InS¡ apdn-I-fp-tSbpw  ta¡q-c-bn hnÅ-ep-IÄ aqew ag-shÅw DuÀ¶n-d-§nb ]mSp-IÄ ImWmw.  ta¡qc tIm¬{Ioäv sNbvX-Xn-ep-­mb ]ng-hp-aq-e-amWv C§s\ kw`-hn-¨-Xv.  sX¡p-]-Sn-ªmtd InS-¡-ap-dn-bpsS sX¡p-In-gt¡ `n¯n-bnemw hnÅ-ep-IÄ aqew CuÀ¸w ]nSn¨ AS-bmfw ImWmw.

The above damages and defects noted by the commissioner and expert in their respective report would probabilise the case of the complaint in this regard.  The  expert in C2(a) report has stated the ways and means  by which the defects and damaged found in the building can be rectified.  The expert has also attached schedule of work to be carried out, and its approximate expenses in C2 series (b) and (c) schedules.

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In view of C2 series report including C2 (b) and C2(c) schedules it is clear that an amount of  Rs.36930/- + Rs.2,10,624/- =  Rs.2,47,554/- is  required for curing the defects in the construction work of the building belongs to the complaints. Though the  opposite parties have filed objection to the commission and  expert  reports  they  have  not  adduced   any   evidence   showing   to that  the above reports are not acceptable nor disputed the amount calculated by the commissioner and expert to cure the defects and damages noted in the commission report and expert report.  In short there is no challenge regarding the amount  shown  to be required  to cure the defects.  According to the opposite party No.1 there is no connection regarding the construction of the building with Habitat and therefore  the opposite parties are not required  to answer for any of the damages or defects noted in the commission and expert report.  We have already found that the work has been carried out by the labourers including mason outsourced by the Habitat and two employees of the Habitat by name  Vishnu and Praveen  had supervised the construction work and the 1^st opposite party himself has visited  the  construction on two occasions.  Therefore  the opposite parties  are answerable for the defects in the construction and also to make amend the loss caused to the complainant due to the faulty construction of the building which are due to the lack of proper supervision and also for not deputing skilled labourers including masons to construct the house building.  In  the circumstance we are of the view that the opposite parties are jointly and severally liable to make  amend the loss caused to the complainants.

It is also brought out in evidence that due to the defects in the construction  of the house building the complainants have sustained severe mental pain and sufferings.  The complainants are living  in the house  by fearing and apprehending  that there is chance of falling  down the building due to defective construction and there is leakage  from the  roof of the 1^st floor and

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water has been flowing towards the rooms. The complainants also apprehends that there is loss of strength to the 1^st floor of the building which has caused much mental harassment and fear to the complainants. In the circumstance the complainants are entitled  to  get  sufficient  compensation  for  the   defective construction  of the building by the opposite party 1 to 4 by deputing inefficient workers and also for the lack of supervision. In view of the facts and  circumstance  of the case we are of the view that Rs.2 lakhs will be sufficient compensation.  In the circumstances of the case the complainants  are also entitled to realise the costs of the proceedings from the opposite parties.  These points answered accordingly. 

In the result the complaint stands allowed in the following terms.

The opposite party No.1 to 4 are directed to rectify the defects and damages pointed out by the Commissioner and expert in Ext.C1 series and C2 series reports within 45 days from today.

          The opposite party No. 1 to 4 are further directed to pay Rs.Two lacks as compensation to the complainant for the defective construction  of the building.  The opposite parties are also directed to pay Rs. 5000/- as costs of the proceedings to the complainant. 

If the opposite parties fail to comply with the direction to carry out the defects and damages or fail to pay the amount of Rs.4,47,554/- including compensation  within 45 days from today the complainant is allowed to realise the same with interest @ 12% per annum from the date of complaint along with costs  from opposite party No.1 to 4 jointly and severally and from their assets.

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   24^th  day of  April  2018.     

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INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Digal

Documents marked for the  complainant

Ext.P1                  :         Original estimate

Ext.P2 Series        :         Receipt

Ext.P3                  :         Approved labour rates

Ext.P4                  :         Approved labour rates for 1^st floor

Ext.P5                  :         Copy of  plan

Ext.P6                  :         Photographs

Ext.C1                  :         Advocate Commissioner report

Ext.C2                  :         Expert Report

Witness examined for the opposite party:-

DW1                    :         Naveen Lal

E.M.Muhammed Ibrahim:Sd/-

                                                                                    President

           M.Praveen Kumar:Sd/-

           Member

                                                                                   Forwarded/by Order

                                                                                   Senior Superintendent