KERALA STATE CONSUMER DISPUTE REDRESSAL COMIISSION VAZHUTHACAUD, THIRUVANANTHAPURAM F.A.No.784/05 JUDGMENT DATED : 29.01.2010 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SHRI.M.K.ABDULLA SONA : MEMBER Eapen George, Proprietor, V.E.G. Structurals, Bethany Junction, : APPELLANT Vengola, Valayanchirangara.P.O., Perumbavoor, Eranakulam District, Pin.683, 556. (By Adv.Sri. S.Reghukumar) Vs 1. P.K.Jaffer, Puthenmaliyackal House, Pezheri Road, Muthalakodam.P.O., Thodupuzha-685 605. : RESPONDENTS (By Advs.Sri. K.M.Sanu & K.R.Haridas) 2. Shaji.K. Thankappan, Kallolidal House, Palakkuzha P.O., Koothattukulam, Ernakulam District. 3. K.K.Viswan, Chakkalakudiyil House, Palakkuzha.P.O., Koothattukulam, Ernakulam District. JUDGMENT SHRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Idukki in the file of O.P.No. 209/2004 dated 28/06/2005, the 1st opposite party who prefers this appeal from the above impugned order passed by the Forum below. The brief of the case is that the complainant constructed a building during April 2002. According to the complainant the directions of the 1st opposite party specially trained workers, namely Shaji and K.K.Viswan, who have been subsequently impleaded as opposite parties 2 and 3, have done the entire work of the building. The construction was done as per the directions of the 1st opposite party. Wages at the rate of Rs.225/- per day was given to the opposite parties 2 and 3 whereas Rs.175/- only is the prevailing rate for an ordinary mason. Hollow bricks, PSC beams and hollow roofing shells were supplied at the site by the 1st opposite party in his vehicle through his workers. After competition of the construction the complainant started residence. But after the expiry of one year cracks have been appeared on the roof and in May 2004 during rainy season leakage also was appeared to the roof. When the 1st opposite party was informed he directed the complainant to apply “Doctors Fix” mix at the cracked portions through some workers. But the complainant was not prepared to do so, as he was afraid that further damage will be caused. Alleging deficiency in service against the opposite parties, the complaint has been filed for compensation. The 1st opposite party appeared and filed written objection and he contended that each running SSI unit for the manufacture of shells, beams and hollow bricks which are used for construction purposes. By arranging the shells in between the beams and by concreting the joints carefully a slab like structure can be formed and it can be used either as floor slabs or roof slabs. No skilled labourers were supplied by him to the complainant. Any mason can do this work. Shaji and Viswan were not his labourers and he is not paying to them as his employees. He never had any authorized mason. The materials were supplied by the 1st opposite party and certain information about the products also was given. The 1st opposite party had no service contract or supervision for the work of the complainant and it was the duty of the service engineer who had undertaken the supervision and submitted the plans for municipal sanction to look after all materials concerning the complainant’s building, including the use of the technology. The cracks formed across and along the roof may be due to the settlement of the foundation or may be due to the expansion cracks. No deficiency has been alleged regarding the quality of the materials supplied by the 1st opposite party. He never advised the complainant to apply Doctor Fix mix. No advice also was sought by the complainant. To the knowledge of the 1st opposite party, the complainant purchased the materials for extension of his residential building and shop building, and the leakage may be due to the construction joints or differential settlement of existing and new construction. Exts.P1 and P2 was also marked on the side of the complainant and the testimony of DWs 1 and 2 were also examined. No documents were produced by the opposite party. The Forum below examined all the evidence adduced both parties and found that the opposite parties 2 and 3 were trained by the 1st opposite party and that he had given the supervision of the construction of the building in question and used to given periodical construction. Therefore it is evident that the opposite parties are responsible for the work done to the complainant. It was not under dispute that the roof of the building is leaking which amounts to deficiency in service on the part of the opposite parties. So the opposite parties are bound to rectify the mistake and to make the roof leak proof. According to the complainant if the leakage could not be rectified he has to construct light roofing for preventing leakage for which he has claimed Rs.75,000/-. In the result, the Forum below directed the opposite parties 1 and 2 to repair the roof of the building of the complainant within 30 days of receipt of a copy of this order and to make it leak proof, failing which the complainant is allowed to realize Rs.25,000/- by way of compensation from the opposite party with 12% interest from the date of default. On this day this appeal came before this commission the counsel in both appellant and respondent No.1 are present and the appellant argued on the grounds of the appeal memorandum that the Forum below passed the order not accordance with the law and evidence. It is liable to be set aside. The counsels for the 1st respondent (complainant) submitted that the Forum below ordered not accordance with the provisions of the law and evidence and totally accepted the entire evidence adduced by the complainants and there is no documentary evidence adduced by the opposite parties to support their case except the oral evidence. The counsel for the appellant submitted that the defect occurred in the roof is not a result of non standard materials supplied by the 1st opposite party. He constructed the inner materials in accordance with the fulfilling of standard norms and he is highly qualified person to the Engineer and he is an M.Tech holder in Civil Engineering. The counsel submitted that if any defect, it is nothing but the results do to the engagement unskilled mason. He has also pointed out that no expert commissioner was taken by the complainant to determine the defect of the materials supplied by him. In the absence of such expert evidence the Forum is not an authority to say the crack was originated due to the supply of non standard materials supplied by the appellants. It may be happened due to the construction of the building carryout by the unskilled labourers. The counsel for the appellants vehemently argued that the Forum below passed such an order not accordance with law and evidence. It is illegal and liable to be cancelled. The counsel for the 1st opposite party argued that the complainant has not taken any expert commissioner from their part. The appellant is also having some liability to taken expert commissioner to support his case. He also submitted that the appellant/1st opposite party admitted that the crack was repaired by him. Heard both counsels and perused the available records in the case bundle. It is seeing that a crack was originated on the roof of the complainant’s house. The questions arised for consideration that whether it was occurred due to the construction done by unskilled labourers or by the defect of the material supplied by the appellant? Anyway the complainant is a bonafide house owner who paid his hard erred amount to the opposite party and with so many dreams of his life but he disappointed. He suffered a shocking experience that crack was originated from the roof of this house. The appellant/opposite parties are not have any case that the above crack was created by the respondent/complainant or due to any natural calamity. In the circumstances we had seen that the appellant and other two opposite parties are liable to explain how this crack was happened on the roof of the building of the complainant. No such explanation or evidence adduced by the appellant/opposite parties. In this circumstances we are seeing that the order passed by the Forum below is strictly in accordance with the law and evidence and it is illegally sustainable. We uphold this decision. We are not seen any reason to interfere in the order passed by the Forum below except the direction to pay interest at 12% is deleted. The appellant who is enjoying the amenities of the house. In the result this appeal is disposed with the above modification deleting the order to pay the interest. All other portions confirmed and direct both parties to suffer their own respective costs. The points of the appeal is answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT Kb. | 
