DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 10^th day of February 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

           : Smt.Vidya.A, Member                                         Date of Filing: 06/08/2018

CC No.98/2018

T.Sahadevan,

Kamathu House,                                                      -        Complainant

Ramassery(PO), Elappully,

Palakkad.

(By Adv.K.K.Menon)

V/s

Pramod Kumar

S/o.Sukumaran Nair,

Proprietor, Prima Everlast Roof Makers,

Thekkekalaparambil House, -Opposite party

Kaithamana, Sanathanapuram(PO),

Alappuzha – 688 003.

(By Adv.S.T.Suresh)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint  

          The complainant is residing along with his family in the building situated at Elapully, Ramaserry.P.O, Palakkad.  The opposite party is having business entity in the name of ‘Prima Everlast Roof Makers’.  The entity is having branches in Thiruvananthapuram, Kozhikode, Alappuzha, Kottayam and Palakkad.  It is known that the branches in Ernakulam and Palakkad have been closed now.

          The complainant approached the opposite party for the construction of truss work over his residential building.  At that time, the opposite party was having his branch office at Kalmandapam, Palakkad.  On the basis of the request made by the complainant, the opposite party visited his house, took measurements and entered into an agreement on 22/06/2008 for construction of truss work over his residential building.  As per the agreement, an amount of Rs.70/- was fixed per square feet.  The total area involved in this construction was 1551 square feet and for that an amount of Rs.1,08,570/- was agreed and after a discount of Rs.1,570/- the total agreed cost for the work was Rs.1,07,000/-.  As per the agreement, the materials required for construction are GI pipes of different measurements, and 30 Gauge Everlast Aluminum sheets.  On 25/06/2008, an amount of Rs.50,000/- was paid as advance and the opposite party commenced his work.  But in the construction, instead of GI pipes, M.S.Steel pipes were used; further supporting post were fixed only on the edges of parapet.  The complainant’s demand for the construction of central posts and central beam for supporting the roof were totally ignored by the opposite party.  Finally the opposite party completed the work without fixing supporting posts in the centre portion of the truss work.  On 22/07/2008 he gave a printed guarantee certificate for 20 years in the name of the complainant.  But unfortunately, after 10 years of the completion of work, on April 2018, the truss work collapsed through the centre line.  All the welding through the centre portion were broken and as a result the roof rested on the terrace of the building.  Moreover the water falling in the terrace seeped through the ceiling and walls of the building.  The truss work was done in order to prevent the leakage in the terrace.  But after the roof’s collapse, the problem became more severe.  This is due to the inferior workmanship, inferior quality of materials used and absence of central supporting post.  On 26/04/2018 the complainant informed the matter to the opposite party through telephone.  But no attempt was made from the part of the opposite party for rectifying the issues.  So the complainant has caused to send a lawyer’s notice to the opposite party on 06/06/2018 which was received by him on 30/06/2018.  But till now no reply was given by opposite party or nothing was done for re-instating the truss work.  Hence this complaint was filed for getting an order directing the opposite party to pay Rs.1,00,000/- as cost for re-construction of truss work, Rs.11,200/- as cost for the works done for preventing seepage of water inside the building and Rs.5,000/- as cost of litigation.

The complaint was admitted and notice was issued to the opposite party.  The opposite party entered appearance and filed their version.

The main contentions raised in the version

1. The complaint is not maintainable as per law.  The Head office of the opposite party is in Alappuzha and they have no branch office at Palakkad and hence this Forum has no territorial jurisdiction to entertain the matter and it has to be returned for filing in proper Forum.
2. When the opposite party had branch office at Palakkad, he undertook the construction of truss work over the residential building of the complainant.  It was done 10 years back.  After the agreement, as per the demand of the complainant GI pipes were used only for the posts and M.S.steel pipe were used for the construction of supporting rafters. It was done with, the consent of the complainant. 30 gauge aluminum sheets were used for construction of roof work.  The truss work was completed using the supporting posts.  The complainant demanded that he will pay the full amount only if the opposite party gives the guarantee certificate and so he was forced to give the guarantee certificate. The complainant paid the entire amount after fully satisfying himself about the work.
3. The truss work collapsed on April 2018 because of the heavy storms which occurred in Palakkad.  The guarantee card issued by the opposite party does not cover natural disasters.  The truss work had no problem for 10 years and it collapsed only due to the heavy storm.  Eventhough the opposite party had nothing to do with it, after receiving the call of the complainant on 26/04/2018, he visited there and expressed his readiness to repair it.  But the complainant demanded the replacing of the entire things and quarreled with the workers of the opposite party and took their welding and cutting machines in his custody.  The machines of opposite party are still in the custody of the complainant.
4. After the receipt of lawyer’s notice, he contacted the complainant and expressed his willingness to do the repair work.

But all efforts were in vain due to the adamant attitude of the complainant and his demand for a huge amount as compensation.  The opposite party is not responsible for the collapse of the truss work and the complainant is not entitled to get any amount as compensation as prayed.  Hence the complaint has to be dismissed with cost.

From the side of the complainant, chief affidavit filed.  Ext.A1 to A5 were marked.  Complainant filed an application for the appointment of an expert commission and that was allowed.  The commissioner filed report along with photographs of the collapsed roof and building.  The report was marked as Ext.C1 and photographs Ext.C1(a).

From the side of the opposite party the chief affidavit filed. No documents.  No witness were examined from both sides.

The main issues arising for consideration are.

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service on the part of the opposite party?
3. Whether they have indulged in any unfair trade practice?
4. If so, what is the relief as to cost/Compensation?

Issues 1,2&3

Heard.

The preliminary issue of maintainability was raised by the opposite party stating that their head office is at Alappuzha and they have no branch in Palakkad at the time of institution of the complaint.  So the complaint is not maintainable before this Forum.  On the perusal of the documents produced by the complainant, Ext.A1, the guarantee card issued by opposite party, Ext.A3, the invoice, it is clear that they had branch office at Palakkad.  It is clear from the opposite party’s version also.  But at the time of the institution of the complaint, the opposite party had no branch office in Palakkad as per the averments in the complaint.

Eventhough the opposite party had no branch office in Palakkad at the time of institution of the complaint, the cause of action for this particular complaint arose in Ramassery, Palakkad which is within the jurisdiction of this Forum.  As per Section 11(2)(c) of the Consumer Protection Act 1986, this Forum has got territorial jurisdiction to entertain the complaint as the cause of action took place in Ramassery, Palakkad. So the Forum has got jurisdiction to entertain the matter and the contention of the opposite party that the complaint is not maintainable stands dismissed.

Then regarding the issue of deficiency of service on the part of the opposite party, expert commissioner had clearly explained in Ext.C1 report that “the design of the truss work is wrong and execution works were of substandard.  The materials used in the construction work were also found to be of poor quality.  The opposite party should have provided a tie member in the middle and a central vertical post.  Also the bolts used were found to be rusted and in a broken condition”.  This clearly shows that there is deficiency of service on their part.

Eventhough the opposite party had given a guarantee for 20 years, the whole construction collapsed after 10 years.  As per Ext.C1 report this happened due to the poor workmanship, poor quality of the materials used and absence of central posts and binding rafters for supporting the roof.  The condition of the truss work is clearly visible from Ext.C1(a) photographs.  The collapse of the roofing has resulted in seepage of water inside the building.  This caused serious damage to the residential building of the complainant which is also clear from Ext.C1(a) photographs. So there is clear deficiency of service on the part of the opposite party.

The use of substandard materials for construction in contravention of the agreement points out to the unfair trade practice committed by the opposite party.  From the expert commissioner’s report it can be seen that, construction of the truss work was also not proper.  There were no central supporting posts or binding rafters to hold rafters of opposite sides and as a result the roof collapsed into the terrace of the residential building of the complainant.  The opposite party’s contention that the roof collapsed as a result of the heavy storm which happened in Palakkad in the year 2018, is not supported by any evidence.  According to the opposite party the guarantee issued by him does not cover natural calamities.  But Ext.A3 guarantee card issued by the opposite party is silent about the conditions which are not covered by this document.  So he cannot escape from his liability.

Further it was contended by the opposite party that eventhough the truss work collapsed as a result of the heavy storm and he is not responsible for it, he was ready to repair it on the request made by the complainant.  It did not work out because of the adamant attitude of the complainant to replace the whole thing and the complainant took custody of their labourer’s machine and it is still with the complainant.  There is no evidence regarding these contentions raised by opposite party.

Complainant filed an IA to cross examine the opposite party and it was allowed.  Eventhough several postings were given, the opposite party was not present for cross examination.  Ample opportunity was there for the opposite party to mount on the box and affirm his contentions before the Forum in order to prove his case.  But his absence before the Forum casts serious doubts regarding the contentions raised by him.

So there is a clear deficiency of service on the part of the opposite party which resulted in the collapse of the roof.  Using of substandard materials for construction as against the terms of agreement shows that the opposite party had indulged in unfair trade practice for which they had to compensate the complainant.  The truss work was done in order to prevent leakage of water into the residential building.  Due to the collapse of the truss work, water started seeping to the residential building causing serious damage.  So the complainant had to spend some additional amount for repairing that also.  From Ext.C1 photographs, it is clear that the truss work cannot be repaired.  The only remedy available to the complainant is to replace it by new one.  Due to these acts of opposite party, the complainant suffered financial loss.

In the result, the complaint allowed.  We direct the opposite party to pay an amount of Rs.1,00,000/-(Rupees One Lakh only) towards the cost of new truss work and an amount of Rs.11,200/-(Rupees Eleven thousand Two hundred only) towards the loss in repairing his residential building and an amount of Rs.5,000/-(Rupees Five  thousand only) towards cost of litigation.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 10^th day of February 2020.     

                                                                                                          Sd/-

               V.P.Anantha Narayanan               

                Member(President I/c)

                                                                            Sd/-   

                                                                                  Vidya.A

                                                                                  Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Agreement for roofing issued by opposite party to complainant dated 22/6/2008(Original)

Ext.A2 – Advance payment receipt issued by opposite party to complainant dated 25/6/2008(Original)

Ext.A3 - Guarantee certificate issued by opposite party to complainant dated 22/7/2008(Original)

Ext.A4 series – Photographs

Ext.A5 – Lawyer notice sent to opposite party by Complainant’s advocate dated 6/6/18

Ext.C1- Commissioner’s report dated 28/9/2018(Original)

Ext C1(a)- Photographs  of the collapsed roofs.

Exhibits marked on the side of Opposite parties

NIL

Witness examined on the side of complainant

NIL

Witness examined on the side of opposite parties

NIL

Cost :  Rs.5,000/-