DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 9th day of February, 2024
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 21/12/2019
CC/298/2019
- Dr. Lesly George,
“The Range”,
Thottathukalam,
Valara, Nattukal (PO),
Nallepilli, Palakkad – 678 554
- Lijoy Joy,
W/o. Dr.Lesly George,
Residing at - do – - Complainants
(By Adv. U. Suresh)
Vs
Rasheedmon P.A.,
S/o.Abdul Khadir,
Director, Alif Builders,
Poolakkal House, Pathiripala (PO),
Palakkad – 679 302. . - Opposite party
(O.P. by Adv. T.N. Sabeesh)
O R D E R
By Sri. Vinay Menon V., President
- Complainants are husband and wife having the same grievance against the opposite party builder, in as much as the defective construction of their residential building is concerned. The complainants handed over the construction of their residential building to the OP. According to the complainants, subsequent to the construction of the building, they found that laying and shaping of tiles, fixing of granites and slabs, electrical works and plumping works are defective. The residential building suffers from leakage and that height level of the building is unscientific. Doors of bed room and bath room wouldn’t close. It is aggrieved by the said defective construction that this complaint is filed.
- OP filed detailed version. They denied the complaint allegations. It was their case that the construction was carried out in an impeccable manner by professionals in their respective fields. The relationship between the complainant and OP being bound by a civil contract, this complaint is not maintainable before this Commission. The disputes between the complainant and OPs developed when the opposite party sought for the amounts expended for additional works. The facts alleged by the complainant can be decided only by an expert commissioner. On these grounds the OP sought for dismissal of the complaint.
- The following issues arise for consideration
- Whether the complaint is maintainable as the relationship between the complainants and OP is the subject of a civil contract?
- Whether the complainants have the same interest and can conduct the case jointly?
- Whether the complainant has proved that the construction of the building is defective?
- Whether any amounts are due from the complainant to OP?
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled to the reliefs sought for?
7. Cost & compensation if any?
4. (i) Evidence comprised of proof affidavit and Exhibits A1 to A9. 2nd complainant was examined as PW1.
(ii) OP filed proof affidavit. Exts. B1 to B4 were marked. OP was examined as DW1.
(iii) A supervisor of the OP was sought to be examined as DW2. He, subsequent to the examination, raised a contention that his intentions when making a statement was not fully expressed in the deposition. On this ground he raised a ruckus in the court and refused to affix his signature in his deposition. It is to be noted that counsel for the OP himself had re-examined the witness for the OP with regard to the parts that needed clarifications. Unfortunately, counsel for the OP had left the court by the time the witness raised this and refused to affixed his signature. contention. Therefore, his evidence was rejected. Eventhough counsel for the OP filed an RA seeking to review the order dated 3/1/2024 rejecting the evidence of DW2, that RA was dismissed.
Issue No.1
5. Undisputed case of the parties is that they entered into an agreement for construction of a residential building for a valuable consideration. The OP challenged the maintainability of this complaint on the ground that as the legal relationship between the parties herein arose out of an agreement, the dispute had to be thrashed out in a civil court of competent jurisdiction. Thereby this Commission lack jurisdiction to decide on the merits of this complaint.
6. Relationship between the complainant and OP are borne out of an agreement for construction of a residential building. Civil court can very well consider the matters arising out of a civil agreement. But fact remains that the allegation in the complaint pertains to deficiency in service on the part of opposite party in the construction of a residential building. When the allegations pertain to deficiency in service on the part of the opposite party, this Commission can safely assume jurisdiction.
7. We hold that this Commission has jurisdiction to try and dispose off this dispute.
Issue No.2
8. At the time of filing of this complaint, the complainants had not availed the leave of this Commission under Section 12 (1)(c) of the Consumer Protection Act 1986 (As applicable on the date of filing).
9. A perusal of the complaint shows that the complainants are husband and wife with the same interest. Even though an express permission was not sought for, a constructive permission was granted, considering the fact that they are husband and wife fighting for the same relief without adversely affecting the rights of each other in any manner.
10. Thus, we hold that this complaint can be conducted jointly by the complainants.
Issue No. 3
11. The complainant has raised a number of complaints like defective laying and shaping of the tiles and granites, fixing of granites, electrical works, plumbing works, leak proofing and with regard to the proper height of the building.
12. The OP has, in his version, stated that the complaint allegations can be proved only with the assistance of an expert commissioner.
13. It is to be noted that the complaint was filed by the complainants as parties in person without any legal assistance. Even before filing this complaint during on 21/12/2019, complainants took out an Expert Commissioner during February 2019 and assessed the damages suffered by their building. The surveyor therein had inspected the residential building of the complainants. Naturally inspection was carried out without availing an order of this Commission. Report of the expert commissioner was filed and marked as Ext.A9 at the time of evidence.
Evidentiary value of Ext. A9
14. Report of the Surveyor availed before filing of the complaint is one of the documents filed by the complainants to prove the damaged condition of their residential building. This documentary evidence is to be construed as any other documentary evidence. Any party who has objection to the validity of the said document is bound to disprove the said document. At the time of marking of Exts.A9, counsel for the opposite party has not raised any objection whatsoever with regard to marking of the said report. Furthermore, he had also not sought for sanction for examining the expert commissioner who prepared Ext. A9.
15. On 26/1/2020, complainant had filed an application as IA 54/2020 seeking to amend the complaint based on ‘the valuation certificate issued by the chartered engineer’ (Ext.A9 report). To the said application, the OP filed an objection stating
“the valuation certificate issued by the chartered engineer is not received in the evidence of the case. The valuation certificate issued by the chartered engineer is not acceptable by this OP. The valuation calculated by the engineer is without any basis and false”.
This IA was disposed off by this Commission by order dated 20/1/2021 allowing amendment. It was held in the said order dated 20/01/2021 (forming part of the daily proceedings) that the contention of the OP that amendment cannot be permitted on the basis of private surveyor’s report is having no merit and that veracity of private surveyor’s report could be challenged while recording evidence.
Pursuant to passing of the aforesaid order, complainant carried out amendment. Even though the O.P. had objected to amendment of the complaint based on a private surveyor’s report, O.P. had not filed additional version to the amendment carried out as per order in IA 54/2020.
16. O.P. had no objection whatsoever in the complainant marking the said report as Ext.A9. They had also failed to disprove Ext. A9 by cross examining the said private surveyor who issued Ext.A9. Nothing prevented the opposite party from seeking permission to cross examine the author of Ext.A9 in IA 221/2022, wherein they sought for permission of this Commission to cross examine the complainant. Thus, the only presumption that one can arrive at by the conduct of the OP is that they refrained from cross examining the Expert, lest the findings be proved accurate and adverse to the interests of the O.P.
17. The only assault by the counsel for OP as against Ext.A9 was the following in the deposition of PW1.
Line 15 in Page 4 to Line 11 in Page 5: photoകള് എന്റെ വിട്ടില് install ചെയ്തതാണെന്ന് കാണിക്കാന് കോടതി മുഖാന്തിരം കമ്മിഷന് വെച്ചിട്ടുണ്ടോ എന്ന ചോദിച്ചാല് കോടതിയില് അന്വേഷിച്ച്’ staff തന്ന listല് നിന്നും ഒരാളെ approachചെയ്ത് ഒരാള് assessment എടുത്തിട്ടുണ്ട്. കോടതിയില് നിന്നും യാതൊരു ഉത്തരവും വാങ്ങിച്ചിട്ടില്ല. ആ report A.M.Sheriff എന്നയാളിന്റെ ആണ്. എനിയ്ക്ക് ആളെ അറിയില്ല. അന്ന് കണ്ടതാണ്. പരിശോധിക്കാന് വന്നപ്പോള്. അദ്ദേഹം ഒരു approved valuer ആണോയെന്ന് ചോദിച്ചാല് കോടതിയില് നിന്നും usual ആയി വെക്കാറുള്ള ആളാണെന്നാണ് staffല് നിന്നും മനസ്സിലാക്കിയത്. Ext.A9 കളവായി ഉണ്ടാക്കിയിട്ടുള്ള report ആഎന്നെന്നു പറഞ്ഞാല് അത് judge ചെയ്യാന് ഞാന് ആളല്ല”.
18. Thus the O.P. has failed to file any objection to Ext. A9 or discredit the veracity of the contents in the report of the Expert by examining the author of Ext. A9. All through the proceedings, the O.P. had veered off from tackling with the report of the Commissioner.
19. Based on the discussion above, we feel that it is safe to rely on Ext.A9 to arrive at a studied conclusion of the condition of the residential building of the complainants as on 4/2/2019, i.e. as on the date of Ext. A9 report.
20. The complainant has therefore proved that the construction is defective by way of cogent evidence.
Issue No.4
21. The OP pleaded that the dispute between the complainants and OP arose as a result of an additional amount of Rs.7 lakh which was demanded by the OP from the complainant for additional works carried out by him in the building. During the pendency of this complaint, the OP filed a suit for money as O.S. 37/2023 before the Munsiffs court, Chittur for amounts allegedly due from the complainants to him.
22. This issue can be worked out between the parties herein before the said Munsiffs court and we are not inclined to interfere in the subject matter of O.S. 37/2023.
Issue No.5
23. As already stated supra, Ext.A9 is a certification issued by Shri. A.M. Sheriff, chartered engineer and approved valuer. The OP had no objection whatsoever in marking the said document. He had not at all in any manner tried to dispute and render nugatory Ext.A9. Ext.A9 shows that the total amount required for rectification to be Rs.10,16,000/-. It is to be noted that the entire cost of construction was around Rs.55 lakhs. The only conclusion that can be arrived at is that such a huge amount for rectification would only be as result of defective construction of the building.
24. We, therefore, hold that there is deficiency in service on the part of opposite party.
Issue Nos.6 & 7
25. An over all consideration of the facts and circumstances of the case and an analysis of the evidence adduced would undoubtedly direct to a conclusion that the complainant is entitled to the reliefs sought for.
26. We therefore allow this complaint with the following reliefs.
1) The complainant is entitled to Rs.10,16,000/- for rectification.
2) This amount shall be subject to increment @20% from 4/2/2019 till the date of payment considering the annual increment in construction cost in India.
3) The complainant is entitled to a compensation of Rs. 2,00,000/- for deficiency in service on the party of OP.
4) The complainant is entitled to Rs.50,000/- towards cost of the proceedings.
5) The aforesaid 4 Orders shall be complied by the OP within 45 days of receipt of a copy of this Order failing which they shall pay an amount of Rs. 500/- per month or part thereof from the date of this Order till the date of final payment.
Pronounced in open court on this the 9th day of February, 2024.
Sd/-
Vinay Menon V
President
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original agreement dated 3/1/2018
Ext.A2 – Screen shot of estimate dated 25/10/2018
Ext.A3 - Screenshot of quotation dated 8/2/2019
Ext.A4 - screenshot of invoice for Rs.30,894/-
Ext.A5 – screenshot of estimate dated 15/1/2019
Ext. A6 – Original receipt of petition dated 31/8/2019
Ext.A7 - Original agreement dated Nil on non-judicial stamp paper bearing no. 28AA 652867
Ext.A8 – Series of 12 photographs
Ext.A9 – Original report dated 4/2/2019
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of site and service plan
Ext.B2 – Copy of plaint in OS 37/2023 on the file of the Munsiffs court, Chittur
Ext.B3 – Copy of application bearing No. IA 241/2023 in OS 37/2023 on the file of the Munsiffs
court, Chittur
Ext.B4 – Printout of daily status
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant :
PW1 – Lijoy Joy (2nd complainant)
Witness examined on the side of the opposite party:
DW1 – Rasheedmon P.A. (OP)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
