KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL:178/2006 JUDGMENT DATED.30..7..2009 PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K. ABDULLA SONA : MEMBER Jasmin.K, Anu Nivas, F12-36, : APPELLANT KSHB Colony, Changanassery.P.O. V. 1.Regional Engineer, KSHB Regional Office, Kochi-36. 2.Executive Engineer, KSHB, KSHB Divisional Office, Kottayam. : RESPONDENTS 3.KSHB, Repd. by its Secretary, Thiruvananthapuram. 4.Administrative Officer, KSHB, Regional Office, Kochi. (By Adv: Sri.George Mathew) JUDGMENT JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT The appellant is the complainant in OP:617/01 in the file of CDRF, Kottayam. The complaint stands dismissed. 2. The case of the complainant is that the opposite party/housing board allotted the particular house to her and handed over the same after construction on 8..9..2000. She has paid already a sum of Rs.7,75,000/-. When signed an agreement in this regard on 27..5..2000. She had other alternative as she paid the amount already. According to her the house was worse than a cattle shed. In the first rainy season itself there was profuse leakage in the roof. The walls became damp due to leakage. The plastering of the roof cracked. The wood used is of low quality and the workmanship was bad. She had to dismantle the roof and reconstruct provisions of the house. She had claimed a compensation of Rs.3,25,000/- etc. 3. The opposite parties in the version filed has refuted the entire allegations. It was stressed that the house was constructed as per the ISI standards and PWD manual. Even if there is any defect in the house it must have happened in the earth quake that took place during 2000 – 2001. The petitioner ought to have insured the house as specified in clause 22 of the agreement. Stress was laid on the condition in the agreement that the board shall not be liable for any defects in the construction. 4. The evidence adduced consisted of the testimony of CW1, PW1, PW2 and Exts.A1 to A18 B1 to B17, C1, C2 and C2(a). 5. The Forum relied on clause 13 of ext.B1 agreement and dismissed the complaint. The Forum did not consider the evidence adduced in the matter that consisted of the reports of the Commissioner etc. Clause 13 of Ext.B11 agreement mentions that the purchaser agrees to buy the property with the full and definite knowledge of the nature and condition of the property and of the buildings therein and that the Board shall not be responsible for any defect in the construction of the building, structural or otherwise discovered subsequent to the execution of the agreement; and the rectification of any defect if any shall the sole responsibility of the purchaser and that he shall not be entitled to claim any compensation on this account against the board. It is relying on the above clause that the Forum dismissed the complaint without examining as to whether there was deficiency on the part of the opposite parties in the construction of the building. 6. The Counsel for the appellant/complainant has relied on the decision reported Central Inland Water Transport Corpn. Limited Vs. Borjo Nath AIR 1986 SC 1571 and the decision in Marine Container Services South Private Limited Vs. Go Go Garments, 1998 CTJ 481 (SC) to assert the contention that the Contract Act applies to the litigants under the Consumer Protection Act and that Sec.23 therein that contracts opposed to public policy shall be void. It is pointed out that clause 13 of the agreement is evidently in violation of Sec.23 of the Contract Act. 7. We find that the contention of the counsel for the appellant/complainant as to the applicability of Sec.23 of the Contract Act is to be upheld. There can be no such clause in a contract that the seller would not be liable with respect to the inherent defects of the article or property sold. The above clause of the agreement is to be read down in the circumstances. 8. In the result the order of the Forum is set aside. The Forum is directed to consider the evidence adduced and dispose of the case on merits ignoring clause 13 of Ext.B11. The matter is remitted back to the Forum. The case stands posted before the Forum on 23..9..2009. Office is directed to forward the LCR to the Forum urgently. JUSTICE K.R.UDAYABHANU: PRESIDENT M.K. ABDULLA SONA : MEMBER VL.
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