KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.697.02 JUDGMENT DATED.23.06.08 PRESENT:- SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER M/s.Dear India Builders & Realtors Pvt.Ltd., represented by its Managing Director, Mr.Reji Thomas Mathew, Opposite LourdesChurch, : APPELLANT P.M.G/., Thiruvananthapuram. (By Adv.A.Abdul Kharim) Vs S.J.Shajmohan, S/o.Jayachandran, Hill View, MelodyGardens, Soorya Nagar, Kachani.P.O., : RESPONDENT Thiruvananthapuram. (By Adv.Nemom V.Sanjeev) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER The opposite party in OP.387/2000 of CDRF, Thiruvananthapuram who is the appellant herein is under orders to pay to the complainant Rs.51,000/- as repair charges and Rs.2,25,000/- as damages with future interest at 14.5% per annum along with cost of Rs.2500/- vide order dated.17.9.02. 2. The case of the complainant in brief is that as per an agreement with the opposite party the complainant had purchased a plot in Survey Numbers.2337 & 2328 of Peroorkada Village, Thiruvananthapuram and entrusted the construction of the building therein to be completed and delivered on or before 30th march 1998 for a total consideration of Rs.10,50,000/-. It is his further case that the construction was completed only in October 1999 and the same was hand over to the Power of Attorney Holder of the complainant on 4.11.99. The complainant states that he had paid a sum of Rs.10,35,000/- as an amount of Rs.15,000/- for 0.25 cents was adjusted in land value. The main grievance of the complainant is that after getting possession of the building it was found that the opposite party had constructed the building in violation of the terms contained in the brochure of the opposite party and supplied to him at the time of agreement. It is alleged that the construction was very poor and low quality materials were used and within one month cracks and breaks developed in the side walls and ceiling. The complainant had alleged various defects in the building including the materials used for doors, windows and the defects in wiring. It is the further case of the complainant that though the opposite party was asked to rectify the defects, the opposite party turned down the requests made by the complainant. Alleging deficiency of service and unfair trade practice the complaint was filed praying for directions to the opposite party to pay a sum of Rs.4,76,000/- with 18% and cost of Rs.3000/- 3. Resisting the complaint, the opposite party filed version wherein it was contended that there was no deficiency of service or unfair trade practice committed by the opposite party. Though the contract between the complainant and the opposite party was admitted, the opposite party submitted before the forum that the complainant had not made the payments as per the time schedule for payment and it was as a counter blast that the complaint was filed against the opposite party for having filed a case for realization of money from the complainant for the cheque issued by him. The opposite party further contended that at the time of taking delivery of the building the power of attorney holder of the complainant had executed the satisfaction letter about the quality of the work in all respects including the variations in construction. It was also submitted that the complaint was filed in order to escape from the liability of the payment of the cheque. Raising the above contentions the opposite party prayed for the dismissal of the complaint with costs. 4. The evidence consisted of Exts.P1 and P2 on the side of the complainant and Exts.D1 to D6 on the side of the opposite party. The Commissioner was examined as CW1 and his report was marked as Ext.C1. 5. We heard the counsel for the appellant and the respondent. 6. The learned counsel for the appellant vehemently argued before us that the complaint was misconceived and ill-motivated. It can be seen that the complaint was filed subsequent to the civil and criminal case filed by the opposite party before the appropriate courts and hence it is his very case that the forum ought not have adjudicated the matter and passed orders fastening any liability on the opposite party/appellant. He also submitted before us that while taking delivery of the building, the power of attorney holder of the complainant who was very much present at the time of construction also had executed Ext.D3 wherein she had expressed her satisfaction regarding the construction of the building. In the final settlement it was also agreed that the complainant had to pay Rs.78,000/- for which three cheques were issued and in such a situation it was unjust and unfair on the part of the complainant to come with serious allegations against the opposite party by way of complaint before the forum. It is also contended by him that the complaint is not maintainable in the light of the ruling of the Hon’ble Supreme Court reported in AIR 1999 SC 3027. The respondent’s agent had executed Ext.D3 satisfaction letter accepting the work as early on 12.11.99. It is also pointed out that the complaint was filed only in 12.7.2000 and as such it is that argument that the order is liable to be set aside. He has also attacked the order of payment of Rs.2.25 lakhs with future interest as there is no supporting material for passing such an order. It is his very case that the forum has ignored the objections filed by the appellant/opposite party to the report of the Commissioner and in such a situation an order for payment of Rs.51,000/- for repair charges has also no basis and raising the above contentions the counsel for the appellant prayed for allowing the appeal thereby dismissing the complaint. 7. On the other hand the learned counsel for the respondent supported the findings of the forum and argued that the complainant/respondent had entered in to the agreement for the construction of the complainant’s building on the belief that the construction would be as per the brochure supplied to him. He has also relied on the commission report wherein the commissioner has pointed out serious defects in the construction and he argued before the us that the forum ought to have allowed the complaint in toto. 7. On hearing the learned counsel for the appellant and respondent and on going through the records available before us it is found that the power of attorney holder of the complainant had executed the satisfaction letter vide Ext.D3. The said satisfaction letter is dated 12.11.99. It is to be noted that at the time of taking delivery of the building defects may not be visible and it will be found out only after a considerable period. We see that the complaint is filed on 12.7.2000 itself. The forum below has appointed an expert commissioner who has filed his report as Ext.C1 after thorough inspection of the building. The expert commissioner has reported defects in the construction, doors and windows, the roof, flooring, electrical installation etc. It is reported by him that the rectification cost would come to Rs.51,040/- and he has also stated that the overall substandard construction loss is estimated to be much more than repairable defects. The commissioner has also pointed out that poor quality of materials were used in the construction and in such a situation the value of the building would be much less than the value collected by the opposite party. 8. Even though the commissioner has been examined in detail, nothing is brought out to discredit the observations noted by him in the commission report. Evidently the evidence of the commissioner has been relied on by the forum below and has awarded Rs.51000/- for the repair charges. The forum has also awarded Rs.2.25 lakhs with future interest of 14.5% per annum. We see that the damages allowed by the forum is very much on the high side as there is no supporting evidence to show that the value of the building will be lesser than the value paid by the complainant. However it is to be accepted that the value will be less if there are defects in construction but there must be some material to fix an amount for the value paid in excess. It is true that it can be awarded on presumption only. But we find that the awarded amount of Rs.2.25 lakhs is very much on the high side and in our view a sum of Rs.1 lakh will be sufficient to meet the ends of justice even though the complainant has not succeeded in establishing his case that the value of the building is much less than the amount paid by him. The complainant has pleaded that the building constructed is worth only Rs.455 per square feet and the opposite party has fraudulently and illegally obtained more money from him. Though the commissioner who has been examined as CW1 has also stated that the rate for such construction would be from 550 to 600 no evidence is there for supporting such a statement. In the circumstances discussed above the appeal is allowed in part thereby modifying the relief portion of the order that the opposite party is to pay the complainant Rs.51,000/- as repair charges and Rs.1 lakh as compensation with interest at 9% per annum from the date of the order of the forum below till the date of payment with cost of Rs.2500/-. In the nature and circumstances of the case the parties to this appeal are directed to suffer their respective costs. SRI.S.CHANDRA MOHAN NAIR: MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER R.AV | 
