IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of April, 2010
Filed on 05.12.07
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.234/07
between
Complainant:- Opposite Party-
Sri.Krishnakumar M Nair, S.Kani,
Venattu Madhavam, Anish Villa,
Kottarcavu, Mavelikkara, Kallimel.P.O.,
Rep. by the Power of Attorney Holder Mavelikkara.
and wife Pushpakumari Amma. (By Adv.M.M.Warrier)
-do-
(By Adv.G.Ajayakumar)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The complainant’s case in succinct is as follows:- The complainant, on 16th September 2002 entered into an agreement with the opposite party for the purpose of construction and refashioning of the complainant's residence. In 2003, the opposite party completed the entrusted work and handed the building over to the complainant. The entire amount agreed to was received by the opposite party. Within three months thereafter, the complainant noticed leakage of roof of the building, the opposite party so carried out the construction work. The opposite party was intimated as to this who effected some patch up works in the particular area. Yet, during the next rainy season in 2006, the said seepage spread to wider area. In 2007, the outflow of water aggravated and started dripping into the room. The color of the beneath side of the slab, has virtually been changed. Due to prevailing dampness, the condition of the roof slab deteriorated steadily. The leakage is the outcome of the poor quality of the work executed by the opposite party. The complainant and his relatives contacted the opposite party over phone and otherwise. The opposite party, on one pretext or other evaded rectifying the deficiency of his work. As a last resort, the complainant on 25th September 2007 caused to issue a legal notice to the opposite party. The opposite party responded raising untenable contentions. The complainant and his family have taken reasonable care of the roof slab. They never allowed water to have clogged up in the roof. The seepage and allied damage of the roof slab all are the consequence of the substandard work using inferior materials. The opposite party committed deficiency of service and inflicted mental agony to the complainant. Got aggrieved on this the complainant approached this Forum for compensation and other relief.
1. On notice being sent, the opposite party turned up and filed version. The opposite party contends that in 2003 no leakage as alleged by the complainant took place nor the opposite party carried out any patch up work thereto. According to the opposite party, prior to sending the lawyer's notice, at no point of time the complainant informed the opposite party any thing as to the said seepage of the roof slab. As a matter of fact, the construction work was carried out perfectly with high quality materials. The complainant and his men were closely monitoring the work so carried out by the opposite party. The reasons for the leakage of concrete roof, according to the opposite party can be manifold. Allowing water to stop up in the roof for long time may cause seepage. Similarly, drastic variation of temperature during day and night also may lead to leakage of the roof. There is no deficiency of service on the part of the opposite party, the opposite party forcefully contends. The complaint is time barred. The same is to be dismissed with cost to the opposite party, the opposite party asserts.
2. The complainant’s evidence consists of the testimony of the Power of Attorney of the complainant as PW1 and his uncle as PW2, and the documents Exbits Al to A7 and C1 & C2 were marked. On the side of the opposite party RW1 to RW3 were examined.
3. Bearing in mind the contentions of the parties, the questions that come up before us for consideration are:-
(a) Whether the construction work executed by the opposite party is far from being reasonable quality that amounts to deficiency of service?
(b) Whether the complainant is entitled to any relief?
4. Indisputably, the construction work in question was carried out by the opposite party. The said work was completed in 2003. Going by the pleadings, submissions and arguments of the parties, it is seen that the crux of the complainant's contentions is that within three months of the completion of the work by the opposite party, a leakage developed in the roof slab of the building. According to the complainant, the said leakage, in due course spread to further areas causing precarious damage to the entire building. The complainant forcefully contends that the damage of the roof so developed is due to the poor quality of the work and the materials used therein. Keeping the complainant's contentions alive in mind, we carefully perused the available materials on record. Coming down to the deficiency of service with regard to the seepage of water in the concrete roof, it is to be borne in mind that the construction work in question was completed in 2003. It is true that the complainant has taken out a contention to the effect that the leakage has commenced way back in 2003. It is also the complainant contention that the opposite party effected some restoration work to rectify the said percolation of water. However, it is crucial to take notice that going by the entire records; no evidence is forthcoming to substantiate or the least to support the complainant's said contention. Obviously, the complainant has voluminously spoken of as to the seepage in the concrete slab which led to its ruin. Surprisingly yet, the complainant has not taken any serious effort to pinpoint the particular portion wherein actually the leakage was going on. At this point, it is note worthy to look into the contention of the opposite party. The opposite party appears to have specifically pleaded that the leakage of concrete slab can be the consequence of manifold aspect. First of all, the opposite party fervently alleges that there are many trees that stand overhanging to the roof in question. The leaves from such trees caused blockade of water allowing the same to stop up therein which can all the probability cause damage to the roof. At this juncture, we are persuaded to peruse anxiously the Exbt. C1 commission report. Seemingly, the commission report provides in detail a pathetic picture of leakage of all along the roof slab. But the same does not suggest anything positive as to the accumulation of leaf or the consequent blockage. However, it is pertinent to note that the commission report apparently fails to locate whichever portion of the roof slab is constructed by the opposite party or whichever is pre-existing. On a closer scrutiny of the Exbt. C1 commission report, its 4th Para reads as 'on examination, the plastering of the terrace of the lower floor is sporadically ripped apart. There is the likelihood of water percolating through the aforesaid fissures of the plastering to cause dampening of the slab. The water, thus dampening down the slab may possibly enter through the joining of the new slab'. Thus, a reading of the said portion manifestly throws up an impression that the fissures developed in the plastering of the pre-existed slab are to blame for the leakage of water through the joining spot of the new slab. That apart, the counsel for the opposite party drew our attention to the covenant No.11 of the Exbt. Al agreement. On a plain perusal of the said stipulation of the agreement, it appears to be stated that the opposite party is liable for the damage, only if the same is developed within six months of the handing over of the building to the complainant. Thus, viewing from any perspective, it seems that the complainant has only made an unsuccessful attempt to establish his case, which virtually does not have its own legs to stand. We have no hesitation to hold that the complainant case must fail.
In what we have discussed above, the complaint is liable to be dismissed, and is hence dismissed.
Complaint stands disposed accordingly.
Pronounced in open Forum on this the 30th day of April, 2010.
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
C1 - Commission Report
C2 - Commission Report
PW1 - Pushpakumari Amma.K (Witness)
PW2 - Ruby Jose (Witness)
Ext. A1 - The copy of the Agreement dated, 16.09.2002
Ext. A2 - The copy of the Advocate Notice dated, 25.09.2007
Ext. A3 - The Postal Receipt
Ext. A4 - The Acknowledgment Card
Ext. A5 - The copy of the Reply Notice dated, 03.10.2007
Ext. A6 - The copy of the Estimate from the Adithya Builders dated, 24.02.2009
Ext. A7 - The copy of the Plan showing the extension to the existing building
Evidence of the opposite party:-
RW1 - Kani (Witness)
RW2 - K.Balakrishna Pillai (Witness)
RW3 - K.C.George (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
