DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 4th day of October 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 25/9/2017
CC/141/2017
1.Raman
S/o.K.R.Gayathri Vallabhan,
Koyalmannam Agraharam, Palakkad
Now residing at 17, Smithworld Road,
Somerset New Jersey, N.J.08873
2.Shantha Raman
W/o.K.G.Raman,
Gayathri Vallabhan,
Koyalmannam Agraharam, Palakkad
Now residing at 17, Smithworld Road,
Somerset New Jersey, N.J.08873
3.No.1&2 represented by their Power of
Attorney agent, Gopalakrishnan
S/o.Late Lakshmana Iyer,
Residing at 6/533, Vidyanathapuram,
Ambikapuram, Palakkad - Complainants
(By Adv.G.Ananthakrishnan)
Vs
Ms. Seema Krishnan
W/o.Rajesh Kumar.P
Amritha Bhavan, Railway Colony,
Kallekulangara Post, Palakkad - Opposite party
(By Adv.John John)
O R D E R
By Sri.Vinay Menon. V, President
Complaint pleadings necessary to highlight the facts and circumstances of the case is as follows:
1.The complainants entered into a Memorandum of Understanding with the opposite party for construction of their residential building. The opposite party carried out the construction while the complainants were in the USA. Upon return they were rendered aghast by the defective construction and variance from the express terms and conditions of the MOU which formed the corner stone of the construction. Aggrieved by this deficiency in service, this complaint is filed.
2.The opposite party entered appearance and filed written statement averring as follows:
That the construction was carried out with the best materials available with best skilled labour and the opposite party refuted the entire allegations made against her. There is no deficiency in service on the part of the opposite party. Furthermore out of the total consideration of Rs.14,66,140/- the complainant had paid only Rs.14,00,000/- . It was when the opposite party raised demands for the balance amount that the complainants sought resort to this Commission for not effecting payment and sought for dismissal of the complaint.
3.On going through the pleadings and the counter pleadings, the following issues arise for consideration:
1. Is there deficiency in service on the part of the O.P.?
2. Are the complainants entitled to the reliefs claimed?
4. Evidence on the part of the complainant comprised of Exhibits A1 and the oral evidence of the complainant (PW1). Commission reports were marked as Exhibits C1, C2, C2(A) and C2(B) series photographs, C3 and C3(A). The opposite party did not adduce any evidence. CW1 is the advocate Commissioner and CW2 was an expert commissioner whose services where done away with.
Issue No. 1:
5. It is the case of the complainant that he had entered into a MOU with the opposite party, which formed the crux of the entire construction. The said agreement is marked as Exhibit A1. The complainants have detailed a number of defects in construction which allegedly occurred due to deviation from Ext.A1 MOU. In order to ascertain the allegations of deficiency in service on the part of the opposite party, an Advocate Commissioner was appointed and his report was marked as Exhibit C1. In Exhibit C1, the Advocate Commissioner has detailed the lacunae in the quality of construction, but admitted his inability to assess the cost required for rectification. Consequently, an expert was appointed to assist the advocate commissioner. At first the expert commissioner filed a report stating the labour charges and other charges in a casual manner. This report was marked as C2, C2(A) and C2(B) series photographs. Hence he was further directed to report on the item wise cost that would assist this Commission to arrive at a conclusion as to the damages and losses suffered by the complainants. Resultantly Exhibits C3 and C3(A) were marked.
6. Exhibit C3 and C3(A) were not objected to by the parties to the fray. Eventhough some questions were put to the PW1, while cross examining him, no solid steps were taken by any of the parties to discredit the estimate arrived at by the expert commissioner. Hence we conclude that it is safe to rely on Exhibit C3 and C3(A) to render a decision, as to the extent of damages suffered by the complainants and the amounts required to make good the loss suffered by them.
7. From a conjoint reading of Exhibits, especially the reports of Advocate Commissioner and Expert Commissioner, we are of the opinion that there is deficiency in service on the part of the opposite party. Issue no. 1 is found accordingly.
Issue no. 2:
8. The expert commissioner has, in Exhibit C3(A) (vide items 1 to 20), arrived at an amount of Rs. 4,55,750/- (Rupees Four lakhs, fifty five thousand seven hundred and fifty only) as the cost required to repair or replace the items which did not adhere to the Exhibit A1 stipulations. We are of the opinion that this would reasonably make good the damages suffered by the complainants. The complainants are also entitled to interest on the said amount at the rate of 9% from the date of filing of the complaint till realization. The complainant is further entitled to an amount of Rs. 25,000/- as compensation and a cost of Rs. 15,000/-.
9. Resultantly, the opposite party is directed to pay an amount of Rs. 4,55,750/- (Rupees Four lakhs, fifty five thousand seven hundred and fifty only) together with interest at the rate of 9% p.a. from 25.09.2017 till date of realization along with Rs. 25,000/- (Rupees Twenty five thousand only) being compensation and Rs. 15,000/- (Rupees Fifteen thousand only) being cost. This order shall be complied within a period of 45 days from the date of receipt of this order.
Pronounced in the open court on this the 4th day of October 2021.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of Memorandum of understanding dt.2/1/2017
Exhibits marked on the side of the opposite party
Nil
Witness examined on the side of the complainant
PW1- K.G.Raman
Witness examined on the side of the opposite party
Nil
Exhibits marked from the side of Advovate Commissioner
Ext.C1 – Adv.Commission Report dated 26/10/2017 filed by Adv.M.J.Vince
Ext.C2 – Adv.Commission Report dated 8/6/2019 filed by Adv.M.J.Vince
Ext.C2(A) – Inspection report dated 5/3/2019 of the Expert Commissioner
Ext.C2(B) series – 5 Photographs
Ext.C3 – Commission Report dated 28/2/2020 filed by Advocate Commissioner
Ext.C3 (A)- Re-inspection report dated 25/11/2019 issued by expert commissioner
Commission witness
CW1 –Vince.M.J
CW2 – Jinson
Cost : Rs.15,000/- allowed as cost.
NB : Parties are directed to take back all extra set of documents submitted in the
proceedings in accordance with Consumer Protection (Consumer Commission
procedure) Regulations, 2020.
