BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.852/2012

DATED THIS THE 5^th APRIL 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                B.Ganapathi Kini

                                                No.116, 8^th Cross, Phase-I,

                                                Sree Ananthnagar,

                                                E.City PO, Bangalore

V/s

Opposite party: -          

                                                Sri.P.Chandra Prabhu

                                                Civil Engineer and Contractor,

                                                No.40A, 6^th Cross,

                                                Phase I, Sree Ananthnagar,

                                                Electronic city P.O,

                                                Bangalore.

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to reimburse Rs.1,17,250=00 to him and to pay Rs.50,000=00 towards mental agony and cost of litigation.

2. The brief facts of the complaint can be stated as under.

The complainant entered into an agreement dated 17-5-2003 with OP for construction of his RCC framed residential building at site no.116, 8^th cross, Phase I, Ananthnagar, Electronic city, Bangalore on a turn key basis. The contract was awarded by the complainant to the OP on the ground that, the OP is a qualified civil engineer from a university of repute and holding membership of the Indian institute of engineers, he is a registered valuer holding membership of the institute of valuers, he is residing on the 1^st phase of Sree Ananth nagar, he is a team of skilled workers having sufficient work experience in this field, he has claimed that he has executed construction of several dwelling houses successfully in and around Sree Anantha Nagar. The contract was awarded to him for a total sum of Rs.10,70,000=00 in good faith and trust in toto, as the complainant presumed that he would discharge all the obligations to utmost satisfaction. As building of the complainant is a RCC framed building and as per CPWD norms the service life of RCC framed building is deemed as 75 years, whereas to his surprise of the complainant residential building started by OP showing sings of wall cracks, cracks on the terrace, terrace roof was uneven and no proper points were given for smooth flow of the rain water, uneven flooring etc, within six months from Nov.2004. The matter has been brought to notice of the OP immediately but he maintained that such things are common and there is no danger to the building and never bothered to attend to the same evenafter frequent and repeated reminders. Since both of them are in the same township there was occasion to meet frequently and whenever reminded the OP used to pacify the complainant and prolonged the matter as he was having lot of work on hand no labour was available used to go out of town frequently and similar excuses, but the complainant was hoping that, sooner or later the OP would attend to the problems and make his building fit for living. But nothing has happened in all these days and in the meantime, it has lead to serious problems like seepage of water on the supporting walls, there started a peculiar sound eminating from the centre of the building, rear wall started developing innumerable cracks and wall started bulging during the rainy season, as no proper points were given for smooth flow of water during rainy season water started getting collected at roof corners, leading to innumerable number of bubbles from inside as well as outside the terrace roof and thus posing damage to the building. Even passerby and other seasoned persons in the construction field started cautioning the complainant that such a situation would lead to further weakening of the very structure of the building. In other words, the cracks and other defects increased on a geometrical ratio. Again the matter was brought to notice of the OP about a year ago and he has visited their place alongwith his teacher and well known structural engineer based in Mangalore by name Sri.Anil Hegde and in his presence he had mentioned that instead of permanent muddy/surki on the terrace, he has put a dummy one and thus leading to cracks on the terrace, whereas the complainant never told him to do so and they have been telling him from day one that it should be permanent one. Shri Anil Hegde has suggested to remove the top layer of the roof terrace and provide a pucca one, as otherwise, rain water seeps in thus weakening the very structure, to fill the crack on the walls both outside and inside of the buildings by opening it atleast six inches widthwise and the back side wall of the building was completely broken like a crisp papad and he asked to re-plaster it. While the OP has not bothered to attend to it, he has sent personnel to attend to the problem mentioned above, but was of no utility as he told on the 3^rd Feb. 2012 when he met at his residence that it has been done using filtered sand and the complainant understand that he does not bond with the other plastering ingredients and started developing cracks again. This incident is little over six months old, At this point of time, the complainant had told him very clearly that since the matter is very serious in nature as it is a matter of safety of the inmates, they shall go ahead and get the repairs done and send the bill for reimbursement. Accordingly, he went ahead and get the necessary repairs carried out and met him personally on 3-3-3012 at this residence and the OP flatly refused to entertain the claim. During the discussions he has given him a counter offer that in case house collapses he will construct new one which statement itself is very culpable and shows his callous and negligent attitude. In addition to this the complainant got building repaired several times in this course and incurred lot of expenditure on his own apart from the present major repair. The OP has failed to discharge his duties and responsibilities and notice was served on OP on 22-3-2012 asking to make good the bill of expenses amounting to Rs.1,17,250=00, but he has refused to pay, instead of it he replied to his letter through his counsel threatening criminal action and compelled the complainant to seek necessary justice. Hence, the present complaint is filed.

3. After service of notice, the OP has appeared through its counsel and filed objection contending interalia as under:

The complaint of the complainant is not maintainable and it is liable to dismissed. The agreement dated 17-5-2003 on which the complainant is trying to build frivolous stories and expired and terminated, and there was no warrantee clause nor maintenance clause in the above said agreement, after a lapse of more than 8 years which clearly demonstrates that, it is an after thought of the complainant to extract money from the OP, and the OP had entered into an agreement of construction with the complainant for construction of residential house of complainant, and as per the terms of agreement the OP has completed the construction and handed over the building to the complainant on Feb.2004. The complainant has never complained about any defect in the building for last 8 years and all of the sudden, the complainant started harassing the OP claiming money. The agreement entered into between OPs and complainant has terminated and closed in way back Feb.2004. The averments made in the complaint are totally denied as false. The averments made in para 3 of the complaint that the complainant has himself made the repairs and met the OP personally on 3-3-2012 at this residence, and the OP has flatly refused to entertain the claim, during the discussions, the OP has given an offer that in case he house collapses the OP will construct new one which statement is very culpable and shows his callous and negligent attitude is false and OP denies it totally. In each and every bill submitted by OP to the complainant, it was mentioned to pay after verifying this along is enough to prove the credentials of OP. There is no cause of action for this complaint and evenafter considering the date of agreement of construction the complaint is barred by limitation. There is no negligence or deficiency of service on the part of the OP, so it is prayed to dismiss the complaint with cost.

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in constructing the building properly as stated in the complaint?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

Point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced five documents alongwith the complaint and produced some positive photos alongwith application dated 17-10-2012. On the other hand, the OP has filed his affidavit and produced one fifth running bill. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 

7. One B.Ganapathi Kini who being the complainant has stated in his affidavit that, he has been attending to the maintenance of the RCC building ever since the same was handed over to him by OP and it is because of the maintenance carried out by him, it is standing straight on the ground or else it would have collapsed like pack of cigarettes long ago. Due to other commitments, he could not reside in his own house but he was getting regular information from his tenant as to the serious lapses they could notice in the construction carried out by the OP and he was promptly taking up the matter with the OP to attend to the same, time and again, inspite of repeated reminders over phone and personal meetings the OP was only trying to pacify him that such things are common and need to wait for atleast two years to settle down and still if the problem persists, he would get the repairs carried out but never bothered to attend to the same. Subsequently on account of employment he was required to move out of Bangalore and the OP also move out of Sree Ananth Nagar between 2007-2008 thus limiting contacts, when he returned to Bangalore and decided to stay in his house, he could gauge the seriousness of the technical problems and started pursuing with the OP more aggressively. The OP asked to attend to the shortfalls in line with the suggestions made by Sri Anil Hegde, a structural engineer from Mangalore which was warranted because of the negligence and technical defects committed by the OP. The defects in the building were [1] to remove the top layer of the roof terrace and provide a pucca one, as otherwise rain water seeps in, base was highly uneven thus obstructing flow of water and surki was completely cracked, [2] to fill the cracks on the walls both outside and inside of the building by opening it atleast six inches and [3] the back side wall of the building was completely broken like a crisp papad and he asked him to re-plaster it. The above defects were pointed out to the OP, in fact even after six months of completion of the construction to which the OP was trying to pacify him and stated that such things are common and they should wait for atleast two years to settle down and still in case, if there is anything to be attended the OP promised to attend to the same with due consultation with his structural engineer Sri Anil Hegde. Finally during July 2001, Sri Anil Hegde the structural engineer visited the building alongwith the OP, and Sri Anil Hegde has suggested the OP to carryout the following on a priority basis; [a] to remove the top layer of the roof terrace and provide a pucca one [b] to fill the crack on the walls both outside and inside of the building by opening it atleast six inches and [c] he asked the OP to re-plaster the back wall. Thereafter the OP has sent his personnel to attend to the problem [c] mentioned above and the problem [a] and [b] were left unattended by the OP since August 2011. The OP has refused to carryout the remaining work by giving lame excuses, and at this point of time, he had told the OP very clearly that, since the matter is very serious in nature as it is a matter of safety of his family moreover as the rainy seasons is fast approaching and that he shall go ahead and get the repairs done and send the bill on account of expenses incurred to be reimbursed by OP. So left with no alternative he went ahead and got the necessary repairs carried out through a contractor Sri. T.Devendrappa and after completion of the said repair work done by contractor, he had released an amount of Rs.1,17,250=00 by issuing six cheques for Rs.20,000=00, Rs.20,000=00, Rs.10,000=00, Rs.40,000=00, Rs.10,000=00 and Rs.20,000=00 dated 26-12-2011, 27-12-2011, 2-1-2012, 18-1-2012, 22-1-2012 and 23-1-2012. On 3^rd Feb. 2012 he personally met the OP at his residence and requested to reimburse the bill amount of Rs.1,17,250=00 for which OP refused to make the payment hence this complaint. On that day, in the discussions, the OP had suggested him a counter offers that in case house collapse he will construct new one for him, which statement itself is very culpable and shows his callous and negligent attitude. The OP has caused terrible mental agony, stress and strain to him. The cause of action arose in June 2010 when Sri Anil Hedge had visited his premises alongwith OP and during Aug.2011 when the OP attended the problem [c] under guidance and directions from Sri Anil Hedge. The claim is on account of expenditure incurred to carryout the repairs that necessitated because of the substandard construction carried out by the OP and therefore there is no malafide intention to gain money and do not aspire for the same, a RCC structured building is excepted to last for 75 years, so the OP cannot shirk his responsibilities by saying that he would have complied with any such problems had it occurred in a year or two. The OP has failed in discharging his duties and responsibilities; he is bound by statute and the professional ethics. So the present complaint is filed, so he prayed to allow the complaint and grant relief as prayed in the complaint.

8. By a careful reading of the complaint and evidence of the complainant as mentioned above, it is made manifest that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral testimony of the complainant is supported by any documentary evidence or not. Document no.1 produced by the complainant alongwith the complaint is the copy of agreement between the complainant and OP for construction of his residential house and this agreement came into existence on 17-5-2003 and cost of construction of residential building per sq. feet is Rs.625=00 for ground floor and this agreement was signed by both complainant and OP on 17-5-2003  at Bangalore and this document has seal of Sub-registrar, Bangalore North Taluk, Bangalore and total construction cost of building of the complainant was Rs.10,70,000=00 and payment schedule has also been stated on page no.4 of the agreement and the OP should complete construction of residential building within 10 months, subject to prompt payment by owner. Document no.2 is the copy of letter of the complainant addressed to the OP dated 22-3-2012 calling upon to reimburse the amount Rs.1,17,250=00 which was made for carrying out the repair of house of the complainant. The complainant has made reference in the letter about Sri. Anil Hegde, a Civil Engineer working at Mangalore. But, unfortunately, no plausible documentary evidence is produced to show that, on a particular date, Sri. Anil Hedge came, and at that time the OP was also present and before the OP only Sri. Anil Hegde suggested to carry out the repair works in a particular manner. Document no.3 is the copy of letter of T.Devendrappa dated 1-2-2012 addressed to the complainant stating that, he carried out the terrace roof surki and muddy removal and clean and final concrete and muddy finishing, gap filling, external wall cracks etc. for Rs.1,17,250=00 and out of the said amount, he received Rs.90,000=00 and the balance is Rs.27,250=00 and he carried out repair work of the complainant from 29-12-2011 to 27-1-2012. Document no.4 is the copy reply letter given by OP lawyer dated 12-4-2012 refuting the allegations the complainant made in his letter, but the OP has stated in his reply that, the terms and conditions of the agreement of construction was completed and handed over the building to the complainant on February 2004, and the complainant never complained about any defects in the building for last 8 years and all of a sudden started harassing him claiming money for the alleged alteration done, and he never promised to reimburse any amount. The agreement entered between them was only construction purpose and not for maintenance. The complainant is raising this issue after lapse of 7 years which shows it is an after thought with an illegal motive. Eight positive photos are produced by the complainant showing condition of building, and on the basis of these photos; it is very difficult to make assessment of defects in the building that too in the year 2012-13.

9. At this stage, it is relevant to have a look at the material evidence of the OP. The OP has stated in his affidavit that, he has entered into an agreement of construction with the complainant for construction of residential house of complainant and as per the terms of agreement, he has completed the construction and handed over the building to the complainant on Feb.2004, and the complainant has never complained about any defect in the building for last 8 years and all of the sudden the complainant started harassing him by claiming money for alleged alteration got done by him. Whatever stated in the complaint about arrival of Sri.Anil Hegde and giving suggestion to the complainant to carry out the problem of complainant is a concocted and bald story, he could have complied the mistake in the construction within two years, but complainant started complaining about air crake in the building after lapse of 7 years. The complainant started scolding in public and complaining to police and local association, he could not sustain his harassment and got repair job of air cracks done by spending more than Rs.30,000=00 in the month of Feb.2012 and after lapse of just 10 days the complainant came up with new problems and threatened to repair it instantly at free of cost. He declined his request, so he has come up with the false complaint, and the complainant is a seasoned litigant and he will always indulge in these types of litigations, so the present complaint be dismissed.    

10. The OP has produced one copy of fifth running bill addressed to the complainant by OP for Rs.1.00 lakhs payment be made by complainant and in that bill, the OP requested the complainant to verify the work as billed about and the bill for payment at the earliest.

11. So making careful scrutiny of material evidence of both parties, it is made unambiguously clear that, the complainant and OP had entered into an agreement of construction of house of the complainant in the month of May 2003, and accordingly the OP has completed the construction of residential house of complainant in the month of Feb.2004 and handed over the same to the complainant, and the complainant has made payment to the OP as per construction agreement entered between the parties. In the said construction agreement, there is no clause as such about guarantee or warrantee of the building, and from Feb.2004 to 22-3-2012, the complainant has kept silent, and all of the sudden on 22-3-2012, he issued a letter to OP complaining about defects in the building constructed by OP. In fact, the complainant has slept over his right upto more than 7 years and opened his eyes after 7 years and started making agitation against, the OP complaining of defects in the construction of work of residential house. No believable explanation was given by complainant either in his complaint or in his evidence for inordinate delay in making the allegations of defects in the building constructed by OP. The complaint and evidence of the complainant are ominous silent on this vital aspect. Moreover, in order to prove the defects in the construction work of the building by OP, the complainant ought to have taken an authorized civil engineer as expert evidence and get verified the building and submitted the report before the forum. No such sincere efforts were made by the complainant for appointment of authorized civil engineer as a court commissioner throwing light on the allegations of the complaint. In the absence of taking assistance of authorized civil engineer as a court commissioner, it is inequitable and unjust to hold on the solitary testimony of the complainant that, the OP is negligent and there is deficiency of service on the part of the OP. It is no doubt true that, the complainant got repair work done through one T.Devendrappa from 29-12-2011 to 27-01-2012, as per letter of T.Devendrappa dated 1-2-2012 produced by the complainant. But it is worthy to be noted that before carrying out the repair work through T.Devendrappa, the complainant ought to have sent a notice or letter informing the OP to carry out the repair work through T.Devendrappa at his cost. But all of a sudden, the complainant has taken up repair work and got done the same through T.Devendrappa at his cost and called upon the OP to reimburse it without consent of OP. The act of the complainant in carrying out the repair work at his cost through the 3^rd party without consent of OP amounts to negligence on the part of the complainant himself. The material evidence placed by the complainant is insufficient to hold that, the OP is negligent and there is deficiency of service on the part of the OP in not constructing the residential house of complainant properly. The complainant has not given proper explanation for not complaining the OP about defects in the building well within two years of completion of construction. After lapse of more than 7 years of construction of building by OP, the complainant has come up with the present complaint. The oral testimony of the complainant that, the OP is negligent and there is deficiency of service on the part of the OP is not countenanced by clear cogent and consistent material evidence. The complainant who knocks the door of this forum seeking relief has miserably failed to prove this point satisfactorily, and accordingly, we answer this point in a negative.

          12. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties.  

          Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 5^th day of April 2013.

MEMBER                                 PRESIDENT