IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 16th day of March, 2023.
Filed on 29.07.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.RSholy, B.A.L, LLB (Member)
CC/No.187/2022
between
Complainant:- Opposite party:-
Sri.Thulaseedharamenon Sri.Prakash Kumar
Rajeevam House (Amaravati Construction)
KaruvattaThekkum Muri NallottilVeettil, Karuvatta P.O.
Karuvatta Village Karuvatta Village,
Alappuzha Karthikapally Taluk
(Adv.T.A.Venugopal) (Adv.C.Parameswaran)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Opposite party is the managing partner of M/s Amaravathi constructions, Kochi. On 26.05.16 complainant along with the opposite party entered into an agreement to construct a house in the property owned by Rajamma who is the wife of the complainant. The rate fixed per sq.ft. was Rs.1800/- and the area was 1619 sq.ft. On the date of agreement Rs.2 lakhs was given as advance and on completion the entire amount was paid.
2. Except interior work, entire work of the building including wooden work was done by the opposite party. During 2017 the lower portion of the wooden door frame became deteriorated and it spread to upper portion also for about 2 feet. It was pointed out to the opposite party and he visited the house and covered the portion with a cardboard and agreed to replace the entire wooden frame. However inspite of repeated request it was not changed. Lastly on 10.01.22 complainant met opposite party and requested to change the wooden frame.It was noticed by the complainant first on 20.102020.
3. Since the frame was not changed in spite of repeated request on 25.01.22 complainant sent a lawyer’s notice and opposite party sent a reply notice on 28.01.22 with false contentions inorder to escape from the liability. Opposite party had assured the complainant that he will use good quality wood. The averment in the notice that deterioration occurred due to floor cleaner is false. Though opposite party had assured that wood work will be done with Anjili wood it appears that the door frame was not that of Anjili. The act of opposite party amounts to deficiency in service and hence the complaint is filed for giving a direction to the opposite party to replace the door frame with good quality wood and in the alternative claiming an amount of Rs.50,000/- and Rs.50,000/-on account of compensation.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable. As per the agreement the building was constructed and handed over to the complainant. With satisfaction complainant accepted the building and is residing in the same. Opposite party had used good quality products for the construction. During the time of construction the quality of the material used were brought to the notice of the complainant and he was satisfied.
5. Good quality Anjili wood was used for the wooden work. When the deterioration of wooden frame was brought to the notice of opposite party he visited the house and inspected the same.It was noticed that the deterioration occurred due to use of floor cleaner containing highly concentrated acid and it was not due the quality of wood. The averment that the frame was covered with card board is false. It was requested to the complainant not to use floor cleaner for cleaning. The averment that complainant had to contact opposite party several times with this complaint is false. Reply notice was sent in time for the notice sent by the complainant. There is no deficiency of service from the part of the opposite party and hence the complaint may be dismissed with cost.
6. On the above pleadings following points were raised for consideration:-
- Whether the wood used by the opposite party for the construction of wooden frame for the house of complainant was having good quality ?
- Whether there is any deficiency of service from the part of opposite party as alleged?
- Whether the complainant is entitled to get an order to replace the door frame or in the alternative whether complainant is entitled to realise an amount of Rs.50,000/- from the opposite party?
- Whether the complainant is entitled realise an amount of Rs.50,000/- as compensationfrom the opposite party as prayed for ?
- Reliefs and costs?
7. Evidence in this case consists of the oral evidence of PW1, PW2 and Ext.A1 to A9 series from the side of the complainant and the oral evidence of RW1 & RW2 and Ext.B1 from the side of the opposite party. Ext.X1 was produced by PW2 and Ext.X2 was produced by RW1. Ext.C1 was marked through PW2.
8. Point Nos.1 to 4
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A9 series.
9. PW2 is a Civil Engineer by profession. The certificate of registration was marked as Ext.X1. On 10.11.22 he inspected the house of PW1 and prepared a report. It is marked as Ext.C1. The lower wooden frame of the main entrance was deteriorated completely. It had spread to the two vertical frames up to 25 cms towards top. He had taken Ext.A9 series photographs. Deterioration occurred due to usage of inferior quality of wood and not doing water proofing in the plinth beam. It was not due to usage of floor cleaner.
10. RW1 is working as Assistant Engineer at PWD Building General Division, Alappuzha. He has produced the documents requested in the summons and it is marked as Ext.X2. During 2016 the defect liability period fixed by the government was 36 months. Ext.X2 is up to 2019.
11. RW2 is the opposite party. He filed an affidavit in tune with the version.
12. On 26/5/2016 PW1, the complainant entered into Ext.A3(Ex.A7 original) agreement with RW2, opposite party by which RW2 agreed to construct a house with an area of 1691 sqft @ Rs.1800/- sqft. The period of completion was 9 months. The construction was completed and it was handed over to PW1. While PW1 along with his family was residing in the building it was noticed that the lower wooden frame of the front door is being deteriorated. It was informed to RW2 and after inspecting the same he removed the deteriorated portion and covered the same with plywood. However it was not changed as requested by PW1. Ext.A4 (Ext.B1) legal notice was issued on 25/1/2022 to change the door frame on a contention that deterioration occurred due to the inferior quality of wood used for the same. Since it evoked no response,the complaint was filed on 29/7/2022 for giving a direction to change the frame or in the alternative to pay an amount of Rs. 50,000/-. An amount ofRs. 50,000/- was also claimed as compensation on account of deficiency of service from the part of opposite party. Opposite party filed a version admitting the execution of agreement for construction. However it was pointed out that the construction was completed within the time frame and it was handed over to complainant and he was residing in the same. Superior quality of anjili wood was used for construction. When the matter was informed to the opposite party he visited the house of the complainant and on inspection it was noticed that deterioration occurred due to use of floor cleaner containing concentrated acid and it has nothing to do with the quality of wood. It was also contented that after the inspection the frame was changed and so there is no deficiency of service from the part of opposite party. Hence prayed for dismissal of the complaint which was filed only to harass the opposite party. Complainant got examined as PW1 and marked Ext.A1 to A9 series. As per the request of the complainant an expert engineer was appointed as commissioner. He visited the house on 10/11/2022 and prepared a report.It was marked as Ext.C1. From the side of the opposite party Asst. Engineer of PWD Alappuzha Buildings General was examined as RW1 and Ext.X2 was marked. Opposite party got examined as RW2. Relying upon the oral evidence of PW1 and 2 coupled with the documents marked the learned counsel appearing for the complainant pointed out that the complaint is proved as per law and so complainant is entitled to get the relief as prayed. The evidence of PW2 expert commissioner coupled with Ext.A9 photographs and C1 report shows the deterioration of the wooden frame. The contention of the opposite party that he had inspected the house and cured the defect is untenable. Per contra the learned counsel appearing for the opposite party pointed out that as per Ext.A3 agreement the completion period was 9months. The construction was completed as per the schedule and the building was handed over and PW1 was residing in the same. It was also pointed out that complainant has no consistent case.In Ext.B1 notice it is stated the deterioration occurred during 2019 whereas in the complaint it is stated that it was during 2017. The complaint was filed on 29/7/2022 which was after a period of 5 years and so it is not maintainable. It was also pointed out that as admitted by PW1 the specification and annexure attached to Ext.A3 was not produced. In the said specification and annexure it was agreed that the liability of the opposite party is for 3 years. Hence it was contented that the complaint is only to be dismissed.
13. Execution of Ext.A3 (Ext.A7) agreement is admitted. As per the terms of Ext. A3 agreement the period of completion was 9 months and PW1 admitted that the construction was completed as per the schedule. In the complaint as well as in the chief affidavit it is stated that during 2017 deterioration was noticed and it was immediately informed to the opposite party. Deterioration was noticed on 20/10/2020 and on several occasions it was informed to the opposite party and finally it was informed on 10/11/2022. Thereafter Ext.A4 notice was issued which evoked no response. The learned counsel appearing for the opposite party pointed out that there is delay in filing the complaint. On the other hand the learned counsel appearing for the complainant pointed out that it was a continuous transaction and even opposite party admitted that he visited the house and changed the door frame. It was pointed out by the learned counsel appearing for the opposite party that in the annexure attached to the Ext.A3 agreement the liability was fixed only for 3years. Ext.A3 agreement produced before this Commission is incomplete, it was pointed out. However it is noticed that though RW2 admitted execution of the agreement he also did not produce a copy of the same to prove the contention that the liability was fixed for 3 years. As held by the Hon’ble Supreme Court in Gopal KrishnajiKetkar Vs. Mohammed Haji Latif and Others ( AIR 1968 SC 1413).
“Evidence Act, 1872 – S. 114(g), S.103—Evidence—Doctrines—party in possession of best evidence which would throw light on the issue in controversy with holding it –Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him.”
14. So it was the duty of RW2 to produce copy of agreement along with annexure and specifications and to show that there is a clause that the liability is fixed for 3 years. Since it was not produced by him he cannot take advantage of the same.
The evidence of Rw1 coupled with Ext.X2 was pressed into service to show that the period of liability is only for 36 months. However RW1 stated that it is applicable only to works done for the government and it is not applicable to private sector.
Sec. 14(3) of the Real Estate (Regulation and Development ) Act, 2016 reads as follows:
“In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charges, within thirty days, and in the event of promoter’s failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provide under this Act.”
15. Hence it can be seen that as per the RERA Act the liability is for a period of 5 years and in the absence of a provision in Ext.A3 agreement the period of liability is to be fixed as 5 years.
16. On 10/11/2022 PW2 a Civil Engineer visited the house and prepared Ext.C1 report. Though in the Commission order it was specifically directed to issue notice to both parties, PW2 omitted to issue notice to the opposite party for the best reason known to him. In Ext.C1 report PW2 has stated that the lower frame was deteriorated and there is progressive deterioration for 25 cms from bottom towards upside on both the vertical door frames . Since water proofing was not done at the time of constructing foundation the speed of deterioration was enhanced. PW2 also identified Ext.A9 series photographs in which the deterioration is clearly shown. So the evidence of PW2 along with Ext.C1 report and Ext.A9 photographs clearly shows the deterioration of the frame. PW2 who is a contractor by profession stated that he used to give 5 years warranty for the construction. Admittedly the deterioration occurred in the front door of the house. Hence it will be an eyesore to the inmates’ of the house and the visitors.
17. In the version it was contented that deterioration occurred due to use of floor cleaner containing concentrated acids. However if that is so it will happen to all other door frames in the house. Here in this case only the front door frame is seen deteriorated and so the theory of use of concentrated floor cleaner is untenable. Even during cross examination RW2 admitted that damage occurred to the wood frame and according to him it was only a slight damage. He had agreed to rectify the defect. RW2 admitted that an amount of Rs. 13000/- Rs.15,000/- will be required to change the door frame. The entire door frame is to be changed. He has also admitted that there is possibility of insecurity to the inmates.
18. So from the evidence on record it is pellucid that the door frame of the bottom portion has become deteriorated and there is progressive deterioration towards top on both the vertical frames. Since entire frame on the bottom was deteriorated,the whole wooden frame is to be changed. RW1 stated that an amount of Rs.13,000/- to Rs. 15,000/- is required for changing the same. However in Ext.C1 report it is stated that approximately an amount of Rs. 45,000/- is required to change the frame including the door and Rs. 15,000/- is required as labour charges. Besides that an amount of Rs. 5000/- is required for replacing the tiles which will be broken at the time of changing the wooden frame. It is noticed that PW2 calculated Rs. 45,000/- being the price of frame along with the doors. Admittedly there is no complaint for the doors and after changing the wooden frame the same doors can be used. In said circumstances we are of the opinion that an amount of Rs. 25,000/- as price of the wooden frame and Rs. 3,000/- as labour charges can be allowed. An amount of Rs. 3000/- for changing the tiles can also be allowed.
19. Complainant is claiming an amount of Rs. 50,000/- as compensation on account of deficiency of service. Admittedly the building was handed over during 2017. Ext.B1 notice was issued on 25/1/2022 which evoked no response and hence the complaint was filed. As discussed earlier since the door in question is the main door of the building it will be an eyesore to the inmates and visitors. In said circumstances an amount of Rs. 10,000/- can be allowed as compensation. These points are found accordingly.
20. Point no.5
In the result complaint is allowed in part.
a) Complainant is allowed to realize an amount of Rs. 31,000/- (25000 + 3000 + 3000) along with interest @ of 9 % per annum from the date of complaint. ie, on 29/7/2022 till realization from the opposite party.
b) Complainant is allowed to realize an amount of Rs. 10,000/- as compensation from the opposite party.
c) Complainant is allowed to realize an amount of Rs. 5000/- as cost from the opposite party.
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 16th day of March, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.P.R.Sholy (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Thulaseedharamenon (Complainant)
PW2 - Sri.Abhijith.S
Ext.A1 - Copy of agreement
Ext.A2 - Receipt dtd.30.10.2021
Ext.A3 - Copy of agreement
Ext.A4 - Legal notice
Ext.A5 - Postal receipt
Ext.A6 - Acknowledgment card
Ext.A7 - Agreement
Ext.A8 - Receipt dtd.26.11.2022
Ext.A9 series - Photographs
Ext.C1 - Commission report
Evidence of the opposite parties:
RW1 - Sri.Anil.K.V (Witness)
RW2 - Sri.Prakash Kumar V
Ext.B1 - Legal notice
Ext.X1 - Copy of certificate of registration
Ext.X2 - Copy of government order dtd.31.08.2013
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
