Before the District Forum:Kurnool

Present: Sri K.V.H. Prasad, B.A., LL.B., President

And

Smt C.Preethi, M.A., LL.B., Member

Sri R.Ramachandra Reddy, B.Com., LL.B., Member

Monday the 06^th day of December, 2004

C.D.No.123/2003

S.P.Rangaiah,

S/o Pedda Sayanna,

Reserved Inspector (Retd.,),

A.P.S.P., H.No.76/99/7-A,

Radha Nagar,

Kurnool District.                      . . . Complainant represented by his counsel

                                                      Sri.B.Narasimhulu, Advocate.

-Vs-

T.Chinna Peddaiah,

S/o Chinna Ayyanna,

R/o H.No.76/97-440-55-5(B),

Near Radio Station Road,

L.Venkaiah Nagar,

Kurnool District.                      . . . Opposite party represented by his counsel

                                                      Sri.S.MD.Haneef, Advocate

ORDER

1.       This consumer dispute case of the complainant is field under sections 11 and 12 of the C.P. Act seeking Rs.2,00,000/- as compensation for rectification of defects of construction of the building and interest of 24% per annum from 04-08-2001 till realization besides to Rs.1,000/- each towards mental agony and costs from the opposite party apart from other reliefs which the complainant may be entitled in the exigencies of the case.

2.       The brief facts of the complainant’s case are that on 02-08-2000 the opposite party a builder entered into an agreement with the complainant for construction of two portion new building in plot No.19 of the complainant situated in Radha Nagar, Kurnool with the quality material and holding responsibility for the defects and irregularities that may be found and received Rs.5,000/- as advance after completion of the construction receiving the residuary amount the opposite party delivered the possession of constructed new building to the complainant on 04-08-2001.  But  the services of the opposite party in construction of the said building were found not satisfactory and not in accordance with the agreed terms and conditions of the agreement date d 02-08-2001 as crakes were found in compound wall, roof finishing and flooring of the ground portion not made properly, gaps were found at thresh hold, almira selves.  The request of the complainant for rectification of the above defects was not done by the opposite party in-spite of several demands and legal notice dated 02-05-2003.  The estimation for rectification of the said defects tunes to Rs.2,00,000/- as per Civil Consulting Engineer Municipal Licensed Surveyor.  The deficient acts of the opposite party caused mental agony and suffering to the complaint.

3.       In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite party made his appearance through his counsel into the case and contested the case by filing a written version questioning the maintainability of the complainant’s case and requiring the strict proof of the complaint averments and alleged defect deficiencies and sought for the dismissal of the complainant’s case with costs.

4.       The written version of the opposite party even though admits the construction of the complainant building in two portions in pursuance of the agreement dated 02-08-2000, but deny of the alleged area of construction i.e., “57 X 40”, undertaking for usage of the best material, payment of total amount of construction to the opposite party by 04-08-2001 and breech of any agreement conditions of agreement in construction work, complainant bringing to the notice of the opposite party the defects in the said constructed building.  It alleges that as per agreement of construction, the building has to be constructed by the opposite party in consultation with the complainant’s Civil Engineer Ramakrishna and as per his suggestions of the complainant and the said Civil Engineer being a competent person to say any defects of the construction of the said building and hence the complainant is not competent to  say of any defects of the building especially when the construction work was executed in the presence of the complainant and in supra vision of the said Engineer to their satisfaction and the delivery of the possession of the said building was obtained by the complainant on 04-08-2001 on due satisfaction without pointing any defects or complaining of any defects and on the other hand praising the work of the opposite party at the time of the inauguration of the said building  presenting him a gold ring.  There is no stipulation in the agreement as to any responsibility of the opposite party for future defects in the said building that occasioned on account of natural calamities, soil defectiveness and poor maintenance of the building and hence disowns any liability for the alleged deficiencies.

5.       In substantiation of the complaint contentions the complainant has relied upon the documentary record in Ex.A1 to Ex.A4 and the sworn affidavit of the self and third party and reply to the interrogatories caused by the opposite party.  The opposite party’s side merely relied upon the contents of the written version and the sworn affidavit himself and his third parties on reiteration of the said defect.

6.       Hence, the point for consideration is whether the complainant has made out his case and cause of action and his entitleness to the claim made?

7.       The Ex.A1 is the agreement dated 02-08-2000 said to have been entered in between the complainant and the opposite party for construction of the two portions building in the sight of the complainant measuring “57 X 40”.  The said agreement does not stipulate of the time for finishing the construction of the said building besides to envisaging the particulars of the rate for each kind of the work in the said building construction, the builder (opposite party) under takes the responsibility for the constructing the building at prescribed rates as per the complainant’s plan provided by his Civil Engineer without any inconsistencies and defects and to reimburse the owner of the building for the losses that may occur on account of the defective construction and the receipt of Rs.5,000/- as advance from the complainant.  Hence if any defects are detected in the construction of the said building ensuing loss to the complainant the opposite party has to reimburse the said loss.

8.       Therefore, the vital point remaining for consideration is whether the complainant proved the defects in the construction of the said building to get reimbursement as per the terms of he said agreement in the Ex.A1.

9.       The building constructed by the opposite party was said to have been delivered to the complainant on 04-08-2001.  This consumer dispute case was filed on 31-07-2003.  The averment of the complainant was silent as to the time factor with in which they are to be agitated.  When the defects were found in the said building subsequent to the delivery of its possession.  The office copy of the legal notice in Ex.A2 alleges the detection of the said defects within an year of said delivery of the possession and those defects are visible even to a necked eye and the opposite party was highly reluctant to attend and rectify the said defects.  In  spite of several approaches by the complainant and the advice of the said locality elders namely M.Pulla Reddy, B.Yellappa, Venkataramana Chari, Konda Reddy and Nemali Reddy.  But the complainant ever filed of any of their affidavits in support of the said contention.  As the contentions of the complainant alleged in notice Ex.A2 were denied by the opposite party in its reply in Ex.A4.  The mere assertion of the complainant does not appear to be of any validity.

10.     The complainant’s side filed 3^rd party affidavits of Martin Luthar, R.Nagi Reddy, G.Satya Narayana Goud, S.Nazeer Ahamed and A.Veda Murthy in its endeavor of substantiating the complaint contentions.  Among the above the person namely R.Nagi Reddy, claiming himself as neighbor to the complainant, alleged in his sworn affidavit that the defects of the complainant’s building in the compound wall, improper finishing work to roof  leaving to leakage, defects in the flooring in the ground portion, gaps in between thresh holds frame and the ground level, cracks in the walls of the bedroom, main hall and kitchen, improper fixing of selves with gaps  and these on account of improper execution of building construction by the opposite party.  The sworn affidavit of S.Nazeer Ahamed, G.V.Satyanarayana Goud and Vedamurthy allege of their visit on the request of the complainant and observing the above same defects in the said building as alleged by R.Nagi Reddy.  No interrogatories were caused on the said 3^rd party affidavits of the complainant extracting any replies form them discrediting their version in the sworn affidavits.

11.     While such is so with the 3^rd party affidavits of the complainant’s side the opposite party has filed the 3^rd party affidavits of V.V.Narayana Shetty, K.Venkataramana Chari and P.Rangaiah as to the condition of the alleged building of the complainant.  Among the above K.Venkataramana Chari and V.V.Narayana Shetty who claims to be the neighbors of the complainant, allege that their signatures on typed matter was obtained by the complainant without explaining its contents and they signed thinking it as representation to the District Collector as to their drainage problem and he has never seen any defects in the said building of the complainant.  As no typed matter nonetheless affidavits of the said persons was filed by the complainant as to the existence of any  alleged defects in the building  of the complainant constructed by the opposite party the above said affidavits of the Venkataramana Chari and V.V.Narayana Shetty requires any appreciation.

12.     The 3^rd party affidavit of P.Rangaiah field on opposite party’s side claiming himself as cousin brother of the complainant and his acquaintance with the said constructed building of the complainant, allege the building of the complainant is intact without any defects and the honoring of the opposite party by the complainant on the occasion of its inauguration by garlanding and presenting a gold ring and as such being  impressed he has given contract of the construction of the said building to the opposite party  and the construction of his house by the opposite party being prefect the complainant got eye sour and blaming the opposite party for nothing wrong  in the constructed building for himself by the opposite party.  It lends corroboration to the sworn affidavit of the opposite party in all the above material particulars.  No interrogatories were served on the 3^rd party P.Rangaiah with any queries the answers to which may discredit his version and find a favour to the complainant.

13.     In reply to the interrogatories of the complainant the opposite party allege the construction was made in accordance with the direction of the Engineer and taking every care and caution and it is for the complainant to prove the defects in the said  building has occurred on account of any defective construction of the opposite party.

14.     In reply to the interrogatories of the opposite party the complainant alleged that he has not appointed any Engineer to advice the opposite party in construction of his building and due to lack of knowledge and experience in construction work the complainant could not take any objection at the time of construction even though he made weekly periodical visits to the see the progress of the construction and the opposite party has undertaken in the agreement to reimburse the loses that are ensuable on account of defective construction or any deviation and the reluctance of the opposite party to keep  up his  promise in spite of several approaches by him.

15.     While the 3^rd party affidavits of the complainant and the sworn affidavit of the complainant’s  and his reply to the interrogatories of the opposite party asserting the complaint averments and the defects in the construction and the fault of the opposite party therein, the 3^rd party affidavit of P.Rangaiah and the sworn affidavit of the opposite party and the reply of the opposite party to the interrogatories of the complainant asserts the define of the opposite party as to no defect in the construction and the subsequent defects if any were on account of improper maintenance and the management of the building by the complainant.  Hence, the said affidavit evidence of the both sides is remaining as an oath against oath.  There being mere assertions without any proof of phographs of the said defects of the said building of the complainant a probe into the technical observations of the said building possession submitted by the complainant through the affidavit of Martin Luther a Civil Consultant Engineer and the Ex.A3 issued by him estimating the cost of the said repairs of the said defects of the said building appears to be a proper one to solve the problem in question.

16.     The sworn affidavit of Martin Luther, consulting Civil Engineer says of his visit to the building of the complainant in the 1^st week of July, 2003 and the noting of the defects he observed and the estimates of the cost he has given for the rectifying the said defects arising out of the poor quality of the work executed by the opposite party.  The Ex.A3 says of the defects and the estimation of the costs for rectifying the said defects and the arrival of the said rates as per the agreement executed by the opposite party on 02-08-2000.  No interrogatories were served on the said Martin Luther questioning the averments of his sworn affidavit and contentions of estimations made in the Ex.A3, the replies to which may discredit the truth and the bonafidies of his averments in the sworn affidavit and Ex.A3 and may find a favour to the opposite party.  Hence, the said material appearing to be sworn affidavit of the said Civil Consulting Engineer Martin Luther and his estimates of costs of the repairs of the said defects given in the Ex.A3 not only remaining established by the complainant, but also remaining un-rebutted by the opposite party in the absence of any cogent material of Technical nature from the  opposite party’s side discrediting the afore said material of the complainant’s side or to say the defects alleged or found due to poor management and the maintenance of the said building  after delivery to the complainant and thereby creating a binding effect on the opposite party of his liability for making good of the complainant of the probable expenditure the complainant may be put to in attending them his welfare of his building and the investment made thereon to have a satisfactory home for his comfortable living.

17.     In conclusion of the above discussion as the defects in the building constructed by the opposite party for the complainant, as per Ex.A3 as ensured on account of poor execution of the construction work by the opposite party the opposite party is remaining liable to make good of the value mentioned in the Ex.A3 for rectification of the said defects in the building constructed by him to the complainant.

18.     As the opposite party has driven the complainant to the Forum by his reluctant conduct to attend the said defects of the construction in spite of an undertaking to that effect in the agreement executed by him on 02-08-2000 and put the complainant to mental agony the opposite party is liable to pay to the complainant the costs of the litigation and compensation for the mental agony along with interest.

19.     Consequently, the compliant is allowed directing the opposite party to pay to the complainant Rs.2,00,000/- with interest ar12% per annum from the date of handing over of the possession of the said building  to the complainant till realization and Rs.1,000/- each towards costs and compensation for the mental agony.  The opposite party has to comply with this order in a month from the date of receipt of this order.

Dictated to the Stenographer, typed to the dictation corrected by us, pronounced in the open Court, this the 6^th day of December, 2004.

     Sd/-                                           Sd/-                                              Sd/-

MEMBER                                PRESIDENT                                     MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant:- Nill                                   For the opposite parties:- Nil

List of Exhibits marked for the complainant:-

Ex.A1          Agreement dated 02-08-2000 between complainant and opposite party.

Ex.A2          Legal Notice dated 02-05-2003 issued by complainant’s counsel to the opposite party.

Ex.A3          Rectification of defects given by P.Martin Luther Civil Consulting Engineer, Kurnool.

Ex.A4          Reply dated 15-05-2003 to the  Ex.A2 given by opposite party counsel to the complainant counsel.

List of Exhibits marked for the opposite party:- Nil

     Sd/-                                           Sd/-                                              Sd/-

MEMBER                                PRESIDENT                                     MEMBER