KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 191/2018

JUDGMENT DATED: 14.09.2022

(Against the Order in C.C. 349/2012 of CDRF, Thiruvananthapuram)

PRESENT:

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNANK.R.                                         : MEMBER

APPELLANT:

Dr. Cheriyath Jyothi, the Cloister, Venkode P.O., Vattappara, Thiruvananthapuram-695 028.

(Party in person)

                                                Vs.

RESPONDENT:

The Joint Director, Centre of Science and Technology for Rural Development (COSTFORD), District Extension Centre, The Hamlet, Benedict Nagar, Nalanchira P.O., Thiruvananthapuram-695 015.

                                  (By Adv. N.G. Mahesh)

JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

The complainant in C.C. No. 349/2012 of the Consumer Disputes Redressal Forum, Thiruvananthapuram (in short the District Forum) has filed the appeal against the order passed by the District Forum by which the complaint was dismissed. 

2.  The averments contained in the complaint are in brief as follows:

Complainant decided to build a small house for himself and approached the opposite party.  Opposite party professed cost effective approach and technology suited to the complainant.  After mutual agreement the complainant hired the consultancy service of opposite party which covers design, cost estimation and site supervision of the new construction at the service charge of 5.5% of the basic construction cost as estimated by the company to be paid in installments.  Complainant had provided rough sketch to opposite party for the house he wants to live.  At the time of review of the preliminary design complainant suggested that as an economy measure the car porch was avoided to reduce the cost of Rs. 1 lakh.  Complainant’s specific request was that the rear yard be made equal to or more than 2 meters to suit his specific needs and was accepted by the opposite party.  Complainant paid Rs. 8,000/- as first installment of service charge. Complainant felt that unlike the designing stage, the actual construction stage was faulty.  The line diagram was not being translated on to the structure being built on ground.  Complainant felt that due care and attention were not taken by senior members of the supervising staff and as such deficiencies have crept in the construction and hence complainant approached the District Forum for redressal. 

3.  Opposite party filed version raising the following contentions.  There is no agreement between the complainant and opposite party.  The complainant failed to remit the balance amount of Rs. 8,500/- to the opposite party.  The opposite party contacted the Grama Panchayath authorities and requested for revised sanction or approval for the correction carried out in the plan and section.  The Secretary has informed to the opposite party that no need for revised sanction at present.  Since there is no violation in the plan only on completion of work final drawing need to be submitted.  It is also pertinent to note that the opposite party not interested in proceeding forthwith the proposed building construction of the complainant.  There is no written agreement between complainant and the opposite party.  As per Kerala Panchayath Building Rules, 2011 definition ‘rear yard’ means the utility open space extending laterally along with rear side of the plot and forming part of the plot, any side other than the rear if used as utility open space shall be deemed as rear yard.  As per approved plan issued by the Panchayath, northern side is to be considered as rear yard, as no door openings is to be made on the eastern side of building as instructed by the complainant.  Complainant changed his house plan from day-to-day and so many new alterations were submitted to opposite party.  That will affect the work of the construction.  Another important aspect is that complainant’s approach towards the opposite party workers were rude and opposite party informed the complainant that they are not interested in proceeding further with the proposed building construction. Complainant failed to remit the amount to the opposite party as construction charges and other miscellaneous expenses.  The only aim of the complainant is to harass the opposite party.  The opposite party has not committed any deficiency in service or unfair trade practice under the Consumer Protection Act.  The consumer complaint being vexatious is only to be dismissed with cost as mandated under Sec. 26 of the Consumer Protection Act.   

4.  Complainant was examined as PW1 and Exts. P1 to P24 were marked.  DW1 was examined and Exts. D1 and D2 were marked on the side of the opposite party.  Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum, the complainant has filed the present appeal. 

5.  Heard the appellant who appeared in person and Adv. N.G Mahesh who appeared for the respondent.

6.  The parties are referred according to their status/rank in the complaint.  The allegation of the complainant is that at the time of making construction of the basement of the house building due care and attention were not taken by the senior members of the supervisory staff of the opposite party and as such deficiencies have crept in the construction.  It is alleged by the complainant that the line diagram was not being translated on to the structure being built on the ground.  The said allegation was denied by the opposite party.  It is stated by the opposite party that they are well experienced in building construction field and the allegations made by the complainant are utter false.  Regarding the allegation of deficiency in the construction of the building, the District Forum found that apart from the literature nothing is brought out in evidence to prove that there is deficiency in service on the part of the opposite party.  As observed by the District Forum the complainant has not taken out an expert commission to prove his case that deficiencies crept in the construction made by the opposite party.  As rightly found by the District Forum complainant failed to prove that deficiencies crept in the construction made by the opposite party and there is deficiency in service on the side of the opposite party.

7.  It is submitted by the appellant that the respondent/opposite party had left half way before completing the job entrusted to them and that itself is deficiency in service.  It is stated by the appellant that as service providers respondent/opposite party is bound to provide service to him till the desired end, that the fulfillment of object is achieved.  It is admitted by the opposite party that on 07.06.2012 they had issued Ext. D2 letter stating that they are not interested in proceeding with the proposed house construction.  It is stated by the opposite party that the complainant changed his house plan several times and so many new alterations were submitted to them that would affect the work of the construction.  The approach of the complainant towards the workers of the opposite party was rude.  Further, the complainant failed to remit the amount due to the opposite party.  According to the complainant he had paid Rs. 8,000/- as the first installment of service charges and it is admitted by the complainant that he had not made any further payment to the opposite party towards service charge.  As per Ext. D1 Service Charge Details produced by the opposite party they have received Rs. 8,500/- from the complainant and the said amount is to be paid at the first stage, i.e; submission of plan before the authority.  Admittedly, the construction of the basement of the house building of the complainant was over.  So the complainant was bound to make further payment towards service charges as per Ext. D1, which was not paid by him.  Even according to the complainant he availed consultancy service of the opposite party which covers design, cost estimate and site supervision of the construction at the service charge of 5.5% of the basic construction cost as estimated by the opposite party to be paid in installments.  As per Ext. D1 Rs. 16,450/- was due from the complainant to them on 28.02.2012, till the construction up to the basement level, which was not paid by the complainant.  Ext. P1 is the copy of the document ‘Building Construction Procedures and Guidelines’ in which the methodology and functioning of the opposite party are stated.  It was not signed by the opposite party and it cannot be considered as an agreement between the parties.  Further, when the complainant was examined as PW1, he admitted that there was no written agreement between him and the opposite party.  But according to him there is oral, mutual agreement.  It is not the case of the complainant that the consultancy service entrusted with the opposite party was pursuant to any written agreement/contract which usually incorporates the kind of service to be rendered by the opposite party and under which terms and conditions.  In the absence of any written agreement/contract, on the basis of the affidavit filed by the complainant and bills and receipts of the expenditure produced by the complainant, it cannot be found that the opposite party is liable to supervise the construction till the completion the construction of the building.  [Lachhman Dass Vs. Joginder Singh Mistry 2012(3) CPR 106 (NC)].  Complainant failed to prove that there was oral, mutual agreement between him and the opposite party regarding the service to be provided by the opposite party regarding the construction of the building, as stated by him.  In the absence of any proof regarding the alleged agreement between the complainant and the opposite party it cannot be found that the opposite party is bound to supervise the construction till the completion of the construction of the house building of the complainant and the decision of the opposite party not to proceed with the supervision of the construction of the house building of the complainant cannot be considered as deficiency in service on their part.  It is to be noted that even though the opposite party duly informed the complainant regarding their decision not to proceed with the supervision of the construction of the house building, the complainant had not paid the amount due to the opposite party.  In these circumstances it cannot be found that there is deficiency in service on the part of the opposite party.  So the prayer of the complainant to give direction to the opposite party to provide their service to complete the construction of the house building cannot be allowed.  As found by the District Forum, the complainant failed to prove that there is deficiency in service on the part of the opposite party and hence the complainant is not entitled to get any of the reliefs as prayed for.  We consider that there is no reason/ground to interfere with the finding of the District Forum that the complainant failed to prove his case and the order passed by the District Forum by which the complaint was dismissed.  So the appeal is to be dismissed. 

In the result, the appeal is dismissed.  Parties are directed to suffer their respective costs. 

         T.S.P. MOOSATH   : JUDICIAL MEMBER

             BEENA KUMARY. A         : MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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