IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   19^th  DAY OF APRIL 2022

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

        Smt.S.Sandhya   Rani. Bsc, LLB ,Member

         Sri.Stanly Harold, B.A.LLB, Member

    CC.No.79/2019

Rhythu Binduji, Proprietor,

R.J.Agencies, Kundara, Kollam

Residing at Thirumuttam,

Murunthal A Ward, Perinad P.O.,

Anchalummoodu, Kollam                                                     :         Complainant

(By Adv.Vishnu R.)       

V/S

1. The Proprietor,

         Pournami Engineering works

        Muzhangottuvila Junction,

         Karunagappally, Kollam.                                                   :        Opposite parties

2. Harilal,

         Pournami Engineering works

        Muzhangottuvila Junction,

         Karunagappally, Kollam.

         (By Adv.Neeravil S.Anilkumar)     

ORDER

Smt.Sandhya Rani, B.Sc, LLB, Member

This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

The averments in the complaint in short are as follows:-

The complainant conducting business in bed and beddings in the name and style M/s R.J.Agencies, Kundara as a sister concern of M/s Thampi Textile, Kundara.  The 1^st opposite party is the business concern which doing non fabrication and its allied works and 2^nd opposite party is the proprietor cum authorized person of the 1^st opposite party.  The complainant has entrusted the opposite parties to construct a godown for storing their stock and they have agreed to execute the work by using good quality iron and thatching sheet with proper specification @ Rs.80/- per sq.feet and they have assured the complainant that the work would be completed within a period of 30 days as on the date of agreement. While entrusting the work the opposite parties were clearly informed by the complainant about the purpose of the godown that it is for storing stock without fall of water and other similar situations.  At the time of entrusting the work the opposite parties have made the complainant to believe that they are experts in doing similar works for the last several years.  The total amount agreed by the opposite parties for the entire construction was Rs.1,41,760/-.  While the work was in progress at several point of time the opposite parties have received part payments and as on 05.10.2018 they have received altogether Rs.1,34,081/-from the complainant but they have not yet completed the work as undertaken.  That they did not completed the pathy filling, there is oozing of water from the roof during rainy seasons and the iron beam placed for holding the sheets got bent and also the iron sheet used for thatching the roof is also not good quality.  The roof was constructed by not giving sufficient slop and without providing necessary iron posts to support the roof.  Again the iron sheets used by the opposite parties for covering the side walls of the godown are not properly fixed and the sheets used are also not having minimum quality.  They have also avoided the basic thing of painting primer over the tress structure, iron beams and posts and in the circumstances the complainant apprehend that the entire roof may fall down.  Moreover oozing of water inside the godown caused wastage of stored articles in it.  In short the godown could not be used in its full stretch since today.  The above mentioned acts on the side of opposite parties caused severe mental agony apart from other financial loss to the complainant.  There is gross negligence, deficiency in service and unfair trade practice on the part of opposite parties.  Inspite of repeated request the opposite party have not take any initiative to makes good the loss sustained to the complainant.  In the circumstances the complainant prays to pass an award directing the opposite parties 1) to rectify the damages caused to the godown by using materials which having specific standards and in case the opposite parties fails to execute the work as directed by this Forum allow the complainant to realize compensation to the extent of Rs.3,00,000/- from the opposite parties and their assets.  2) to direct the opposite parties to pay an amount of Rs.4,00,000/- as compensation for the loss suffered due to the deficiency in service committed by the opposite parties.  3) to grant such other reliefs which are deemed fit and proper.  Hence the complaint.  

Even though both the opposite parties have received notice and filed vakalath they have not appeared before the commission further nor filed any version.  Hence the opposite parties No. 1 & 2 have been set exparte.

The complainant filed affidavit and additional affidavit by reiterating the averments in the complaint and got marked Ext.P1 to P6 series documents and Ext.C1 commission report.   Ext.P1 is Quotation-cum-receipt dated 05.10.2018 issued by  Pournami Engineering Works, Muzhangottuvila, Karunagappally.  Ext.P2 is the copy of Advocate notice issued in favour of Proprietor, Pournami Engineering works, Muzhangottuvila, Karunagappally.  Ext.P3 is the copy of  Advocate notice issued in favour of Harilal, Pournami Engineering Works Muzhangottuvila, Karunagappally, Ext.P4 is the acknowledgment card.  Ext.P5 is reply notice.  Ext.P6 series photographs 18 numbers.  Ext.C1 Expert commission report dated 21.04.2021.

The unchallenged averments in the complaint, proof affidavits, Exts.P1 to P6 series documents and Ext.C1 commission report would establish the following facts.

The opposite parties are engaged in non-fabrication and its allied works.  The complainant has entrusted the opposite parties to construct a godown for storing their stock and they have agreed to execute the work by using good quality materials @ Rs.80 per sq.feet as per Ext.P1 quotation cum receipt.  The work would be completed within 30 days from the date of commencement of the works.  The total area to be constructed is 1772 sq.feet @ Rs.80 per square feet.  The opposite parties assured that they have completed the work by using good quality iron and thatching sheet.    The godown was constructed with the intend of store articles without getting damaged by fall of rain water and other similar situation.  It is also clear from the available materials that at the time of entrusting the work

the opposite parties have made the complainant to believe that they are experts in carrying out similar works.  It is also clear from the Ext.P1 that they have collected almost all amount except Rs.7,679/- while the work was in progress.  However they have not completed the work as undertaken.  The work carried out was also defective.  The roof was constructed without giving sufficient slop and without providing necessary iron posts to support the roof.  The iron sheets used by the opposite parties for covering the side walls of the godown was not properly fixed and the sheets used was not having the required quality.  The opposite parties have also not painted the tress structure, iron beams and posts by using primer as agreed.  The averments in the complaint as well as proof affidavit and additional affidavit also would  establish prima facie that the construction of the godown was improper by using substandard quality materials and have not painted with primer which is the basic requirement for not getting the iron beams posts and sheets rusted.  It is also clear from the materials available on record that as a result of the improper method, use of substandard materials and also the bad workmanship the complainant has sustained much mental agony apart from financial loss.

          The main relief sought for the complainant as relief No.1 is to pass an order directing the opposite party to rectify the damages caused to the godown by using substandard quality materials and in case the opposite party fails to execute the work as directed by this commission allow the complainant to realize compensation to the tune of Rs.3,00,000/- from the opposite parties and their assets.  It is to be pointed out that nowhere in the complaint except the relief portion the complainant has pleaded that an amount of Rs.3,00,000/- is required to undo the defect of the construction.  However on the basis of application filed by the complainant one expert commissioner was deputed who filed Ext.C1 commission report which would indicate that due to the improper construction of the godown water was falling from the roof to the godown and got damaged the articles kept inside the godown and in order to get the defects cured an amount of Rs.45,050/- is required.  The expert commissioner has also narrated the nature of work and amount required for each item of work including welding and labour charges to undo the defects of the construction made by the opposite parties. The complainant has not filed any objection against the commission report which would indicate that only an amount of Rs.45,050/- is required for carrying out the repair works to make the godown in a usable condition. 

As the relation between the complainant and opposite parties are strained it is not proper to direct the complainant to carry out the repair works especially when rainy season is coming.  In the circumstances alternative prayer to grant compensation for defective construction can be considered.  In view of the materials available on record including Ext.C1 expert commission report we are inclined to allow the amount estimated by the commissioner as compensation for defective construction. 

The 2^nd relief sought for is to award compensation to the tune of Rs.2,00,000/- as loss suffered due to deficiency in service committed by the opposite parties.  But unfortunately there is no proper pleading and evidence to grant this relief.  It is true that the complainant has stated in the complaint that owing to the improper construction water oozed inside the godown which caused wastage to the articles stored in the godown and thereby he suffered financial loss.  What is the nature of article stored?  How many articles have sustained damages due to the fall of water?  What is the price of each article?  What is a total amount of loss  sustained on account of damage due to the fall of water from the roof etc. are not specifically pleaded either in the complaint nor stated in the proof affidavit or in the additional affidavit filed.  No such averments are find a place in Ext.P2 and P3 lawyer notices.

It is true that Ext.P6 series photographs would indicate some of the beds have been damaged by falling water but what is the exact number of beds damaged and is the amount of damage caused on that count has not been stated anywhere in the pleadings and evidence.  A court of law or a tribunal is not expected carry out guess work on the basis of surmises and hypothesis.  This is a fit case were compensation is to be granted for the loss of damage to articles kept at the complainant’s godown due to the misfeasance and malfeasance of the opposite parties but unfortunately pleadings and evidence is lacking.  Therefore we are not inclined to grant separate compensation on this count. 

The complainant has pleaded in the complaint and sworn in the proof affidavit that he has sustained much mental agony apart from financial loss due to the damage and loss of his stock kept at the godown.  There is every chance of sustaining much mental agony in case water falls from a newly constructed godown and the stock safely kept at the godown spoiled due to the fall of water.  In view of the facts and circumstances of the case and also keeping in view of the fact that compensation for the loss or damage articles has not been granted we are inclined to grant compensation to the tune of Rs.50,000/- on this count. 

In the result the complaint stands allowed in the following terms.

1. Opposite parties No.1 and 2 are directed to pay Rs.45,050/- to undo the defect of the construction of the godown with interest @ 6 % per annum from the date of complaint till realization.
2. Opposite parties 1 and 2 are also directed to pay Rs.50,000/-as compensation for the mental agony along with interest at the rate of 6 % per annum from the date of till realization.
3. No separate compensation for loss of articles kept at the godown due to the fall of water is granted for want of specific pleadings and evidence.
4. Opposite parties 1 and 2 are directed to comply with above directions No. a, b, & d within 45 days from the date of receipt of a copy of this

order failing which the complainant is at liberty to recover the amount of

Rs.45,050/-+ Rs.50,000/- along withinterest @9 % p.a. from the date of complaint till realization and cost Rs.5,000/- from the opposite parties 1 & 2 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 19^th day of  April 2022.        

                                                                       S.SANDHYA RANI:Sd/-

                                                                           E.M .MUHAMMED IBRAHIM:Sd/-

                                                                                                                                                           STANLY HAROLD:Sd/-

Forwarded/by Order

                                                                                       Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1             :  Quotation-cum-receipt dated 05.10.2018 issued by Pournami Engineering

                           Works, Muzhangottuvila, Karunagappally. 

Ext.P2             :  Copy of Advocate notice issued in favour of Proprietor,

                           Pournami Engineering    works, Muzhangottuvila, Karunagappally. 

Ext.P3             : Copy of  Advocate notice issued in favour of Harilal, Pournami Engineering

                          Works Muzhangottuvila, Karunagappally,

Ext.P4             : Acknowledgment card. 

Ext.P5             : Reply notice 

Ext.P6 series   : Photographs 18 numbers. 

Ext.C1             : Expert commission report dated 21.04.2021.

Witnesses Examined for the opposite party:-N il

Documents marked for opposite party:-Nil