Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows. The complainant executed an agreement with opposite party for the construction of his house and opposite party completed the construction and handed over the house to the complainant on 18/09/2014.  When he started to use the house a foul smell had come out from his toilet, therefore the complainant informed this foul smell to the opposite party, but the opposite party did not redress the grievances of the complainant.  At last on 23/02/2016 the opposite party found out the defect with the help of one Kripa Cleaner’s Ranny. It is contented that according to Kripa Cleaner’s the reason for the foul smell in the toilet is that the Septic tank was laid in the soil at a depth of 3.5 feet instead of the correct scientific depth 2.5 inches from earth level.  As a result the Septic tank had happened to broken and the smell had come out.  The complainant replaced the Septic tank as well as associated pipe and spend an amount of Rs. 32,467/- including the labour charge.  It is contended that the complainant replaced the tank and pipe set due to the assurance given by the opposite party by meeting the expense.  When the opposite party failed to refund the expenses incurred by the complainant, he issued a legal notice on 21/04/2016 to the opposite party.  Though the opposite party received the notice he did not redress the grievances of the complainant.  According to the complainant the act of the opposite party is a clear deficiency in service on his part and he is liable to the complainant. Hence this case, to pay Rs, 32,467/- with interest compensation, cost etc.etc.
3. This Forum entertained the complaint and issued notice to the opposite party for his appearance. The opposite party entered appearance and filed his version as follows. According to the opposite party the case of the complainant is not maintainable either in law or on facts.  It is admitted that the opposite party entered an agreement with the complainant and constructed the house with the full satisfaction of the complainant.  It is contended that there was no complaint at any stage during the progress of the work or after the completion of the work till the date of legal notice sent by the complainant.  It is contended that according to the specification agreed between the parties with the standard material the construction completed and the alleged defect cannot be determined without a proper analysis or test of samples of things by an expert.  The engagement of ‘Kripa Cleaners’ is also not known to this opposite party.  According to the opposite party there is no negligence, deficiency or unfair trade practice from his part and also contended that the case is bad for the rule of estoppel. Therefore this opposite party prayed to dismiss the case with cost. 
4. We peruse the complaint version and records before us and framed the following issues:

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

5.  In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination and examined him as PW1.  Through PW1 Ext. A1 to Ext. A6 were also marked. Ext. A1 is the agreement between opposite party dated:23/06/2013.  Ext. A2 is the cash bill of Rs. 13,000/- issued by opposite party dated: 23/02/2016.  Ext. A3 is the cash bill of Rs. 17,000/- issued by Emilda Enterprises dated: 26/02/2016.  Ext. A4 is the bill of G.K. Traders Rs. 2467 dated: 26/02/2016.  Ext. A5 is the legal notice. A5(a) and A5(b) are the Postal Receipt and Acknowledgement card.  Ext. A6 series are the photographs of damaged tank. On the other side the opposite party he who filed a proof affidavit in lieu of his chief examination and examined him as DW1.  After the completion of the evidence we have given sufficient time for hearing. The opposite party’s counsel participated the hearing either the complainant or his counsel did not turn up for hearing.
6. Point No.1: The opposite party pleaded that the case is not maintainable either in law or on fact.  According to him the complaint with regard to the foul smell arised after 2 years and on those days the complainant and his family were in occupation of that house and the complainant has not raised any complaint with regard to the foul smell to the opposite party till the date of legal notice dated: 21/04/2016.  According to the opposite party, the claim of the complainant is estopped because the case is bad for the rule of estoppel as defined in Civil Procedure Code 1908.  When we evaluate the evidence adduced by both parties in this case it is revealed that the opposite party constructed the house of the complainant by arriving an agreement between them and handed over the key to the complainant after receiving an amount of Rs. 1550/- per square feet including plumbing, wiring and sanitary work.  It is come out in evidence to see that there is no dispute between the parties in respect of the agreement dated: 29/06/2013 or the payment.  The plea of estoppel cannot be sustained as submitted by the opposite party when we evaluate the evidence to this case.  It is proved that the opposite party constructed the house on the basis of an agreement as stated above and he received remuneration for the construction work.  Therefore we can easily found that the complainant is a consumer and the opposite party is a service provider.  Therefore Point No.1 found in favour of the complainant.
7. Point Nos. 2 and 3:   For the sake of convenience, we would like to consider Point No.2 and 3 together.  In order to substantiate the case of the complainant he filed a proof affidavit in lieu of chief examination and marked Ext. A1 to Ext. A6 in his favour.  When we examine the testimony of the complainant as PW1 it is revealed that the opposite party he who constructed the house and handed over the key of the house to PW1.  It is deposed that the foul smell from the toilet has come out after 2 months of occupation of complainant and his family in this house. If any defect happened in construction of the toilet there is every chances of coming of nasty smell even at the time of occupation in that house. When PW1 was cross-examined he answered “defect ഉണ്ടാവാൻ കാരണം എന്താണ്? (Q) Septic tank വലിയ ആഴത്തിൽ കൂടി എടുത്ത് അതിൻറെ മേൽ വെട്ടുകല്ലും മറ്റും മൂടി അതിനാൽ ആണ് അത് damage ആയത്. Septic കെട്ടാൻ വേണ്ടിയാണ് ഞാൻ ആൾക്കാരെ നിർത്തികുഴി എടുത്തത്. എന്നാൽ opposite party എന്നെ force ചെലുത്തി readymade tank വാങ്ങി ടി കുഴിയിൽ വച്ചു. അതാണ് ടി tank damaged ആയത്  On the basis of this answer it is pertinent to see that, according to PW1, the defect happened to the septic tank because the tank is laying so depth from the earth level and country bricks are used to cover the upper area.  When we look into the complaint or affidavit of PW1 there was no murmuring with regard to the use of country bricks over the septic tank.  It is true that complainant pleaded that he who dig a trench in the   courtyard of his house for constructing a septic tank as instigated by the opposite party. He had forced to use the synthetic (readymade) septic tank instead of a septic tank made by bricks.  When we look into the Ext. A1 agreement it reads: തന്നിരിക്കുന്ന പ്ലാൻ അനുസരിച്ചും ഏൽപിച്ചിരിക്കുന്ന എഞ്ചിനീയറുടെയോ, സൂപ്പർവൈസറുടെയോ നിർദ്ദേശപ്രകാരമുള്ള സാധനങ്ങൾ ഉപയോഗിച്ചും, പറഞ്ഞിരിക്കുന്ന സമയത്തിനുള്ളിലും വൃത്തിയായും ഭംഗിയായും ചെയ്ത് നൽകുന്നതിനും  sq.feet ഒന്നിന്ന് ആയിരത്തി അഞ്ഞൂറ്റി അൻപത്  (1550/-) രൂപ പ്രകാരം ചെയ്യുന്നതിന് ഇരുകൂട്ടരും സമ്മതിച്ച് ഉറപ്പിച്ചിരിക്കുന്നു.  ആയതിന് പണി സംബന്ധമായ എന്തെങ്കിലും വീഴ്ച വരുത്തിയാൽ  ഒന്നാം കക്ഷിയും, പണസംബന്ധമായ വീഴചകൾ വരുത്തിയാൽ  രണ്ടാം കക്ഷിയും ഉത്തരവാദിയായിരിക്കുന്നതാണ്. On the basis of the above cited portion of Ext.A1 it is so clear to see that there is an engineer or a supervisor who is deputed by the complainant to inspect the quality of material and supervise the work.  Therefore the quality of the septic tank ought to have been examined by the engineer or supervisor deputed by the complainant.  Opposite party seriously contended in his version that a technical report from an expert is so necessary to decide the issue of the case.  Here the complainant failed to depute any expert commissioner to substantiate his case. The Consumer Protection Act Section 13 (C) says that  “Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum”.  The complainant failed to take any steps to prove that the septic tank used in his house was a law quality good. Ext. A2 to Ext. A4 shows that the complainant spend an amount of Rs. 32467/- (13000+17000+2467) for the construction or maintenance of the new septic tank.  Ext. A5, Ext.A5(a), Ext. A5(b) are the evidence to show that the complainant send a legal notice to opposite party to redress his complaint.  Ext.A6 series are the Photostats showing the picture of the septic tank.  When we examine the evidence of opposite party as DW1, it is to see that he constructed the whole construction of the complainant’s house with the knowledge, advice and supervision of the complainant or his men.  He categorically deposed that the septic tank in question was purchased with the knowledge of the complainant and it is laid with the approval and connivance of the complainant.  It is also deposed that the PW1 has not raised any complaint even at the time of the laying the septic tank or even after the completion of the work.  Though the opposite party was cross-examined by the complainant nothing brought out to discard the evidence adduced by the opposite party before the Forum.  On the basis of the evidence adduced by the complainant we can come to a conclusion that the opposite party has not committed any deficiency in service as alleged by the complainant.  It is also understood that the complainant filed this complaint as an after thought of his occupation in the house.  Therefore we find that the complainant did not succeed to prove his case as alleged.  Therefore Point No.2 and 3 are found against the complainant. 

                   In the result, we pass the following orders:

1. Case dismissed.  
2. No order for cost.

                    Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st  day of July, 2017.

                                                                                              (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                          (President)

Smt. Sheela Jacob (Member)         :      (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Varguese Tetas

Exhibits marked on the side of the complainant:

A1 : Agreement between opposite party dated:23/06/2013.

A2 : Cash bill of Rs. 13,000/- issued by opposite party dated: 23/02/2016

A3 : Cash bill of Rs. 17,000/- issued by Emilda Enterprises dated: 26/02/2016.

A4 : Bill of G.K. Traders Rs. 2467 dated: 26/02/2016.

A5 :Legal notice.

A5(a) and A5(b) : Postal Receipt and Acknowledgement card.

A6 series : Photographs of damaged tank.

Witness examined on the side of the opposite parties:

DW1 : Thomas Abraham

Exhibits marked on the side of the opposite parties: Nil.

                                                                                                     (By Order)

Copy to :-  (1)  Varughese Titus,

                       Thevervelil Mannil House,

                       Chirayirambu, Chirayirambu P.O, Pin 689549,

                      Pathanamthitta District.

       (2) Thomas Abraham,

            Proprietor, Shebha Constructions,

                     Nellikala P.O, Pin 689643,

            Mallapuzhaserry Village, Pathanamthitta District.

3. The Stock File.