ABDUL LATHEEF vs Chandrahasa Kotian And Anr.

AGGRIEVED by the order of the Karnataka State Consumer Disputes Redressal Commission, Bangalore dated 28.11.2005 passed in Appeal No. 1838/05 dismissing his appeal and confirming the order of the District Forum, the complainant has filed this revision petition before us.

FACTUAL matrix of the case in brief are that the petitioner wanted to construct a house in Mangalore City. Respondent No. 1, Chandrahasa Kotian, a Contractor was introduced by the Respondent No. 2, Shri Udaya Kumar who is a Civil Engineer and an Architect and an agreement was executed between the Petitioner and the Contractor to construct a house at a cost of Rs. 14.50 lakh by 11.5.2002 in accordance with the specifications and drawings shown in the agreement. Respondent No. 2 was engaged to supervise the construction as a Consulting Engineer. It was alleged by the complainant that there were certain items of works which were left unfinished and there were certain defects in the construction of the house. Accordingly, he approached the District Forum to award a total sum of Rs. 1,72,001 to be paid jointly and severally by the respondent who were the opposite parties before the District Forum.

THE matter was contested by the contractors stating that the total cost of work came to Rs. 16,81,122.77 and the complainant has paid a part amount leaving balance of Rs. 1,46,122.77. The District Forum held that it is not in dispute that the possession of the house was delivered on 4.12.2002 and the complainant himself had paid a sum of Rs. 4,15,000 in between 3.9.2002 to 12.12.2002 and if the complainant had not acquiesced with the additions and alternations he would not have paid the additional cost to the contractors. Further, the complainant had also paid to the Respondent No. 2, Civil Engineer -cum -Architect, a consultation fee during March, 2003 which also indicates that the Complainant had acquiesced with the so -called delay and alterations. Accordingly, it was held that the case set up by the Complainant was not proved. Therefore, the complaint was dismissed. We have heard the learned Counsel for the Petitioner as well as Respondent at length. Learned Counsel for the Petitioner submitted that though the possession was taken by the Complainant in December, 2002 and he filed complaint within 9 months in September, 2003. He submitted that though the agreement was for Rs. 14.50 lakh he has paid as much as Rs. 16,19,120. He drew our attention to the report of the Local Commissioner which mentions, inter alia, following defects in the construction: * The kitchen has been provided with marble flooring 2'' x 2.5'' tiles. About 24 of them have developed visible cracks. Concrete floor of the car porch has not been provided with smooth plastering.

* The plaster provided for the laterite walls has developed cracks at number of locations throughout the building.

* There is visible dampness in one corner of bed room in the mezanine.

* In the hall in the ground floor on the front side, the paneling on the teak wood window is not as per agreement.

* Gray mosaic tiled flooring was to be provided for all rooms except kitchen and toilets. However, marble flooring has been provided in the rooms as of now.

* The position of doors has been changed in the attached toilets.

* The rolling shutter for car shed has not been provided.

Accordingly, he submitted that the petitioner may be paid Rs. 73,695.

LEARNED Counsel for the respondents submitted that the deviations in the building were with the consent of the owner and accordingly he has made payment for the same. Otherwise he would have raised objections at the time of taking possession of the house. Complainant was himself in India from September to December, 2002 during which period he personally supervised the construction and accordingly nothing is payable to the complainant/petitioner.

WE cannot brush aside the report of the Local Commissioners for several reasons. Firstly, the Local Commissioner was appointed by an order of the Dakshina Kannada District Consumer Disputes Redressal Forum and the Commission was consisting of Professor and Head of the Department of Civil Engineering and the Assistant Professor of the National Institute of Technology, Karnataka, Surathkal which is one of the prestigious institution of country.

THIS report was prepared in the presence of the complainant and the respondents and also the advocate for the Respondent No. l, the Contractor. Hence, its validity cannot be questioned at this time. Barring minor deviations, the major deviations are extracted below: "1. There were indeed differences in the front elevation as existing vis -a -vis the elevation enclosed in the agreement. The following dif -ferences were observed: (i) The sit out at the front entrance has not been provided. (ii) Car shed has not been provided with rolling shutters. (iii) The front door is not as per the agreement.

The bay window has not been provided on the side wall of the bed room of Mezanine floor.

An over head R.C.C. tank of 2000 ltrs. capacity was to be provided as per agreement. But only a Sintex -type tank of 1500 ltrs. has been provided instead. Similarly, a sump tank of 3000 ltr. capacity (7.66 x 3.5 x 4 feet) has been provided instead of 5000 ltrs. capacity tank agreed upon.

Lime patty for the slope roof has not been done.

The number of door shutters provided has been appreciably warped with the consequent problems in closing and locking due to use of unseasoned wood."

THE deviations pointed out by the complainant (supra) were also mentioned in the report of the Local Commissioners. In view of this we have to look into the calculations. The Complainant had claimed in his letter to the Contractor on 25.4.2003 as below: "Therefore you are liable to return the balance of extra payment of Rs. 53,306 (Rupees fifty three thousand three hundred and six only) received by you plus cost of changes provided in construction of building without the consent of the owner. "

THOUGH he has claimed cost of changes provided in the construction of the building allegedly without the consent of the owner we cannot grant any relief to him for the simple reason that no contractor would spend money to execute extra work of an expensive nature without at least the oral consent of the consumer. This is more so because we find amongst the claims the major item is towards marble flooring of the house in lieu of mazanine flooring. It means at the best the complainant can seek refund of Rs. 53,306. Though the District Forum has held that the complainant by paying the total amount has accepted the building as it, is without any reservation. This view cannot be accepted because if he would not have accepted the possession the contractor might have further delayed the handing over of the possession. Secondly, the house being located in coastal area only after a rainy season, the defects in the construction of the house can be detected. Further the Report of the Local Commissioner also points out about the visible cracks in the laterite walls and tiles, etc. The Complainant must have also expected that the contractor will oblige him by completing certain incomplete portions of the work on receipt of the payment which has not happened. The complainant has accepted that the cost of the extra work done by the contractor including marble flooring is to the tune of Rs. 1,18,814 which is in addition to the amount initially paid to the contractor to the tune of Rs. 14.50 lakh which makes the total of Rs. 15,68,814. Whereas while arriving at this calculation of Rs. 53,306 he has taken the additional payment to the tune of Rs. 98,425 as against Rs. 1,18,814 due to calculation error and has reduced the cost of the extra work to the tune of Rs. 20,000. If this amount is deducted from Rs. 53,306 the amount payable to the complainant comes to Rs. 33,306 i.e. (Rs. 53,306 Rs. 20,000). Therefore, we direct the respondents to pay this amount of Rs. 33,306 to the petitioner with interest @ 9% p.a from the date of complaint till the date of its payment within a period of four weeks from the date of this order. The Revision is disposed of as above. No orders as to cost. Revision disposed of.