ALLOTTEE SERVICE MANAGER, T.N.H.B. vs N.ANBALAGAN

THIS appeal is directed against the order dated 29.6.1998 in O.P. No. 181/1996 on the file of the District Consumer Disputes Redressal Forum, Tiruchirapalli. The appellants are the opposite parties while the respondent is the complainant.

SHORT facts may be related in order to understand the crux of the issue arising for consideration in this action. The complainant purchased ''B'' type MIG house from the 1st opposite party Tamil Nadu Housing Board [for short, TNHB] in Smt. NH Scheme, Pudukkottai District after complying with all the formalities. After taking possession of the flat, certain defects were noticed. They were : (1) The superstructure of the building had been carried out in brickwork masonry plastered in cement mortar. The proportion of cement mixture was not adequate in the sense that the proportion of sand is higher while that of cement is negligible. The plasterings were peeling out from the walls. (2) Joinings like door frames, window frames were found bent and damaged, evidently the steel used was of inferior quality. (3) The floorings were finished with curves and undulations. (4) Withering course in the open terrace was not properly done and there was seepage of water in all the walls in the interior side. (5) Tiles laid over the withering course were of inferior quality which cannot at all withstand for few years. (6) Kitchen platform, shelves etc., were provided by using inferior materials and it is doubtful whether they will serve the required duration. (7) There were cracks in the bonding of pressed tiles in open areas and the tiles were bulged.

The defects in the flat were not at all rectified by the opposite parties. The complainant engaged the services of one Engineer namely, Er. C. Ashokan, BE , MBA, CE, MIE, FIV, MHW, MSEL, Chartered Engineer, Govt. Regd. Valuer, Panel Valuer for Banks, Surveyor and Loss Assessor. The said Engineer so engaged on inspection of the building estimated the cost of repairs at Rs. 50,000/-.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below alleging deficiency in service on the part of the opposite parties and claiming certain reliefs as prayed for in the complaint. The opposite parties in pith and substance would contend that there were no defects in the construction of the flat and the defects as alleged by the complainant by way of incorporation of averments in the complaint are all imaginary and those allegations have been made only to under-estimate the construction of the house. There is no deficiency in service on the part of the opposite parties. The complaint as such is liable to be dismissed.

DURING the course of enquiry, the Forum below appointed an Advocate Commissioner in I.A. 80/1998 for the inspection of the flat and submission of a report as respects the defects noticed by him along with the plan. The Advocate Commissioner so appointed after due inspection of the flat submitted his report and plan which were marked as Exs. C1 and C2. The Forum below after taking into consideration the materials placed on record however recorded a finding that there was deficiency in service on the part of the opposite parties and directed them to pay to the complainants a sum of Rs. 50,000/- with interest @ 12% p.a. on and from 14.10.1996 the date of the complaint till realisation besides payment of compensation quantified in a sum of Rs. 10,000/- for mental agony and anguish suffered by him and payment of cost of Rs. 1,500/-. The Forum below also directed the opposite parties to comply with the award so passed by it within two months from the date of its order. Aggrieved by the order as above, the opposite parties resorted to the present action. They are represented by learned Counsel Mr. V. Yuvakumar. On service of process, the respondent/complainant entered appearance through a Counsel of his choice namely, learned Counsel M/s. C. Selvaraj.

WHEN the matter came up for hearing before us today, learned Counsel appearing for the respondent/complainant is called absent. We are however inclined to dispose of the appeal on merits. We heard the arguments of learned Counsel Mr. V. Yuvakumar appearing for the appellants/opposite parties. We perused the materials placed on record.

EVEN at the outset, we may point out that there are no merits in the appeal. There is no pale of controversy that the respondent/complainant purchased ''B'' type MIG house from the opposite parties in SMT NH Scheme, Pudukkottai District after complying with the necessary and requisite formalities. It is his consistent case that the house so purchased were full of defects as mentioned by him in the complaint. The opposite parties would however contend that there were no defects at all in the house constructed by them and the defects as alleged by the complainant are fully imaginary in rather a bid to under-estimate the construction. On the face of the positive assertion by the complainant and denial by the opposite parties as to the existence of defects in the house allotted to the complainant, there is a duty cast on us to find out as to whether the defects as pointed out by the complainant really existed in the house allotted to him so that the opposite parties could be mulcted with liability for deficiency in service on their part. The house in question had admittedly been inspected by the Engineer Ashokan at the instance of the complainant and he after the inspection of the house estimated the cost of the repairs at Rs. 50,000/-. The report had been filed along with the complaint. The Forum below also appointed an Advocate Commissioner to vouchsafe the correctness or otherwise of the report of the said Engineer and the Advocate Commissioner after inspection of the premises in question submitted his report and plan which were marked as Exs. C1 and C2. A perusal of the Commissioner''s Report indicates in no uncertain terms that the defects as pointed out by the said Engineer in his report which was marked along with the complaint were found to be in order. The opposite parties also did not file any counter or objection to the valuation or assessment made by the said Engineer as per his report. In such circumstances, it cannot at all be stated that the assessment made by the said Engineer cannot at all be relied upon for fastening the liability upon the opposite parties. The Forum below after taking into consideration the cumulative effect of the report of the Engineer and the report of the Commissioner and plan marked as Exs. C1 and C2 came to the conclusion that the cost of repairing the defects in existence in the house would come to Rs. 50,000/- and such a finding on the facts and in the circumstances of the case cannot at all be found fault with.

The Forum below apart from directing the opposite parties to pay interest @ 12% on the cost of repairs quantified in a sum of Rs. 50,000/- on and from 14.10.1996, the date of complaint also directed them to pay to the complainant a sum of Rs. 10,000/- for mental agony and anguish suffered by the complainant. Courts of superior jurisdiction said on occasions more than one that payment of interest on the sum due as well as award of compensation for mental agony and anguish are not permissible in law and either one of them alone is capable of being granted. In this view of the matter, we delete the payment of compensation quantified in a sum of Rs. 10,000/- for mental agony and anguish said to have been suffered by the complainant on the face of awarding of interest @ 12% p.a. on the estimate cost of repairs of Rs. 50,000/- on and from 14.10.1996. The Forum below after all awarded a cost of Rs. 1,500/- which we feel is reasonable on the facts and in the circumstances of the case not calling for interference and, therefore, it is we confirm such part of the award.

IN fine, except to the extent of the modification as above, the appeal shall stand dismissed in other respects. We make no order as to costs on the facts and in the circumstances of the case. We however make it crystal clear that the order of the Forum below as modified by us is required to be complied with by the opposite parties within a month from the date of receipt of our order or otherwise the complainant would be perfectly at liability to invoke the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal dismissed.