DEEPANJALI BAGAI vs GIRIRAJ DEVELOPERS & CONSULTANTS & ORS.

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 7.2.2011, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred as ''State Commission'') in F.A. No.38/2006, Deepanjali Bagai vs. Giriraj Developers and Consultants and others, vide which, while dismissing the appeal, the order passed by the District Consumer disputes Redressal Forum, Gurgaon, allowing consumer complaint no.962/2004, filed by the present petitioner, was confirmed.

The facts of the case are that the complainant/petitioner stated in her consumer complaint no.962/2004 before the District Forum that she wanted to have her house constructed on her Plot No. Q-101, South City-I, Gurgaon and for that purpose, she met the opposite party no.2 (OP-2) Jagan Shah, who represented to her that he was in construction business as a contractor alongwith OP-3, Rahul Soni @ Rahul Chokshi with the name and style of OP-1, Shri Giriraj Developers and Consultants. He assured that the quality of construction would be excellent, as he himself was a professionally qualified architect. He also informed the complainant that he would be responsible for the project in entirety, including getting building plan sanctioned. After some meetings at the residence of the complainant, the rate of Rs.467/- per sq. ft. including material and labor charges was settled by the respondents with the complainant and they undertook to complete the civil works by July, 2004. The complainant was busy with her office at Mumbai during those days and she made payments to the respondents, as and when asked for. The complainant found in June/July, 2004 that the respondents had started plastering work, without getting the plumbing or electrical works done, which caused suspicion to her about the quality of work being done. On being questioned, the respondent stopped the work and disappeared. However, by that time, she had already paid a sum of Rs.15 lakhs to them. On 11.9.2004, the respondents assessed the total works to be done by them worth Rs.17,16,949/- and claimed that they had completed 57% of the said work, meaning thereby that they had completed the work worth Rs.9,78,660/.93, while payment of Rs.15 lakhs had been made to them. The complainant contacted B.K. Chauhan and Associates, Government approved valuers for assessment of quality of work and the valuation of existing structure. As per report dated 26.10.2004 from the said valuer, there were structural defects in the construction and foundation, which were incurable and the combined effect of these defects was that human inhabitation under the structure was risky. The said valuer also stated that only 40 to 42% of the work had been completed and expenditure of 3 lakhs would be required to rectify the curable defects. Alleging deficiency in service on the part of the respondents, the complainant filed the consumer complaint in question, seeking the following reliefs; "It is prayed that the respondents be summoned and be directed to

reimburse the complainant the sum of Rs.15 lakhs towards the inhabitable construction;

reimburse the complainant the sum of Rs. forty thousand towards rental paid by her;

compensate the complainant with damages of Rs.4.5 lakhs for trauma and agony;

award interest on the aforesaid sum @ 24% p.a. till reimbursement/payment;

award cost of complaint to the complainant.

grant any other relief to which the complainant is found entitled."

The respondent no.2 Jagan Shah filed reply to the written statement before the District Forum, saying that he was an architect and his job was to make the architectural design and drawings only. The complainant had agreed to pay Rs.60,000/- to him for the said work. The OP-2 stated that he had received a sum of Rs.20,000/- only from the complainant for doing the architectural works. The written statement was also filed by respondent no.1 and R-3 before the District Forum in which they denied the allegations levelled by the complainant, saying that the construction was duly supervised by the complainant and her family members from time to time. The construction was now 80% complete. It is also stated in the reply that there was no pecuniary or business interest of OP-2 in the matter. The OP-1 and 3 submitted that a sum of Rs.4,47,390.25 as balance amount alongwith Rs.1,58.372/- for additional work was payable on the part of complainant.

The District Forum after taking into account the averments made by the parties, passed the following order in the complaint. " Accordingly, the respondents No.1 to 3 are directed to dismantle all the defective constructions and to raise the same as per terms and agreement and as per approved site plan or to refund the amount of Rs.14,60,000/- received by them from the complainant and will also to compensate the complainant to the tune of Rs.10,000/- for causing financial losses of rent and other expenses. However, as mentioned in para 9 of this order, the complainant is not entitled to get any relief from respondent no.2, the complaint qua respondent No.2 has been dismissed by this forum, as the complainant failed to prove the allegations levelled against him regarding any type of deficiency in service on his part. The present complaint, accordingly, disposed of and the same stands allowed only against the respondents No.1 and 3 and they are directed to make the compliance of this order within thirty days from the date of receipt of the copy of this order."

It is clear from above that the District Forum dismissed the consumer complaint qua respondent no.2 and directed respondents no.1 and 3 to dismantle the defective construction and raised the same as per terms and conditions of the agreement and as per approved site plan or to refund the money received by them from the complainant. Being aggrieved against the said order, the complainant challenged the same by way of appeal before the State Commission. The State Commission dismissed the appeal, concluding that no liability could be fastened on respondent no.2, Architect on mere supposition and assumption. No contract had been placed on record, which would show that respondent no.2 Architect was liable in any manner to pay the claim as per the prayer of the complainant.

Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present petition.

During hearing on the said petition, the learned counsel for the complainant/petitioner vehemently argued that respondent no.2, Architect could not be absolved of his liability towards the complainant for the defects in the construction, as his duty was to supervise the entire construction, in addition to providing the architectural drawings. The learned counsel has drawn attention to the copy of the cost estimates prepared on 8.12.2003 by Jagan Shah, Architect OP-2 by which the total cost of construction has been stated to be Rs.30.2 lakhs, taking Rs.850/- per sq. ft. as per unit cost. The learned counsel argued that in the detailed working of covered area calculation made by Rahul Soni, OP-3, the permanent address quoted was that of OP-2, Jagan Shah. Referring to their memo of appeal before the State Commission, the learned counsel submitted that they had made clear in the said memo that respondent no.2 was associated in the construction process as well. The learned counsel had further drawn attention to a document titled "Conditions of Engagement and Scale of Charges Preamble", saying that the practice of the architectural profession is regulated by Architects Act, 1972 and the regulations framed thereunder, as per the clause 2.10 and 2.13 of the Comprehensive Architectural Services, and an architect was required to visit the site of work and inspect and value the said work, in addition to preparing and issuing working drawings and details. The consumer fora below had, therefore taken an erroneous view that liability could not be fastened on the said Architect.

The learned counsel for respondent no.2 Architect has drawn attention to para no.2, saying that there was no involvement of the Architect in the talks regarding settlement of rates between the complainant and the builder. The learned counsel also stated that the documents regarding detailed working of covered area had been made by OP-3 and the mere mention of the address of respondent no.2 as permanent address does not mean that liability for faulty construction was to be attributed to respondent no.2. Moreover, he had never put his signatures on these documents, giving details of civil works to be executed. Regarding the documents containing Conditions and Engagement etc. of the Architect, the learned counsel stated that the said documents had never been produced before the State Commission and hence, they could not be taken up at the appellate stage. Moreover, the respondents no.1 and 3 had clarified in their written statement that the OP-2 Architect was not involved in the process of construction at all. The learned counsel has drawn attention to the orders passed by the Hon''ble Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd., (2011) 11 SCC 260 and Momna Gauri Vs. Scooter India Ltd. through its Regional Manager and others (2014) 13 SCC 307, saying that the concurrent findings of the consumer fora below should not be interfered in the exercise of revisional jurisdiction by this Commission, unless there was a jurisdictional error or miscarriage of justice, as a result of the orders passed by the consumer fora below.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The prayer clause in the present revision petition says as under: "a) call for the records of the First Appeal No.38/2006 from the Hon''ble State Consumer Disputes Redressal Commission, Haryana, Panchkula.

b) hold that there is deficiency of service by Respondent No.2 towards the Petitioner in his dual capacity as the architect and contractor in the construction project at Q 101, South City 1, Gurgaon, and that the Respondent No.2 is jointly and severally liable with the other Respondents to reimburse the Petitioner the admitted payment of Rs.14.8 lakhs received by them from the Petitioner.

c) direct the Respondents jointly and severally to pay the Petitioner the sum of Rs.4.9 lakhs as compensation to the Petitioner towards mental agony and trauma and other expenses.

d) direct the Respondents to jointly and severally pay the Petitioner the aforesaid sums of Rs.14.8 lakhs and Rs.4.5 lakhs with interest thereon @ 24% p.a. till reimbursement/payment.

e) award costs of this petition to the Petitioner."

The main point for consideration in the present case is whether OP-2 Architect Jagan Shah was responsible in any manner for the alleged faulty construction made on the property of the complainant in terms of engaging the services of the respondents by the complainant for the said construction. The case of the complainant is that in addition to providing the detailed architectural design and drawings, respondent no.2 was responsible for carrying out the supervision of the structure made to ensure that the construction was done as per the drawings provided by him. However, as per orders passed by the District Forum and the State Commission, the complainant has not been able to prove whether there was any agreement between the complainant and respondent no.2 to the effect that he shall be responsible for supervising the construction work as well. On the other hand, the OP-2 Architect has stated that he did prepare the architectural drawings and worked out the cost estimates for the said construction, for which he was to be paid a sum of Rs.60,000/- by the complainant. He has also stated that a sum of Rs.20,000/- had already been paid to him. It is clear from these averments that the job of OP-2 architect was to prepare and supply the drawings only, for which a separate amount was required to be paid to him by the complainant. The contention made by OP-2 is not without force that mere mentioning of his permanent address by OP-3 contractor does not mean that OP-2 was required to supervise the said construction.

The petitioner has placed on record certain documents, detailing the conditions of engagement of architects and the details of the services to be provided by them. However, the counsel for OP-2 stated that these documents were not produced by the petitioner before the consumer fora below and hence, they could not be relied upon in the present revision petition. This contention of the OP-2 is also not without force, because it was the duty of the complainant to have produced all relevant documents in her support before the District Forum. It may also be stated that even if the duties of architects have been stated in such a document, it was necessary on the part of the complainant to prove that under the terms and conditions agreed between the parties, the Architect was required to supervise the said construction. In any case, as per the order passed by the District Forum, duly confirmed by the State Commission, a direction has been given to respondents no.1 and 3 to dismantle the defective construction and raise the same as per the terms of agreement and as per the approved site plan, or to refund the amount received from the complainant . The grievance raised by the complainant seems to have been taken full care as per these orders.

From the facts and circumstances of the case, I do not find any infirmity, illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below which may justify interference in the exercise of the revisional jurisdiction. The Hon''ble Supreme Court have made it clear in the orders passed by them in Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd. (supra) and Momna Gauri Vs. Scooter India Ltd. through its Regional Manager and others (supra), that the findings of the consumer fora below could be altered only, if there was an error of jurisdiction or any miscarriage of justice in the orders of the fora below. It is held, therefore, that there is no merit in this revision petition and the same is ordered to be dismissed and the orders passed by the consumer fora below upheld with no order as to costs.