JOSE THOMAS vs Sankaramoorthy Reddiyar

DELAY of 38 days in filing revision petition is condoned.

PETITIONER /Opposite Party being aggrieved by order dated 31.3.2012 passed in (First Appeal No. 551 of 2011) by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short, ''State Commission'') has filed this revision under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'').

BRIEF facts are, that Petitioner/Opposite Party was entrusted with the construction of aluminum roof over Respondent/ Complainant''s house. The matter was entrusted on 20.12.06 vide a written undertaking. It was assured by the respondent that construction will be carried with quality materials and aluminum sheet manufactured by ''Everlast Company''. The work was completed in December, 2008. Despite assurance given by the petitioner, he used low quality materials and did not install the required number of pillars. As a result, central portion of the roof got bent which resulted in stagnation of rain water during rainy season. Although requested to rectify the defects, but petitioner evaded. It is further stated that on 6.4.2010, central portion of the roof suddenly collapsed during rains and entire roofing was dislocated. It is alleged, that above was occasioned on account of the low quality of materials being used and poor workmanship. Thereafter, respondent got the roof reconstructed by St. Thomas Industries and had to spend Rs.1,92,660/ -. Accordingly, respondent sought compensation of Rs.2,00,000/ -. Petitioner in its written version, admitted the construction of roof. It is alleged, that the materials were selected, purchased and supplied by the respondent. The petitioner is not aware of the quality of the materials. There was no written agreement as alleged. Only a receipt was issued, as insisted by the respondent for availing loan from the bank. It is denied that there was any delay in completion of the work. The fixing of middle pillars was avoided as per request of the respondent. It is further stated that on 5.4.2010 and 6.4.2010, there was heavy rains and wind in the Adoor Taluk. Due to this, natural calamity, it resulted in damage to the roofing and not due to the defective execution of the work. Petitioner requested for one week time to start the repair works but respondent was not willing to wait. It is denied that so much of amount was paid to St. Thomas Industries for reconstruction. They have only done some repair works by fixing three pillars in the middle portion of the roof. Hence, there is no deficiency in service on the part of the petitioner.

CONSUMER Disputes Redressal Forum, Pathanamthitta (for short ''District Forum'') vide order dated 20.06.2011, dismissed the complaint.

BEING aggrieved, respondent filed appeal before the State Commission which vide impugned order, set aside the order of the District Forum and directed the petitioner to pay a sum of Rs. 75,000/ - to the respondent towards compensation. Besides this, Rs.5,000/ - was awarded as cost.

NOW petitioner has filed the present revision.

WE have heard the learned counsel for parties and gone through the record.

IT is submitted by learned counsel for petitioner, that there was heavy rain fall and wind in Pallickal, Enathu and Erathu villages on 05.04.2010 and 06.04.2010, which caused heavy damages to many buildings and other properties in the surrounding areas. It was a calamity, which was beyond the human control and no one can be blamed for it. The Commissioner''s report also supports the occurrence of natural calamities. As per report, the entire materials used for the roof was not damaged completely. Therefore, respondent''s claim based on receipt of Rs.1,46,350/ - issued by St. Thomas Industries, that he had spent huge amount for reconstruction of the roof is not sustainable. Respondent, after being satisfied with petitioner''s work, had only paid all the bills on completion of the construction.

ON the other hand, learned counsel for respondent contended that roof had collapsed after about one year of the construction. This clearly shows, that inferior quality of material was used. Thus, there is deficiency on the part of the petitioner.

DISTRICT Forum in its order held ; " 14. Both parties have a dispute regarding the period taken for the completion of the work. But there is no dispute with regard to the time of starting the work. According to the complainant, the work was completed in the year 2008 whereas the opposite party''s contention is that the work was completed in the year 2007. Anyhow there is no dispute that the damage caused to the roof work was during April, 2010 i.e., after 2 or 3 years from its completion. The complainant''s argument is that the damages of the roof work was due to the defective work by using low quality materials whereas the opposite party''s contention is that the damages was not due to the fault of the opposite party and it was due to the heavy wind and rain occurred in that place. Ext.B2 based on Ext.B2(a), the answers given by the Public Information Officer and Addl. Tahsildar, Adoor and B3 and B4 paper reports clearly shows that there was heavy rain fall and wind occurred at Pallickal, Enathu and Erathu villages on 05.04.2010 and 06.04.2010 caused heavy damages to many buildings and other properties. As per Ext.B1 advocate notice issued by the complainant also clearly shows that the damage to the roof of the complainant was occurred due to the rain fall on 6.4.10. The complainant had no dispute regarding the natural calamities occurred during these days. He also admitted in his advocate notice that his roofing works sustained damages due to the rainfall on 6.4.2010. But his contention is that the said damages were due to the defective works by using poor quality materials. In this juncture, the date of completion of the work is very important. Though there is a dispute in respect of the date of completion of the work, the damages were occurred not less than 2 years from the date of completion of the work. If the complainant''s allegations are admitted for argument sake, we have a doubt, how the structure withstand the rain and wind occurred during the past 2 or 3 years. So, also we find no justification in the complainant''s argument.

Then coming to Ext.C2, commissioner''s mahazar, the commissioner reported that the Aluminium roofing of the complainant''s building is seen bended downwards and water is seen stagnated in the middle portion of the terrace. The said part of the commissioner''s mahazar also supports the occurrence of natural calamities. From the above said mahazar of the commissioner, it can be seen that the entire materials used for the roof is not damaged completely and is not beyond reuse. So the complainant''s claim based on Ext.A5 receipt for Rs. 1,46,530 issued by St. Thomas industries, that he had spent a huge amount for the reconstruction of the roof is also not sustainable.

In the facts and circumstances and from the available evidence, the damages to the complainant''s roof were occurred after 2 years from its construction and that too was occurred due to heavy rain and wind. Further, the complainant has not adduced any cogent evidence supporting his contentions. Based on Ext.A1, A5 and C2 and oral testimony of PWs.1 and 2, we cannot find any deficiency of service against the opposite party as alleged by the complainant. Therefore, we find that this complaint is not allowable and is liable to be dismissed."

THE State Commission, while reversing the District Forum''s order observed; "7. CW1, Advocate Ramakrishnan the Commissioner who examined the roofing and submitted Ext.C2 report has reported that aluminum roofing was found slanting towards the northern side and water collected in the middle portion of the terrus and the middle portion of the roofing bent downwards. The area of the roofing would work out to 1885 sq feet. He has also noted that there was no pillars in the middle portion. There are only 3 pillars on the eastern side, two pillars on the southern side 4 pillars on the western side. There are no pillars in the middle portion as well as on the northern side. No insigna of Everlast Co. is seen in the sheets. We find that in Ext.P1 it is specifically mentioned that aluminum sheet to be used will be of Everlast Company. The Commissioner has inspected the premises on 15.6.10 he has not mentioned anything as to the alleged cause of the damage that it was due to heavy wind and rain. In the cross examination of CW1 also nothing has been suggested to him to the effect that the damages were caused due to natural calamities.

Ext.B2 reply by the Public Information Officer in response to the application of the opposite party and Exts. B3 and B4 newspaper reports that there were natural calamities in certain villages in Adoor Taluk as such is not helpful to the case of the opposite party. He has not adduced any independent evidence to establish the fact that it was on account of the natural calamities that the aluminum roofing over the house of the complainant got damaged. Nothing has been brought out in the cross examination of the complainant to discredit his evidence as such. There is no dispute as to the receipt of the amount as noted in Ext.P1. RW1/opposite party has specifically admitted that he has received Rs.1,15,000/ - as per Ext.A1 document. The counsel for the opposite party/respondent has contended that the opposite party had received only about Rs.35, 000/ -. We find that the above statement has no relevance in view of the specific admission by RW1 in cross examination(page 2 of the deposition of DW1). In the circumstances we find that it stands established that the construction executed by the opposite party/respondent was defective and that the materials used are also of not good quality. Although the complainant has claimed that he has spent Rs.1,46,540/ - and produced Ext.A5 receipt issued by PW2 no bills of purchase of the materials have been produced. In the circumstances we find it would be reasonable to direct the opposite party to pay a sum of Rs.75,000/ - as compensation to the complainant."

IT is an admitted fact, that petitioner had done the work of aluminum roofing over the house of the respondent. As per respondent, petitioner had to provide aluminum sheets of ''Everlast Brand''. This fact had not been controverted by the petitioner, in its written statement. Further, as per letter dated 20.12.2006 duly signed by the petitioner, he agreed to construct roofing at the terrace of respondent''s house by using ''Everlast Aluminum Sheet''. Admittedly, petitioner did not use the agreed brand of aluminum sheets while doing roofing on the terrace of the respondent. Therefore, deficiency in service on the part of petitioner is writ large in this case.

THE State Commission, rightly allowed the complaint of the respondent. We are in full agreement with the reasonings given by the State Commission and do not find any infirmity or illegality in the impugned order. Present revision petition is accordingly dismissed.

NO order as to cost.