MEGNA PRIVATE LTD. vs SALIL KUMAR GHOSH

THIS is an appeal against an order dated 10.1.95 passed by the Calcutta District Forum in C.D.F. Case No. 1904/94 allowing compensation to the tune of Rs. 4,38,700/- for defect in construction of a multi-storeyed building purchased by the complainants. The complaint was filed by one Salil Kumar Ghosh, Secretary, Aparupa Apartment Owners'' Association for self and on behalf of the eleven other flat owners of the said Apartment at 64-South End Park, Calcutta-700 029. The case of the complainants was that they had purchased eleven numbers of flats in the aforesaid multistoreyed building which was constructed by opposite parties 1 and 2 (the appellants in the present appeal) on payment of due consideration by each of the flat owners. Delivery of possession was given to the flat owners in due course but it was found after about five years that cracks had developed at various places of the building and chunks of concretes pealed off and started falling with threat to casualty. The flat owners became panicky and the matter was reported to the appellants who initially sent a representative for inspection but subsequently did not take any interest in making good the defects pointed out by the owners. The appellants were requested repeatedly to rectify the defects of construction and a meeting of the owners also endorsed the action in this regard. Seeing that their grievances were not attended to and redressed by the appellants the complainants engaged a professional Chartered Engineer for inspection of the building and sought his opinion about the state of construction. The aforesaid Engineer duly inspected the building and observed inter alia that due to either or both reasons of inadequate/sub-standard materials used for construction and defective construction, cracks developed and increased in the structural members exposing the reinforcements to water, when corrosion set in resulting in stripping and spallings of concretes in the building. The Engineer concerned further observed that at its present condition the falling lumps of concretes were serious hazard to life and property and that rectification measures should be taken up as early as possible.

THE petitioners also referred the pieces of broken chunks which had pealed off and portions of wall plaster of the building to the National Test House at Alipore who were added as O.P. Nos. 3 and 4 in the Lower Court (Respondent Nos. 2 and 3 in this appeal) for analysis and report by depositing the requisite fees. THE National Test House gave their opinion indicating what should be the strength and proportion of the ingredient in a building of this type. THE complainants had also approached the Oriental Insurance Co. Ltd., who on their part expressed their inability to accept the proposal of insurance as the building was in a deteriorated condition. THE complainants, thereafter, consulted with a building contractor who estimated the cost of thoroughly repairing the building to an amount of Rs. 4,68,700/-. So the complainants had prayed for an order directing the O.Ps. 1 and 2, namely, the present appellants to pay Rs. 4,68,700/- to them to carry out the necessary repair work of the building. The case was heard ex parte by the lower Court as O.Ps. did not appear in spite of service of notice. The District Forum considered the documents placed before it and found that the complainants had a genuine case. It, therefore, held the O.Ps. guilty of deficiency in service and breach of contract and directed that the O.Ps. should pay the amount estimated by the complainants for the repair of the building. The Forum accordingly passed an award for payment of Rs 4,38,700/- and also a compensation of Rs. 10,000/- to the complainants.

This appeal has been preferred against the aforesaid order of the District Forum. The appellants'' plea is that they were not aware of the filing of the case before the District Forum and that the appeal was filed after getting a copy of the order. The sum and substance of the appellants'' contention is that the relevant flats were constructed by them on the basis of a written agreement and under the strict supervision of the flat owners. It is argued that possession of the flats was made over to the buyers after they were satisfied about the quality of construction. Particular stress is laid on the paragraph 17 of the Articles of Agreement wherein it was agreed by and between the parties that after taking possession of the flat the buyer would not be entitled to raise objection regarding the quality of materials used. It has been asserted by the appellants that the construction was made with the best available materials and there was no cause of panic for alleged defective construction of the flats. It is urged that the flat owners are estopped from raising the allegation of bad construction after the lapse of such a long period. The appellants, therefore, prayed that the case before the District Forum should be dismissed.

THE respondents have relied much on a report of the National Test House. THEy have also relied on the report of the chartered Engineer appointed by them for assessing the nature of the damage caused to the flats. During the pendency of the appeal further evidence was taken and the scientist who submitted the testing report of the materials collected from the disputed premises was called as witness. Evidence was taken of Shri Tridib Chowdhury, a Scientist of the National Test House who gave the report dated 25.8.94. He was examined at length and his opinion was that the test result showed that excepting a few columns the other columns had less than the minimum required value of 150 Kg. per sq. cm. which according to him was a serious defect and the columns were in necessity of immediate repair. THE second report was also prepared by him. THEre was also a third test certificate issued by the National Test House, Alipore showing defects in construction. A notice was also issued by the Calcutta Municipal Corporation for mending cracks in the cantilever varandah in all the floors including R.C. parts and replastering the walls and ceiling after removing the loose and bulgident plaster inside and outside. THE C.M.C. also directed the mending of the cracks to the R.C. columns extended beyond the roof and supporting the water reservoir. The evidence produced by the respondent showed that there were defects in the flats with imminent danger of the buildings being further damaged. The apprehension of the respondents about the collapse of the building was also actuated by the collapse of another building named Sivalik constructed by the same promoters within the city of Calcutta.

THE substantial defence to the aforesaid defects pointed out by the respondents is, as pointed out above, that there was an overall supervision by the flat owners at the time of construction of the flats and that they were satisfied about the manner of construction. THE other substantial defence raised is that there was a particular clause in the written agreement between the parties denying the right of questioning the quality of construction after taking possession of the flat. As regards the defects pointed out we have practically no sufficient evidence to show that the apprehension of the respondents is baseless or that the report given is without any foundation. Regarding the latent defects discovered subsequent to the taking of possession and the user of the building for a period, the respondents have relied on a decision of the National Commission reported in I (1995) CPJ 150 (NC) (Pushpa Pathania v. The Rajasthan Housing Board, Kota). In this case it was held that the question of estoppel does not arise in such a case where defects are discovered subsequently. The National Commission made the following observations in their order in the aforesaid case: 5. "We are of the opinion that in the present case the question of estoppel does not arise. While taking possession the complainant would not have found the defects and deficiency in the house. The defects in the house might not be materially visible at the time of her inspection. Only when one lives in a house only then he can find out the defects and deficiency in it."

As regards the deficiency detected by the examination of the building by a Chartered Engineer and also by different tests by the National Test House, the respondents have referred to another case reported in III (1994) CPJ 23 (NC) (Dilbagh Rai & Anr. v. HousingBoard, Haryana and Anr.). In this case also it was observed by the National Commission that the allottee of the house is only responsible for noticing what are known as patent defects in construction and that the latent defects would show up only in due course of time. In such circumstances it was held that the complainant was not estopped from raising the question of defective construction nearly after one year of taking possession. It was further observed in this case that the cracks were quite extensive in the house and the technical reports confirmed that the construction work was below the designed parameters. The Commission had reasons to conclude that the house suffered from serious constructional defects which was bound to aggravate with passage of time being exposed to wind and rain. The above cases answer the argument raised by the appellants that defects pointed out subsequently and much after the taking of possession cannot be brought for redressal before Consumer Disputes Redressal Agency. The proof of defect produced in this case on the basis of Expert''s opinion definitely proves that there was defect in the house resulting in deficiency in service. We, therefore, do not see any reason to differ from the order passed by the Calcutta District Forum. The damage being extensive, it will require a huge amount for a proper repair. Having examined the documents produced in this regard we are of the opinion that the Forum has given a correct judgment. The appeal is, therefore, dismissed and the order of the District Forum is confirmed. There will be, however, no order for costs. Appeal dismissed.