M/S. C. S. COMPANY & ORS. vs K. VENUGOPAL & ANR.

These two revision petitions have been filed against the impugned order dated 19.05.2010, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Appeal No. 357/2008, vide which, while partly allowing the appeal, the order dated 31.04.1998, passed by the District Forum was modified.

Briefly stated, the facts of the case are that the complainants K. Venugopal and Susheela filed consumer complaint in question, saying that the first complainant K. Venugopal entered into an agreement on 24.01.95 with S. Jaganatha Prasad, the Managing Director of the OP construction company for constructing a building having 2035 sq. ft. of area @250/- per sq. ft. and the total cost of construction was stated to be 5,08,732.50ps. However, the complainant paid a total sum of 7,01,119/- for the said construction. After construction, the keys of the house were handed over to the complainant on 02.02.1998. It has been alleged that a number of defects were noticed by the complainants in the building so constructed. There was leakage in the rooms and dampness on the walls of the building, the timber provided by the complainants was not used in the construction, rather some low quality material was used. The complainant stated that they were entitled to get a compensation of 4.09 lakh from the OP as compensation.

The complaint was contested by the OPs by filing a written version before the District Forum in which they alleged that the scope of the work had increased and they were entitled to get a further sum of 3 lakh from the complainant for the said construction.

The District Forum vide their order dated 31.01.2001 directed to refund 60,000/- to the complainants with 12% interest from the date of complaint till realisation and also to pay 3,000/- as compensation for mental agony and 2,000/- as cost of proceedings. The order of the District Forum was based on the report of a Local Commissioner Mr. P.J. Kurian, appointed for the purpose. Both the parties filed appeals before the State Commission which were decided vide order dated 06.06.2002 of the State Commission and the matter was remanded to the District Forum with the direction to obtain further details from the Commissioner. It was found that the former commissioner was no more and hence, a new commissioner was appointed. The said Commissioner Geetha S. Nair, filed two reports before the District Forum, one in July 2003 and the other on 22.03.2005, in which she stated that a sum of 1,82,069/- on 11 different items was required for the maintenance/repairs of the said building. These items included the dismantling of the damaged doors and windows and fittings with new ones, floor maintenance of roof slabs, rectification of electrical work, rectification of dampness, plastering etc. Based on the report of the new commissioner, the District Forum passed an order on 31.08.2005, as per which, a sum of 2,36,277.30ps. was directed to be paid by the OPs to the complainant alongwith interest @6% p.a. This included a sum of 1,82,069/- as per report of the Commissioner and a sum of 54,208.30ps. as the return of the excess payment made by the complainant to the OPs. Being aggrieved against this order, the OPs filed an appeal before the State Commission which was decided vide order dated 19.05.2010. The appeal was partly allowed and the OPs were directed to pay 1,53,465/- with interest @6% p.a. from the date of filing the complaint to the complainants. The State Commission while passing this order, allowed compensation only on 2 items out of the

11 items stated in the report of the Commissioner. They stated that a sum of 60,323/- was for dismantling of doors and windows and fitting new ones and 51,300/- was payable for floor maintenance of roof slab. Further, out of the excess payment of 54,208.30 made to the OPs, a sum of 12,366/- was payable to them as 10% escalation in the cost of construction, meaning thereby that a sum of 54,208.30ps - 12,366, i.e., 41,842/- was payable to the complainant. In this way, the total amount payable was 1,53,465/- (60,323/- + 51,300/- + 41,842/-).

Being aggrieved against this order, both the parties are before us by way of the present two revision petitions. While Revision Petition No. 107/2011 has been filed by the OPs stating that the Court Commissioner appointed by the District Forum had acted beyond its terms of reference and hence, a qualified chartered engineer should be appointed to go into the facts of the case, the Revision Petition No. 1870/2011 has been filed by the complainants, praying that the entire amount of compensation of 2,36,277/- allowed by the District Forum should be paid to them and hence, the order of District Forum should be restored.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The report submitted by the Local Commissioner, Geetha S. Nair, on two occasions, i.e., July 2003 and 22.03.2005 is a detailed one and has been made after carrying out thorough analysis of different issues, involved in the construction of the said building. The Local Commissioner stated that a sum of 1,82,069/- was payable to the complainant by the OPs on 11 different items. However, the State Commission has allowed compensation on two items only, although they have not given any reason for not allowing compensation on the other 9 items. On item -2 they reduced the compensation from 62,538/- to 51,300/- for which no reasons have been given. We, therefore, do not find any justification for agreeing with the order passed by the State Commission, by which they decided to delete 9 items from the report of the Local Commissioner, while awarding compensation. However, we do agree with the contention of the State Commission that out of the excess payment made by the complainant to the OP, i.e., 54,208.30ps., a sum of 12,366/- was deductible on account of 10% escalation in the cost of additional construction. In our opinion, therefore, the State Commission should have allowed the complainants to receive a sum of 2,36,277.30 awarded by the District Forum after deduction of the said sum of 12,366/-.

We also observe that the deficiency in the construction of the building as made by the OPs are matter of fact only, which has been adequately gone into the reports submitted by the Commissioners appointed from time to time and the said reports have been duly considered by the consumer fora below, while passing the orders in question. In the exercise of the revisional jurisdiction, we do not feel enough justification to go into such questions of fact with regard to the deficiency in the construction work, apart from the observation of the State Commission about escalation in the cost of additional construction as stated above.

Based on the discussion above, these two revision petitions are disposed of with the direction that the OPs are liable to pay a sum of 2,23,911/- (1,82,069/- + 41,842/-) to the complainant alongwith interest @6% p.a. from the date of filing of the complaint, i.e., 31.04.1998 till realisation and a cost of 3,000/- as awarded by the District Forum. There shall be no order as to costs.