NAZIR AHMED BHAT vs Ghulam Mohammad Dar

-ORDER dated 6.9.2005 passed by the learned Divisional Consumer Protection Forum, Srinagar (hereinafter to be referred to as the Forum) has been challenged through the medium of this appeal. The Forum has dismissed the complaint of the appellant on the plea that he had failed to prove that the respondent had provided defective service. 1. The facts of the case in brief are that appellant who is an employee in the J&K Bank had hired the services of the respondent for the construction of first and second storeys of his house situated at New Theed Harvan. Respondent is an expert mason by profession and he along with him had also hired the services of other four masons named in the complaint. In the second storey the chimney and kitchen were to be constructed and in the third floor trusses were to be laid for tin roofing and gables were to be carved out from the attic space. Appellant''s case is that the respondent deliberately indulged in bad workmanship without bothering to observe the approved plan. The entreaties of the appellant to desist from committing lapses were being constantly ignored by the respondent. Deliberate delay was caused in the completion of the construction works because 184 working days were spent when actually very less number of days were required. Kitchen was constructed in such a shabby manner that it looks like an operation theatre. The chimney of the kitchen was removed and it was swapped by a pipe which arrangement resulted into poor emission of smoke. The tin on the roof has not been inserted in the trusses of the house, resulting into the inflow of rainwater on the inner wall of trusses which afterwards pours on the floor. The respondent in his written version had pleaded that appellant had started the house without any approved plan i.e. "Naksha" because it was not prepared either by an architect or engineer. That respondent by using his skill and experience in a best possible manner had constructed the house in question and his conduct was approved by the appellant as he without any demur had wilfully settled all the payments including payments to the labourers and to the respondent. It is emphatically denied that appellant had provided any design of the construction works which the respondent was bound to construct.

THROUGH the medium of this appeal the appellant has challenged the impugned order on the following grounds: (a) There is misappreciation of evidence. The learned Forum has failed in its duty to appreciate the evidence of appellants'' expert witness namely, Abdul Hamid Shoda. The impugned order is based on no evidence. (b) The impugned order is based on no evidence.

Heard the arguments.

Mr. Sami Yaqoob, Advocate of the appellant has strenuously contended that the learned Forum has fallen into error while appreciating the evidence of the appellant because it is conclusively proved that the respondent had rendered defective service in the construction of two storeyed house in question. He has very emphatically referred to the deposition of Mr. Abdul Hamid Shoda who is an approved draftsman of Srinagar Municipal Council and has deposed that he examined the constructed house and found the construction done in a defective manner and in order to remove those defects the newly constructed portion of the building requires reconstruction. He has prepared the estimate for defective construction which has been placed as Annexure A1 with his deposition and in order to remove those defects an amount of Rs. 30,944 is required for reconstruction as there is no other alternative method to remove those defects. According to the learned Counsel, this is the evidence of an expert which has not been shattered either in cross-examination or by the production of expert evidence in rebuttal. The defects which were highlighted in the complaint have been proved by the evidence of the appellant and two labourers namely, Mr. Abdul Gani Wani and Mr. Manzoor Ahmed Ganai. Mr. Manzoor Ahmed Ganai has stated that the appellant in his presence had entered into an altercation with the respondent when the latter at its own had removed the shuttering for the construction of gable from outside and insisted to place the shuttering from inside. In his presence, the respondent had agreed that in case any defect remained in the gable, he would be liable to indemnify the appellant. The respondent had taken the advantage of the absence of the appellant who being an employee had to remain present in the office during the duty hours. He has also referred to the testimony of Mr. Abdul Gani Wani who has also worked as a labourer with the respondent and spoken how the construction was constructed by the respondent in a leisurely manner and that the insertion of 16 inch pipe in the chimney and 6 inch tin in it had resulted in the filling of smoke in the whole house. The defects in the construction were known during the winter season and appellant had asked the respondent to remove those defects which was never done. To counter the arguments the learned Counsel appearing for the respondent has contended that the learned Forum has appreciated the evidence of the parties in its true perspective and the impugned order does not suffer from any legal infirmity.

AFTER considering the respective contentions of the Counsel for the parties, we reproduce the relevant portions of the finding of the learned Forum recorded in para Nos. 9 and 10 of the impugned order and they are to the following effect: Para 9: xxx xxx xxx "Although the complainant has in his complaint averred that OP did not construct the house as per approved design still it is the admitted case of the complainant that complainant had not prepared any approved plan from any architect or concerned engineer before the construction of his house. Since there was no approved design or approved plan by any expert as such there is no question of deviation from the approved design. Therefore the house was constructed by the OP of his own skill or as per the directions of the complainant and his choice."

Para 10: xxx xxx xxx "To prove these defects in the house allegedly made by the OP during construction, the complainant has not adduced any expert evidence. The defects pointed out by the complainant in his claim were supposed to be proved by an expert but complainant has not adduced any expert before this Forum nor requested this Forum to depute any expert who would have inspected the spot and report about the defects in the house. On the other hand, the complainant has submitted an affidavit of Nazir Ahmed Ganai and Abdul Gani Wani who admittedly are the labourers and not mason or technical persons. As per the affidavit of Manzoor Ahmed Ganai there was only defect in the gabel and as per the affidavit of Abdul Gani Wani that OP inserted 16" pipe in the chimney and 6" tin in it which prevented the snow on chimney from being fallen and resulting into the filling of smoke in the whole house."

The evidence brought on the record of the case has established that there are manufacturing defects in the construction in question, but they can be errors of the judgment and in the absence of cogent proof they cannot be said as a result of wilful negligence. The appellant had approached the Forum with a specific allegation made in para No. 6 of the complaint that respondent is known for his best skill and despite being given many opportunities to him to reconstruct the second storey in accordance with requirements and choice of the appellant keeping in view the approved design, the respondent did not change his behaviour. In the written version, the respondent in para No. 4 had taken a specific plea that appellant has constructed the house without any site-plan (Naksha) approved by any architect or engineer and that respondent according to his best skill and experience constructed the house. In reply to the allegation made in para No. 6 of the complaint; respondent emphatically had denied that any design of the construction was provided to him. The appellant in his deposition on affidavit in para No. 5 has stated, "That the opposite party was given ample opportunity by me to construct the house in accordance with my choice and the approved design. But he did not do so. Instead he indulged in bad workmanship and skill deliberately with intent to put me to losses". He has also deposed that he got the effected premises examined and inspected by a qualified surveyor namely, Mr. Waris Sheikh who also had advised him for the reconstruction of the house but has not examined that surveyor as a witness. The appellant has failed to place the alleged "approved design" on the record of the case when under law he was required to prove the alleged negligence on the part of the respondent on the basis of deviations made from the approved design.

BE that as it may, apart from the above stated factual lacuna, the case in hand also suffers from the inherent legal infirmity as the "service" rendered by the respondent does not fall within the ambit of "service" as defined in Section 2(o) of the Act which reads: "Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, house cons-truction, entertainment, amusement or the purveying a news or other information, under a contract of personal service."

A bare reading of the above stated provision of law makes it clear that "house construction" is covered under the definition but it should be "under a contract of personal service". To put it tersely, there should have been a contract of personal service entered into by the appellant and the respondent for the construction of the house in question on the basis of an approved design. The "deficiency" in service as defined under Clause (g) of Section 2 of the Act could only be attracted on the proof based on cogent evidence that there is any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law for the time being in force or had been undertaken to be performed by the respondent in pursuance of a contract or otherwise in relation to any service. In the present case there is not even an iota of evidence to hold these legal requirements were fulfilled to attract the provisions of Sub-clauses (o) and (g) of Section 2 of the Act. We find no hesitation in holding that the case of the respondent does not fall within the ambit of the Act. In view of the discussion made above, we find no merit in the appeal which is dismissed. The parties are left to bear their costs. The record of the Forum be returned. Appeal dismissed.