S And S Qualicrete Constructions (P.) Ltd. vs V.V. Prithivipathy

SH . V.V. Prithvipathy, the complainant, has a residential building at Plot Nos. 5 and 6, IV Cross Street, Seethapathy Nagar, Velacheri, Chennai -42. There were various defects in the building. S and S Qualicrete Constructions Pvt. Ltd., the OP, vide its letter dated 9.5.2002, agreed to execute the construction of residential building. It was agreed that the original cost payable for construction of the residential building would be Rs. 17,95,000. The complainant accepted the said offer and paid an advance amount of Rs. 1,00,000 on 17.5.2002. The OP agreed to rectify those defects during the period 15.5.2002 and would complete by 15.12.2002. It was also agreed that at the time of filing complaint, exact measurement would be done and payment would be made accordingly. Ultimately, the complainant paid Rs. 21,77,854 and took the possession, in June, 2003. However, it transpired that the building was constructed with sub -standard materials and developing cracks were found over the wall, wood house used was found to be of poor quality and all the defects were not completely rectified. The complaint was filed before the District Forum with the following prayers - - 10. Hence, the complainant most respectfully prays that this Hon''ble Forum may be pleased to pass an award against the opposite party holding them liable to - - (i) pay Rs. 7,61,879.18, the abstract estimated cost of the repairs and rectification of defects with interest @ 24% from June, 2003 to till completion of rectification and repairs of defects namely: 1. carry out effective repairs on the extensive cracks all over the building and ceiling; in walls both internal and external as horizontal, vertical, diagonal in all window sills near doors and switch boxes; Remove and repaint the cracks plastered and remove the scarred finish; Repair the cracks above arch wall and make good the arch finish; Repair terrace wall cracks; Re -do the plastering in 1st floor room entrance and in all door frames; Complete re -plastering of ceiling (kitchen roof);

Fix main small gate properly and replace and re -fix lower tower bolt outside of gate;

Rectify carpentry works and door frame joints; Make windows to be closed proper and remove rough finish on doors by replacing bolts protruding.

Fix eye -holes at normal height and provide middle padlocks for kitchen doors, rubber brush behind doors to prevent banging against walls and tiles; Replace tower bolts that are used to fasten windows;

Re -arrange and fix kitchen sinks proper;

Provide steel soap trays near wash -basins;

Fix wash -basins of normal and usual size;

Provide powder coating finish on most padlocks and grills;

Provide Nani trap in open area behind staircase;

Proper exhaust fan provisions in toilets;

Give the walls need another coat of paint to mask scars;

Frontage outside gates to be made smooth and sloping to enable vehicles and people to get in easily;

To rectify the seepage of water in the external wash area during usage of toilet, bathroom and wash basin due to defective water proofing;

To rectify the mix up of the electric meter connections despite specific identification done by the opposite party;

To provide proper clamps to securely fix the provision for air conditioner with grill and frame; (ii) pay Rs. 3,00,000 for the deficiency of service committed by opposite party in failing to construct the building as per agreed specifications and for the delay in delivery; (iii) pay Rs. 4,00,000 as compensation for the resultant mental agony and pain caused by such deficiency of service; (iv) pay Rs. 15,000 as costs of this complaint and pass such or other orders and thus render justice.

THE District Forum, vide order dated 6.5.2009, rendered the following order - - In the result, the complaint is allowed. The opposite party is directed to rectify the defects in the building within 6 weeks from the date of receipt of copy of this order failing which, the complainant is permitted to rectify the defects and to recover the cost from the opposite party. The opposite party also directed to pay a sum of Rs. 1,00,000 as compensation for deficiency in service and Rs. 5,000 as cost of the complaint to the complainant. The amount shall be payable within six weeks from the date of receipt of copy of this order, failing which, the amount shall carry interest at the rate of 9% per annum, till the date of payment.

Aggrieved by that order, First Appeal was filed before the State Commission which was dismissed, vide order dated 28.7.2011.

WE have heard the learned Counsel for the parties. Counsel for the petitioner vehemently argued that the petitioner has rectified four flats. The respondent/complainant works out of India. These four flats would be used for re -sale or for fetching rent. Consequently, this transaction is commercial. The complainant is not a consumer.

THESE arguments carry no conviction. It must be borne in mind that the respondent/ complainant is not a purchaser of four flats. He is already the owner of four flats. The petitioner/OP is a service provider. If he was going to pray for purchase of four flats, then he would ''not'' be a ''consumer''. Consequently by no stretch of imagination, it can be said that the complainant is not a consumer. Counsel for the petitioner/OP further argued that the case of the petitioner hinges upon the report of the Civil Engineer, Capt. P.E. Deenatha Rao. His report dated 3.12.2003, reads as follows - - I have inspected on 8.11.2003, the building bearing plot Nos. 5 and 6, Seepathy, Fourth Street, Velacherry, Chennai - 600042, along with Tmt. Prithivipathy. During my inspection, I have found that masonry works are of Sub -Standard quality. There are Horizontal, Vertical and inclined irregular wall cracks existing. The wooden frames of Joinery are not of Malaysia Sal Wood. Only country wood is used for Joineries and the workmanship is very poor. I have prepared the estimate for setting right the Defects and damages to the completed new building standing thereon.

THE report regarding investigation on the cracking of the residential building at IV Street, Seethanagar, Velancherry, Chennai, given by Prof. Dr. P.K. Aravindan, Principal Consultant and Mr. P. Kathiravan, Senior Design Engineer, filed by OP, reads as follows - - From the analysis and design calculations carried out, it is found that the cracks are due to the differential settlement experienced due to the severe drought conditions prevailing in Chennai and consequent lowering of ground water table. Structurally, foundations are quite safe.

IT is thus, clear that the cracks are there. It is also clear that the petitioner/OP did not take precautions at the proper time. The appearance of cracks within a period of one year, clearly goes to show that there is deficiency of service on the part of the petitioner/OP. Moreover, we see no reason to discard the report given by Capt. P.E. Deenatha Rao. The report submitted by the Expert of the OP/petitioner supports the report of Capt. P.E. Deenatha Rao. It is a matter of grave injustice that the complainant should have taken the building on 15.12.2002, without any flaw. Moreover, the period of more than one decade has elapsed. The order of the District Forum has not yet been complied with. Justice delayed is not only justice denied, it is also justice circumvented, justice mocked and the system of justice undermined. We dismiss the revision petition and impose further punitive costs in the sum of Rs. 1,00,000 payable by the petitioner/OP to the respondent/complainant. This amount and the amount granted by the District Forum, be paid within 90 days from the receipt of this order, otherwise, it will carry interest @ 9% p.a. from the expiry of 90 days, till its realisation. The defects be removed within 90 days from the receipt of this order, otherwise, the petitioner/OP will be liable to pay Rs. 500 per day, as penalty, to the complainant, till compliance.