SANKALPANA vs PUSHPA RAMNATH PAI

THIS appeal is directed against the order dated 17.1.2000 passed by the District Forum, North Goa in Complaint No. 72/95. The appellant is the opposite party before the District Forum.

THE facts as gathered from the file are that the respondent booked a duplex bungalow built by the appellant for an amount of Rs. 2,48,000/- by an agreement dated 20.5.1992. THE appellant was to deliver possession of the bungalow by October, 1993, but delivered possession after nine months after receipt of an amount of Rs. 40,000/- towards extra works done by the appellant and the respondent''s request. On entering the bungalow, the respondent noticed several defects in the bungalow and addressed a letter dated 8.3.1995 to the appellant requesting settlement of the matter within ten days. As there was no response from the appellant, the respondent filed the complaint before the District Forum claiming compensation for delay in delivery of possession as well as for rectification of the defects in construction work. THE appellant resisted the complaint on the ground that the respondent was not a consumer and that she delayed in payment of instalments and hence the delay in possession. THE District Forum had dismissed the complaint by its earlier order dated 28.7.1997, but the same was remanded to the Forum by this Commission by order dated 10.12.1998 in Appeal No. 98/97. Both parties have filed their written arguments. The appellant has submitted that the respondent was extremely irregular in payment of instalments as stipulated in the agreement. He further submitted that there are discrepancies in the deposition of the Commissioner regarding the cause of the dampness in the external wall, the location of the septic tank and the defects in welding of window grills. He pointed out that there was no mention of external painting to the bungalow in the agreement. With regard to shifting of the septic tank, the appellant submitted that the same was built as per approved plans and any shifting would contravene PDA Regulations. 1998 (1) Goa LT 184 was cited.

On the other hand, the respondent has submitted that the impugned order was proper and needed no interference. She also submitted that the Commissioner''s report and deposition was unshaken and was rightly relied upon by the Forum.

WE shall first deal with the issue of leakage through the external wall of the bedroom. The Commissioner, in his report on record, has confirmed that there is a leakage above the door of the bedroom on the south side, and that the same is probably due to seepage of water through external plaster cracks. He has then proceeded to give his opinion on the probable causes of the dampness and suggested the remedy. In his cross-examination, the Commissioner has stated that there is dampness in the said external wall and has explained the probable causes. The issue to be decided is not how and why but whether there is dampness at the spot alleged by the respondent. In fact, the how''s and why''s have to be discovered by the appellant for himself as seepage/dampness on any external wall is a construction defect and no approved construction engineering standards and practices permit seepage/dampness on external walls whatever the circumstances. Admittedly, the bungalow in question is at a higher level and is susceptible to wind pressure and heavy rain. This is all the more a reason for the appellant to have taken extra precautions when constructing and plastering the external walls of the bungalow. WE do not find any reason to interfere with the Forum''s direction ''(a)'' on the order. We shall next deal with the issue of defects in the grills of the bungalow. The respondent, in her complaint, has not specified any particular window as having a welding defect in the grill. The Commissioner, in his report, has stated that the steel bars used for the grills were not proper and that one member was broken. He also observed that the workmanship of the grill work was not satisfactory. In cross-examination, he has ruled out the possibility of the said member having been broken due to handling by the respondent. The testimony of the Commissioner remained unshaken to this extent, and we find no reason to alter the Forum''s direction ''(b)'' of the order.

THE non-external painting of the bungalow is the next issue that requires our consideration. Admittedly, external painting of the bungalow has not been carried out. THE appellant has defended this by stating that the agreement did not mention anything about external painting of the bungalow and, therefore, they were not liable to carry out the said work. It is true that there is no mention of external painting in the agreement. THEre are six hundred different items/works that go into a normal house, and it is impossible to cover each and every item in the specifications annexed in an agreement. In our opinion, external painting is one of the most important items in the construction of any building structure, and is required to be done unless there is a specific clause stating it would not be done by the Builder. THE District Forum has acted properly in giving direction ''(c)'' which we uphold. Finally, we address the issue of shifting of the septic tank allegedly built within the area allotted to the respondent. It is the case of the appellant that the septic tank was constructed at the place marked in the approved plans and that shifting it would violate the said approved plans. The copy of the approved plan (site plan) relied by the respondent shows that the common septic tank and soak pit was to be built at a distance of about 5 metres to the west of Bungalow ''C''. The Commissioner, in his report, has stated that the septic tank has been constructed within 3 metres of the bungalow. In cross, no suggestion was made by the appellant to the Commissioner regarding the distance between the septic tank and the bungalow being 5 metres. That being so, there is no doubt that the septic tank has not been constructed according to the approved plans. The Forum''s direction ''(d)'' regarding shifting of the septic needs no interference. We do not agree with the observation of the District Forum that the respondent is entitled to costs of Rs. 1,000/- as we feel that the amount is inadequate. After perusing the records of this case, we find that the respondent, a lady, has been subjected to unnecessary trouble at the hands of the appellant for getting her money''s worth. Instead of responding positively to her grievances, the appellant has put the respondent to avoidable expense, in terms of money, convenience and time, for the last five years. We, therefore, direct the appellant to pay the respondent an enhanced amount of Rs. 5,000/- as costs. This appeal is dismissed. The appellant is directed to comply with the impugned order of the District Forum and pay costs as above within thirty days. Order accordingly. Appeal dismissed.