SUKHADARSHAN CO-OPERATIVE HOUSING SOCIETY vs MANAGING DIRECTOR, M/S. MANSUKHANI BUILDERS PVT. LTD.

THIS is a complaint filed by complainant Society against the builder alleging defective construction and thus having rendered the deficient service by the builder. The complainant alleged that the services of the Opposite Party were hired to construct the flats in four buildings in the complex. The flats were constructed by the Opposite Party. However, the construction was made not in accordance with the approved plan and that there were defective construction in several flats. The complainant, therefore, alleged that after entering into the possession of the flats in the month of October, 1990, the Society found that the Opposite Party was deficient in its promised service. The complainant alleged that Opposite Party collected Rs. 6,500/- amounting to Rs. 19,98,875 /- from the members of the society and did not render the promised service while carrying out the construction work. The complainant, therefore, alleged that there were many defects in the construction which were described in para 1 of the complaint. The total cost of the deficiencies in construction claimed is Rs. 6,73,675/-. The amount of Rs. 4,42,000/- has been claimed from the Opposite Party towards Rs. 6,500/- collected each from 68 members. The complainant also claimed Rs. 8,83,200/- as described in para 3 of the complaint. The total claim is Rs. 19,98,875/-.

IN response to the notice u/Sec. 13 of the C.P. Act, the Opposite Party has filed its written version and denied the allegations by the complainant. We have heard Mr. Baphna, Advocate for the complainant and Mr. Panday, Advocate for the Opposite Party. According to Shri Baphna, it is an admitted fact that the Opposite Party Mansukhani Builders had agreed to render his services for construction of the flats of complainants for consideration. The articles of agreement executed between the parties clearly evidences the fact that the services of Opposite Party were hired for consideration. This complaint is maintainable under the provisions of the Consumer Protection Act, 1986. As against this, the Opposite Party contended that the complainant S.K. Bhagat as a President is not authorised by the Society to file this complaint. This contention appears to be without any substance since the complainant has filed this complaint as a President of the Society for which he has used the official pad of the Society and also the stamp of a President to indicate that he has filed this complaint in his capacity as a President of the Society. The fact that Sukhdarshan Co-operative Housing Society Ltd. is a Registered Society is clear from the certificate of registration filed on record.

Another contention raised by the Opposite Party is that this Commission has no jurisdiction to entertain the complaint since this Commission has pecuniary jurisdiction to entertain the complaint for a claim of Rs. 10,00,000/-. However, the submission is totally incorrect in view of the amendment made to the Consumer Protection Act in the year 1993 under which the pecuniary jurisdiction of this Commission is raised to Rs. 20,00,000/-.

THE third objection raised by the Opposite Party is that the complaint is not filed within the prescribed period of limitation. We do not agree with this submission since the complaint filed on 13.10.93 is within the limitation since till 7.5.93, the correspondence ensued between the parties; and the Opposite Party failed to remove the defects as pointed out by the complainant in the construction of flats. Lastly, the Opposite Party denied the deficiency in the construction. In order to establish that there exists deficiency in the service of the Opposite Party, the useful reference has to be made to the report of Shri A.N. Joshirao, the Architect who inspected the premises on 24.3.94 and submitted his detailed report dated 30.9.94. The contents of the said report are affirmed by Shri Joshirao on an affidavit. A perusal of that report clearly shows that after going through the agreement and other necessary papers, said Joshirao found that at many places the bad workmanship and at certain places use of sub-standard materials was the main cause of the defective work. At page 3 of the said report, Joshirao has stated that the pavements in the compound premises were having defective concrete work and the surface was found cracked at several places. The surface was found pealed off and requires rectification. Shri Joshirao has estimated the cost of removal of this defect at Rs. 1,13,750/-. It is described in para (a) of the report. In para (b) of the report, the details of leakage resulting in dampness is mentioned. It is observed that there is absence of use of damp proof material and for that purpose for the removal of the said defect, the plaster at some places is required to be removed and the water proofing material is required to be used. For that purpose, Shri Joshirao estimated the cost of Rs. 2,75,500/-. In Block No. 301 on 3rd floor in Building ''D'' the glazed tiles were found defective in platform and sink. The quality of material used as morter was found to be poor quality. This defect is said to be detected in 20 blocks. For that purpose, the estimate is for the amount of Rs. 70,000/-. In para ''D'' the defective water supply lies in each block were noticed. The workmanship is found to be very poor and the galvanised iron pipe was found to be substandard. The estimated cost for correction of the construction is for the amount of Rs. 5,44,000/-. In para (e) of the report, it is pointed out that although in the drawing attached to the agreement two windows were provided for every bed room and kitchen only one window is provided in bed room and kitchen. This is obviously a deficiency and for providing the additional one window in bed room and kitchen in each flat would cost Rs. 2,38,000/-. In para (F), a decorative box in each building requires water proofing and for that purpose estimated the cost of Rs. 1,50,000/-. In para (g), the inadequate construction of water storage tank is mentioned. According to the Architect, one more R.C.C. water storage tank is required to be constructed at the cost of Rs. 1,50,000/-. In para(h), the defective flooring of broken pieces of marble tiles is mentioned and for the correction of that work Rs. 50,000/- expenses are expected. Lastly, in para (1) Rs. 12,000/- is estimated for repairs of leakage of drain pipes. The total estimates for the removal of the defects described in para (a) to (i) Rs. 13,61,250/-.

AFTER going through the aforesaid report, we are convinced that me Architect Mr. Joshirao has submitted the estimate of expenses required for the removal of defects. The aforesaid report of Shri Joshirao has been objected to by the Opposite Party on very strange grounds. The Opposite Party filed its written rebuttal dated 29.11.94. The Opposite Party objected to the report and affidavit of Shri Joshirao on the ground that he has not mentioned any degrees and qualifications in his affidavit and also did not disclose his residential address. This objection is incorrect. The report of Joshirao dated 30.9.94 clearly indicates that he is G.D.Arch., B.Arc. (B.C.), a registered Architect with the Council of Architect, New Delhi. He also stated his residential address of Bandra (E) at Bombay with telephone number and pin code. Thus, there is no substance in this objection which is obviously frivolous. As regards the defects in the construction, it is stated by the Opposite Party that after the complainants were placed in possession they occupied it and, therefore, after the monsoon which occurred, the claim of leakage cannot be accepted. In any case, we find that the report of Joshirao is very clear and as regards the defective places, and failure on the part of the Opposite Party to use the water proofing material. Thus were find that in the rebuttal there is a total denial of complainant''s claim by the Opposite Party. It is true that after the complainants were placed in possession they are residing in their respective flats. It cannot be imagined that they would create the damage to the walls, floor as a result of use of the premises. However, the report of Joshirao clearly indicates that the defects found were not as a result of residence in the flats but as a result of defective construction due to bad workmanship and due to the use of substandard materials. It is clearly a defect in the construction of not providing second window in the bedroom and kitchen as per plan. On consideration of the entire report of Shri Joshirao, which inspires confidence we are convinced that me Opposite Parties were deficient while rendering the service for the construction of the flats. The defective workmanship or the use of substandard material while constructing the flats is directly as a result of negligence in the service of the Opposite Party. It is obvious that in order to remove the defects the complainants will have to spend the amount of Rs. 13,61,250/-. The estimates are collected by the qualified Architect and, therefore, there is no reason for us to doubt the calculation of estimate. Under the circumstances, we hold that the service rendered by the Opposite Party has been deficient as a result of negligence in the service of the Opposite Party. As regards the claim of complainant, we find that each of the item as regards the defective workmanship or defects in the construction has been fully justified by Architect Shri Joshirao. He has also filed his affidavit in support of his findings. Thus, there is no doubt that the complainants proved their allegations of defective construction of work by the Opposite Party. Hence, we pass the following order: ORDER

THE complaint is allowed. THE Opposite Party is directed to remove the defects as pointed out by Shri Joshirao in his report dated 30.9.94 within a period of three months from the receipt of this order. THE work of removal of defect shall commence within a fortnight from the receipt of this order. If the Opposite Party fails to commence the repair work within 15 days time as stated above, the Opposite Party be directed to pay to complainant Rs. 13,61,250/- for the removal of the defects. If the Opposite Party fails to remove the defects or fails to pay the aforesaid amount to remove the defects within the period, after the expiry of three months, the complainants are at liberty to remove the defects at their own costs strictly in accordance with the specifications, drawings and designs in terms of agreement, and maintain account of costs of repairs and are at liberty to claim the repair expenses from the Opposite Party by filing a complaint before the Commission. In that event, complainants are granted liberty to file a complaint before the Consumer Fora for the purposes of recovery of the repair expenses. THE complainants also be paid Rs. 1000/- as costs. Complaint allowed with costs.