TENZIN vs B.K.PAL

THIS first appeal has been filed against the order dated 6.5.2004 by the appellant, Shri Tenzin, who was the opposite party in the Original Complaint No. 14 of 2000 in the State Commission, HP wherein the complaint of Shri B.K.Pal alleging deficiency in service was allowed. Brief facts of the case are: The complainant/respondent, Shri B.K.Pal hired the services of appellant who is a builder-cum-contractor to raise three storeyed building in village Dhinda, Tehsil and District Shimla in his own land. Different rates were fixed for different floors and terrace and the parties agreed that the total cost should not exceed Rs. 17.00 lacs. Both the parties agreed as per contents of the agreement-Annexure C-2 dated 1.7.1997, the mode and schedule of payments have been decided stipulating that within 8 months the construction is to be completed meaning thereby end of December, 1998.

IT is alleged by the respondent that the appellant did not complete the construction or hand over the possession of the constructed house till the time of filing of complaint on 20.7.2000. It is also stated that he complied with the terms of agreement and made payment of Rs. 14,52,000/- before 24.7.1999 and that the remaining balance of Rs. 2,50,000/- is to be paid but not even one storey was completed. The State Commission appointed a Local Commissioner, Shri H.S. Bist, a retired Executive Engineer, HPPWD to submit a report after inspecting the said construction. In his report dated 24.10.2002, it is recorded that both the parties were present on the date of inspection i.e., 28.9.2002. After perusing the terms and conditions of the agreement, drawings provided by the respondent and the site inspection, he concluded that the building was incomplete; that there are permanent defects in the staircase, that the kitchen and toilets have not been constructed as per drawings, that the ground floor level is lower than the surface ground level with a difference of 9 cms. which results in surface ground water entering the ground floor during rains, that no catch water drain has been constructed to carry outside rain as well as kitchen and bathroom water, that the electric fittings were incomplete and on the whole the building is incomplete. The respondent claimed that he has to spend Rs. 4 lakhs further to get his house completed from someone else, Rs. 3,15,500/- as interest on the amount he had already spent on payments and for the delays and lastly compensation of Rs. 1 lakh totalling to an amount of Rs. 8,15,000/-.

THE State Commission accepted the Local Commissioner''s report and allowed the complaint and ordered the appellant to pay Rs. 3,00,000/-., Rs. 5,000/- compensation for mental harassment and Rs. 2,000/- as costs to the complainant.

THE Local Commissioner, Dr. Bist is a retired and experienced Executive Engineer from HPPWD and no objection was taken to his appointment by the appellant till the report was concluded. It is not the case of the appellant that these defects do not survive on which he has not made any relevant submissions. His main contention is that the Commissioner should not have gone through the terms and conditions of the agreement which is beyond the scope of the investigation. We do not agree with his contention. The site inspection involves not only the present condition of the construction but also as to what is the scope of the work the appellant is required to complete. Except a mere bald statement that the Local Commissioner has exceeded the scope in our view has no meaning. Appellant''s contentions are two-fold. Firstly, he submitted that the construction is complete as per agreement and that he has also executed extra and additional work at the request of the respondent for which payment has not been received from them. Secondly, since a recovery suit has been filed in the Court of District Judge, Shimla for the failure to make the balance payment of Rs. 4,99,000/-, this is a counter-blast complaint filed by the respondent , and averred that such complaint filed to blackmail him should not be entertained.

ALL these objections have been filed in the State Commission by the appellant. As per the report of the Local Commissioner, which opined that the appellant has not executed the building as per the drawing of the architect itself is a deficiency on his part. There are permanent defects in the staircase, which cannot be set right without reconstruction after dismantling of the existing one. This is a major deficiency/defect. We need not further elaborate on the defects pointed out in the report as the defects of staircase are permanent one and this defeats the very structure of the planning of the interiors of the building. There is no reason for us not to place reliance on this report.

WE do not see any reason for us to interfere in the order of the State Commission which has gone through the report thoroughly and the said contentions raised in the appeal have already been dealt with in the well reasoned order passed by the State Commission. Accordingly, we dismiss the appeal and affirm the order of the State Commission. No order as to costs.