T.P. Moidu vs Alambath Meethal Fouzia , T. Moidu

IN this revision petition, there is challenge to order dated 28.6.2010, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short, ''State Commission '').

RESPONDENT No.1/Complainant filed a complaint alleging deficiency of service on the part of petitioner/respondent no.2(being O.Ps. No.1 and 2) in not completing the finishing work of the residential building owned him and thereby claimed refund of Rs.4,50,000/- with compensation under various heads and also costs. Petitioner as well as respondent no.2 filed separate written version denying the alleged deficiency of service on his part.

Defence of petitioner is that agreement to carry out the finishing work was entered into between respondent no.1 and respondent no. 2. It was respondent no.2 who had taken all the responsibility for completion of the work specified in the agreement. It was further alleged that petitioner had stored the materials for completing the work but respondent no.1 did not permit him to complete the work. Petitioner also disputed the fact that a sum of Rs.4,50,000/- is required to complete the finishing work.

RESPONDENT No.2 in its written version has stated that respondent no.1 is not a consumer as far as he is concerned. The agreement to finish the construction work of the respondent no.1 ''s house was undertaken by the petitioner and respondent no. 2 had only introduced the petitioner to respondent no.1. Thus, respondent no. 2 has prayed for dismissal of the complaint filed against him. Consumer Disputes Redressal Forum, Kannur (for short, ''District Forum '') vide its order dated 13.2.2004, partly allowed the complaint and directed petitioner and respondent no.2; " to refund an amount of Rs.2,80,200/- together with interest @ 12% per annum from the date of order till the date of realization and to pay Rs. 25,000/- as compensation and Rs. 2,500/- litigation expenses to the complainant. Out of that the complainant has to give Rs. 13,350/- to the Commissioner Gopinathan as supervision charges. The opposite parties are also directed to pay the above amounts within one month from the date of receipt of this order, failing which the complainant can execute the order against the opposite parties under Section 27 of the Consumer Protection Act ".

AGGRIEVED by the order of District Forum, petitioner filed appeal before the State Commission which was dismissed. It has been contended by learned counsel for the petitioner that as per terms and conditions of the agreement executed between the parties, if the remaining work as stipulated in the agreement is not completed within four weeks, then respondent no.1 was entitled to recover the entire loss sustained by him from respondent no. 2 and not from the petitioner. State Commission in its impugned order has observed ; " 7. The evidence on record and the circumstance of the case would show that the opposite parties failed to complete the finishing work as stipulated in P1 agreement. Even though time cannot be treated as essence of the contract regarding the construction work [(2007) 6 SCC 711 Para 17], the failure on the part of the opposite parties to complete the finishing work of the complainant ''s new residential building would amount to deficiency of service. There can be no doubt about the fact that the opposite parties 1 and 2 failed to complete the finishing work of the complaint ''s building. It is also to be noted that a period of 4 months time was also stipulated for completion of the finishing work. So, the Forum below has rightly held that there occurred deficiency of service on the part of the opposite parties in executing the work as specified in P1 agreement dated 17-04-1999. 8. An expert was deputed to assess the costs of the work done by the opposite parties. The report submitted by the first expert Commissioner has been marked as C1. As per C1 report, the work done by the opposite parties was assessed at Rs. 5.75 lakhs. But, the details regarding the assessment of the cost were not given in C1 report. The Forum below was not satisfied with the cost of work assessed by the expert Commissioner. But, one thing is clear that the expert Commissioner who submitted C1 report has reported that the finishing work of the building was not completed. 9. The Forum below was pleased to depute another expert Commissioner who filed C2 and C3 reports. The second expert Commissioner was examined before the Forum below as CW1. It is to be noted that the second expert Commissioner was deputed with the consent of both the parties and that the expert Commissioner was directed to complete the finishing work of the building under his supervision. Thus, the work was completed under the supervision of CW1 Gopinathan. He estimated the cost for completing the finishing work at Rs. 2,80,200/- including the supervision charge of Rs. 13,350/-. The evidence of CW1 and C2 report submitted by him would show that the finishing work was completed by incurring expense to the tune of Rs. 2,80,200/-. There is no ground to doubt the testimony of CW1 and his C2 report. The Forum below can be justified in relying on the testimony of CW1 and C2 and C3 reports. It is to be noted that the expert Commissioner was given the direction to compete the finishing work of the building by making use of the materials collected and stored by the opposite parties at the premises of the complainant. Thus, it can be concluded that a sum of Rs. 2,80,200/- was spent by the first respondent/complainant to complete the finishing work of her building. So, the opposite parties are liable to compensate the said loss of Rs. 2,80,200/- suffered by the complainant. It is to be noted that the entire costs for completion of the finishing work was given to the opposite parties. But, they failed to complete the finishing work and it resulted in getting the work executed under the supervision of the expert Commissioner Gopinathan. K.M ".

AS per copy of the deed of agreement executed between the parties (Page 34 of the paper book) respondent no.1 has paid a sum of Rs.7,25,000/- to the petitioner through respondent no.2. Now at this stage, petitioner cannot take a somersault and deny its liability.

FURTHER , the only ground taken by petitioner in this petition is, that the State Commission ought to have found that the amount claimed for deficiency of service is exorbitant, imaginary and without any data or principle. Thus, as per petitioner ''s own case, no legal issue is involved in this case. Under section 21 (b) of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. "

IN view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora below have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.

UNDER these circumstances, present petition is without any legal basis and is merit-less and same is hereby dismissed with cost of Rs.5,000/-. Petitioner is directed to deposit cost of Rs.5,000/- (Rupees Five Thousand Only) by way of demand draft, in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 30th November, 2012 for compliance.