V. Sudhakar vs T. RAVICHANDRAN

THE complainant is the appellant in this appeal arising out of the decision in O.P. No. 156/2000 on the file of the District Consumer Disputes Redressal Forum, Chengalpattu. THE complaint has been filed seeking a direction to the opposite party to pay Rs. 5,00,000 towards compensation for deficiency in service and Rs. 2,00,000 towards mental agony and physical strain on the following allegations: (a) THE complainant entered into a construction agreement with the opposite party on 13.12.1990 for construction of flat ''B'' in the ground floor measuring 630 sq. ft. in the scheme known as Sri Krishna Flat in Plot No. 5, Krishnaraja Nagar, 137, Velacherry Village, Chennai-88. THE entire cost had been paid by the complainant to the opposite party. In addition, he paid a sum of Rs. 25,000 on demand by the opposite party for which no receipt was issued. He took possession of the flat on 22.8.1999. On taking possession, he found several defects in the construction. He called upon the opposite party to rectify the defects. THE opposite party not having rectified the defects, the present complaint came to be filed.

IN the written version filed by the opposite party, he has stated as follows: (a) The agreement between the parties contemplates reference to Arbitrator and the Consumer Court has no jurisdiction to entertain the complaint. There was no extra payment in a sum of Rs. 25,000 paid by the complainant to the opposite party as claimed. The amount paid was only Rs. 4,88,000 for the flat and the undivided share in the land when the amount due was Rs. 5,25,000. There was still a sum of Rs. 37,000 payable by the complainant to the opposite party. The complainant had occupied the property in June and not on 22.8.1999. Whatever defects had been pointed out by the complainant were superficial in nature and they had been invented only for the purpose of the case. It was not correct to say that the flat was not in a good condition. The flat was handed over in absolutely tenantable condi-tion. There was no deficiency in service.

On the above pleadings, the District Forum raised the following two points for consideration: (1) Whether there is deficiency in service on the part of the opposite party? (2) Whether the complainant is entitled for the remedies sought for?

On the side of the complainant Exs. A1 to A5 were marked and on the side of the opposite parties Exs. B1 to B5 were marked. There was no oral evidence let in. On the materials placed, the District Forum found that the complainant had not pointed out any defect including apprehension about a coconut tree trunk which was under the flooring, that the complainant''s own consultant Engineer had not pointed out any major cracks or defects in the construction, that the cracks were only air-cracks and minor points with regard to the carpentry work. On the above findings the District Forum held that there was no deficiency in service on the part of the opposite party. However, the District Forum allowed the complaint in part directing the opposite party to rectify the minor defects like air cracks and defects in the carpentry works within two months from the date of receipt of the order. It is as against that the present appeal has been filed.

WE have gone through the material papers and we are satisfied that no exception can be taken to the decision reached by the District Forum. It is common knowledge that in constructions small air cracks are unaviodable and they would disappear in due course. As rightly pointed out by the District Forum, the photographs produced only show very minute lines indicating small air cracks. The District Forum has made it clear that in case the complainant found that there was any further development with regard to these air cracks, he could approach the opposite party and the opposite party if and when approached should rectify the defects. One persistent point attempted to be made by the learned Counsel for the complainant is that there was a coconut stem below the flooring and the stem had not been removed by the opposite party and that this would result in damage to the flooring. Admittedly, the stem is not of a living tree and it is a dead tree which is under the flooring. It is very unlikely that the stem would in any way affect the flooring. In fact, even according to the learned Counsel all these years, there has been no problem on account of the coconut stem being there below the flooring. We can understand if it had been a live tree which had not been removed. It is a dead tree and absolutely no problem should arise on account of the alleged non-removal of the coconut stem below the flooring. The District Forum has found that the complainant has not substantiated his stand in the complaint. As already noted, we have carefully gone through the materials on record and we do not find any warrant for intefering with the conclusion reached by the District Forum.

THE apeal fails and the same is dismissed. However there will be no order as to costs in the appeal. Appeal dismissed.