VIJAY KAPOOR vs Damodar Thali

THIS revision petition has been filed against the impugned order dated 04.07.2014, passed by the Goa State Consumer Disputes Redressal Commission (for short ''the State Commission'') in two appeals, i.e., appeal No. 69/2013, Damodar Thali and Anr. vs. Vijay Kapoor and appeal No. 70/2013, Vijay Kapoor vs. Damodar Thali and Anr., as a consequence of which, the appeal filed by the present petitioner/complainant was ordered to be dismissed and the order passed by the District Forum on 30.8.2013, partly allowing the said complaint, was set aside.

BRIEFLY stated, the facts of the case are that the petitioner/complainant filed the consumer complaint in question before the District Forum saying that he employed the services of OPs/respondents for carrying out construction of a house on the plot owned by him. The OP -1 assured him that he was a qualified, experienced civil engineer, having his own proprietary firm. However, the petitioner/complainant put him in touch with his own architect and chartered engineer, asked him to exchange drawings and paid money to the tune of ? 2 lakhs to him for carrying out the said construction. However, at a certain stage, differences arose between the parties as regards the quality of work, proper billing, delay and failure to meet time schedule etc. The complainant then terminated his agreement with the OPs and demanded return of ? 77,588/ - vide calculation sent as per e -mail dated 24.12.2010. Subsequently, the complainant found that the construction works undertaken by the OPs had started developing curvature and cracks. As per the opinion obtained from his architect and engineer, the complainant demolished the structure raised, and incurred a cost of ? 33,000/ -. The said amount should be paid to him by the OPs alongwith interest @18% p.a. He also demanded that a sum of ?3.27 lakh should be paid by the OPs for the estimated increased cost of the project, ? 2 lakh should be paid for mental agony, ? 2 lakh as punitive damages and ? 30,000/ - as cost.

THE complaint was resisted by the OPs by filing their written statement before the District Forum in which they denied the allegations levelled by the complainant and stated that the work was undertaken as per the quotation dated 23.10.2010 accepted and acknowledged by the complainant. They further took the stand that they had already spent more than ? 2 lakhs received from the complainant and hence, the complainant owed them certain more amount. The demolition was done by the complainant without taking them into confidence. The District Forum vide their order dated 30.08.2003, allowed the complaint partly and ordered the OPs to return a sum of ? 1.5 lakh as 75% of the amount received by them from the complainant. Two appeals were filed against this order before the State Commission one by the OPs requesting for dismissal of the complaint and other by the complainant / petitioner for enhancement of the awarded amount. The State Commission, vide impugned order, dismissed the appeal of the petitioner/complainant, but allowed the appeal of the OPs and set aside the order of the District Forum and thus, dismissed the complaint in question. During arguments, the petitioner who appeared in person, stated that as per the construction licence issued by the village panchayat, SE -OLD -GOA, the panchayat was to be informed after excavation and before laying the plinth foundation. The construction was to be carried out as per the alignment given and plinth level fixed by the panchayat. However, these conditions were not met by the OPs. Further, the OPs sent him the final bill statement, but there was no technical verification for the same. The written statement filed by the OPs had not been attested by any authority and it does not disclose the source of information for the facts stated. The complainant also argued that he did not sign the quotations dated 23.10.2010. His signatures placed on the said quotations were lifted by the OPs from some other documents and put on these quotations. The petitioner/complainant stated that the order passed by the State Commission was not in accordance with law as the State Commission had not given any cogent reasons to disagree with the version of the petitioner. As per the report made by the architect and the engineer and the photographs on record, the construction made by the OPs was faulty. They were made aware of the shortcomings from time to time, but still, they did not carry out the necessary rectification.

IT was argued on behalf of the respondents that the complainant terminated the agreement with the OPs unilaterally, without any intimation to the OPs. The OPs had already spent more amount than the money received by them from the complainant and are liable to be given the balance amount due to them. The order passed by the State Commission was in accordance with law and should be upheld.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

A perusal of the complaint in question reveals that according to the complainant, the OPs gave him quotations vide letter dated 23.10.2010 and then letter dated 25.10.2010. However, he found these quotations to be non -transparent and not in the format requested by him. He asked the OPs to rework the same on transparent lines and provide it per format requested and mutually agreed between them. However, the subsequent quotations given were also non -transparent and highly inflated and hence were rejected. The failure of the OPs to submit transparent cost estimates amounted to deficiency in service and unfair trade practice. The complainant has further stated in his complaint that since he was in urgent need for a roof over his head and as per the assurances and promises made by the OPs that the house would be ready within 2 1/2 months, he paid them advance money of ? 1.3 lakh vide agreement letter dated 26.10.2010 subject to certain terms and conditions. Even after that, he made further payment of ? 70,000/ - making a total of ? 2 lakh, although there were issues concerning transparency, quality, quantity, supervision of works etc.

FROM the above version given by the complainant himself, it is not understood as to why he entered into an agreement with the OPs if he had so many issues with them right from the very beginning. Since the complainant had the services of his own architect and engineer available, he should have personally satisfied himself before entering into a contract with the OPs. The OPs have also stated that before entering into contract, sufficient changes had to be made in the offers given by them at the instance of the complainant. The complainant made payment to them only after the said changes had been carried out. It is clear, therefore, that the contract was entered between the parties after great deal of discussion on both sides.

THE State Commission have brought out in their order that the architect and chartered engineer known to the complainant had not filed their affidavits in support of the expert opinion by them, in the absence of which, it would be totally insufficient to rely and act upon the said expert opinion. The State Commission observed as follows in their order: - "In this regard, the impugned Order appears to have ignored the alleged role purportedly played by the Architect of the Complainant, Mr. Monteiro and his Chartered Engineer Mr. D''Souza who are alleged to have been acquainted with the facts and circumstances of the present case as both of them have furnished their reports vide Exhibits 5 (e) and 5 (f) of the record. These two are supposed to be the witnesses for the Complainant as the latter relies on their expert opinion. However, it is observed from the record that the aforesaid two qualified persons have failed to file their respective Affidavit/s in support of the expert opinion. It is true that the Ld. Forum at page 4 of the impugned Order was pleased to observe that ''non filing of the Affidavit in support of the opinion is only the technicality that the Consumer Fora not only can but are expected to dispense with''. The Ld. Forum further observed that ''In case Opposite Party wished to challenge these reports he could have insisted on the same being sworn when submitted and/or could have also applied for cross -examination of these individuals. In absence of this, the Architect and Engineer''s reports are accepted for our consideration as those of qualified professionals in their fields.''

With due respect, we are unable to agree with the aforesaid observations of the Ld. Forum in as much as we take the view that although filing of the Affidavit in support of certain documents by those who are their authors is sometimes a mere technicality that the Consumer Forum can overlook. However, in a case like the present one, the same may become a desirable and necessary step -in -aid. In the present case, non -filing of the supporting Affidavit by the expert, goes to the root of the matter and stands as incurable defect fatal to the case as set up by the Complainant in its pleadings and affidavitory evidence. Hence, in our considered opinion it would be totally unsafe to rely and act upon the said expert opinion in the absence of supporting Affidavit especially when the original OP has raised his vehement objections and challenged the authenticity of the report of the Architect and the Chartered Engineer, in his written version itself and at the earliest possible opportunity. The Opposite Party has also raised his serious doubts about the genuineness of the report and has attributed motives to the conduct of the said two persons. In such a case, the Complainant ought to have obtained the sworn statements of these experts in the form of Affidavit/s."

REGARDING the justification for terminating for contract with the OP, the State Commission have observed that the complainant had failed to justify the said termination. In this regard, the State Commission observed as follows: - "19. In our considered opinion, the Ld. Forum has failed to appreciate the legal consequences of the termination of contract by the Complainant vis - -vis his attitude and conduct while doing so. The Complainant has failed to adduce convincing evidence to establish the fact that he was justified in terminating the contractual services of the Opposite Party, unilaterally and without notice. 20. In this regard, on going through the said document, i.e. termination of Contract dated 24.12.2010 at Exhibit EA5 at page 169 of Court file, we note the following shortcomings/lacuna as affecting credibility of the evidence of the Complainant :

i. If the Complainant believe that ''time is the essence of the Contract'', why did he allow extension of time and went on granting the same under different Agreements/quotations submitted by the OP; ii. Various quotations issued at different dates as exchanged by and between the parties, stipulate the conditions such as ''the house will be ready in 120 days'', ''there shall be warranty of 3 years'', ''quantity and quality shall be certified by Architect'', etc. We are at loss to understand as to why the Complainant opted to terminate the Contract during the continuance of the valid quotation and that too without any prior notice to that effect. iii. Ld. Adv. Shri M. S. Joshi for the Appellant in Appeal No. 69/2013 has rightly argued before us that though the termination of the Notice dated 24.12.2010 stated at para 11 thereof that ''I shall get the defective works rectified and raise the bill on you for same for reimbursement'', the Complainant, instead of rectifying the work, went for demolition of the work done by the Opposite Party and constructed a new structure with the help of another new Contractor. All this exercise has ultimately led to a complete displacement/destruction of the old structure substituted by a new structure thereby disturbing the status quo of the things.

iv. We also agree with the submissions of Ld. Adv. M.S. Joshi that with the termination of the contract, all contractual obligations of the Opposite Party come to an end and that the Opposite Party cannot be held responsible and accountable to the Complainant for the subsequent events in any manner whatsoever. v. Some of the digital photographs produced on record by the Complainant do not take us anywhere as they do not establish any link between the alleged damage caused and alleged injury and also do not throw light or corroborate the attending circumstances existing immediately before, during and after the demolition of the work done at site by the Opposite Party.

On the whole, upon proper evaluation of evidence, we observe that there is contributory negligence on the part of the original Complainant which can be inferred from unco -operative and negative conduct and approach of the Complainant in his acts of : i) terminating the contract unilaterally, ii) demolishing the old structure/work done by the Opposite Party without notice to the Opposite Party, iii) executing the plan for the new house with the help of new Contractor without notice and knowledge of the Opposite Party."

IT is very clearly brought out from the facts and material on record and the order of the State Commission that the complainant had taken a unilateral decision to terminate the contract and to demolish the structure already made by the OPs. It was his duty to give proper notice to them before taking such action, but he failed to do so. During the course of arguments also, the petitioner stated that it was a case of negligence on the part of the OPs and in support of his arguments, he mentioned the decision of the Hon''ble Supreme Court in the case, "V. Kishan Rao vs. Nikhil Super Speciality Hospital and Anr.", 2010 5 SCC 513. The said order passed by the Hon''ble Supreme Court deals with subject of medical negligence and the facts of this case are totally different from the facts of the case in hand which relates to the construction of a building. The principles of natural justice do demand that the contract between two parties should not have been terminated unilaterally, without taking the other party into confidence.

BASED on the discussion above, we do not find any illegality, irregularity or error of jurisdiction in the order passed by the State Commission. There is, therefore, no justification for carrying out any modification in the said order in revisional jurisdiction. The present revision petition is, therefore, without any merit and is ordered to be dismissed with no order as to costs.