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2011 DIGILAW 201 (UTT)

KULDEEP CHANDRA BHASIN v. SHAMBHU PASWAN

2011-03-22

C.C.PANT, IRSHAD HUSSAIN, KUSUM LATA SHARMA

body2011
ORDER (Per : C.C. Pant, Member) : These two appeals are directed against the order dated 23.04.2009 passed by the District Forum, Dehradun in consumer complaint No. 56 of 2007. Vide its order, the District Forum has allowed the consumer complaint and has directed the opposite party to pay to the complainant sum of Rs. 5,50,000/- within 30 days from the date of the order, failing which the opposite party shall also pay interest @ 9% p.a. on the above amount from the date of filing of the consumer complaint till the date of actual payment. The District Forum has also permitted the opposite party to take away the building material lying in the complainant’s premises. 2. The facts of the case, in brief, are that the complainant – Sh. Kuldeep Chandra Bhasin assigned a contract for civil work in his house situated at Rishikesh to Sh. Shambhu Paswan – opposite party. The work included repairing and renovation of the existing structure and some new construction of rooms, toilets etc. In the first floor. The details of the work and specification in respect of material to be used, were settled with a written mutual agreement dated 15.03.2005. It was also agreed upon that the work would be completed by 31.12.2005. As per the agreement, the complainant had to pay sum of Rs. 70,000/- for the repairing and renovation work in the ground floor and sum of Rs. 4,80,000/- for the construction in the first floor. Since the complainant generally resides in England, he had authorized one of his relatives for making the payment. The opposite party, somehow, received the full payment of Rs. 5,50,000/- after completing the work. When the complainant came back to India in February, 2006, he found that the repairing and renovation work and also the new construction were not as per the agreement. The material used in the work was of inferior quality and, thus, the opposite party had made deficiency in service. When the complainant pointed out these defects, the opposite party assured to remove them, but he did not do so inspite of giving a notice in this respect. This led the complainant to file a consumer complaint before the District Forum, Dehradun. 3. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint in the above terms. This led the complainant to file a consumer complaint before the District Forum, Dehradun. 3. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint in the above terms. Not satisfied with the order passed by the District Forum, the complainant has filed First Appeal No. 78 of 2009, challenging the order of the District Forum, on the ground that the amount awarded is inadequate and also that the District Forum has failed to consider the mental agony suffered by him. The opposite party, feeling aggrieved by the impugned order, has filed First Appeal No. 83 of 2009, praying therein to set aside the order, as the District Forum has failed to appreciate all the facts of the case in right perspective. Since both these appeals arise out of the same order, these are being disposed of by this common order. 4. We have heard the learned counsel for the parties and perused the material placed on record. 5. The learned counsel for the complainant argued that though the District Forum has given the finding that the opposite party had used material of inferior quality in the construction and the construction work was of poor quality but the District Forum has not awarded adequate compensation for the loss suffered by the complainant. Pointing out to the Civil Engineer’s report (Paper Nos. 44 to 45), the learned counsel submitted that the constructed structure needed to be erected again after dismantling it and it would cost the complainant an expenditure of Rs. 7,00,000/-. At present, it would cost more due to rising prices of the inputs. The learned counsel also submitted that the complainant has an apprehension that the opposite party may damage the house while taking away the material as permitted by the District Forum in its order. 6. The learned counsel for the opposite party challenged the impugned order mainly on the ground that the District Forum did not take care of the absence of the evidence regarding Sh. P.S. Raizada and Sh. Pandey, representatives of the complainant and, therefore, the consumer complaint itself was not maintainable. The learned counsel submitted that the opposite party had done the construction work as per the directions and satisfaction of the complainant’s representatives Sh. P.S. Raizada and Sh. Pandey and had not made any deficiency in service. P.S. Raizada and Sh. Pandey, representatives of the complainant and, therefore, the consumer complaint itself was not maintainable. The learned counsel submitted that the opposite party had done the construction work as per the directions and satisfaction of the complainant’s representatives Sh. P.S. Raizada and Sh. Pandey and had not made any deficiency in service. The consumer complaint was filed with an ulterior motive, just to avoid the payment of Rs. 1,80,000/- for the extra work. The so-called report of the architect submitted by the complainant, is no report, as the said report has been prepared at the behest of the complainant. 7. We considered the respective submissions. The arguments advanced by the learned counsel for the opposite party are not tenable because the photographs produced by the complainant are sufficient to establish that the quality of the construction work is very poor. The technical report of the architect can not be ignored on the ground that these are the words of the complainant. The report along with the photographs is sufficient to prove that the opposite party had committed deficiency in service, causing loss to the complainant. The plea that the opposite party had done the work as per the directions of Sh. P.S. Raizada and Sh. Pandey, the representatives of the complainant, is also not acceptable because these persons were authorized by the complainant for making timely payment to the opposite party, so that the work may not be stopped for want of funds. Nowhere in the agreement, it is stated that these persons would also verify the quality of work. Therefore, we are of the view that the appeal filed by the opposite party is devoid of merit and hence it is liable to be dismissed. 8. We are also of the view that the District Forum has adequately compensated the complainant for the loss suffered by him, by directing the opposite party to refund all the money received from the complainant. Regarding compensation for mental agony and escalation in construction cost, the District Forum has awarded interest @ 9% p.a. on the amount. This interest rate is higher than the rate which is generally awarded by the Consumer Fora. The award of interest is always in lieu of compensation for mental and physical agony and, therefore, the complainant can not be granted an additional compensation for the mental agony. This interest rate is higher than the rate which is generally awarded by the Consumer Fora. The award of interest is always in lieu of compensation for mental and physical agony and, therefore, the complainant can not be granted an additional compensation for the mental agony. The higher rate of interest also covers the inflationary effect on construction cost, if any. Further, the District Forum has not directed the opposite party to collect all that material which has been used in the construction work by scratching out or dismantling it and, thus, the complainant is not in loss because he owns these goods along with the amount of Rs. 5,50,000/-. This way, the opposite party has been penalized sufficiently for the deficiency made by him. What the District Forum has permitted the opposite party is to lift the unutilized material lying in complainant’s premises, if any. Therefore, the complainant should not have any apprehension in this regard. Thus, the appeal filed by the complainant is also liable to be dismissed. 9. For the reasons aforesaid, both the appeals stand dismissed. No order as to costs. 10. Let the copy of the order be kept on the record of First Appeal No. 83 of 2009.