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Tomy Parathattil (House) Muthalakkudam P.O. Thodupuzha, Kerala and Another Vs. Eapen George Proprietor, V.E.G. Structurals - Court Judgment

LegalCrystal Citation
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided On
Case NumberREVISION PETITION NO.1851 OF 2011 alongwith I.A. No.01 of 2011 & REVISION PETITION NO.1852 OF 2011 Alongwith I.A. No.01 of 2011
Judge
AppellantTomy Parathattil (House) Muthalakkudam P.O. Thodupuzha, Kerala and Another
RespondentEapen George Proprietor, V.E.G. Structurals
Excerpt:
consumer protection act, 1986 - sections 2(1)(f), 2(1)(g), 14(1)(d), 21(b); cases referred: 1. r.b. ramlingam v. r.b. bhavaneshwari, 2009 (2) slt 701 = 2009 (1) clt 188 (sc). (relied) [para 10] 2. oriental aroma chemical industries ltd. v. gujarat industrial development corporation, 2010 (2) slt 205 = 2010 (1) clt 333 (sc). (relied) [para 11] comparative citation: 2012 (3) cpj 426 .....facts are that petitioners/complainants attracted by a new technology propounded by the respondent/opposite party in constructing concrete building roofs using beams and shells only, instead of the conservative type of re-inforced concrete technology, which assured considerable decrease in cost of construction had constructed, a residential building during 2002 as per the new scheme and using a residence since 15.8.2002. after two months during rains in october, creaks appeared near the beams and leakage was found. on the next day, respondent was informed and he effected certain repairs. but it was not of any use. repeated demands were made to the respondent to rectify the defects but nothing was done. so, petitioners approached district forum for directions to the respondent to pay rs.9.....
Judgment:

JUSTICE V.B. GUPTA, PRESIDING MEMBER 

These revision petitions arise from the common order dated 29.11.2010 passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short as State Commission) in Revision Petition No.19 and 20 of 2005, filed before the State Commission.

2. Alongwith these petitions, applications seeking condonation of delay of 85 days have also been filed.

3. Brief facts are that petitioners/complainants attracted by a new technology propounded by the respondent/opposite party in constructing concrete building roofs using beams and shells only, instead of the conservative type of re-inforced concrete technology, which assured considerable decrease in cost of construction had constructed, a residential building during 2002 as per the new scheme and using a residence since 15.8.2002. After two months during rains in October, creaks appeared near the beams and leakage was found. On the next day, respondent was informed and he effected certain repairs. But it was not of any use. Repeated demands were made to the respondent to rectify the defects but nothing was done. So, petitioners approached District Forum for directions to the respondent to pay Rs.9 lakhs each, as compensation.

4. Respondent in its written version stated that the new technology is free from any defect and he had only supplied materials to the petitioners. Respondent is only manufacturing the beams and shells intended for the roof of the structure. He had not undertaken any contract work or supervision for the construction of the petitioners building. If any leakage has occurred, it may be due to the poor workmanship of the masons who have done the construction for which he is not responsible. So, he is not liable for any compensation.

5. District Forum vide order dated 27.1.2004, allowed the complaints and passed following directions;

œIn the result, the opposite party is directed to repair the roof of the building of the complainant within 30 days of receipt of a copy of this order and to make it free from any leakage. If the opposite party fails to do within the time allowed or, if any leakage appears in the roof even after the repairs, the complainant is allowed to realize Rs.2,00,000/- (Rupees two lakhs only) in Complaint No.54 of 2003 (R.P. No.1851/2011) and Rs.1,50,000/- (Rupees one lakh fifty thousand only) in Complaint No.167 of 2003 (R.P. No. 1852/2011) by way of compensation from the opposite party, with 12% interest from the date of this order?

6. Aggrieved by above order, respondent filed revision petitions before the State Commission, which partly allowed the same vide its impugned order and passed the following directions;

œIn the result the revision petitions are allowed in part thereby the revision petitioner is directed to pay Rs.25,000/- each to the complainant in O.P. No.254/03 and in O.P. No.167/03 within two months from the date of receipt of this order failing which the amounts shall carry interest at 9% per annum from the date of complaint till date of payment. The facts and circumstances of the present revision petitions warrant no order as to costs.?

7. We have heard learned counsel for the parties and have gone through the record.

8. Taking up applications for condonation of delay, the main reason on which condonation has been sought is reproduced as under;

œThe petitioner engaged a lawyer at Delhi. But certain documents which were necessary for the preparation of the case was required to be translated from the vernacular language, Malayalam to English. By the time the draft was prepared the petitioner fell ill and could not travel long distances due to heavy back pain. Hence there occurred a delay of 85 days in preferring the Special Leave Petition.?

9. It is nowhere stated as to on which date petitioner engaged the lawyer at Delhi and when the draft was prepared and on which date these petitions were filed. Both these applications for condonation of delay are absolutely vague and same have been filed in a mechanical manner. Moreover, in these applications, same plea with regard to illness in respect of both petitioners have been taken.

10. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Honble Supreme Court has observed:

œWe hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.?

11. Further, Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459;

œWe have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106.

In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay.?

12. In the present cases, no sufficient cause at all is made out for condoning the delay. Applications for condonation of delay are absolutely vague and have been filed in a mechanical manner without any supportive material or any cogent reasons. Thus, the same are to be dismissed.

13. Now, coming to the merits, short question which arises for consideration is as to whether State Commission was justified in reducing the compensation amount to Rs.25,000/- each .

14. It is an admitted fact that there were certain cracks in the roof of the building and as such there was deficiency on the part of the respondent.

15. However, petitioners have not placed on record any estimate to prove the fact that repairs with regard to leakage would costs Rs.2 lakhs. There was no basis before the District Forum to award the sum of Rs.2 lakhs.

16. It has been established from the record that leakage was only minor in nature. In this regard, District Forum observed;

œDuring the trial of this case and in another similar case it has been often suggested by the opposite party that the leakage occurred on the roof of the building is only a minor matter and that it can be rectified easily. If that be the case we think then an opportunity should be given to the opposite party to rectify the mistake and to cure the leakage on the roof of the building. The complainant would estimate the cost of construction of the roof at Rs.2 lakhs. It is also stated that due to the leakage to the roof, the market value of the building has been diminished like anything and nobody is prepared to purchase it. The cost of construction estimated is not under serious dispute. We do not think that the loss anticipated by the complainant is in any way exaggerative. But, we think that if the opposite party, by making use of his own skill and technical knowledge is able to rectify the mistakes in the roof at his cost within a reasonable time, there is no necessity to award any compensation to the complainant. If the repairs are not attended he is liable to pay Rs.2 lakhs being the cost of construction of the roof.?

17. Further, as per order dated 22.3.2004 of the District Forum, Assistant Project Engineer, inspected the premises in question and gave the following report;

œAs a conclusion the structure failure of the walls is not occurred and hence no remedial measure is required for the strengthening of the walls as present. If the cracks formed more extent in future then detailed study regarding settlement of foundation and walls may be required.?

18. Even State Commission had appointed Shri Davy Cherian, Advocate as a Commissioner, vide its order dated 30.6.2007 to inspect the premises who in its report dated 20.4.2009 made following conclusion;

œHere, in this case, the leaking is very severe which is conspicuous from the photographs. In both the cases, tin sheet roofing over steel truss have been already provided except a very small portion in one case. Another point to be noted here is that the building in Revision 19/05 has been already sold in the present condition itself. As the steel sheet roofing has been done in both the cases, there is no meaning in employing any other method after dismantling the steel roofing.?

19. Thus, whatever best possible could have been done, has been done in these cases and this fact has also been observed by the State Commission in its impugned order which states;

œOn hearing the learned counsel for the revision petitioner in both revisions and also on perusing the records, we find that even the commissioner had reported that there was no perfect curing of the leakage by the opposite party/judgement debtor/revision petitioner. It is also seen that one of houses had already been sold and in as is where in condition. At this stage we do not think it proper to direct the revision petitioner to redo everything and to rectify the defects to the satisfaction of the complainants/respondents. We feel that even if a direction is given to judgement debtor, the complainants will not be satisfied and there is every chance of further litigation in the matter. In the said circumstances we find that an order to direct the opposite party/judgement debtor/revision petitioner to pay compensation for the deficiency in service will be just and proper to meet the ends of justice. The learned counsel for the revision petitioner has submitted that the revision petitioner had rectified the defects to the satisfaction of the complainants and it is only to grab more money from the judgement debtor/revision petitioner that the complainants had approached the Forum with unclean hands. We are not inclined to accept the said contention of the learned counsel for the revision petitioner to the full extent. But we feel that the judgement debtor/revision petitioner had tried his best to rectify the defects and in the facts and circumstances of the present stage we feel that the judgement debtor/revision petitioner is liable to pay compensation to the complainants as detailed below?

20. Under these circumstances, we do not find any infirmity or illegality in the impugned order passed by the State Commission. Keeping in view the facts and circumstances of the case, the State Commission was justified in reducing the compensation from Rs.2 lakhs to Rs.25,000/- in each case.

21.  Accordingly, these revisions are not maintainable and same are hereby dismissed.

22. No order as to costs.


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