L. Manoharan, President:
1. These appeals arise from the order in O.P. 1055/1998 on the file of the Consumer Disputes Redressal Forum, Kottayam. Appeal 203/2001 is by the complainant in the said O.P. and Appeal 195/2001 is by the first opposite party in the said O.P. As both the appeals arise from the same order the same are being disposed of by this common order.
2. Complainants’ case before the District Forum was that themselves entered into Exbt. A1 agreement with the third opposite party on 24.1.1995 for the construction of their residential house, opposite parties agreed to construct the house at the rate of Rs. 250/- per sq. ft., the total plinth area was 2034.53 sq. ft. and the total costs assessed was Rs. 5,08,732.50. The 3rd opposite party handed over the house after construction on 2.2.1998, the house had defects, the work was incomplete, the mosaic works, electrification and sanitary fittings were not complete and hence complainant had to complete the said work, the house warming ceremony was conducted on 19.4.1998. Compla
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nant had provided teak tree and anjili tree for construction of doors and windows. A total amount of Rs. 7,01,119/- was paid to the 3rd opposite party. Thus the 3rd opposite party collected excess charge from the complainant, the wood material used were of inferior quality and the whole wood given by the complainant was not used, the construction itself was not as agreed. As the opposite parties violated the terms of agreement, complainant claimed he is entitled to direction for its redressal. Complainant maintained opposite parties received an excess amount of Rs. 11,354/-, the works concerning the septic tank, bathroom, electrification work, plumbing and sanitary works were attended by the complainant. Inspite of that opposite party demanded an amount of Rs. 15,208/- for which the complainant is not liable.3. In the version by the opposite parties they maintained that the complainants are not consumers and the suit is barred by limitation. Since the complainants did not pay the amount in time the work could not progress as desired; due to the delay in payment the opposite party was put to loss and contended the case as regards the deficiency alleged by the complainant is not true or correct. In one of the bed rooms the wardrobes, and ventilators were not provided as per the instruction by the complainant as they wanted to fix AC. Opposite parties are not aware of the alleged leak in the roof which they learnt only when notice was received. The work of staircase would is additional work since the same was outside the plinth area. They wanted dismissal of the complaint. Before the District Forum the first complainant was examined as P.W. 1, second complainant as P.W. 2, and another witness was examined as P.W. 3. Complainant produced Exbts. A1 to A16 and on the side of the opposite parties Exbts. B1 to B14 were produced and Exbts. D.W. 1 to D.W. 7 were examined. D.W. 3 is the 3rd opposite party. An Expert Commissioner, C.W. 1 was issued, he filed Exbts. C1 and C1(a) report and plan. On a consideration of the said material the District Forum directed the opposite party to refund Rs. 60,000/- with 12% interest from the date of the complaint till payment. They were also directed to pay Rs. 3,000/- as compensation and Rs. 2,000/- towards costs.4. Whereas the opposite party/appellant in Appeal 195/2001 would maintain that the direction to pay the said amount is opposed to the evidence on records, complainant as appellant in Appeal 203/2001 would maintain that the direction made by the District Forum deserves modification as the District Forum did not take into account the various defects noted in Exbt. C1 report and the quantification by the Commissioner. It is also the case of the appellant that the District Forum did not notice the payments as per Exbts. B6 and B7 by the complainant. It is also pointed out without giving reasons the Forum has even made deduction from the quantification made by the Commissioner. Learned Counsel for the appellant/complainant also urged that it was wrong for the District Forum to have not adjudicated as to the claim made by the complainant towards excess payment; the District Forum could not have directed the aggrieved could approach the proper Forum when a consumer dispute itself is adjudicated by the District Forum. The learned Counsel for the appellant/complainant relied on the decision of the National Commission in Rathuri Nivas v. New India Insurance Co. Ltd., I (2000) CPJ 10 (NC)=2000 CTJ 188, to maintain that even applying the principle in the said decision the said failure of the District Forum to adjudicate the said aspect cannot be supported. The respondents in Appeal 203/2001 the opposite parties though entered appearance were not present when the matter was taken up. As has noted opposite parties are the appellants in Appeal 195/2001 both appeals were taken together there was no submission the opposite parties; it was in such circumstance, the learned Counsel for the complainant/appellant in Appeal 203/2001 was heard. We have perused the impugned order as well as both the appeal memorandums. At the outset it has to be observed, while considering point No. 3 by the District Forum, the District Forum states that in view of Exbt. A9 there was no dispute at the time of delivery of possession it does not proposed to interfere with the dispute regarding accounts. What arose was a consumer dispute, and the dispute was raised by the complainants the consumers who had availed the service of the opposite parties for construction of residential building. One of the deficiencies which the complainants urged was that the opposite party had received excess amount from them. As per Exbt. A1 the total amount for construction was Rs. 5,08,732.50 whereas the opposite party received a total amount of Rs. 7,01,119/-. The said question should have been adjudicated, for the opposite party had a case that they had attended extra work; the question whether as a matter of fact they had attended extra work if so, what is the expense towards the same ought to have been gone into in fixing whether there was excess payment. We see there is enough force in the said argument, particularly in the context of the principle that could be gathered from the decision of the National Commission in Rathuri Niwas v. New India Insurance Co. Ltd. (supra).5. Now as regards the deficiency in the construction of the house and the defect therein the main piece of evidence is Exbt. C1 and the evidence of C.W. 1, the Commissioner. One of the grievances urged by the learned Counsel for the complainant is that the complainant did not quantify the amount required for rectification of the defects noted by him. It is urged by the learned Counsel though the Commissioner, C.W. 1 noted various defects in the make of the doors and windows only two items are taken into account for quantification, three numbers of four leaf doors and one three leaf window. Whereas, according to the learned Counsel, the other defects concerning the wood material also were noted by the Commissioner. When the Commissioner has examined as C.W. 1 he stated in the chief-examination that three windows having four doors and one window with three doors were completely defective and they had to be replaced and he proceed to say that the others patch work is necessary. What is pointed out by the learned Counsel is, in Exbt. C1 no amount is quantified for the patch work. The defects were noted by him in pages 4 and 5 of Exbt. C1. In such circumstance there Exbt. C1 is incomplete so far as the said aspect.6. The other aspect to be adverted in this connection is item No. 12 in the Commission report it has Sub-paras (a) to (d). The Commissioner mentions the details of the disputed items the Staircase, Septic Tank/Soak Pit, Sanitary/Plumbing items, and Electrical Items. After mentioning the details of these items in each, Commissioner says, the District Forum has to take a decision as to whether the same would constitute extra work, the impugned order does not advert to the same. In deciding the same Exbt. A3 agreement has to be adverted. What is pointed out by the learned Counsel is, though the staircase item No. 12(q) was shifted to another area the staircase since was included in Exbts. A1 and A3 the same could not have been treated as extra item. In the context of the facts and circumstance of the case as adverted to above, the District Forum ought have addressed itself as to whether the said item could have been treated as an extra item.7. It is also urged by the learned Counsel, Exbts. B6 and B7 bills produced by the opposite party themselves would show that the amount mentioned therein was paid by the complainant as the said bills stand in the name of the complainant. The argument of the learned Counsel that the same escaped the notice of the District Forum cannot be said to be without force. Finally, it has to be observed, though District Forum has stated in page 5 of the order that nothing was brought out to discard the report of the Commissioner, it is pointed out by the learned Counsel for the complainant, District Forum reduced the quantification made by the Commissioner without any justifiable reason. When the aforesaid aspects are focussed it is evident, that the District Forum has to consider to the said aspects and has to adjudicate the same. Since the Commissioner has not assessed quantum of the expenses required for the items to which advertance is made the report, has to be remitted to the Commissioner to report as to the same and the District Forum has to adjudicate the questions to which are referred to in this discussion. When such is the situation the impugned order is liable to be set aside and the matter has to be remitted to the District Forum.In the result, the impugned order is set aside and the matter is remitted to the District Forum, it shall restore the complaint to file, remit the report Exbts. C1 and C1(a) to the Commissioner for curing the defects as stated in this order and on filing the report both the parties will be given an opportunity to file their objection to the report filed by the Commissioner and if needed be to examine the Commissioner. Thereafter District Forum shall proceed to dispose of the matter in accordance with law with due regard to what is stated in this order. Since this is a case of 1998, the matter deserves to be epidated and has to be disposed of at the earliest, at any rate within three months of the appearance of the parties before the District Forum. In this appeal there will be no order as to costs. Along with copy of this order the records of the District Forum shall be returned.
"2003 (3) CPJ 327,"