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Sankaramoorthy Reddiyar v/s Jose Thomas, Kripa Engineering Works

    First Appeal No. A/11/551 (Arisen out of Order Dated 20/06/2011 in Case No. CC/10/85 of District Pathanamthitta)

    Decided On, 31 March 2012

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE SHRI. JUSTICE K.R. UDAYABHANU PRESIDENT & THE HONOURABLE MR. M.K. ABDULLA SONA MEMBER

    For the Appellant : A.C. Eapen, Advocate. For the Respondent : G.K. Sudheer, Advocate.



Judgment Text

JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT

The appellant is the complainant in CC 85/2010 in the file of CDRF, Pathanamthitta. The complaint stands dismissed.

2. The case of the complainant is that the opposite party was entrusted with the construction of aluminum roof over the complainant’s house. The matter was entrusted on 20.12.06 vide a written undertaking. It was assured that the construction will be carried with quality materials and aluminum sheet manufactured by Everlast Company. The work was completed December, 2008. As against the assurance given the opposite party used low quality materials and did not install the required number of pillars and as a result the central portion of the roof got bent, resulting in stagnation of rain water during rainy season. Although requested to rectify the defects the opposite party evaded. While so on 6.4.10 the central portion of the roof suddenly collapsed during rains and the entire roofing was dislocated. It is alleged that the above was occasioned on account of the low quality materials used and poor workmanship. Thereafter the complainant got the roof reconstructed by St.Thomas Industries and had to spend Rs.1,92,660/-. Lawyer notice issued on 28.4.10 has been replied raising false contentions. He has sought for compensation of Rs.2,00,000/-.

3. The opposite parties has filed version admitting the construction. According to the opposite parties the materials were selected, purchased and supplied by the complainant. The opposite party is not aware of the quality of the materials. There was no written agreement as alleged. Only a receipt was issued as insisted by the complainant for availing a loan from the bank. It is denied that there is any delay in completion of the work. The fixing of middle pillars was avoided as per the request of the complainant. It is further alleged that on 5.4.10 and 6.4.10 there was heavy rain and wind in the Adoor Taluk and it is the above natural calamity that resulted in the damage to the roofing and not due to the defective execution of the work. The opposite party had requested for one weeks time to start the repair works but the complainant was not willing to wait. It is denied that so much of amount was paid to St. Thomas Industries for reconstruction. They have only done some repair works by fixing three pillars in the middle portion of the roof. It is contended that there is no deficiency in service on the part of the opposite parties.

4. The evidence adduced consisted of the testimony of PWs 1 and 2, DW1, CW1; Exts.A1 to A5, B1 to B4, C1 and C2.

5. The Forum has held that the damages to the roof occurred after 2 years from its construction and that too due to heavy rain and wind. Ext.A5 receipt for the payment of Rs.1,46540/- to St.Thomas Industry was also held to be not reliable and hence the complaint was dismissed.

6. We find that the observations of the Forum that the damages to the roofing occurred after 2 years of construction itself is incorrect. According to the complainant the damage occurred on 6.4.10. which is not denied by the opposite party. The complaint itself was filed on 14.6.10. Evidently the roofing has collapsed after about one year and 4 months of the construction. Ext.A5 receipt has been proved by PW2 who has issued the same. The case of the opposite party that Ext.A1 has been issued for the purposes of getting a bank loan appears not true. Ext.P1 is the original document and overleaf the same the opposite party has acknowledged the receipt of amounts on various dates from 21.12.06 to14.5.07, altogether Rs.1,15,000/-. If the above document was executed for producing before the bank the above document in original would not have been in the possession of the complainant but in the custody of the bank. It is contended by the counsel for the respondent/opposite party that Ext.P1 is not in the name of the complainant. It was brought out that Ext.P1 is issued in favour of the son of the complainant. There is no dispute as to the fact that the complainant can be treated as a beneficiary. There is no case that the son is not living in the house. According to the complainant after one year of the construction the roofing started getting damaged.

7. CW1, Advocate Ramakrishnan the Commissioner who examined the roofing and submitted Ext.C2 report has reported that aluminum roofing was found slanting towards the northern side and water collected in the middle portion of the terrus and the middle portion of the roofing bent downwards. The area of the roofing would work out to 1885 sq feet. He has also noted that there was no pillars in the middle portion. There are only 3 pillars on the eastern side, two pillars on the southern side 4 pillars on the western side. There are no pillars in the middle portion as well as on the northern side. No insigna of Everlast Co. is seen in the sheets. We find that in Ext.P1 it is specifically mentioned that aluminum sheet to be used will be of Everlast Company. The Commissioner has inspected the premises on 15.6.10 he has not mentioned anything as to the alleged cause of the damage that it was due to heavy wind and rain. In the cross examination of CW1 also nothing has been suggested to him to the effect that the damages were caused due to natural calamities. 8. Ext.B2 reply by the Public Information Officer in response to the application of the opposite party and Exts.B3 and B4 newspaper reports that there were natural calamities in certain villages in Adoor Taluk as such is not helpful to the case of the opposite party. He has not adduced any independent evidence to establish the fact that it was on account of the natural calamities that the aluminum roofing over the house of the complainant got damaged. Nothing has been brought out in the cross examination of the complainant to discredit his evidence as such. There is no dispute as to the receipt of the amount as noted in Ext.P1. RW1/opposite party has specifically admitted that he has received 1,15,000/- as per Ext.A1 document. The counsel for the opposite party/respondent has contended that the opposite party had received only about Rs.35000/-. We find that the above statement has no relevance in view of the specific admission by RW1 in cross examination (page 2 of the deposition of DW1). In the circumstances we find that it stands established that the construction executed by the opposite party/respondent was defective and that the materials used are also of not good quality. Although the complainant has claimed that he has spent Rs.1,46,540/- and produced Ext.A5 recei

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pt issued by PW2 no bills of purchase of the materials have been produced. In the circumstances we find it would be reasonable to direct the opposite party to pay a sum of Rs.75000/- as compensation to the complainant. In the circumstances the order of the Forum is set aside. Opposite party/respondent is directed to pay Rs.75000/- to the complainant towards compensation. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 14.6.10 the date of complaint. Complainant will also be entitled cost of Rs.5000/-. The appeal is allowed as above. Office is directed to forward the LCR along with the copy of this order to the Forum.
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