National consumer disputes redressalcommission new delhi



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REKHA GUPTA 


Revision Petition No. 2531 of 2014 has been filed by the petitioner/complainant against the order dated 12.3.2014, passed by Rajasthan State Consumer Disputes RedressalCommission, Jaipur (short, “State Commission”) in First Appeal No.428 of 2012.

2.       The facts of the present case as per complaint are that petitioner/complainant is a resident of 65, Chetan Enclave, Phase – II, Jaipur Road, Alwar, District Alwar, Rajasthan and is residing along with his family and the petitioner is running his business in Delhi and the family members of the petitioner are residing in Rajasthan.

3.       The respondent/opposite party is a Civil Engineer by profession and used to do the construction of houses/shops on contract basis.

4.       The petitioner had to construct a residential house for the use of himself and his family.  The petitioner contacted the respondent for that purpose and showed the site to the respondent and discussed with him as per his requirement of modern, well established, attractive, facilities and proposal verbally to the respondent for the purpose to construct his house.  The respondent accepted the verbal proposal of the petitioner and the respondent assured and promised if the petitioner was ready to give Rs.60 per sq. feet for construction then he would get constructed a modern well established, attractive house with all facilities as per the requirements of the petitioner, with good labour and skilled workers within a period of six months which included digging of base, affixation of marble and its wiping etc., granite polishing etc.  On this, the petitioner agreed the payment of Rs.60,000/- per sq.ft. to the respondent.  At that time, the prevailing rate of construction was Rs.30-35 per sq.ft.

5.       It was agreed between the petitioner and respondent that construction work would be completed within a period of six months by the respondent after starting the same on 17.11.2005 for which the respondent had to carry out digging of base, filing, digging for latrine and construction work was to be carried out above four feet from the level of road and from upper level had to lay lanter and plaster, ceiling and staircase and stoning in staircase and modern kitchen, ships,  marble wiping and kitchen slab, molding etc.

6.       The respondent was apprised by the petitioner with the fact that the petitioner remained busy for the purpose of business in Delhi and his wife and children reside in Alwar and they would only provide the material to the respondent as per his recommendation and the respondent had to carry out construction by using the material in the ratio as per agreed standard.

7.       The construction work was started by the respondent on 17.11.2005 at the site as agreed.  But the construction work had not been completed by the respondent at the site.

8.       In the construction work at the site unskilled labour and workers were used inspite of skill labour and workers.  Good construction work was not carried out by them.

9.       Whenever, the petitioner complained to the respondent about the construction work not being as per the requirements of the petitioner i.e. modern, well established, attractive and facilities with good labour and skilled workers, the respondent many times asked the petitioner to bring bajri, rodi, cement and other material on which the petitioner brought as per the specification of the respondent and kept on waiting for the respondent but the respondent did not come, due to which many times the construction material of the petitioner got wasted.

10.     The respondent had to get completed the construction work of the petitioner within a period of six months, but despite passing of two years, the construction work had not been completed by the respondent.

11.     The construction work of 55X32 feet was completed by the respondent at the site, for which the respondent had received the payment of Rs.1,25,000/- but the respondent had issued only receipt of Rs.1,05,600/- and balance amount had not been returned to the petitioner despite repeated requests.

12.     The petitioner got served a legal notice dated 12.4.2008 through registered post for completing the deficient construction work and compensating the petitioner for the substandard construction work. The notice was duly served upon the respondent, but despite service of legal notice, the respondent had neither compensated the petitioner nor replied to the same. 

13.     The petitioner has spent a sum of Rs.8 lakhs on the construction of his house, but even then as per the requirements of the petitioner i.e. modern, well established, attractive and facilities has not been completed by the respondent.  The petitioner was entitled to recover the said amount the said amount from the respondent and the respondent was fully liable to pay the said amount to the petitioner.

14.     In his prayer, the petitioner/complainant prayed that the complaint may kindly be allowed and the following decree may kindly be passed :-

That the opposite party may be directed to pay an amount of Rs.8 lakhs to the complainant being the amount spent on the construction of the house and the opposite party may be directed to do remove the deficiency left in the construction work.


That the opposite party may be directed to pay an amount of Rs.2 lakhs to the complainant for the mental pain and agony.

That the opposite party may be directed to pay an amount of Rs.10,000/- to the complainant for expenses.

That the opposite party may be directed to pay an amount of Rs.5,500 and Rs.1,100 to the complainant towards counsel’s fee and expenses for filing the complaint case.”

         

15.     The respondent/opposite party in their written statement before the District Consumer Disputes Redressal Forum, Alwar (short, ‘District Forum’)  denied the complaint  and stated as follows;

 

1. That it is wrong to state that the complainant is running his business in Delhi, hence denied, rest of the contents are almost correct.



2.  That it is wrong to state by the complainant that the opposite party is civil engineer by profession and used to do the construction of houses/shops on contract basis, hence denied.  In fact, neither the opposite party is civil engineer nor does the construction work on contract nor is registered with any organization as contractor and nor is competent to take contracts of construction work.

5. That it is  totally wrong to state by the complainant that the complainant had proposed the opposite party orally to construct a modern, well furnished, attractive and with facilities or the said oral proposal was accepted by the opposite party, hence denied.  It is wrong to state that the opposite party assured and promised if the complainant was assured that he will get the complainant constructed a modern, well furnished, attractive house will all facilities as per the requirements of the complainant, with good labour and skilled workers within a period of six months which included digging of base, affixation of marble and its wiping etc., granite polishing etc.  It is wrong to state that he settled the payment of Rs.60 per seq.ft. towards the construction, whereas the prevailing rate of construction was Rs.50-55 per sq.feet at that time, hence totally wrong and denied.  The complainant has not even disclosed the date when he orally proposed and the opposite party accepted the said oral proposal, the complaint has been filed by the complainant on the basis of wrong statements.


6.  That it is totally wrong and hence denied.  The construction work was got started by the complainant himself.  Neither the opposite party had to start nor to complete the construction work.  The correct and complete facts are being mentioned in the additional submissions.

7.  That it is totally wrong and hence denied.  The correct facts are being mentioned in the additional submissions.  The opposite party had just to providelabour for the construction work which was being provided by the opposite party as per the requirement of the complainant for which no complaint for the same being unskilled has ever been made by the complainant to the opposite party.

8.  That it is totally wrong and hence, denied.  It is wrong to state by the complainant that the workers of the opposite party started the construction work at the level of 3 feet and laid lanter at the height of 10 feet instead of 11 feet, hence denied.  In fact, the opposite party had just to provide labour for the construction work which was being provided by the opposite party timely as per the requirement of the complainant.  The construction work was got done under the supervision of the complainant, his family and draftsman.  Construction of base and lanter work etc. has been carried out in the control and supervision of complainant, his family and draftsman.

9.  That it is totally wrong to state by the complainant that the opposite party has put chips, marble and granite in the floor, hence denied.  In fact, whatever the construction work has been carried out, the same has been carried out in presence and wish of the complainant and his family members under their own supervisions.  It is pertinent to mention here that the complainant is required to place the bills for the purchase of chips, marble and granite so that the quality of chips, marble and granite is clarified, whereas as per the knowledge of the opposite party, complainant has purchased and used the low standard material.


10.  That it is totally wrong and hence denied.  The opposite party has provided the sufficient labour for which the complainant never complained to the opposite party.  Had there been any deficiency in regard to the availability of labour, he had not made payment to the opposite party for the said work.

12.  That it is wrong to state by the complainant that the construction work of the house is not complete, hence denied.  In fact, the construction work of the house of the complainant had been completed in the year 2006 and the complainant and his family started residing in the aforesaid house since 2006.

13.  It is wrong to state by the complainant that the opposite party has done or got done, hence, denied.

In fact, the opposite party had only provided labour for the construction work.  It is wrong to state that the opposite party has received a sum of Rs.1,25,000/- from the complainant, hence denied.  In fact, the opposite party has received a sum of Rs.1,05,600/- towards the labour provided for construction work for which the complainant issued receipt to the opposite party.

 

16.     District Forum vide their order dated 22.2.2012, dismissed the complaint and observed that ;


 

       “The complainant has not produced any written agreement showing that what terms in respect of the construction were decided and what construction had to be made in respect of the construction of the house.

       Whereas in the present matter, there is no written agreement or deed between the parties therefore, due to non-proving that what terms were decided between the parties it has not proved that any negligence had been made in services by the opposite party in favour of the complainant, therefore, the complaint of the complainant deserves to be dismissed. 


ORDER

         Hence, on the basis of above facts, the complaint of the complainant against the defendant is being dismissed.  The parties shall bear their own expenses.”

 

17.     Aggrieved by the order of the District Forum, petitioner filed an appeal before the State Commission.  State Commission, vide their order dated 12.3.2014, dismissed the appeal.


18.     Hence, the revision petition.

19.     The main grounds for the revision petition are that ;

        Because the said impugned order dated 9.4.2013 is not a speaking order and the learned State Commission has not discussed the respective contentions at all.

        Because the learned Forums below erred in dismissing the complaint and even otherwise, the complaint is dismissed on flimsy grounds.

        Because the Forum below while dismissing the complaint for the first time stating that the petitioner failed to prove his complaint by giving evidence whereas, now the complaint is dismissed saying that there is no written agreement, however, the learned Forum below ought to have based the decision on the report of the Civil Engineer and his evidence as was observed by this Commission in its order dated 24.9.2010.

20.     We have heard the learned counsel for the petitioner and carefully gone through the record.

21.     Counsel for petitioner has failed to show any Agreement/Contract with the respondent for construction of house.  There is no evidence on record that he had awarded a contract to the respondent to construct the house.  In fact, in his complaint, he has admitted that he had supplied the entire material for construction and also admitted that he has spent a sum of Rs.8 lakhs on the construction of the house. Out of this, as per the complaint only Rs.1,25,000/- has been given to the respondent.  He has also admitted that he has receipts only for Rs.1,05,600/-.  As per respondent, Rs.1,05,600/- has been paid to him for providing good labour for the construction work.  In the absence of any Agreement or Contract for construction of well-established, modern house, it cannot be said that the respondent was a service provider.  Thus, the petitioner cannot claim compensation for the amount expended in the construction of his house and for deficient work.   Further, the petitioner has also failed to provide any evidence to support his contention that the respondent is a Civil Engineer engaged in the business of construction of houses and shops on contract basis.

22.     Hon’ble  Supreme  Court  in  Mrs. Rubi  (Chandra)  Dutta  Vs.   M/s



United
  India Insurance Co. Ltd. 2011 (3) Scale 654   has observed ;

Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in whichrevisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”  

23.     Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act.  The  orders of the fora below do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

24.     Petitioner is directed to pay the cost of Rs.5,000/- (Rupees Five Thousand only) by way of demand draft in the name of the respondent and remaining cost of Rs.5,000/- (Rupees Five Thousand only) to be deposited by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today.   In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

25.     List on 22.8.2014 for compliance.            

 

…………………..………..



(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

…………………...……….



(REKHA GUPTA)

MEMBER

Sonia/


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 




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