BRIGADIER V.K. DANDEKAR vs CREATION CONSTRUCTIONS

BRIEFLY the facts of the case are that the respondent is carrying on business as a Builder and Mr. Sanjay Sharma is its proprietor. Mr. Sharma purchased the first and second floor of a house bearing No. A-l/66, Panchsheel Park, New Delhi, measuring 216 sq. yards from Mrs. Shanta Badhwar and made additions and alterations in its first and second floor. He also constructed the Servants Quarters on the 2nd Floor. Thereafter, he sold the rights, title and interest in the 1st floor comprising of 3 bedrooms, attached bathrooms, drawing cum dining room, study room in staircase, one kitchen front and rear balconies and one Servant Quarter together with common facilities for Rs. 8 lacs, to the complainant.

THE complainant took possession of the house on 5th May, 1992. It is alleged that the premises have got inherent defects viz. leakage, seepage, non-provision of protective ledges, defective windows, poor quality cupboards, defective electric connections, poor quality bathrooms etc. In the middle of August, 1992 there was a heavy shower due to which ceiling of the house began to drip. After investigation it was found that it was due to the reason that the roof was littered with debris and building material left behind by the builder which had blocked the storm drains. Thus, the water started percolating through the walls and the beam of the bedroom and damaged them. There was also heavy seepage on the roof of the bathroom, connected dressing room, alcove and passage. On account of the seepage the plaster was damaged, which had to be redone and painted. It is further stated that he found that no out let for water and no water tap for washing had been provided in the front verandah and consequently, a water tap and drainage pipes were got fitted.

It is next pleaded that except for the master bathroom no protective ledges (Chajjas) had been provided for any of the window and the rear verandah and for the reason the rain water entered into the flat through the closed windows, and caused further damage to the flat. The outlet pipes on the ledges over the main bathroom had been blocked by the material of the builder because of which the water collected there and further damaged the building.

IT is further pleaded that there were gaps between the walls and window frames (Chaukats) through which water entered the flat. The bolt/latches of the doors/windows had to be re-fitted as the original fittings were non functional. The ventilators had not been properly secured on account of which theft occurred in the room, for which FIR was lodged. It is averred that poor quality wood had been used for construction of doors, cupboards etc. Thus, cupboards required replacement. The cup-boards of bedrooms had to be repainted and polished as the original paint was of poor standard.

IT is next averred that the builder had agreed verbally to provide a three phase electric connection and an eleven amperes meter in the house, but he provided 4-5 amperes meter and single phase connection. The electric power is not inadequate taking into consideration the light and power points, in the flat. The wire fitted in the house is also sub-standard. Regarding the bathrooms it is pleaded, that all the taps showers and flush valves had to be opened and cleaned. The dados in all bathrooms had cement deposits on account of which they looked shadly. It is then averred that no provision had been made for light over the mirror in the dressing table. All edges of the painted surfaces and formica beading were covered with polish and had been cleaned later by the complainant. It is stated that there were many other defects in addition to the defects pointed out by him, in the house.

IT is further pleaded that inspire of repeated requests and notices, the Builder did not get the defects rectified. Consequently, he has prayed that he is entitled to costs for replacements of the defective structure, and cost of repair of the other items. IT is alleged that he in all had to spend Rs. 65,875.69 for getting the defects rectified and replacements made and further he shall have to spend Rs. 15,747/- for getting other defects rectified. Thus, in all he has claimed Rs. 81,622/- on account of repairs and rupees one lakh as damages.

THE complaint has been contested by the respondent, who controverted the allegations of the complainant. THEy have inter-alia pleaded that the complainant is not a consumer and therefore, the complaint is not maintainable. He has also stated that the defects pointed out by the complainant did not exist in the building. The first question that arises for determination is, whether the complainant is a consumer. It is contended by the learned Counsel for the complainant that the building was sold to the complainant, after many structural changes and consequently, the complainant is a consumer. On the other hand learned Counsel for the respondent has vehemently argued that the building was purchased by the respondent and he sold the first floor to the complainant. According to him even if any person after purchasing a building sells that to another person, the purchaser will not become a consumer as the seller has not rendered any service to him.

We have duly considered the arguments of the learned Counsel. The Builders after purchasing the building from Mrs. Shanta Badhwar made various alterations and modification in the first and second floor of the building and thereafter he sold first floor to the complainant and the 2nd floor to Shri R.K. Aggarwal. In the 1st floor the balconies and drawing room have been extended. In order to make extensions the respondent constructed new pillars on the ground floor. He also extended the side walls. Similarly kitchen has been extended by approximately 3 to 4 ft. In order to do that the pillars had been constructed on the ground floor to support the structure. Even Master Bedroom has been extended beyond the original building. A new balcony has been made. The other bedroom too has been increased in size. The length of the study room has been increased by 4 ft. One Servant Quarter and bathroom has been constructed for the purchaser of the second floor and another for the complainant on the roof of the second floor. From the aforesaid additions and alterations it is clear that major structural changes have been made by the respondents who are carrying on the work as a builder. After taking into consideration the aforesaid circumstances, we are of the view that work of additions and alterations done by the respondents in the building amounts to rendering of service by him. Consequently, the complainant is a consumer as defined in the Act.

THE second question that arises for determination is, whether there is any deficiency in the service rendered by the builder. Various defects pointed out by the complainant have already been enumerated above. THE complainant has attached the report of Shri Prabhat Chandra, Architect dated 28th September, 1992 in which he has enumerated the defects and stated that an amount of Rs. 46,200/- would be the estimated cost of rectifying the defects. He has further stated that the water seepage could have taken place because of any one or more of the following defects :- "1. Blocking of rain water pipes and leakage from its joints. 2. Cold joints in R.C.C. structure due to the extension of slabs at a date later than the original structure. 3. Making additional toilets and enlarging kitchens when its provision was not made in the original structure. 4. Gap between the walls and adjacent building not completely or properly finished. 5. No protection of rain water from the sunshade of adjacent building seeping into the extended portion of the side wall. THE unplastered outer side wall is another source of water seepage."

In the another para of the report he pointed out that stone aggregate and old pieces of plaster were lying at many places on the tarrace. The part of the report reads as follows:- "On the terrace of the building above second floor stone aggregate, sand and old plaster were lying at many places as also around rain water outlets, Brig. Dandeker informed me that earlier a lot of the material lay there even during the rains."

The complainant has also produced the report of another architect, namely, Kailash Associates dated 28th August, 1992. He also made similar observation and stated that the damage had occurred to the building due to the negligence of the builder who had the left over material after construction of the building on the terrace and used poor quality plaster on the outside face of the bedroom wall. He has further stated that the mouth of the rain water outlet-pipe was found completely blocked and that led to the accumulation of water on the terrace for a long time, which later on seeped into the bedroom. The estimated cost of repair given by him is Rs. 41,747/-.

THE complainant took possession of the premises on 5-5-92. After taking the possession, it was his duty to have got removed aggregate, sand, plaster pieces etc. lying on the roof or he should have asked the respondent to get them removed. However, he did not adopt either of to the courses. Thus, he also contributed to the loss suffered by him. Consequently, we are of the view that the damage has been caused to the building partly due to the negligence of the complainant and partly due to the deficiency in service of the respondent. The last question that arises for determination is, what amount the complainant is entitled to recover from the respondent as damages. It has already been mentioned that the two architect have given estimated cost of repairs as Rs. 41,747/- and Rs. 46,200/-. However, the complainant alleges to have spent Rs. 65,870.69 for the rectification of the defects. It is further stated that another Rs. 15,747/- would be required by him to rectify the defects. Thus, according to him he suffered damages to the tune of Rs. 81,617.69. While working out that amount he has also included the cost of some of the items which have been spent/would be required to be spent for additions on the basis of oral agreement. He has stated that the building was to be provided three phase electric connection and eleven ampere meter whereas it has been provided with single phase connection, and 4.5 ampere meter. In our view he is not entitled to such expenses. If the respondents had agreed to provide a three phase electric connection he could find out the defect at the time when the possession of the building was taken by him. Further it appears that he got repaired many items which were not even provided by him in his list of repairs. Therefore, we are not inclined to give cost of repairs which has been incurred or likely to be incurred by him. It is also not possible for us to work out the actual cost of repairs in these summary proceedings. Therefore, we think it fit to work out the same on the basis of the reports of the two architects. In all fairness we consider that the means of the two reports would be fair compensation. It comes to Rs. 43,973/- say Rs. 44,000/- As already observed above. There is contributory negligence on the part of the complainant, which we assess at 25%. Thus the share of the damages of the complainant comes to Rs. 11,000/-. If that amount is deducted out of that amount of Rs. 44,000/-. The balance comes to Rs. 33,000/-. Consequently, we allow Rs. 33,000/- to the complainant on account of damages for rectification of the defects. The next question that arises for determination is, whether the complainant is entitled to any damages on account of mental agony and harassment. It is evident from the aforesaid facts that there was deficiency in service of the respondent and it was his duty to get them recitified. However, inspite of repeated requests the respondent failed to do so. It is natural that in such circumstances a person suffers mental harassment and agony. Consequently, we are of the view that he is entitled to damages on that count. In the present case we assess Rs. 10,000/- as damages. Thus, in all the complainant is entitled to recover from the respondent Rs. 43,000/-.

FOR the aforesaid reasons we accept the complaint with costs and direct the respondent to pay the amount of Rs. 43,000/- to the complainant within a period of three months failing which he shall be liable to pay interest on that amount @ 15% p.a. from the date of complaint till the date of payment and action shall be taken against him under Section 27 of the Consumer Protection Act. Costs Rs. 2,000/-. Complaint allowed with costs.