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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Parties (OPs) as detailed above, inter alia praying for directions to :-
i. Declare that the Opp. Parties are guilty of deficiency in service, unfair and restrictive trade practice, and breach of promise towards Complainant.
ii. Directs the Opp. Parties to jointly and severally pay the compensation of Rs. 2,51,75,000/- as detailed in Para 49 of the Complaint with past, pendent lite and future interest.
Details of compensation sought in Para 49 of Complaint
a. Refund of the entire amounts paid to the Opp. Parties i.e. Rs.1,35,25,000/-.
b. Rupees 50.00 lakhs being the estimated expenditure to demolish the structure.
c. Damages due to delay in execution of the project Rs.25,00,000/-.
d. Mental agony due to the substandard construction and delay in execution of the project Rs.25,00,000/-.
e. Amount to be paid to the NOIDA Authority for further extension for completion Rs. 12,00,000/-.
f. Testing Reports in respect of the structure in issue Rs. 1,50,000/-
g. Cost of litigation Rs.3,00,000/-.
h. Interest on the aforesaid amounts.
Complaint was admitted as 09/06/2016 and notice was issued to the Opp. Parties directing them to file their written statement within 30 days of receipt of notice failing which their right to file written statement may be closed. Notices issued to Opp. Parties were received back undelivered with postal remarks dated 23/09/2016 “Refused to accept the notices”. As the Opp. Parties refused to accept the notices, it was treated as deemed service. The Opp. Parties failed to file written statement within the stipulated period. Therefore, the right of Opp. Parties to file written statement was closed and Opp. Parties were proceeded ex-parte. Complainant filed evidence by way of affidavit on 16/05/2016 and an additional affidavit evidence on 02/02/2017 along with IA 5359/18.
Brief facts of the case/averments of Complainant as stated in his complaint/written submissions are that:-
i. The complainant has preferred the instant complaint due to deficiency in service, unfair and restrictive trade practices and breach of promise on the part of the Opp. Parties in constructing the office building for his personal use and for earning his livelihood at his own plot D-1, Sector 63, Noida, UP. The Opp. Parties failed to complete the project in stipulated time period and the incomplete structure they built is not as per the specifications and is weak and unsafe for occupation. The Complainant took expert advice of qualified engineers who have opined that the structure has to be demolished. The Opp. Parties No.1 and 2 are partnership firms of architects and contractors respectively and the Opp. Parties No. 3 and 4 are its partners.
ii. Complainant executed an agreement on 29.05.2013 with the Opp. Parties for the construction of the office building. The work was to be completed in 9 months from 1.6.2013 i.e. by 1.3.2014. Further, on 15.06.2013 parties entered into a contract for services and the estimated cost of the project was Rs. 2.5 crores exclusive of the consultancy fees of Rs. 7.5 lacs. On 3.4.2014, the Complainant wrote to the Opp. Parties showing his dissatisfaction with delay in completion of the work at the site. On 12.5.2014 the Complainant again wrote to the Opp. Parties pointing towards the breach by them in carrying out the work.
iii. The Complainant consulted an expert firm Nitya Laboratories to ascertain the actual strength of the building at D-1 Sector 63, Noida. On 2.6.2014 the report ascertained that the structure is weak and the only conclusion was that the structure had to be demolished and reconstructed. The complainant sought drawings and strength report from the Opp. Parties. The Opp. Parties also brought a strength test report from M/s Bureau Veritas Pvt. Ltd. which did not mention against which grade of cement the strength test was conducted. In the view of the refusal of the Opp. Parties to rectify the defects, the Complainant communicated to the Opp. Parties that they were left with no option but to engage another firm to do the necessary work at the cost and risk of the respondent.
iv. The complainant approached a Civil Engineer Mr. Parvez Khan who considered the reports of Nitya Laboratories, M/s Bureau Veritas Pvt. Ltd. and HILTI, opining that the structure work at the building constructed is not as per structural drawing and as per specification and strength and the building is not structurally safe for occupation and it has to be demolished, putting additional cost on the Complainant. The Complainants approached another highly qualifies IIT-BHU Civil Engineer Er. Ashok Kumar who examined the building structure and all the test reports and has categorically opined that the building is unsafe and the entire structure needs to be demolished. The Complainant took an estimate from a contractor for demolishing the structure and the said contractor has estimated a cost of Rs. 50 lakhs for the same.
v. The Complainant had earlier approached this Hon’ble Commission against the Opp. Parties on the grounds breach of contract and deficiency in service in residential flats and the present cause of action. The Complainant along with his father jointly filed Complainant before this Hon’ble Commission vide CC/93/2015 against the opp. Parties. This Hon’ble Commission had admitted the said Complaint but later permitted the Complainant and his father to withdraw the matter with liberty to file afresh on the separate cause of actions.
Heard counsels for Complainants.
It was argued by the Complainant that the Opp. Parties failed to complete the project in stipulated time period and the incomplete structure they built is not as per specifications, is weak and unsafe for occupation, and as per the expert advice of qualified engineers taken by the Complainant, the structure has to be demolished. As per agreement dated 29/05/2013 it was agreed that works would be of certain specifications e.g. RCC work shall be of grade M 25 confirming to IS 456: The building was to be constructed of very good quality and any flaw or damage was to be the responsibility of Opp. Parties and they have to bear the losses of any nature.
We have gone through various documents and reports of various laboratories and engineers engaged by the Complainants. Vide letter dated 29/05/2013, OP 3, through its partner OP 4, submitted an estimate for civil works of office buildings on Plot No. D-01, Sector 63, Noida for the Complainant. It contains the scope of works, specifications and conditions, rates and fine schedule etc. Para 1.13 of this letter states as follows.
“Building/Structures would be constructed of very good and quality and any flaw/ damage/ destinaction in the structure work due to any reason during of & after the construction would be the responsibility of architects build India and all the losses of any nature would be bank by Architect Build India.”
Vide letter dated 15/06/2013, OP 1, through its partner OP 4, has submitted a proposal to Complainant for architectural service at the said buildings D-01, Sector 63, Noida. This letter contains scope of work/ consultancy service as well as consultancy fee and payment schedule/ terms. We have also gone through copies of various receipt and running bills issued by Opp. Parties. We also notice that in their letter dated 13/04/2014, OP 2 interalia raised issues regarded payments from the Complainant; to which Complainants in their letter dated 16/05/2014 stated that they have been paying upfront and payment had never been an issue. We have also gone through various others communications between the parties.
We have gone through the test/results/certificates/reports of Nitya Laboratories, Bureau Veritas, HILTI India, report of Er Ashok Kumar. Er Ashok Kumar in his report 11/1/2016 has stated as follows.
"After inspection of civil works of above said under construction site and the test carried out various agencies and their reports, it is crystalize that quality of work and supervision carried out is failed to meet out the specifications as specified in relevant documents and structural drawings.
After considering all facts and figures it is advisable to demolish the existing structure to avoid any mishappening may be occurred in future on account of poor quality of work.”
In this report, Er Ashok Kumar has also given his inferences of tests carried out by different agencies for different tests some of these all extracted as below:
Type of test
Total test
carried out
Total test failed
% total test failed
Remark
Annexure
1.
Rebound hammer.
157.
153.
97.45% failed
Failed
“D” Analysis of
Nitya laboratories report.
2.
Comprehensive strength of core taken out from
coloumn and beams.
12.
12.
100% failed
Failed
“E”
Analysis of BUREAU VERITAS REPORT
3.
Scan of structure to establish the rebar layout, concrete
cover, rebar dia, rebar spacing.
33.
29.
87.88% failed
Failed
"F"
Analysis of
HILTY INDIA
SCAN Report
4.
Physical verification of rebar coming out in Columns from
existing floor to next floor.
25.
18.
72% failed
Steel
provided in structure is less than
required in various
columns
and in some of columns is less than 50%.
"G"
Analysis of Steel in
columns.
Beside from the above the site was inspected and general observations are as below :-
RN.
Observation
Remarks
Anneuxre
1.
Verticality of columns
Columns are not
vertical and some of them are badly inclined.
Some photographs showing the deviations in vertically. "H"
2 2.
Concrete cover to the main reinforcement of Column, beam and slabs.
At some of the places
almost no covers are provided and some places are more than required covers are provided.
Photographs showing the cover to main
reinforcement
confirming by Hilty scan. "J"
3.
Proper mixing of
various ingredients of concrete such as coarse aggregate and fine
aggregate
After viewing the lattice of concrete in column and beams the appearance of not proper mixing of coarse and fine aggregate visualize and it may occurred when either proper design of mix not carried out or and
concrete not produced based on mix design.
After carefully going through various reports cited above and other records of the case, we find that Complainant has been able to establish the case of deficiency in service on the part of Opp. Parties, who have choosen not to come forward to contest the case/allegations in the Complaint. The building/Structure in question being unsafe as per technical reports discussed above, would require demolition and Complaint is entitled to refund of the total amount paid to Opp. Parties along with few after reliefs.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Complainants , the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. OP(s) will refund the entire amount of Rs-1,32,25,000 paid by Complainant for the Construction of building in question at the Plot No. D-1, Sector 63, Noida along with simple interest @ 9% per annum from the date of each payment till the date of actual refund.
ii. The OP(s) shall demolish the said building at their cost, by taking requisite approvals of concerned authority for such demolition, if any, and adopting requisite standard safety measures, as required, within a period of three months from the date of this order. The OP(s) shall be entitled to retain the salvage/debris/ its value. In case OP(s) fail to do so within the stipulated time frame, Complainants shall be entitled to get the said building demolished at the cost and risk of the OP(s), limited to a maximum of Rs 5.00 lakh (Rs. five lakhs only) after taking requisite approvals of concerned authorities for such demolition, if any, and adopting requisite standard safety measures, as required, after giving a written notice of at least 15 days to the Opp. Parties. In this situation, Complainant will be entitled to retain the salvage/ debris/ its value and Opp. Parties shall be liable to pay the actual cost of such demolition, subject to a maximum of Rs. 5.00 lakh, within one month of demolition, along with Simple Interest @ 9% p.a. from the date of demolition till the actual date of payment.
iii. Opp. Parties shall also pay a lump sum compensation of Rs. 10.00 lakh to the Complainant to partially cover Complainants costs towards testing reports from laboratories, engagement of engineers, costs paid to NOIDA authority for obtaining various approval and/or compensation sought under other heads in the Complaint.
iv. Opp. Parties shall also pay a litigation cost of Rs. 50,000/- to the Complainants.
v. All payments under the order shall be made within three months of date of the order.
vi. For any delay in making due payments as per the order beyond three months, Opp. Parties shall be liable to pay Simple Interest @ 12% p.a. on the total amount payable at the end of three months from the date of the order.
vii. Liability of Opp. Parties shall be joint & several.
viii. In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balances will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the Opp. Parties four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, in the Consumer Complaints, if any, also stands disposed off.