M/s Ferro Technologies vs Thomas K. Thomas

Subhash Chandra, Presiding Member

This revision petition has been filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order dated 30.04.2014 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in Appeal no. 603 of 2013.

The brief facts of the case, culled from the records are that the respondent had entered into an agreement with the petitioner on 09.12.2011 to construct a residential building on re-survey no. 76 of 2013 in Koipuram Village, Kumbanad P O, Pathanmthitta District, Kerala which was owned and possessed by the respondent. The petitioner adopted the Ferro Technology method of construction of the building which was a cost effective and time saving technology. Convinced that the petitioner was very skilled and experienced in the relevant field, the respondent entrusted the construction work to the petitioner. It is also stated that the respondent was himself a retired engineer. According to the agreement dated 09.12.2011 the total plinth area of the proposed construction was approximately 1846 square feet and the total cost for the construction was Rs.17,54,100/-. The respondent states that while he was strictly adhering to the provisions of the agreement dated 09.12.2011, from the very beginning of the construction the petitioner did not show any sincerity to the works and purposefully lagged the construction. The respondent has paid Rs.12,00,000/- to the petitioner in connection with the said construction. The respondent requested the petitioner in person, through letters and mediators on several occasions to complete the work as per the agreement. However, the petitioner has not heeded the request of the respondent. The respondent therefore, terminated the agreement.

The respondent has stated that the petitioner has completed only 35% of the total work and collected an amount of Rs.3,50,000/- in excess from the respondent. He further states that major works of the building remain incomplete. He further states that if the construction is not completed within a short span of period, the construction cost will rise higher and will adversely affect the financial condition of the respondent. It is alleged that the delay caused in the construction was only due to the negligent acts of the petitioner. The civil construction works completed are alleged to be of poor quality. The respondent brought to the notice of the petitioner, defects in sun shades, air holes, electrical junction box, switch boxes not in alignment, defective wall plastering, car porch, sit outs and other works on the ground floor which were balance till date. It is alleged that the petitioner did not apply epoxy primer on the steel structure before applying plaster which will affect the structural stability of the building. In order to cure these defects the petitioner sought a further Rs.2,00,000/- from the respondent. As the above mentioned defects were noted by the respondent, he requested the petitioner to rectify the same. However, the petitioner failed to cure the said structural defects. Due to these deficiencies of the petitioner, the respondent and his family members suffered mental agony and is presently residing in a rented accommodation at Kumbanad on a monthly rent of Rs.3000/-. Non-completion of the respondent’s residential building by the petitioner within the time frame amounts to deficiency in service.  The respondent further states that the petitioner has abandoned the works of the respondent since 09.06.2012. Hence, the respondent has prayed the following relief from the petitioner:

a. Release an amount of Rs.3,50,000/- which was excessively collected by the opposite party from the petitioner with 12% interest;

b. Release an amount of Rs.2,00,000/- from the opposite party which is need for curing the defects happened at the time of construction of the opposite party;

c. Release an amount of Rs.1,00,000/- as compensation for mental agony suffering distress caused to the petitioner.

Hence, the respondent/ opposite party had filed complaint no.134 of 2012 before the District Consumer Disputes Redressal Forum, Pathanamthitta, Kerala (in short, ‘the District Forum’) which was contested by the petitioner. The petitioner admitted the execution of the agreement with the respondent for the construction of the respondent’s building by using Ferro Cement Technology. It was stated that the  petitioner was well experienced in Ferro Cement Technology and the respondent entrusted his work after being fully convinced of the petitioner’s ex parte. The plinth area of the building as per the plan initially approved and accepted by the respondent was 1846.67 sq ft on the ground floor and 634.59 on the 1st Floor and the total cost of the construction was Rs.17,54,100/-. As per the suggestion of the respondent, the total plinth area was changed to 1976.69 sq ft and the cost of construction was also raised to Rs.18,77,855/-, which was accepted and approved by the respondent. According to the agreement the respondent was to pay 50% of the total cost at the time of the execution of the agreement; however, he paid only Rs.4,00,000/-. The petitioner herein alleged that respondent/ complainant had delayed in providing electricity, water, lockable storage space and labour accommodation which caused delay in commencing the work. The petitioner further stated that the respondent did not pay 60% of the construction cost instead of 90% due for the work executed. The petitioner further stated that no excess amount was collected. The petitioner submits that the respondent has not suffered any mental agony or financial loss, since the petitioner has carried out more than 75% of the work for which the respondent is required to pay Rs.14,00,000/-. He also states that he is willing to continue the work as per the agreement dated on 09.12.2011 and prayed for the dismissal of the complaint since there was no deficiency in service as alleged by the respondent.

The District Forum vide its order dated 24.06.2013 directed that an expert commissioner be appointed. After considering the Commissioners report vide order dated nil, the District Forum directed as below:

i. Opposite party is directed to finish the work in the presence of the complainant or his representative on the basis of the revised plan and as per the terms and conditions contemplated in Ex A 1 agreement within 90 days from the date of receipt of this order, without demanding any further amount from the complainant till the completion of the work;

ii. Opposite party is further directed to rectify the defects, if any brought to the notice of the opposite party by the complainant without any hesitation;

iii. Complainant is directed to supply the material to be supplied by him before starting the works and to pay the balance amount to be paid as per the initial plan and the revised plan on completion of the work by the opposite party; and

iv. In the nature and circumstances no orders for costs and compensation.

Aggrieved by the order of the District Forum, the respondent filed an appeal before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’). The State Commission allowed the appeal vide its order dated 30.04.2014 and ordered as under:

“The Commissioner has seen several structural defects to the building. That being so complainant is entitled to the above said amount with interest. The finding of the Forum on that point is set aside and the order passed by the Forum is modified as follows. Opposite party shall pay Rs.8,03,581/- to the complainant with interest at the rate of 12% from the date of petition till realisation. Complainant is entitled to a cost of Rs.5000/-. In the result the appeal is allowed as found above with cost of Rs.5000/-.”

The present revision petition impugns this order.

I have heard the learned counsel for the parties and have carefully perused the material available on record.

The learned counsel for the revision petitioner argued that the respondent and the petitioner executed an agreement on 09.12.2011 for the construction of a residential building by using Ferro Technology within six months from the date of commencement of work. The approximate plinth area at the time of agreement was 1846 sq ft and total construction cost agreed upon was Rs.17,54,100/-. Subsequently, as per the suggestions of the respondent, the plinth area was changed to 1976.69 sq ft and the cost of construction was revised to Rs.18,77,855. The petitioner was unable to finish the construction work and the respondent filed a consumer case before the District Forum.  The District Forum observed that the respondent was also responsible for delay in providing initial facilities to the petitioner and as per itsorder dated 24.06.2013, directed the petitioner to finish the work in the presence of the respondent and his representatives on the basis of the revised plan and as per the terms and conditions of the agreement within 90 days from the receipt of this order.  Learned counsel for the petitioner submits that the District Forum has rightly discarded the report of the Commissioner appointed by it observing that the same is not helpful for taking a decision. He further submits that the State Commission did not discuss any of the observations of the District Forum with regard to the Commissioner’s report and passed the impugned order. He further states that the State Commission failed to observe that the Commissioner is not an expert in Ferro Technology and the calculations made by the Commissioner in his mahazar do not correspond to the terms and conditions of the agreement as it has included wooden items to be supplied by the petitioner/ opposite party, whereas in his deposition the respondent had categorically stated that he is responsible for the supply of doors etc. Petitioner therefore, contends that the Commissioner’s report cannot be accepted. He further submits that the State Commission has not considered the matter in its correct perspective and passed the impugned order. Learned counsel for the petitioner submits that the Commissioner was examined before the District Forum and he has categorically deposed in his cross examination that Ferro Technology was not included in his syllabus. Mr G Hari, Professor in Civil Engineering, had deposed that the construction done at the site was satisfactory according to his evaluation. Hence, the learned counsel for the petitioner prays that the petition be allowed.

On the other hand, the learned counsel for the respondent argued that from the very beginning of the construction, the petitioner did not show any sincerity and had purposefully lagged the construction. The respondent has already paid Rs.12 lakhs and the agreed period ended on 09.06.2012 since the petitioner was supposed to complete the construction in 180 days, i.e., starting from 09.12.2011, the date of the agreement. He also submits that the District Forum had held that the respondent has not adduced any direct evidence to show that the petitioner has collected excess amount. He further submits that the calculation by the Commissioner in his mahazar do not correspond to the agreement executed between the parties and is based on a wrong premise. He further submits that the prayer in the complaint is to realise an amount of Rs.8,03,581/- which was collected in excessby the petitioner with an interest. Learned counsel for the respondent submits that the State Commission has held that the Commissioner has calculated the amount to be recovered from the petitioner. The actual built up area was 948 square feet, as per the Commissioner’s report. The total amount to be paid to the petitioner for the construction of the actual construction was Rs.8,99,419/- according to the Commissioner. The total amount paid by the respondent to the petitioner was Rs.12,00,000/-; hence, there is an excess payment of Rs.3,00,581/- by the respondent to the petitioner. He further states that it was found by the Commissioner that curing of defects and completion of construction will cost Rs.5,03,000/-. Therefore,  the respondent is rightly in due of Rs.8,03,581/- including interest at 12%.  It is therefore, prayed that the revision petition be dismissed.

From the record, it is manifest that the fora below have arrived at concurrent findings in the matter.

This Commission has limited revisional jurisdiction under the Act. The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 held that:

“23. 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 which revisional 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.”

Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

In a recent judgment, the Hon’ble Apex Court in Rajiv Shukla vs Gold Rush Sales and Services Ltd., and Ors., (2002) 9 SCC 31 while affirming its earlier view taken in the case of Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 held that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, as under:

“At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. As per section 21 (b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”

From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

The foras below have pronounced orders which are detailed and have dealt with the contentions of the petitioner. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

I, therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.