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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard the learned counsel for the petitioner.
The present revision petition has been filed against the order dated 06.04.2023 of the State Consumer Disputes Redressal Commission Uttar Pradesh passed in first appeal No.2228/2021 whereby the appeal filed by the petitioner was dismissed.
The complainants/respondents gave a contract to the petitioner for construction of a flat. According to them there were several defects in the construction like switchboards were not branded; doors and windows were of sub-standard quality; low grade building material was used, due to which there were cracks in the walls; termite treatment was also not done; and the floor of the house was crooked. Alleging deficiency in service, the complainants filed consumer complaint in the District Consumer Disputes Redressal Commission, which was partly allowed with the direction to the opposite party to pay compensation of Rs.3 lakhs and Rs.5,000/- as litigation cost. Aggrieved by the order of the District Forum, the opposite party filed first appeal in the State Commission. The complainants also filed an appeal for enhancement of compensation. The State Commission, vide order dated 11.10.2017 dismissed both the appeals. Thereafter, the complainants initiated execution proceedings against the petitioner. On receipt of notice in the execution proceedings, the opposite party approached this Commission by filing RP/795/2020 on the ground that during pendency of the appeal before the State Commission, the appellant died and his legal heirs move an application for substitution. The State Commission, without deciding the substitution application, dismissed the appeal. This Commission, vide order dated 22.09.2022, remanded back the matter to the State Commission with the direction to decide the substitution application as well as appeals. Thereafter, the State Commission, vide impugned order dated 06.04.2023 again dismissed both the appeals. Aggrieved by the order dated 06.04.2023, the legal heirs of the opposite party have filed the present revision petition.
The counsel for the petitioner submitted that during construction, the cost of the building material had increased and as per increased cost, Rs.1,18,600/- was outstanding, which the complainants did not pay. In order to avoid payment of Rs.1,18,600/-, the complainants filed consumer complaint against the petitioner on the false allegations. Both the Fora below failed to consider the submissions of the petitioner. He relied on the judgment on Kundlik Ganpat Mokal 2011 SCC Online NCDRC 661 and M/s S. A. Enterprises vs. General Manager, Eastern Railways (2017) SCC Online Cal 16988. The Fora below also erred in relying on the report dated 02.12.2005 as there was no evidence to corroborate the said report.
The complainant deputed Mr. Vinod Kumar Singh, Architect Engineer, who had given certificate dated 02.12.2005 stating that the standard of the building material was not as per the agreement and the flat owner has not spend a lot of money to make the flat liveable. The District Forum as well as the State Commission relying on the said certificate dated 02.12.2005 allowed the complaint. It was also held that the petitioner failed to prove any evidence that the electric wire was installed with the consent of the complainants. The petitioner has not filed any evidence either before the Fora below or this Commission that the expert certificate dated 02.12.2005 was not correct. Both the Fora below have returned concurrent findings against the petitioner. So far as judgment in Kundlik Ganpat (supra) is concerned, the same is distinguishable on facts. In that case the complainant filed to prove the payment made to the opposite party. So far as judgment in M/s S.A. Enterprises (supra) is concerned, in that case para-9 of the contract specifically provided that if the tenderer expires after submission of tender or after acceptance thereof, the railway shall deem such tender as “cancelled.” In the present case, the petitioner has not produced any evidence to show that after death of the proprietor, the petitioners shall not be liable to pay compensation. In the present case, the payment made to the petitioner is not disputed. Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 and Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 held that the National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. The petitioner failed to point out any illegality or material irregularity in the impugned order. The revision petition is accordingly dismissed.