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Dr. Pannaben Padamsi Asar, vs. Mr. Vilas Ramdas Borane, dated 2012-12-03

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION  PETITION  NO.   2335    OF   2011
 (From the order dated  11.4.2011 in  First Appeal No.1986/2006  
  of the State Commission,  Maharashtra, Circuit Bench Aurangabad)
 
 
Dr. Pannaben Padamsi Asar,
R/o Nital Pathological Laboratory
Desipura, Nandurbar
Tq.  & Distt. Nandurbar (Maharashtra)                    …Petitioner
 
 
Vs.
 
Mr. Vilas Ramdas Borane,
R/o 27-B, Vrundavan Colony
Nandurbar,
Tq. & Distt. Nandurbar
(Maharashtra)                                                                 ...Respondent
  
BEFORE:
 
 
HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER
           
 
For the Petitioner             :         In person
 
For the Respondent         :         Mr. Rajesh, Advocate
 
 
Pronounced on: 3rd December, 2012                  
 
ORDER
 
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
          Present revision petition has been filed against order dated 11.4.2011, passed by Maharashtra State Consumer Disputes Redressal Commission, Aurngabad (for short ‘State Commission’) vide which appeal of the petitioner/complainant against order dated 9.8.2006, passed by District Consumer Disputes Redressal Forum, Nandurbar (for short ‘District Forum’) was dismissed.
2.       Brief facts of the case are that petitioner/complainant, who is a Doctor by profession, purchased a plot in Vardhaman Nagar Hosing Society. After getting sanctioned the plan for construction by Municipal Council, she approached respondent/opposite party, a contractor for construction of house.  Petitioner entered into an agreement with the respondent on 8.11.1997. It is agreed that petitioner is to pay Rs.3,40,000/- in total for the said construction. It is alleged by the petitioner that respondent recovered amount of Rs.3,88,354/- when it was decided that amount of Rs.3,40,000/- is only to be paid.  Though the amount as agreed was recovered by the respondent, but the construction was not completed. Therefore, petitioner filed (complaint case No.7/2000) which was decided in her favour by District Forum on 6.11.2003. During pendency of said complaint it was found by the petitioner that though construction was said to be completed it was not as per quality expected and agreed by her. Therefore,  civil engineer Shri Ansari was appointed to inspect the said house. Accordingly, report of Shri Ansari was produced before the Forum. But as the complaint was for the excess amount and non completion of construction within stipulated period, the District Forum did not find anything about defective construction in report of Shri.Ansari.. After taking possession of house,  it was found that construction is of very inferior quality. Many defects had been committed by the respondent such as, the flooring was not in good, levelling was not done properly, walls were separated by slab etc. Petitioner approached Civil Engineer Shri.Prasad Kulkarni at Dhule for inspecting the construction of her house. Shri Kulkarni, accordingly inspected the house and gave report in respect of same. It is alleged by the  petitioner that according to said report the defects in construction were beyond repair. Therefore entire house is to be demolished or rebuilt. It is alleged that petitioner was to run pathology laboratory in the said house and was to use as residential house also. But due to the defective construction she could not shift in her house. Therefore, she suffered professional loss also. On 11.1.2005, petitioner issued legal notice to respondent. Said notice was not replied by the respondent. Therefore,  petitioner approached the District Forum and demanded Rs.3 lakhs for reconstruction of house and Rs.2 lakhs for mental agony and financial loss with 18% interest.
3.       Respondent appeared before the Forum and resisted the claim. On 3.5.2005,  respondent made an application and objected to the complaint on the ground of Res Judicata. The said application was dismissed by the District Forum on 12.8.2005. Thereafter,  respondent filed his written version on 23.9.2005 and denied all the allegations made by petitioner. It is submitted by the respondent that petitioner had  filed (complaint case No.7/2000)  with the same allegations. Therefore,  petitioner is not entitled to file another complaint on the same cause of action. It is further stated that after decision of the (complaint No.7/2000) respondent paid decretal amount to the petitioner.  It is further stated that after getting completion certificate from the  Municipal Council,  petitioner started residing in the newly built house.
4.       District Forum, in its order held that in the absence of expert report about defective construction, complaint is not maintainable and it dismissed the complaint.
5.       Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission which was also dismissed, vide impugned order.
6.       Hence, this revision petition.
7.       Petitioner has argued the case on her own. Whereas, Shri Rajiv, Advocate,  has argued on behalf of respondent. I have gone through the record. 
8.       It is contended by the petitioner  that complaint is maintainable without the expert opinion for defective construction, since it is visible even to the naked eye that the construction is of very inferior quality. Thus it amounts to deficiency in service on the part of the respondent. Petitioner has also placed on record photographs of the defective construction, which apparently shows the situation and it is self-sufficient to establish the case of the petitioner.  Thus, the order passed by the Fora below are liable to be set aside.
9.       On the other hand, it has been argued by learned counsel for the respondent that, there is no infirmity and ambiguity in the order passed by the State Commission as well as of the District Forum. Present revision petition has been filed just to harass the respondent.  The issues raised in the present complaint, have already been decided in the earlier compliant filed by the petitioner.
10.     State Commission in its order has observed;
“8.   We perused the record and gave our anxious thoughts to the arguments advanced by both the counsels. It is an admitted fact that complainant entered into an agreement with respondent for construction of house. The allegations of complainant that respondent is not qualified engineer cannot be accepted as she after enquiry about the same had entered into an agreement. Construction was completed in the year 1999. Accordingly, completion certificate was obtained from Municipal Council. Thereafter in the year 2000 complaint was filed for recovery of excessive amount accepted by the respondent and during pendancy of said complaint it was found by complainant that construction was not of proper quality. Therefore she submitted the report of one Shri Ansari. Complaint No.7/2000 was decided in favour of complainant and she received decretal amount from the opponent. Grievance about defective construction was considered in the said complaint. Therefore she filed complaint No.21/05. In the said complaint she filed inspection report of one Shri.Prasad Kulkarni who is Consulting Engineer and builder & developer. According to said report construction made by opponent is of  inferior quality and it must be reconstructed after demolishing. The said Kulkarni did not file his affidavit neither he offered himself for cross examination by opponent. Therefore there is no authentic evidence about defective construction. It is contended by Adv. Kulkarni that Order 2 Rule 2 of C.P.C. is not applicable, to proceedings under Consumer Protection Act. But in ‘Dr.Poonam Verma`s case the Delhi State Commission relied on Hon`ble Supreme Court`s decision in which it is held by Apex court that complaint on same fact and cause of action is not maintainable. It has come on record that Shri.Prasad Kulkarni is not ready to file his affidavit as he is not willing to depose against his professional brother i.e. opponent. Complainant is aware about said fact so she should have filed report of any expert with affidavit to show that construction made by opponent is of inferior quality. Only allegations made by complainant are not sufficient to prove that construction is of inferior quality. Photographer who took photograph has also not filed affidavit in respect of same. Construction work was completed in the year 1999 and possession was taken by complainant in the year 1999. Completion certificate obtained in the year 2001 and complaint about defective construction was filed in the year 2005.
9.    In our view when there is no expert evidence to show that construction work is of defective in nature. The report in question cannot go on record in the absence of affidavit. We are not inclined to allow the appeal. Distt. Forum rightly considered all the facts on record and dismissed the complaint.”
11.     It is apparent from the record that the construction work was completed in the year 1999. The possession was taken by the petitioner also in that very  year. The completion certificate obtained in the year 2001, whereas the complaint about the defective construction was filed only  in the year 2005.  There  was no material before the fora below to reach at the conclusion that the construction work is defective.  Admittedly,  there is no  report of any expert engineer or other expert, to show that the construction work is defective in nature.
12.     The question as to whether the construction made by the respondent was defective is a question of fact. Both the Fora below have given finding of facts that there is no evidence on record to show that the construction was defective.
13.     In view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Consumer Protection Act, 1986. Both the fora have  given cogent reasons in their orders which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.
14.     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 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.”
15.     Recently, Supreme Court in Gurgaon Gramin Bank Vs. Smt. Khazani & Anr., Civil Appeal No.6261 of 2012 decided on 4.9.2012, has observed ;
“12.   We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court.  In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this Court.”
 
16.       Since, two Fora below have given detailed and reasoned orders, which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby dismissed with costs of Rs.5,000/- (Rupees Five Thousand only). 
17.       Petitioner is directed to deposit the cost  by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within eight weeks, failing which, petitioner shall be liable to pay interest @ 9% p.a. till realization.
 18.      List for compliance on 1.2.2013.
                                                                             …..…………………………J
                                  (V.B. GUPTA)
                     PRESIDING MEMBER
Sg/
                                                 
 
 
 
 

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