B.N. Sharma vs S.T.P. Limited
1992 Latest Caselaw 311 Del

JUDGMENT

A.S. Vijayakar, J.

(1) Both these appeals are against the Order of the State Consumer Disputes Redressal Commission. Bihar in Complaint No.15 of 1990, Lt. B.N. Sharma (Retd.) Vs. M/s. S.T.P. Limited. The Original complaint was filed for recovery of Rs.8,19,522.22.00 by way of compensation from the opposite party on account of defective and deficient workmanship in water proofing treatment done by it in the basement of the building of the complainant (i.e. the appellant in First Appeal No.233 of 1991.) Before we go on to deal with the facts of the case it has to be stated here that appeal No.246 of 1991 was found to be barred by limitation, and no valid ground was put forth by the appellant. Hence that appeal is dismissed.

(2) How the facts of the case as found by the State Commission and as related to us are that on the advice of the appellant's architects, namely, M/s. Chadda & Associates, Ranchi, the complainant/applicant obtained quotation from the respondent for carrying out the work of damp proofing treatment in the basement of his building and thereafter he placed an order with it for the said job. As per the agreement, the appellant paid full payment of Rs. 59,163.00 only in two installments to the respondent in 1985 itself for the said work. The appellant also completed all the civil works for the installation of the damp proofing treatment required by the respondent, which cost him Rs.l5,950.00 . However, on the onset of the monsoon of 1986, the appellant found that the damp proofing treatment done by the respondent had completely failed as about 6" of water was found accumulated in all the chambers of the basement. He, therefore, contact the Branch in-charge of the respondent at Ranchi, who along with his officers visited the site in the presence of the architect of the appellant, namely, Shri V.N. Chadda. After inspection the officers of the respondent directed the appellant to carry out some additional civil work outside the building to remedy the defect and deficiency in workmanship. Accordingly, he got the civil work done as per their direction at a total cost of Rs.21.525.00 during the dry season of 1986-87. In spite of this, once again, water accumulated in the said basement in the monsoon of 1987. The appellant again lodged a complaint on 14.08.1987 but the respondent did not bother to respond in spite of several reminders. Ultimately, the appellant sent a letter to the President of the respondent company who deputed Mr. P.K. Kusari to look into the matter. There after Mr. P.K.Kusari visited the site in August, 1988 and discussed the matter with Shri V.N.Chadda in the presence of the appellant, on his return to his head office, Mr. Kusari sent a letter to the appellant dated 30/31.08.1988 stating that they were making the best efforts to obtain the best possible result in the circumstances. Soon thereafter, on 24.09.1988 the respondent sent another letter to the appellant in which it was stated that they were trying to find the best solution of the problem and for this their Project Manager of Research & Development Wing would visit the site at the earliest. In February, 1989 Mr. P.K. Kusari along with one Mr. Chaudhary visited the building in question and gave an assurance to the appellant to recommend to the Senior Executive of the Company to consider his case sympathetically and to compensate him to the extent possible. On being informed by Mr.Chadda that another firm, namely, M/s. Blue Bird & Co., had offered to rectify the defects with a guarantee for ten years, Mr. Kusari asked him to obtain quotations from that firm. Accordingly, Mr. Chadda sent the estimate submitted by M/s. Blue Bird & Co., on 22.05.1989 but the respondent refused to do anything in the matter by letter dated 14.06.1989. Thereafter the appellant sent several letters to the respondent for doing the needful but the latter simply ignored those letters. By letter dated 28.7.1988, the appellant asked the respondent to render full and detailed accounts of the work done and the bills thereof. In reply, the respondent wrote that the account had been finalised till then as the appellant had given an impression that the balance amount would be adjusted by doing tar felting work on the top of the roof. It was also stated that the account would be finalised after 16.8.1988 but in fact (he respondent sent the account only in November - December, 1989, Along with a cheque of Rs. 14,458.78. It was stated that the total bill for the work done was for Rs. 41,686.92. It has been pointed out by the appellant that the balance amount of Rs. 3,019.30 which still remained due with the respondent. The appellant got the basement inspected by Mr. J.K.Lall of M/s. Lall Associates of Patna which is a reputed Architect Firm of Patna and he opined that there was deficiency in workmanship of the respondent and this is why there was seepage from different points of the floor as well as walls. Thereafter, once again, the appellant wrote to the Chairman of the respondent firm on 22.12.1989 enclosing the report of his two architects requesting him to pay compensation for the deficient workmanship but this request was turned down by the respondent by letter dated 20.01.1990.

(3) Thereafter, the appellant got the damp proofing treatment done by M/s. Blue Bird and Co., for which he had to pay Rs. 45000.00 to this firm. The appellant has also alleged that in the interim period he had to install 2 H.P. Pump for pumping out the water from the basement and do other necessary works to protect the basement and spend about Rs. 18.170.00 for this purpose.

(4) The respondent has filed written objections in which it has been stated that no warranty/guarantee was given for the water proofing treatment and the appellant had got the work done by the respondent it his own risk. Further case of the respondent is that the first phase of the work of water proofing was completed before the monsoon of 1985 and no leakage was observed. However, before the onset of the monsoon in 1986, the appellant, without any consultation with respondent caused puncture in the water proofing treatment at twelve places by making construction and fixing up door frame in the walls with the help of twelve clamps. According to the respondent cannot be made responsible for it was done by the appellant himself. When the respondent's counsel was asked, at the hearing of the case at this commission, whether any instructions had been given to the appellant by the respondent not to puncture the walls ever, he could not give any satisfactory answer. He said the respondent. however, tried to remove and rectify the damage so caused in the said treatment but it did not succeed fully. Regarding the additional civil work done by the appellant. he had said that it was done as per the agreement between the parties as they were required to be done for the said water proofing statement. Nevertheless the respondent has denied that it has given any advice to the appellant for doing additional civil work. Like lowering the drain etc. and whatever was done by the appellant was done at his own instance. It has been asserted by the respondent that there was no leakage. In 1986 monsoon and the leakage started when the treatment was damaged for fixing door frames by the complainant and as such respondent cannot be made responsible for the seepage. The respondent has also denied the claim of the appellant on different counts totaling Rs.8,19,522.22.00 .

(5) The respondents have firstly taken the objection that the building in question was constructed by the appellant for commercial purposes and so the complainant cannot fall under the purview of the Consumer Protection Act, 1986. The State Commission has rightly held that the present case is not in relation with the purchase of any goods, but relates to the hiring of services for damp-proofing treatment and for which payment was made in advance.

(6) Again the State Commission has held that though there is no doubt that deficiency in service may on tail breach of contract, in this case the complaint is essentially for compensation for deficiency in service and not for breach of contract. We agree with the view held by the State Commission.

(7) The respondent had also taken the plea that the dispute involved in this case should be adjudicated by a Civil Court as both parties would have ample opportunity there to examine witnesses at length. The State Commission rejected this argument as the facts were not so complicated to abdicate their responsibility to adjudicate the dispute which is clearly a "consumer dispute".

(8) The State Commission after staling that the three objections put forth by the respondent regarding jurisdiction were not sustainable proceeded to adjudicate the dispute on merit.

(9) The State Commission found that there was deficiency in service on the part of the respondent herein viz. M/s.S.T.P.Ltd. and directed the latter to pay Rs.45.000/ which the appellant herein viz.,Col. B.N. Sharma, had incurred as additional costs in paying M/s. Blue Bird & Co., for rectifying the defects in damp proofing, besides Rs.3,019.30 retained by it without rendering account. The respondent ws also directed to pay interest at 15% P.a. on a sum of Rs. 14,456.78 for the period during which the money was retained by it without justification. Rs. 10,0000.00 was as compensation to the complainant for physical and mental suffering.

(10) The other items i.e., recovery of cost of civil work and other additional expenditure incurred like obtaining expert advise of Architects for which no document

(11) We take the grievances of the appellant about the various items mentioned in the complaint. About the first item of Rs.41,880.92.00 the appeal lent does not make any grievances because in stead of that amount, the State Commission allowed him Rs.45,000.00 viz the sum paid by him to M/s. Blue Bird & Co., Calcutta for rectifying the defects in the damp proofing.

(12) The next item claimed by the appellant sum of Rs. 15.950.00 , said to have been spent by him in carrying out certain civil work in connection with the installation of a damp proofing system by M/s. S.T.P. Ltd.. The details of the civil work have not been given. If the civil work was necessary to be executed before them damp proofing work was done by M/s S.T.P. Ltd., it cannot be said that this expenditure was incurred unnecessarily by the appellant. That civil work must have been also useful to M/s. Blue Bird & Co. for doing the damp proofing. Therefore, the appellant is no entitled to this item of expenditure and the State Commission rightly disallowed it.

(13) It is further contention of the appellant that he had to incur an additional expenditure of Rs. 21,525.00 as per the directions of M/s. Stp Ltd. in the monsoon season of 1986, after damp proofing work had been done. This work relates to the construction of drains etc. The State Commission was not in the right for disallowing this item on the ground that there was no satisfactory evidence that this work was done at the insurance of the respondent. The respondent did not dispute this work and it is not their contention that it was not done at their instance. However, we are of the opinion that this work is otherwise beneficial to the building of the appellant and therefore, we disallow it on that ground.

(14) The claimant has claimed Rs. 18170.00 as miscellaneous and contingent expenditure incurred by him in draining out water and provision of temporary dry surface each year for four years. The State Commission considered this figure as exaggerated and allowed only Rs. 4000.00 under this item. We are of the opinion that the appellant pumped out the water from the basement for four years and must have incurred expenses. If the amount appeared to be exaggerated to the State Commission, it should not have been reduced it to less than l/4th. Of course, the appellant has not produced any account but he must have spent a good amount in draining out water during the period of four years. We deem it fit to raise the figure of R. 4000/ - allowed by the State Commission to Rs. 10,000.00 .

(15) Now we take the items 5 to 6. The first item of Rs. 9600.00 relates to the expenditure incurred by the appellant in getting the independent second opinion from M/s. Lall & Associates. Patna and the later item of Rs. 2000.00 relates to the amount paid to M/s.Chadda and Associates for their professional fees. The total amount in respect of these two items comes to Rs. 11600.00 . The State Commission disallowed these items on the ground that the appellant might have obtained the opinion of the architects for his own satisfaction and moreover no document had been produced to prove the actual payment said to have been made by him to those architects. The complainant has filed the letters written by those architects. He had obtained their opinion because M/s. Stp Ltd. was throwing the blame upon him for spoiling of the damp proofing done by them. Thus it cannot be said that appellant had paid these amounts to those two architects unnecessarily, but, as no documentary evidence has been produced towards the payment of those items, we allow 50% of those amounts which comes to Rs. 5800.00 .

(16) The next item relates to Rs. 3,019.30 paise, which has been retained by M/s. Stp Ltd. The State Commission allowed this item and we have nothing to say about it.

(17) The next item relates to Rs. 14.456.78p. retained M/s. Stp Ltd. for four years. The State Commission had allowed interest to the claimant @ 15% p.a. for the period during which the money was retained by the said firm. We do not find any ground to interfere with the State Commission's Order about this item.

(18) The claimant has claimed Rs.3,84,000.00 as compensation for the long term damage to the building and the foundation. The State Commission has disallowed this item on the ground that there was no clear evidence to show that any damage has been caused to the building and its foundation. We agree with the opinion of the State Commission and hold that they rightly disallowed this item to the appellant.

(19) The State Commission considered item nos. 9 and 11 together. Item No.9 relates to a sum of RS.10,000.00 said to have been spent by the appellant on travel, postage, telephone and other incidentals and miscellaneous items connected with all the above works over the period of four years, while the latter item relates to the compensation of Rs.3,00,000.00 for mental tension, physical harassment and loss of goodwill on account of the failure of the system during the last four years. The State Commission has allowed only RS.10,000.00 as total compensation in respect of these two items. We think that the award does not do full justice to the claimant's claim. He suffered for four years on account of the unsatisfactory work done by the respondent herein. During this period he must have travelled many times to meet them as well as the architects. He suffered for four years on account of the unsatisfactory work done by the respondent herein. During this period he must have travelled many times to meet them as well as the architects. He must have been under a lot of tension and must have suffered physically also in running hither and thither. We think that the ends of justice will be met if we allow Rs. 25000.00 as compensation under these two items.

(20) In the light of the above discussions, we modify the Order of the State Commission and direct the respondent herein to pay Rs. 15800.00 besides Rs. 3019.30 paise retained by the opposite party. The Order of the State Commission about payment of interest @ 15% p.a. on the sum of Rs-14456.70 paise for the period for which the amount was retained by the respondent is maintained. The opposite party shall also pay Rs. 25000.00 instead of Rs. 10000.00 as ordered by the State Commission to the claimant as compensation under item 9 to II. The order of the State Commission about payment of interest as ordered by them is maintained. On the amounts enhanced by this Commission respondent will pay interest @ 15% p.a. from the date of this order till realisation. The appeals are disposed of as above. The appellant in F.A.No. 233 of 1991 will be entitled to recover his costs from the respondent which we assess at Rs. 2000.00.