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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
Shashi Malhotra —Complainant
versus
Ashok Kumar —Opp. Party
Consumer Case No.2237 of 2016
Decided on 18.6.2020
Counsel for the Parties:
For the Complainant:Mr. Madhav Khurana, Advocate Mr. Varun Singh Thapa, Advocate
For the Opp. Party:Mr. Haneef Mohmmad, Advocate Mr. Anil Vyas, Advocate for Mr. Ali Z. Ahmed, Advocate
Headnote:
Consumer Protection Act, 1986 – Section 24-A and 2(1)(c) : [Consumer Protection Act, 2019 – Section 69 and 2(6)] – Building construction – Deficiency in service – Damages – Scope of claim for – Complaint entered into a collaboration agreement dated 5-4-2011 for constructing her properly – Construction anomalies – Slab had been deflected beyond the allowable limit – Entrance to elevator shaft left on the terrace – Due to such negligence, daughter-in-law of the complainant died by falling through the iron sheet – Complainant had to spend Rs. 13,05,712 and Rs. 5,50,000 for making the building worth living – Since respondent left the work in October 2011, therefore cause of action arose in October, 2011 – Thus, the complaint should have been filed before October, 2013 – Since, death of daughter-in-law occurred on 31-1-2013, in that view complaint could have been filed by the end of January, 2015 – Complaint filed on 26-12-2016 – Nothing brought on record to show that as to what was the need to install the lift and even if some provision was made for the lift, why did the complainant continue with that provision after taking the possession – Delay in filing the complaint cannot be condoned – Complaint held barred by limitation. [Paras 13 to 16]
Result: Complaint Dismissed.
ORDER
Prem Narain, Presiding Member—This complaint has been filed by the complainant Shashi Malhotra against opposite party Ashok Kumar.
2. Brief facts of the case are that the complainant entered into a collaboration agreement dated 05.04.2011 for the purpose of constructing/developing her property. As per the agreement, the land was to be provided by the complainant and the complete cost of constructing the property was to be borne by opposite party. In due course of time, the complainant observed major structural flaws with the construction of the premises which were duly pointed out to the opposite party on various occasions. Later on, the complainant shifted into the premises, however, the premises was completely unfit for habitation owing to the gross negligence and hazardous construction methods adopted by the opposite party. Complainant engaged structural consultant who in his report dated 02.06.2011 stated that the slab had been deflected beyond the allowable limit of 20mm and suggested certain alternatives to correct the roof slab. In September, 2011, opposite party constructed the ground floor, upper ground floor and first floor without any rectification to the premises structure as per the agreement. In October, 2011, opposite party rescinded the agreement by abandoning the construction of the premises. On 05.10.2011 complainant completed the ground floor and upper ground floor using her life savings in order to make the premises worth living and incurred an expense of Rs.13,05,712/-. In 2014, the complainant repaired the construction of first floor for an additional amount of Rs.5,50,000/-. The circumstances created by opposite party caused inconvenience to the complainant as she along with her family had to obtain temporary accommodation for a period of one year during the duration of the construction of the premises. Opposite party left the entrance to the elevator shaft on the terrace covered with only a thin iron sheet, as a result of this negligent conduct, the complainant’s daughter-in-law died by falling through the iron sheet on 30.01.2013. After the death, inquest proceedings were conducted u/s 176 Cr.P.C. however, the case was closed on 06.05.2014 as no foul play suspected. An architect in his report dated 20.09.2014 confirmed that numerous cracks appeared in the walls of the premises as opposite party failed to sufficiently waterproof plaster of the walls. Another architect report dated 14.11.2016 stated that the premises is unfit for cohabitation.
3. The complaint has been opposed by the opposite party by filing the written statement. It has been stated by the opposite party that as per clause 28 of the agreement, disputes or any differences shall be referred to an arbitrator if the matter is not resolved mutually between the parties. Thus the State Commission does not have jurisdiction.
4. It has been stated by the opposite party that the collaboration agreement is of 05.04.2011 and the opposite party abandoned the work in September-October, 2011, therefore limitation for filing the complaint was upto October, 2013. Hence, the complaint was time barred.
5. It has been alleged by the opposite party that complainant forced opposite party to stop the work and did not settle the account or the actual expenses incurred by opposite party.
6. It has been stated that the complaint is not maintainable because as per the case of complainant, opposite party breached the stipulations of collaboration agreement which is a contract between the parties and therefore, the only remedy with the complainant is to approach the civil court. It has also been alleged by the opposite party that no relationship of consumer and service provider existed for the subject matter of the complaint. It has been further stated by the opposite party that after October, 2011, how many persons constructed the property is not within the knowledge of opposite party. Complainant got remaining work done in part and as such levelling false allegat
