Contractor's liability limited to defective work; heavy vehicle plying not attributable to contractor's actions.

JUDGMENT

The petitioner is a public contractor and was awarded with the restoration work of the road from Mulakkamthuruty to Punnamoodu Junction, as evidenced by Ext.P1 letter of acceptance dated 28.01.2023. As per the terms and conditions of the contract, the petitioner was to repair the potholes on the road, within the period specified in the contract and the defect liability period was fixed as six months. According to the petitioner, he had completed the work by repairing the potholes and making the road motorable. However, the petitioner noticed that, immediately after tarring the road, heavy vehicles carrying loads of 60MT and 80MT were permitted to be plied through the said road and since such kind of usage would damage the tarring work done by the petitioner, Ext.P3 intimation was issued to the 1^st respondent, as early as on

12.03.2023, highlighting this aspect. In Ext.P3, the petitioner specifically pointed out the damages that are being sustained to the road on account of the same and it was conveyed that the petitioner could not be held responsible for the same.

2. According to the petitioner, despite the said intimation, Ext.P4 was issued by the 1^st respondent requiring the petitioner to repair the potholes so formed. The said intimation was issued invoking Clause 46.3 of the agreement executed between the parties and the petitioner was directed to rectify the same within a period of three months. Such intimation was issued on 26.07.2023 and immediately on receipt of the same, Ext.P5 objection was submitted by the petitioner. In Ext.P5, the petitioner reiterated the matter specified in Ext.P3. However, Ext.P6 was issued requiring the petitioner to rectify the potholes within three days and immediately thereafter Ext.P7 was issued on 11.09.2023, forfeiting the security deposit in partial loss claims to be caused to the Government. Ext.P8 representation was submitted by the petitioner before the 1^st respondent, highlighting his objections. Since the same was not considered, this writ petition was submitted challenging Exts.P6 and P7.

3. A counter affidavit was submitted by the respondents, wherein, the lapses on the part of the petitioner in fulfilling the obligations under the contract were highlighted. In the said counter affidavit, contention of the petitioner that the damages sustained to the road owning to the plying of the heavy vehicles were denied. According to the respondents the petitioner ought to have inspected the site and surroundings, before submitting the tender and obtained necessary information. According to the respondents, the petitioner now cannot turn around and dispute that the damages were occurred due to the plying of the heavy vehicles.

4. I have heard Sri.K.V.Rashmi, learned counsel for the petitioner and Smt.Preetha K.K, learned Senior Government Pleader for the respondents.

5. The only question that arises for consideration in this case is whether Exts.P6 and P7 can be sustained or not. On going through Exts.P6 and P7, it can be seen that, the only reason mentioned therein to forfeit the security deposit and to impose liability upon the petitioner, is the failure on the part of the petitioner to carryout the work of pothole rectification within the defect liability period. However, the specific case of the petitioner is that, immediately after completing the work, the petitioner had intimated the authorities concerned, particularly the 1^st respondent herein that, the act of permitting the plying of the heavy vehicles through the said road immediately after the work is over and before the tarring is set, would cause damage to the road, and hen