1. THE Complainant approached the Opposite Party who in an Architect working as the Chief Architect of the establishment know as ''Habitat Technology Group'', for the service by way of designing and constructing a building having a total plinth area of 179.39 m2. THE Opposite Party has undertaken the construction work of the building for a total estimate of Rs. 2,05,000/-. Subsequently on the basis of the guarantee given by the respondent regarding the stability of the low-cost construction of bellow type with clay Mortar, the Complainant agreed for the said low-cost type construction with 20% to 30% less than the given estimate. THE foundation and basement (item Nos. 1 and 11 in the estimate) were constructed by the Complainant at his own cost, before the Opposite Party started construction. THE cost of construction upto the structure stage excluding the cost of wood was Rs. 89,452/ for ordinary type. THE Opposite Party started the construction work through his employee on 7.11.89 and the Complainant again took over construction on 16.2.90. THE Opposite Party had recieved a total sum of Rs.1,33,270/-. It was alleged by the Complainant that though the Opposite Party had received more amounts than the estimate given by him, the construction upto the structure stage was not even completed and that the retaining wall constructed by the Opposite Party for an estimate of Rs. 10,500/- had been collapsed on account of insufficient basement and improper supervision on the part of the Opposite Party which caused heavy loss. THE Complainant''s case is that considering the actual expenditure required for the construction till 1.2.90, the Opposite Party had received an excess amount of Rs. 87,033/- deducting an amount of Rs. 46,237/- which is the actual cost of construction executed by the Opposite Party even the estimate rate. Another allegation was that on account of fault, imperfection and lack of proper care and supervision on the part of the Opposite Party the Complainant had sustained a loss of Rs. 14,402/- towards the additional cost incurred for the reconstruction of the retaining wall. Due to the improper service rendered by the Opposite Party, the Complainant was constrained to purchase 1 percent of property on the North Eastern side and thereby incurred a loss of Rs. 1000/-. It was also stated that soon after the completion of the 1st floor of the building a crack developed on the wall just below the roof concrete of the 1st floor which allowed considerable leakage of water during rainy season.
2. ACCORDING the Complainant the said defects occurred due to the improper supervision and service rendered by the Opposite Party. Hence this complaint is filed by him claiming a sum of Rs. 1,22,435.80/- towards the loss and damages sustained by him and interest thereon from the date of complaint.
The Opposite Party filed a detailed version disputing the allegations contained in the complaint. It was contended by the Opposite Party that the Complainant is not a consumer as defined in the Consumer Protection Act as it is neither a case of sale of goods nor a case of hiring of service for consideration, that there is no specific allegation against the Opposite Party, that Opposite Party had not received any consideration from the Complainant, that there is no agreement or contract or lawful relationship subsisting between the Complainant and the Opposite Party that the Opposite Party is not involved in any manner whatsoever in the actual execution of the construction work or in the disbursement of wages to the workers or in the purchase of building material and that the complaint is frivolous and vexatious. It was contended by the Opposite Party that from the Complainant''s letter dated 7.12.90 it is clear that his intention is to demolish the public asset of confidence in the venture of the Opposite Party to propagate and promote cost effective housing in far developing country.
Another contention of the opposite party is that the alleged dispute relates to pricing of materials and cost of labour and it cannot form a foundation for deficiency in service. Moreover the disposal of the complaint involves thorough and detailed examination of intricacies of measuring and accounting including the elaborate examination of the quality, quantity and cost of materials used and the volume and nature of work done. It was at the request of the Complainant that the Opposite Party introduced Shri Sanal to assist and help him to carry on the construction and Sri Sanal maintained perfect accounts of receipt and expenditure. The Complainant has never disputed any of the items of expenditure incurred by Shri Sanal, for which detailed itemwise statement of account was furnished by him. It is further contended in the version that the Opposite Party is the Honorary chair person of the Habitat Technology group - a society registered under the Travancore Cochin literary. Scientific and Charitable Societies Act 1955, that he is not receiving any remuneration or commission or anything of the sort from the Habitat Technology Group, that neither the plan nor the estimate was prepared by him and that the Complainant has no cause of action against the Opposite Party. The Opposite Party also resisted the claim and stated that he had not undertaken the construction work of the residential building of the Complainant and therefore, the question of fault, imperfection and lack of proper care on the part of the Opposite Party does not arise, that the plan and estimate were drawn and prepared by another firm "Desigo" (Architects and Planners) in accordance with the requirements of the Complainant, that the said estimate was prepared for the purpose of availing loan from the Government and therefore it does not reflect the probable costs of construction and that the complaint is liable to be dismissed.
3. THE Complainant and the Opposite Party appeared before us through their Counsels. THE Complainant himself was examined as PW 1. Exbts. P 1 to P 10 were marked on the Complainant''s side. THE Opposite Party filed an affidavit since no evidence was taken from his side. He also filed three colour photographs of the building in question taken on 22.8.93 alongwith negatives. Both sides submitted argument notes.
The Opposite Party had raised certain preliminary questions and therefore we opt to decide on these questions first. One of the important preliminary point raised by the Opposite Party is that the Complainant is not consumer as defined is Section 2(1)(d) of the Consumer Protection Act. According to the Opposite Party his service was not hired by the Complainant and that he had not received any consideration from the Complainant.
4. IT was submitted by the Complainant that he is Consumer as defined in Section 2(1)(d) (2) of the Consumer Protection Act as he had hired the services of the Opposite Party for the construction of the building by paying consideration.
We note that Exbts. P-4 to P-7 are the receipts signed by Sri Sanal and issued to the Complainant. These receipts clearly show that the payment made by the Complainant were received by Sri Sanal B. for the Habitat Technology Group. Thus from the exhibits produced by the Complainant what we understand is that the consideration is paid by the Complainant not to the Opposite Party but to the Habitat Technology Group.
No evidence is produced by the Complainant to prove that he had hired the service of the Opposite Party for consideration. It was deposed by the Complainant that there is no document to prove that he had paid consideration to the Complainant. It was deposed by the Complainant thus. "xx xx xx"
5. NO evidence is produced by the Complainant to prove that there is an agreement of undertaking or an implied agreement between the Complainant and the Opposite Party for the construction of the building. In our opinion the Complainant had failed to establish that he had hired for consideration the services of the Opposite Party for the construction of the building and that there is the existence of either an express or implied contract between the Complainant and the Opposite Party in respect of the construction of the building in dispute. In the circumstances we are of the view that the Complainant is not a consumer as defined in Section 2(1)(d)(2) of the Consumer Protection Act and that the Complainant has no cause of action against the Opposite Party.
6. ANOTHER important point raised by the Opposite Party is that the dispute in question requires determination of complicated issues of facts involving elaborate oral and voluminous documentary evidence and also it requires elaborate scruting and settlement of accounts and therefore, this dispute cannot be adjudicated in a summary trial which is envisaged under the Consumer Protection Act.
It was submitted by the Complainant that for the adjudication of the dispute no elaborate or voluminous evidence or lengthy trial is necessary. But it was submitted by the Opposite Party that since the estimate itself is disputed by the Complainant, a proper estimate based on the cost of materials of the same quality and quantity is necessary to be prepared by an impartial and competent Engineer who has experience in the field of low cost construction that though the estimate was prepared in 1988, the construction was completed only during 1989-91 and there has been escalation in the prices of the building materials at a rate of 12% to 20% per year and that in order to determine all these aspects a detailed inquiry, inspection, assessments and investigations are necessary.
In our opinion, there is much force in the aforesaid contentions of the Opposite Party. We are fully in agreement with the Opposite Party that the fair disposal of this complaint involves thorough and detailed examination of the intricacies of measuring and accounting including elaborate examination of the quality, quantity and cost of materials used in the construction of building in dispute and the volume and nature of work done, the labour employed and their wages etc. of the construction. We are of the opinion that for the fair adjudication of this complaint an elaborate and lengthy trial is necessary and therefore we hold that this complaint cannot be adjudicated in a summary enquiry which is envisaged under the Consumer Protection Act.
7. IN the light of the foregoing discussion, we hold that the complaint is not maintainable. Accordingly we dismiss the complaint. No costs. Complaint dismissed.
