PANNABEN PADAMSI ASAR Vs. VILAS RAMDAS BORANE

JUDGEMENT

(1.) DR . Pannaben Padamsi Asar resident of Desaipura, Nandurbar appellant herein original complainant challenges in this appeal order passed by Dist.Forum, Nandurbar in complaint case No. 21/05(Old) and complaint case No. 16/06(New) dated 9.8.2006. The said complaint is about deficiency in service committed by respondent Shri. Vilas Ramdas Borane, resident of Nandurbar.

(2.) IT is alleged that complainant is doctor by profession running pathological laboratory in Nandurbar. Complainant purchased plot No. 8 of Survey No. 283/1A+1B+2A+2B situated in Vardhaman Nagar Housing Society. She got sanctioned the plan of construction by Municipal Council. For the construction of said house, complainant approached to respondent, who is contractor by profession but not qualified engineer. Complainant entered into an agreement with the respondent on 8.11.1997 and it is agreed that complainant is to pay Rs. 3,40,000 in total for the said construction. It is alleged by the complainant 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. It is alleged by the complainant that though amount as agreed was recovered by respondent, construction was not completed and therefore she filed complaint case No. 7/00 which was decided in her favour by Dist. Forum on 6.11.2003. During pendency of said complaint it was found by complainant 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 complaint was for the excess amount and non -completion of construction within stipulated period, Dist. Forum did not found anything about defective construction in report of Shri Ansari. Forum considered the same. After taking possession of house it was found that construction is of very inferior quality. Many defects were committed by the respondent. Flooring was not in good condition. Levelling was not done properly. Walls were separated by slab, etc. Complainant approached to 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 complainant 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 complainant was to run pathology laboratory in the said house and was to use as residential house also. But due to defective construction she could not shift in her house. Therefore she suffered professional loss also. On 11.1.2005 complainant issued legal notice to respondent. Said notice was not replied by the respondent. Therefore complainant approached to Dist. 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 application and objected the complaint on the ground of res judicata. The said application was dismissed by the Forum, Dhule on 12.8.2005. Thereafter respondent filed his written version on 23.9.2005 and denied all the allegations made by complainant. It is submitted by respondent that complainant filed complaint case No. 7/2000 with the same allegations and therefore complainant is not entitled to file another complaint on the same cause of action. It is contended by opponent that he is holding diploma in engineering and complainant after knowing fully well that opponent can make construction work, entered into agreement with opponent. He produced certificate of Institute of Engineering dated 20.9.1986 to show he is qualified engineer. It is further contended that after decision of complaint No. 7/2000 for recovery of excessive amount, respondent paid decretal amount to the complainant which is alleged to be excess. In the said complaint, complainant made allegations about defective construction. Dist. Forum did not consider the said as complaint is about different cause of action. It is further submitted that after getting completion certificate from Municipal Council complainant started to reside in newly built house. It is further submitted by opponent that Shri Prasad Kulkari who is consulting engineer and builder and developer submitted his report but said report is not authentic as no affidavit of said Shri Prasad Kulkarni is produced on record.