R CHOODAMANI Vs. J HEMALATHA

JUDGEMENT

(1.) THE order of the lower Forum is not maintainable. The complainant has approached the lower Forum seeking a direction to the opposite party to pay a sum of Rs. 5,000 towards cost of rectifying the defects and a sum of Rs. 75,000 towards mental agony. The lower Forum has chosen to discard the complainant s case mainly on the grounds of limitation and on the ground that the complainant has not immediately come to Court. The complainant alleges that the parapet wall has not been plastered and finished properly and on account of it there is stagnation of water. The complainant further alleges that the sunshade tops on the southern and eastern sides have not been plastered properly as a result of which cracks have developed leading to seepage of water. According to the complainant, the staircase landing has not been properly done and that plastering on the eastern side of the wall is defective. The complainant engaged the services of chartered engineers who inspected the property and have noted the defects. The Engineer has submitted a quotation for Rs. 5,000 as the probable cost of rectification of the defects. The lower Forum has not chosen to give any reasons for overlooking this report. It is to be pointed out that the opposite party has not chosen to either seek for appointment of a Commissioner to note down the condition of the building or to seek the help of an Engineer to inspect the property and submit a report in that regard. The lower Forum has erred in coming to the conclusion that the contract between the parties has come to an end on 20.11.97 and, therefore, the complaint should have been filed within two years. This conclusion is erroneous. The defects in a building will be known to the parties only over a period of time. Becausse there are certain defects which are latent and certain defects are patent. Only patent defects will be visible immediately while latent defects may show themselves up only in the course of time or during rainy season or winter season. Therefore, only when the defects are noted, the complainant or the user or the purchaser who has purchased the property would come to know about it. Therefore, the period when the contract came to an end or the date of delivery is not the starting point of limitation. Nor it can be construed as the starting point of limitation. Further, the defects in the building until and unless they are rectified, would continue to be defects. Thus it is a continuing deficiency and a recurring deficiency. Therefore, there is no question of limitation at all. The very approach of the lower Forum is thus perverse. The entire matter has been approached by the lower Forum as though at the inception itself they have decided to dismiss the complaint. Even assuming that certain defects can be noted only after the complainant took possession which was on 20.11.1997, the complainant would state that she noted the defect only during the rainy season in the month of November. Curiously, the lower Forum has observed that the complainant ought to have noted the water stagnation, etc. In the year 1998 or 1999 and since there was no defect and if ever there was any defect she would have immediately come to the lower Forum. The complainant is not an expert. She cannot simply, from a look at the defects, say about the nature of the defects or the reason for the defect. The lower Forum erred in presuming that these defects could have been noted earlier from the taking over possession. Therefore we have no hesitation in holding that the order passed by the lower Forum is perverse. The complaint is not at all barred by limitation. The complainant can approach the Forum only when she realizes the nature of defects and sees for herself the defects and its impact. Therefore, in such circumstances, we have no hesitation in holding that there is deficiency in service and the complainant is entitled to compensation.

(2.) NOW , coming to the quantum, it is clear from the Engineer s report submitted by the complainant that a sum of Rs. 5,000 is required to carry out the said repairs. The complainant has claimed Rs. 75,000 towards damages under the head of hardship, mental agony and sufferings. In the circumstances, we would restrict it to Rs. 5,000 and hold that the opposite party is liable to pay a sum of Rs. 10,000 in all to the complainant as compensation.

(3.) IN the result, this appeal is allowed with cost of Rs. 250. The complaint will stand allowed with cost of Rs. 250. The opposite party is directed to pay compensation of Rs. 10,000 to the complainant. Time : two months. If the amount is not paid within the period, it shall carry interest at 12% per annum.