KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

               VAZHUTHACAUD THIRUVANANTHAPURAM                                                                                                     

                                             APPEAL NO.140/2007

                                     JUDGMENT DATED 25.3.2010

PRESENT

JUSTICE SHRI.K.R.UDAYABHANU         --  PRESIDENT

SRI.M.K.ABDULLA SONA                        -- MEMBER

1. M/s.Pest Control ( India) Pvt.Ltd.,

    36, Yusuf Building,

    P.B.No.1510, M.G.Road,

    Mumbai

2. The Manager,                                           --  APPELLANTS

    Pest Control ( India) Pvt.Ltd.,

Opposite KRA, C-22,

TC 46/2011, Market Road,

Kuravankonam,

Thiruvananthapuram-3.

   (By Adv.V.K.Mohankumar)

                    Vs.

Abdul Bari,

Bayan Villai,

Mylapore,                                                --  RESPONDENT

Kottiyam, Kollam.

                                   JUDGMENT

SRI.M.K.ABDULLA SONA,MEMBER

          This appeal prefers from the order passed by the CDRF, Kollam dated 25.1.07.  The appellants are the opposite parties.  The brief of the complaint is that he is a NRI, who constructed a residential building by expending an amount of RS.27,00,000/-.  The complainant erected good quality cupboards and wooden Almirahs on the walls of the drawing room, dining rooms, bed rooms, kitchen and work area.   The complainant had taken precautions against subterranean termite infestation.  The complainant placed a work order No.2157 dated 5.2.01 with the opposite parties for pre-construction anti-termite treatment for a plinth area of 2000 sq.ft and paid Rs.10,000/- with 5 year guarantee and 10 year warranty.  The opposite parties assured that the structure would be safe from subterranean termite infestation for a period of 10 years from 5.2.01.  But contrary to the assurance the opposite parties did not issue any guarantee or warranty certificate.  They issued a warranty certificate on 6.10.03, after a long delay of about 3 years which itself is deficiency in service.

          2. The complainant alleged that before the expiry of one year, the cupboards and wooden almirahs attached to the structure became partly damaged due to the attack of termites.   Though intimated duly the opposite parties did not respond.  After 2 years most of the cupboards and  wooden almirahs fixed in the  walls were damaged and the matter was duly intimated for adjudication.  On January, 2008   some of the office staff attached to the 2nd opposite party carried out and termite treatment on the basement and received Rs.800/- on demand.  But then also they did not care to issue the guarantee and warranty certificates.  Surely the complainant sustained a loss of Rs.3,00,000/-  due to this.  On 6.10.03 the complainant same Rs.1200/- to the  opposite parties and they issued only the warranty certificates.   The factum of damages sustained by the complainant was informed of the opposite parties but the opposite parties turned a deaf ear to this

          3. Though the complainant prayed  for a free bound of Rs.10,000/-  was paid to the opposite party then also  the opposite party delivered the invoices, receipts and warranty certificate along with a letter only on 6.10.03..  When they received Rs.1200/- the treatment charges.  Thereafter they are liable to carry out the treatment to control termite  infestation at their own cost, but they failed to do so and the opposite parties committed deficiency in service, dereliction of duty and thus caused mental agony and financial loss to the complainant.  Hence approached the forum for relief.  Hence the complaint.

          4. The opposite parties appeared and filed their written version.  They contended that they carried out the entire work for a total of service charges of Rs.12,000/-.  The treatment was carried out 2 stages.  The first stage was completed on 5.2.01 itself and the complainant paid only Rs.10,000/- out of the bill amount of Rs.10,800/- since he has not paid the entire amount and also the anti termite treatment was not carried only in full no warranty was issued during that time.  Since the opposite parties have done more than what is expected there is no deficiency in service on the apart of the opposite parties.  The opposite parties issued the receipts then and there the payment was received.  The entire charge for anti termite treatment is Rs.12,000/- and not Rs.10,000/- as stated by the complainant.  The  entire charge for the anti termite treatment was fixed as Rs.12,000/- even from the beginning of the contract.  The complainant completed the payment only on 6.10..03 and in which date the certificate of warranty also was issued.  None of he act of the opposite parties amounts to deficiency in service and hence the opposite parties are not liable to compensate the complainant in any manner what so ever.

          5. The Forum below issued 2 points that arised for consideration are 1) whether there is deficiency in service on the part of the opposite parties second relief and costs.  For the complainant PW1 and PW2 were examined and marked as Ext.P1 to P6.  For the opposite parties DW1 is examined and D1 to D7 are marked.

 6. The forum below answered the entire points framed for consideration in this dispute and finally found that there is a deficiency in service committed by the opposite parties.  In the result, the forum below allowed the complaint and directed  the opposite parties to pay Rs.50,000/- to the complainant by way of indemnification of the loss sustained by the complainant coupled with Rs.1000/-  as litigation charges.  The amount also carries 9% interest from the date of order.  

7. The appellant prefers this appeal from the above impugned order passed by the forum below.  On this day this appeal came before this Commission for final hearing, both the counsel for the appellant and the respondent/complainant are present. 

8. Heard both sides.

9. The counsel for the appellant argued on the grounds of appeal memorandum that the order passed by the forum below is not according to the law and evidence.  It is liable to be set aside.  But the counsel for the respondent/complainant argued that the forum below passed the order after considering and appreciating the entire evidence.  It is strictly accordance with the law and evidence.  There is no reason to interfere in the above order.  The counsel for the appellant vehemently argued that the complainant/respondent who violated the instructions given by the appellant/opposite parties.  In the version the appellant/opposite parties contended that there is no additional works or extension shall be done when after applied the chemical.  The complainant who disturbed the  sub-soil  and taken an electric connection  through the undergrounds to the     lawn of the building.  There is  reason for the failure of the treatment of anti termite

chemicals in this basement.  But it  seen that no such clause given in the version that the disturbances of the sub soil even the anti termite treatment is done for the anti termite application.  The counsel for the appellant showed a document guarantee certificate from his case bundle.  But no such warranty or guarantee or instructions produced before the forum below and marked it as exhibits from the  Sub Court  of the case of the appellant.  It was not mentioned before the forum below.  This Commission is seeing that this act of   opposite parties is nothing but a deficiency in service.  The appellant   being is a well-known company.  It was submitted by the counsel for the appellant what  is the harm to  take out  an expert commission or to examine any expert from this field to support his case.  It was seeing that the chemical applied by the appellant/opposite party on the basement of the building of the complainant is not proper  or the chemical is not so effective to prevent the termite.  We are not seeing any reason to interfere in the order passed by the forum below.  The order passed by the forum below is strictly according to the law and evidence.  It is legally sustainable. 

          In the result, this appeal is dismissed and confirmed the order passed by the forum below.  Both parties are suffer their own respective costs.  The points of the appeal answered accordingly.   

M.K.ABDULLA SONA                     -- MEMBER

JUSTICE  K.R.UDAYABHANU        --  PRESIDENT