DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 22nd day of July 2019
Present : Smt.Shiny.P.R, President
: Sri. V.P.Anantha Narayanan, Member Date of Filing : 29/08/2017
CC/127/2017
C.M.Abdul Saleem
S/o C.V.Muhammed,
H.No.98,
Chandranagar Housing Colony, - Complainant
Chandranagar PO,
Palakkad – 678 007.
(By Adv.T.P.O Akbar Ali)
Vs
B.Muhammadali,
Properietor Technicalfab, - Opposite party
Kozhikode Bypass Road, Kalmandapam,
Palakkad.
(By Adv.Viju.K.Raphel)
OR D E R
By Sri. V.P.Anantha Narayanan, Member
The complaint in brief is stated as follows.
The complainant is residing in Palakkad, Chandra Nagar housing colony in house number 98 with his family. There arose a need to lengthen the car porch in front of his house for which he felt that the most suitable way is to do tress work and on the above to put glass. Complainant and his family arrived at a decision and as per that it was decided to do tress work putting glass above it to lengthen the car porch. These things were decided in 2015 December and accordingly the proprietor of Technical Fab, working in Kalmandapam, bypass road (the opposite party) was contacted and discussed with him for putting of tryinod glass in the roof and doing of necessary work and all details regarding putting of glass on the roof were also discussed and the opposite party agreed to do the glass work with a lifelong guarantee; it was also agreed that due to heat or rainfall glass laid on the roof is broken or cracked, colour gets faded or fungus occurs or any other damages will not occur. Hence the opposite party stated that and agreed by the complainant that it is better to put glass and also the front portion of the house will be more beautiful and colorful were also stated by the opposite party. The opposite party has also done glass work in many places and those glass works have lasted for many years without any damage. According to the complainant opposite party also stated that most suitable and high standard glasses of reputed company are used by him and the complainant need not have any concern regarding the quality of the glass and the work – all these were told by the opposite party to the complainant and made the complainant believe in what is stated. Accordingly the decision to put the glass work was taken and the work was entrusted to the opposite party. Complainant also pleads that the opposite party undertook the roof glass work with first class glass deciding the cost of the glass as Rs.275.25/- per square feet, undertook the work totally, Rs.98,000/- for glass and labour charges were decided and as per that in two or three weeks of 2015 December the opposite party finished the work and received the money. To provide more security to the glass roof, the trees standing nearby (coconut trees and other trees), complainant himself cut them down and telling the neighbours also to cut down their coconut trees. According to the complainant, it was on the basis of opposite party’s convincing, that spending a huge amount glass roof was constructed and as per opposite party’s telling that the glass roof will last for a long time. But during March and April summer of 2017, 90 square feet measuring three glasses were broken and fallen. Fortunately no loss of life and damages to properties happened. According to the complainant, opposite party claimed specially and good quality for the glass and unbreakable and non crackable glasses in any heat was used – this was told to the complainant and made him believe by the opposite party. Doing this, opposite party did the glass work roof and received money. Complainant also pleads that the normal heat occurred in April 2017 cannot be defended and the glass got broken. The complainant also informed this issue to the opposite party in person and the opposite party came to the complainant’s house and inspected, got convinced about the issues, agreed to replace the broken glass and the reason for breaking of glass will be discussed with the company and further steps will be taken – these were agreed to by the opposite party. But the opposite party did not do anything so far. Many times the complainant contacted the opposite party in person and demanded it which was agreed to by the opposite party immediately but nothing on account of repair of damages was done by the opposite party. Then the complainant directly and through his counsel on 31/07/2017 sent a lawyer notice to the opposite party to which reply was sent by the opposite party stating false things in which nothing was correct. The broken glass was neither replaced nor the complaint was redressed. Since the glass in the front of the house was broken totally the house looked ugly and the vehicles got damaged due to rain and sunshine. As a result of the opposite party not doing as per his telling and convincing complainant is put to a lot of difficulties, mental agony and financial loss; also in opposite party work there was negligence, default and deficiency and opposite party has liability to redress the deficiency of the same which was not done and thereby the opposite party committed default. Hence complainant is entitled to the amount spent by him for glass work of Rs.98,000/-, also because of the opposite party’s deficiency in service complainant is put to a lot of difficulties and mental agony, defects occurred to the house’s look, complainant demands Rs.1,00,000/- which the complainant is entitled for. Complainant also pleads that this complaint based matters occurred in 2015 December. Hence the complainant prays to this Hon’ble Forum to direct the opposite party to pay Rs.98,000/- to the complainant towards the cost of glass work, Rs.1,00,000/- by way of compensation for mental agony, interest on the above amounts and cost of this proceeding.
The complaint was admitted and notice was sent to the opposite party to enter appearance and file version. In his version the opposite party contends that save those facts expressly admitted this opposite party denies the averments stated in the complaint. The contentions of the complainant that, to render in Palakkad, Chandranagar colony that, complainant has decided to extend his car porch by doing a tress work and by laying glass above the said tress work is not known to this opposite party. This opposite party denies the complainant’s averments that the said work was entrusted to this opposite party after discussing with him about the quality of the glass work and he has assured the complainant that the glass work with lifelong guarantee will be done by this opposite party who also assured that the said glass will not break or crack by sun heat or rain fall, the said glass will not fade, will not be affected by fungus and will not be damaged in any way. This opposite party also denies as incorrect the aversions of the complainant that the opposite party made the complainant believe that he has constructed this kind of glass work in many places and which is standing for many years without any damage. This opposite party further denies the averments of the complainant that he made the complainant believe that he would be using premium glass and has taken over this work for Rs.98,000/- towards the cost of the glass plus towards the payment work of this opposite- party. This opposite party does not know about the averments of the complainant that, he has cut and removed coconut trees for the safety of the glass work. The opposite party also denies the averments of the complainant that due to heat in March- April 2017, 90 square meters of the paved glass was broken and the glass paved on the roof was broken only due to the heat in March and May 2017. The averment of the complainant that on intimating the fact to the opposite party, the opposite party has visited the complainant’s house and promised to the complainant to replace the broken glass after consulting with the glass manufacturer and that complainant approached the opposite party many times and for this demand the opposite party did not do anything are also denied as incorrect by this opposite party. The true facts are that this opposite party placed a quotation with the complainant’s son Mr.Shafeeq when the latter approached the opposite party with a demand to construct a tress with glass roofing to extend his car porch on 14/12/2015. The complainant had obtained quotations from other contractors to do the job and being the opposite party’s quotation the lowest the complainant entrusted the work with this opposite party. As per the terms of the quotations submitted and accepted by the complainant it was agreed that 12 mm toughen brown or gray glass of 275.25 per square feet will be fixed on the scaffoldings arranged by the complainant and Rs.90,000/- was agreed to be paid by the complainant as cost of the glass, toughening, polishing, labour and transportation charges of the materials. This opposite party also contends that the quotation placed by this opposite party originally was for the clear glass, for the same amount, and since the complainant insisted on paving of brown or gray glass for the same amount, this opposite party agreed for the said change and a new quotation was placed for brown or gray glass for the above said amount foregoing additional cost to be incurred by the opposite party. According to this opposite party the pavement of the glass was done by the opposite party as agreed by him and to the satisfaction of the complainant in December 2015 itself. This opposite party further contends that the work undertaken by him was only that of pavement of glass in the scaffolding provided by the complainant above his car porch and this opposite party purchased the toughened glass from M/s.Supreme Toughening and Bending Glass Industries, AVM complex, Parannur, Choondal, Thrissur for the complainant. Hence Supreme Toughening and Bending Glass Industries is a necessary party in this complaint. This opposite party also contends that he has never made an assurance about the quality of the glass supplied by the company nor any guarantee was given to the complainant about the quality of the glass and if the complainant has any complaint regarding the quality of the glass it has to be raised against M/s.Supreme Toughening and Bending Glass Industries. According to this opposite party the complainant has not raised any complaint or deficiency in service in workmanship of the opposite party. The opposite party has not given any assurance to the complainant as alleged in the complaint. The complainant has entrusted the work with this opposite party as his quotation was the lowest. This opposite party denies that the glass paved in the house of the complainant was broken due to the heat in the months of March and April 2017 the real cause for the breakage of the glass has to be proved by the complainant before claiming any relief. In this case the bonafides of the complainant are missing. Since no guarantee is provided by the company for the glass manufactured by them, this opposite party has no liability to change the allegedly broken glass. This opposite party also denies the plea of the complainant that he has suffered mental agony and hence he is entitled to get compensation. This opposite party contends that he has not acted in any derogation of law against the complainant and there is no deficiency in service on the part of this opposite party in this matter. Hence this opposite party prays to the Hon’ble Forum to dismiss this complaint with cost to this opposite party.
Complainant filed chief affidavit and additional affidavit; opposite party also filed affidavit. Opposite party filed IA/390/17 to cross examine the complainant, the same was allowed and complainant was cross examined as PW1. Exts.A1 & A2 were marked from the side of the complainant. Ext.A3 in series is marked with objection from the side of the complainant. Complainant filed IA/129/2018 to cross examine the opposite party and the same was allowed and the opposite party was cross examined as DW1. Exts.B1 & B2 were marked from the side of the opposite party subject to proof. Complainant filed IA/209/18 to appoint an expert commission to inspect the property and file a detailed report. Advocate Vanitha was appointed as Advocate Commissioner to inspect the property and file a report. The commissioner filed her report which was marked as Ext.C1. Both parties were heard.
The following issues arise in this case.
- Whether there is any deficiency in service on the part of opposite parties?
- If so, the relief and cost which the complainant is entitled for?
Issues 1 & 2 in detail.
The complainant has filed Exts.A1 & A2 to support his pleas. Ext.A1 is the reply notice sent by the opposite party’s counsel to the complainant’s counsel to advise complainant not to venture into any form of unnecessary litigation. Ext.A2 is a copy of registered lawyer notice sent to the opposite party on the advice of the complainant along with postal receipt which asks the opposite party to repair the damages caused to the truss work done by the opposite party and to redress the grievance and mental agony of the complainant due to deficiency in service committed by the opposite party within a week of the receipt of this notice; otherwise legal steps will be initiated against the opposite party. Ext.A3 series is four photos and the CD which was marked with objection. Exts.B1 & B2 are produced by the opposite party before this Forum to defend his contentions. These Exts. are marked subject to proof. Ext.C1 is Advocate Commissioner’s report which was filed on 18/12/2018, it shows a rough sketch of the car porch, RCC roof and balcony and states that as per the direction of this Forum the Advocate Commissioner issued notice on 27/11/2018 to both the parties in this case and visited the disputed property on 29/11/2018 at 2 pm and at the time of her visit the complainant and the opposite party were present along with their respective counsels. The house is located in Chandranagar colony, Palakkad and is facing the northern direction. The car porch is in the north eastern side of the house entrance. The roof of the car porch is built in a metal frame with four iron pillars. The glass is installed above this frame; the glass is tinted. It is fixed into the metal frame as different pieces of different size and share and is joined using a sealant which is visible During Advocate Commissioner’s inspection from the balcony; since the glass of different shapes and size are joined using the sealant the remaining glass fixed on the roof is lying as a unit about 50% of the glass fixed above the frame is seen broken and the remaining portion is covered by the complainant to prevent further breakage. The broken bits and pieces of the broken glass are kept aside by the complainant in gunny bags. The northern side of the car porch is a road. According to the Advocate Commissioner, since the car porch is in an elevated position from the road, it is highly unlikely that any objects will fall from that side causing the breakage of this nature. The eastern side of the car porch is the property of a third party in which there were dried root remnants of a coconut tree identified and shown by the counsel of the opposite party. The southern side of the car porch is the RCC roof of the house with tiles fixed. Western side of the car porch is a roof of the house and open space. As per the Advocate Commissioner’s report the balcony is in the south western side of the disputed car porch and it appears that the distance could be around 25 feet or more. If any hard object falls directly in to the glass tress work, there is a very high possibility that the glass will break. The Advocate Commissioner visited the disputed property at 2 pm at which time the sunlight was falling in the entire area of the tress work where the glass is fixed and by looking at the position of the car porch the sunlight is likely to fall directly in the entire area of glass work at 12 noon. Advocate commissioner also noted that she could ascertain the area in which direct sunlight is falling at 12 noon and the area above the car porch is an open space. On this commission report the complainant raises objections which are given below. In the commission report certain matters are not completely reported and hence to this Forum the facts cannot be fully understood. On the south western side of the car porch there is no connection between the balcony on the first floor and car porch. Commissioner has not reported the exact distance. There is no direct access from the balcony to the car porch and no objects could fall from the balcony to the car porch and from the balcony to the car porch no one can descend, that there is no direct connection between car porch and the balcony and the distance between the two is 40 ft. is not reported by the Advocate Commissioner. That RCC roof above the porch is having steep slanting, through this not possible to descend and walk. Objects cannot fall from above is also not reported by the Advocate Commissioner. The upper portion of the car porch is open and there is no chance of any objects falling from the trees are also not reported by the Advocate Commissioner. On the eastern side of the car porch in south north length there is a compound wall and on its eastern side coconut trees were cut down by the neighbours on the demand made by the complainant, except cut down coconut trees, no other trees are growing above the car porch is also not reported by the Advocate Commissioner. Although to the Advocate Commissioner the complainant in Chandranagar colony in this manner glass roof was laid and for many years the same is existing matters were shown but the same were not reported by the Advocate Commissioner, similarly to the iron pillars frame fitted with the glass no anomaly was there is also not reported by the Advocate Commissioner. Although the broken glass fitted in the frame kept was shown by the complainant to the Advocate Commissioner, the quality of the same and the need for its inspection was not reported by the Advocate Commissioner. Similarly during inspection by the Advocate Commissioner the defect of the glass only and not due to any other reason glass was broken is also not reported by the Advocate Commissioner. In the open place laid glass roof, from all sides sunlight and heat will fall and the statements in the commission report about them are also irrelevant unnecessary and improper. The commission report is also objected to by the opposite party’s counsel on the following grounds: the scope of the appointment of the commissioner was to report the facts as per the work memo given by the complainant and the opposite party. But the Advocate Commissioner showed the facts narrated by the complainant without verifying the actual facts on the spot. The Advocate Commissioner reported as per para 3 of her report that she has seen that unbroken portion of the glass structure in the car porch of the complainant is seen covered by the complainant to prevent further breakage which is against the facts and the same was reported by the Advocate Commissioner as narrated by the complainant. The commissioner has not verified the facts regarding why the remaining portion is covered and the reason stated by the complainant whether it is correct or not. The Advocate Commissioner also not considered that the cover seen by her was put by the complainant on the occasion of her visit in order to make it appear that the remaining portion of the glass is defective and unless the same is covered, the same would be broken due to sunlight. Hence the opposite party’s counsel states that the Advocate Commissioner should have considered the real facts on the ground instead of swallowing reasons put forward by the complainant and his counsel.
We have perused the affidavit and additional affidavit of the complainant, the proof affidavit of the opposite party and documentary evidences submitted by both the parties before this Forum and Advocate Commissioner’s report (Ext.C1) filed in this case and understood that complainant had obtained quotations from many contractors including the opposite party for doing glass roof work for extending his car porch and on finding that the lowest quotation was placed by the opposite party, the complainant entrusted the disputed glass roof work to the opposite party. As per the terms of the quotation submitted by the opposite party which are accepted by the complainant it was agreed that 12mm toughen brown or grey glass 275.25 sq. ft. would be fixed on the scaffoldings arranged by the complainant and Rs.90,000/- was agreed to be paid by the complainant as cost of the glass plus toughening, polishing, labour and transportation charges of the materials. We also observe that the complainant has not raised any complaint for the opposite party’s deficiency in service or for opposite party’s workmanship and if the complainant has any complaint regarding the quality of the glass it has to be raised against M/s.Supreme Toughening and Bending Glass Industries, Choondal which is not seen done in this case by the complainant, from whom the opposite party is stated to have purchased the toughened glass. We also observe that M/s Supreme Toughening and Bending Glass Industries, Choondal should have been made a necessary opposite party in this complaint which is also not seen done by the complainant. Further as per Commission Report of the Advocate Commissioner if any hard object directly falls on the glass truss work, there is a very high possibility of breaking of the glass. Also as per commission report at 2 pm on 29/11/2018 when the advocate commissioner visited the disputed property of the complainant, the sunlight was falling in the area of the truss work where the glass is fixed and by looking at the position of the car porch the sunlight is likely to fall directly on the entire area of the glass work at 12 Noon. But it is seen that the entire glass paved in the roof top was not seen broken but only three pieces of the glass were seen broken which is also seen admitted by the complainant in his deposition before this Forum as PW1. If the glass was broken due to heat or sunlight, then the entire glass paved in the glass roof would have been broken but only three pieces of the glass paved on the roof are seen broken. We also see that the Advocate Commissioner has reported about the presence of remnants of coconut trees and therefore there is a strong possibility of some hard objects falling on the glass truss work which might have caused the breakage of three pieces of the glass paved on the roof. The complainant himself has admitted as per his PW1 deposition that to show the glasses broken above, he has not produced any documentary evidences before this Forum. He also deposed that only three glasses paved in a line are broken but no other glasses were broken; on the car porch on the part where the glass is laid in a strait line sunlight and heat will fall and if any object with wait false on the glass work glass may break In this connection the relevant extracts of complaint’s deposition before this Forum as PW1 should also be noted. “Truss work sâ apIfn glass work sN¿p¶ BfmWv OP F¶mWv a\Ênem¡nbXv. ]e Øe¯pw sNbvXn«ps¶v Adnhv In«n. AXnsâ ASnØm\¯nemWv OPsb kao]n¨Xv. {]Xn Øm]\w glass pavement work \S¯p¶ Øm]\amWv F¶mWv a\Ênem¡nbn«pÅXv. B Øm]\¯n\v glasssâ I¨hSanÃ. apIfnse glass IÄ s]m«n F¶v ImWn¡m³ Rm³ tImSXnbn tcJIsfm¶pw lmPcm¡nbn«nÃ. Htc \ncbnepÅ ASp¸n¨ 3 NnÃpIfmWv s]m«nbncn¡p¶Xv. thsd NnÃpIÄ H¶pw s]m«nbn«nÃ. car porch\v apIfn glass C« `mK¯v Htc \ncbn NqSv ]Xn¡pw. a²r`mKs¯ NnÃpIÄ¡v tISv H¶pw kw`hn¨n«nÃ. glasssâ apIfn weight DÅ km[\w hoWm glass s]m«mw. OP sNbvX workmanshipþs\ ]än F\n¡v noticeþepw complaintþepw affidavitþepw H¶pw ]cmXnbnÃ. F\n¡v OP glass\v thn guaranteetbm warrantytbm H¶pw FgpXn X¶n«nÃ. Also opposite party’s deposition before this Forum as DW1 is to be noted. “labour contract R§Ä FSp¯Xv ImWn¡p¶ tcJ CÃ. quotation am{Xw produce sNbvXn«pv. Ext.B1  glass sâ hnebpw labour charge Dw IqSnbmWv 90,000/-þ. glass sâ hne AS¡w quotation sImSp¯Xv. Rm³ glass hm§nb billBWv Ext.B2. Bill sâ copy BWv CXv. lmPcm¡nb quotation tIkmhiymÀ°w Dm¡nbXmWv F¶v ]dªm icnbÃ. ¥mÊnsâ KpWhpw ZoÀLImes¯ \ne\n¸pw Dd¸pw sImSp¯Xnsâ ASnØm\¯nemWv F\n¡v work X¶Xv F¶v ]dªm icnbÃ. Ext.B1 quotation {]Imcw BWv work GsäSp¯Xv. 15 hÀjambn Rm³ C¯c¯nepÅ work GsäSp¯v \S¯p¶p.
Taking into consideration all the above points we observe that the above complaint is frivolous and the complainant has failed to prove any deficiency in service committed by the opposite party in this case. The complainant has also not been able to prove any deficiency in opposite party’s workmanship. Also the glass manufacturer, and the glass dealer M/s Supreme Toughening and Bending Glass Industries, Choondal were not been impleaded as necessary parties in this case.
Hence we decide to dismiss this complaint.
Pronounced in the open court on this the 22nd day of July 2019.
Sd/- Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Reply notice sent by the opposite party’s counsel dated 17/08/17 to the complainant’s
counsel.
Ext.A2 - Copy of registered lawyer notice sent to the opposite party by the complainant.
Ext.A3 series - Four photos and their CD (marked with objection)
Exhibits marked on the side of Opposite parties
Ext.B1 - Original Quotation dated.14.12.2015 issued by Technical Fab to Mr.Shafeeq
(marked subject to proof)
Ext.B2 - Photocopy of Form 8- Tax Invoice Credit issued by Supreme Toughening and
Bending Glass Industries, Choondal. (Marked subject to proof)
Commission Report
Ext.C1 - Advocate Commissioner’s report which was filed on 18/12/2018
Witness examined on the side of complainant
PW1 - C.M.Abdul Saleem
Witness examined on the side of opposite parties
DW1 - Muhammed Ali
Cost - Nil
