By Sri. A.A. Vijayan, President.

                       Complaint is  in respect of  water proofing material applied on the  bathroom wall of  complainant.  The averments in the complaint in short are as follows.

                  The complainant  decided to construct a house   for the residence of himself and his family.  The flooring  of the house was done with  Italian marbles.  To prevent the water leakage  through the walls  of the bathrooms complainant  preferred  “LALTEX SHILED 2K BERGER”  a product of the 1^st opposite party  who claimed that to  prevent any water   leakage   it has an excellent water proofing capacity, and also  will support  the wall tiles  by forming the   bondage .  He was also  told that   10 years warranty would be assured for the product.   Believing the claims of 1^st and 2^nd opposite parties  complainant purchased  the same for Rs. 14850/-(Rupees Fourteen Thousand eight hundred and fifty only) and the 1^st opposite party provided its  trained worker  worker named Shihabudheen  for applying the product on  the walls   of the bathrooms  and he  purchased the product from 2^nd opposite party.    Spending    labour charge of  Rs. 10000/-(Rupees Ten thousand only)  the product was applied on the walls of the bathrooms by said shihabudheen.  The walls tiles were purchased for Rs. 3,05,790/-(Rupees Three lakh Five thousand  seven hundred and ninety only)  from Kurikkal ambiente, Kozhikode.  Upon the water proofed wall of the bathrooms the tiles were fixed by using  adhesive   purchased from 3^rd opposite party for Rs. 20000/-(Rupees Twenty thousand only). After the fixation of tiles,  within 30 days  the wall tiles  were separated from wall and dropped down and all the tiles were damaged and the complainant sustained a loss of Rs. 4,09,240/- (Rupees Four Lakh nine thousand and two hundred and forty only) he also sustained severe mental agony and embarrassment.  Itis to be noted that the tiles affixed on   other walls  without  the water proofing materials and using same adhesive   were found  intact  and were adhered  on the walls perfectly.   Thus it is clear that the dropping of tiles  from the walls  was due to  the poor quality of water proofing material.   The opposite parties were   informed  of about the event   and fourth opposite party visited the place and stated that the defect of water proofing materials is the reason for the incident. 1^st opposite party claimed that there was no defect for the product sold by him and if it is proved that their product was defective  they would reimburse the amount.  As suggested by 1^st opposite party   they were allowed to fix the tiles with the assistance of their own labourers.  But within 25 days  the tiles fixed by them  also  were  separated from the walls.  So the complainant sustained heavy loss  and 1^st opposite party is trying to escape from the liability.  Moreover he  behaved in a unruly manner. The act of the 1^st opposite party  shows  deficiency of service  and unfair trade practice.  Thus 1^st opposite party may be directed to  pay Rs. 4,09,000/-(Rupees Four Lakh Nine thousand only) to complainant  towards the loss sustained by him and Rs. 3,00,000/-(Rupees Three lakh only) as compensation with cost. 

                        1^st opposite party filed version as follows. The complainant  has not purchased “‘Laltex Shield 2K Berger” “either from this opposite party  or  its dealer who is second opposite party.  So the complainant  has no locus standi  to file the complaint.  When this opposite party came to know  from the  2^nd opposite party about the allegation  raised by complainant, this opposite party made site inspection  and gotconvinced  there was no defect for the product  and the tiles fixed  were separated because of  the  failure in using  adhesives properly .  On enquiry  it is also revealed that the complainant  had never purchased  any product from  1^st and 2^nd opposite parties, or from  any dealers of 1^st opposite party.  The complainant has suppressed material facts. The  reason for the  alleged grievance of complainant   is lack of  knowledge or poor workmanship on the part of  the workers engaged by the  complainant.  It is true that  ‘Laltex Shield 2K Berger” is a product  manufactured and marketed by M/s Berger paints. This product is used to  prevent  water leakage or absorption of water through walls and it has got excellent water proofing capacity.  This opposite party has never claimed that  the product will  support  the wall tiles  by forming a bondage.  It is also false to say that  this opposite party has assured  10 years warranty. More over this opposite party has never claimed that the product can be used for fixing wall tiles.  It is also false to say that this opposite party has provided a trained worker named shihabudheen for applying the product  on  the wall of the bathrooms. This opposite party  is not having  any worker  or staff  by name shihabudheen.  No person was deputed by this opposite party  for applying this product on the wall of bath rooms. The product of this opposite party is only for  the  use on concrete surfaces.  It is known that   workers who fixed the tiles on the walls of the bathrooms were not directed by the   builder to use adhesive  properly  on both the walls and the tiles.  It is also appeared that the same method has been  adopted  for fixing the tile  on the walls of the bathrooms where the water proofing   compound has been    applied   and on the otherparts of the house,  where the water proofing compound has not been used.  This is the reason for  the dropping down of tiles   from the walls  of the bathrooms.  The precautions to be taken for using the compound is clearly mentioned in the leaflet .  It is also false to say that the chemicals  used   by this opposite party for water proofing  is not good.   This opposite party  has nothing to do with fixing of  tiles  on the walls of the house.  The detachment of tiles from the walls of the bathrooms is not due to the  fault of this opposite party  or defect  of the product  manufactured.  At the time of purchasing the product from 1^st opposite party   by one shihabudheen , his requirement was for water proofing compound to protect the wall of the bath rooms from water leakage.   This opposite party had told the complainant that   the detachment of tiles from the walls was not due to   any defect of the product .  When the complainant requested to the opposite party to demonstrate how the tiles  are to be fixed,  the representative of the 1^st opposite party hired a worker  and fixed three tiles on wall of the bathrooms.  For the purpose of the demonstration and all the three tiles  got fixed tightly to the wall.  Later it was noticed that out of three tiles two were  deliberately detached  by somebody  from the wall .  This opposite party has not employed or deputed any workers for fixing the tiles.   It is incorrect to say that  this opposite party had told  the complainant that,  if the defect of the product  was proved they would reimburse all the amount to the complainant.   The products of this opposite party  arebeing used widely and effectively  by many customers without any complaint.  Thus complaint is to be dismissed.

2^nd opposite party    filed separate version  as follows.    The 2^nd opposite party  is running a hardware shop under the name and style of ‘Crescent Hardwares’  at Kondotty.   The 2^nd opposite party has got  dealer ship of  M/s Berger paints India  limited and their products are being  sold by 2^nd opposite party.  The  complainant has never purchased any goods  from his shop.   From the bill produced by complainant it is  evident that it was one shihabudeen,  who purchased the products.   No complaint is received  from the person who purchased the same.    It is false to say that this opposite party has  explained to the complainant that  the product will support the wall  tiles forming  a bondage  and it  was best for  that purpose.  Shihabudeen who came to purchase the product did not ask any question and made no enquiry about the product and his approach indicated that  he was familiar  with the product.    This opposite party is never consulted by the complainant  and  it  was the  said shihabhdeen   who informed this opposite party that the tiles fixed on the walls of the house of complainant  were dropped  down.    On getting information,  1^st opposite party sent its representatives   to visit the house of complainant  and it is revealed  that  the problem was not with the water proofing compound  but the matter of fixing the tiles. The supervisor of the construction of  the house had not given  proper instruction to the workers  in fixing the tiles. This opposite party has never claimed that this product can be used for fixing the tiles. No warranty is given for the products.  There is no deficiency of service or unfair trade practice  on the part of the opposite parties.  Thus complaint is to be dismissed.

                  3^rd opposite party  filed separate version with following contentions.  Since  complainant has not made  any claim against this opposite party, he may be exonerated from the liability.  The complainant had purchased adhesive for fixing tiles on the walls for Rs. 20000/-(Rupees Twenty thousand only).  It is true that the tiles fixed on the water proofed walls of the bathrooms were fallen down within a  period of 30 days of its fixing.  There is no deficiency on the part of this opposite party.  The quality of the products delivered by this opposite party is not questioned by anybody.  The complaint is bad for misjoinder of parties because this opposite party is not necessary party .  Thus complaint is to be dismissed.

          The fourth opposite party filed  a separate statement as follows.  This opposite  party was engaged by complainant for fixing tiles  in his house .  During the work  the water proof product  had been applied on the walls of bathrooms and costly wall tiles were affixed there on  and all of them were dropped  down.  This opposite party  is innocent in this matter. All the tiles fixed  without applying water proof products are seen intact even now.  So it was due to  the inferior quality of water proof product that caused dropping of the tiles.  This opposite party is not  liable to pay any amount to complaint.  

               Complainant and  opposite parties filed affidavits  and Ext.A1 to A4  and Ext. C1 and C2 were marked.  The points arise for consideration.

1. Whether there is any manufacturing defect for the tiles .
2. Whether complainant is entitled to the value of tiles.
3. Whether there is any deficiency of service on the part of 1^st opposite party.
4. Whether the complainant is entitled to get any compensation from 1^st opposite party as claimed.
5. Reliefs and costs.

Points No.1 to 5

The definite case of the complainant is thathe had purchased water proofing productsnamed “Laltex Sheild 2K Berger” manufactured by 1^st opposite party from 2^nd opposite party, who is the dealer of 1^st opposite party. The Italian marblesand bath room tiles were also purchased from the 2^nd opposite party .At the time ofpurchasing‘Laltex shield 2 K Berger’10 years warranty had been given to complainant .The 1^st opposite party made complainant believe thatthe above water proofing productwouldpreventany water leakageor absorption through thewallsand it hasan excellentwater proofing capacity and at the same time,it would support the wall tilesby formingthe bondageandit is the bestfor that purpose also.Believing the words of1^st and 2^nd opposite partiescomplainant purchased water proofing product for Rs. 14850/-(Rupees Fourteen thousand eight hundred and fifty only) .The 1^st opposite party had also provided a trained worker named Shihabudheenfor applying the product on the wall of the bathrooms.It is alleged by the complainant thatthe said shihabudheenapplied the water proofing product on the wall of bathroomsand then bathrooms tiles were fixed by using adhesivepurchased from 3^rd opposite party.But withina month the tiles were fall downfrom the water proofed walls and they

were damaged and the floor tiles also were damaged.Therefore complainant sustained a monetary loss of4,09,240/-(Rupees Four lakh nine thousand two hundred and forty only). According to complainantthe water proofing product of 1^st opposite partywas defective andsubstandardand that is why the tiles were detached from the walls.To establish the claim of the complainant, he took out an Advocate commission and an Expert commission and they filed reports which as marked as Ext.C1 and C2.Both these reportsrevealedthatthe tiles which are affixedon the wallsafter applying water proofing products were detached there fromin spite of the application ofadhesive products.Both of them also noted thatthe tilesaffixed on the walls where inwater proofing products werenot appliedwere foundunaffectedand thus they concluded thatthe bath room wall tilesand tiles affixed onopen terrace were fallen down only due to the defect of the water proofing products of 1^st opposite party.

The definite stand taken by 1^st and 2^nd opposite parties is thatthe products sold by themas water proofing productsis used only for preventing water leakageor absorptionof waterthrough wallsand thus they act asa water proofingagent.In this context the answer given by the complainantto the interrogatoriesassumes importance.The second question in the interrogatories was answered by the complainant stating that he has not seen any advertisement that“Laltex Sheild 2K Berger” can be used asan adhesive for fixingwall tiles.The fourth answer given by complainantwas to the effect thatthe 1^st opposite party has never madea claim that“Laltex Sheild 2K Berger” can be used as an adhesive to fix the wall tiles.He alsostated that the 2^nd opposite partyand one shihabudheen informed him thatwall tiles can be fixedperfectly after applying “Laltex Sheild 2K Berger”. From the answers given by the complainant, it is made clear that the water proofing product of the 1^st opposite partycannot be used as an adhesive.The grievance of complainant was thathe could not affix wall tileson the surface where inthe water proofing product was applied.There is nothing on record to show thatthe 1^st opposite partyhad givenanyassurance tocomplainant or his workers thatafter applying the water proofing product on the walltiles can be affixed thereonusing adhesive.It is also to be noted that at the time of visit of the commissioner and expert no notice had been given tothe opposite parties.The copy of the notice produced by the Commissioner shows that notice was given onlyto complainant.At the same time after the appearance of the opposite parties they could have applied fordeputing the samecommissioner or expertto visit the property againto notethe facts pointed out by them.But that is also not done by the opposite parties.Besides,the fact thatthe tilesaffixed on the surface where in water proofing product was appliedweredetached from the wall and fell downis not challenged bythe opposite parties.In the version as wellasin the objection to the report of the commissioner1^st opposite party has asserted thattheir producthas to be appliedover wallsandconcrete surfacesas water proofing agent and not as an adhesive agent. Admittedlyon the walls of bathroomstheproduct ofthe 1^st opposite party had been appliedand in that areabathroom tileswere fixed using adhesive.But those tiles were detached from the walls.It is true thateither 1^st opposite partyor 2^nd opposite partyhas never claimed thatafter applyingthe water proofing product tiles can be fixedthereonwithout any adhesive Agent. On the other handfrom the contentions of complainant andthe opposite parties, it is made clear thatfor affixing tileson the walls ofbathroomsadhesivecan be used .There is no case for the opposite partiesthat the adhesive used by the complainantwas defective.From the nature of contentionsof the 1^st opposite party it is seen thattheir water proofing product can be used only on the concrete surfaces and walls where in no tileswere affixed.From the report of the commissioner it is proved thatonly those tileswhich are affixed onbath room wallsafter applying the water proofing productswere detachedand all other tiles affixed onother portions of the house using the same adhesiveremained there unaffected.That indicates thatwhenthe water proofing products of the 1^st opposite party is used no tiles can be affixedthere on.Here, in the bath rooms of the complainanttheproduct of 1^st opposite party was applied on the wallsand thentiles were affixed using the adhesive.There fore those tiles were detached there from. That leads to the conclusions that on the walls where inwater proofing product of 1^st opposite party is applied no tiles can be affixed.But that aspectsor that condition is not revealed by 1^st opposite party to thecustomers.Ifthe tiles can be fixedon the bath room walls using adhesivewhere inthe water proofing product of 1^st oppositte The available evidence indicate thattheproduct of 1^st opposite partyis being used asa water proofing material.No documents are produced by complainant to prove that at any point of time,they represented that this product acceleratesorincreasesthe property ofadhesive materials used .Evidence is also lackingto show that the 1^st opposite party had declared thattheir productcan be usedfor fixation of tiles on the walls.According to themthis product can be usedonly on concrete surfaces on the walls as a water proofing agent.It is seen fromthe claim of complainantand the report of Commissioner and Expert that thewaterproofing material of 1^st opposite party was applied on the walls of the bathrooms and some other parts of the building and in those areas tiles were affixed.Those tiles were separated from the wall. There is no satisfactory evidence to prove that the 1^st oppositeparty claimed or assured the complainant that their water proofing product would form a strong bond with wall tiles and keep them fixed on the walls.

Though complainant alleged that one shihabudheen was sent by 1^stand 2^nd opposite partyto the shop of complainant for laying the tiles, 1^st and 2^nd opposite partychallenged this stand alleging that they have not sentany worker authorized by 1^st and 2^nd opposite partyto complainantfor laying the tiles.Ifshihabudheen , the so calledexpert had been sent by 1^st and 2^nd opposite partyto complainantfor laying the tiles , he would have stated that aspect in his affidavit. In the said affidavitwhat he stated is thatthe water proofing product was purchased by him and it was applied on the walls ofcomplainant by him and he has got training in applyingthe product .But he never admitted that he was sent by1^st and 2^nd opposite party for affixing the tiles.There is nothing on record to prove that said shihabudheenhas got training in that work.Therefore the evidence of shihabudheen is not sufficientto probabilisethe claim put forward by complainant.The Advocate commissioner and Expert inspected the property together without giving notice tothe opposite parties .What is proved from their report is that the tiles which are affixed on the area where in water proofing compound is applied were separated there from.Andthe tiles affixedonother parts of the housewithout using the water proofing material got affixed properly.Until and unlessit is proved that the 1^st and 2^nd opposite party hadclaimed thatif tiles are affixed on the walls after applyingwater proofing compound the tiles wouldgetaffixedfirmly.On the other hand the only claim put forwarded by opposite partyNo.1

and 2, is thatif their product are used on the walls it will act as water proofing agent. More overthere is no credible evident is prove thatthere is anymanufacturing defectforthe product of opposite partyNo.1. There is no case for complainant thatthe product of the 1^st opposite partywhich is purchased from 2^nd opposite partyhad no water proofing property.If that be so we cannot come to the conclusion that the 1^st and 2^nd opposite partyhave shownany deficiency of service or unfair trade practice.If that be so , complainant cannot claim any relief.Points are decided accordingly.

      Point No.5

On the basis of the findings on the above pointswe dismiss the complaint.

A.A.VIJAYAN, PRESIDENT

R.K.MADANAVALLY , MEMBER

MINI MATHEW, MEMBER

APPENDIX

Witness examined on the side of the complainant                                  :   Nil

Documents marked on the side of  the complainant                               :   Ext.A1to A4

Ext.A1  : The bill issued  2^nd opposite party dated 05-12-2015.      

Ext.A2  :  The bill issued by 3^rd opposite party dated 01-01-2016.                    

Ext A3  :  The bill issued by 3^rd opposite party dated 04-01-2016.

Ext A4  : The Bill  issued by Kurikkal Ambiente( 01-04-2015 to 16-03-2016)                                       

Witness examined on the side of the opposite party                         :   Nil

Documents marked on the side of the opposite party                      :   Nil

Ext. C1 & Ext.C2 : Commission Report from Advocate Commissioner Deepthi.M.                                                                                                                                                           

A.A.VIJAYAN, PRESIDENT

 R.K.MADANAVALLY , MEMBER                                                    

    MINI MATHEW, MEMBER