COMPLAINT FILED ON: 28.02.2009
DISPOSED ON: 30.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 30TH DECEMBER 2010
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.505/2009
Complainant OPPOSITE PARTIES | Mr. Swaroop Sunku, S/o S. Ananth, Aged about 30 years, R/at No.10/1, 3rd Cross, Malleshwaram, Bangalore – 560 003. Also at: No.156, 3rd Main Road, Chamarajpet, Bangalore – 560 018. Advocate: Sri. M.C. Ravikumar V/s. 1. M/s. Empire Enterprises, No.7D, Godown Street, Near Chandra Bhavan Hotel, Bangalore – 560 002. Advocate: Sri. M.L. Dayananda Kumar 2. STP Ltd – Bangalore, No.36, Mission Road, Bangalore – 560 027. Rep: by its Manager Mr. Shyam Prasad. Advocate: Sri Y.A. Nagaraj |
O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to pay compensation of Rs.5,00,000/- with interest at 18% on an allegations of deficiency in service on the part of the OPs.
2. The case of the complainant is to be stated in brief is that:
The complainant along with his wife are the absolute owners of the property bearing No.156, 3rd Main, Chamarajpet, Bangalore, which is built up residential / commercial house on plinth area of 3000 sq. ft. the roof approximately 2700 sq. ft. The building is approximately 30 years old. An approximate area of 1500 sq. ft. generated dampness during the rains in the months of September and October – 2007. Since prevention was more appropriate to ensure that there is no leakage, the complainant entrusted the work to arrest seepage of water from the roof, to OP-2 who was approached to carry out the same. OP-2 informed that, they do not supply materials for water proofing and leakage, as they have their own dealers and recommended to approach OP-1 to get the work executed. It is in this manner OPs-1 and 2 was entrusted the work of water proofing and arresting leakage of the roof to the extent of 1500 sq. ft. on 18.02.2008. OPs did not execute the work applying scientific technology to ensure that the leakage roof slab pours are filled up with water resistant materials. OPs in turn executed the work by using tar felt which in itself was not sufficient enough to arrest the leakage portions. The tar felt applied, formed a sheet in itself enabling water percolate from some of the roof areas and it in itself became temporary water storage zone in the roof having no way to go out and unable to be removed. The bills issued by OPs are produced. Complainant made correspondences with OPs, OPs gave untenable reply. The complainant has suffered because of inferior execution and this amounts to gross deficiency of service. The complainant learnt that OP-1 is not the authorized dealer of OP-2. Both the OPs are liable for deficiency of service for having mis-lead the complainant and more particularly OP-1 having failed to execute the work of water proofing and leakage in the roof in a scientific manner. Hence the complaint.
3. On appearance, OP-1 filed version contending that the complaint is not maintainable; the same is liable to be dismissed. OP-1 is only dealer in tar and tar products and paints and at no point of time it has undertaken any jobs to laying tar or for painting to any of its customer, as such it is not liable for the mistake committed by the complainant in laying out the water proof to his property. It is admitted that the complainant approached the OP to purchase materials for water proofing. It is denied that OP undertook to execute the work of water proofing and arresting the leakage of the roof as alleged. If the execution work is got done by the complainant not in a proper manner, he cannot have any grievances against this OP. It is denied that OP is not an authorized dealer of OP-2 and there is no deficiency of service as there is no contract between complainant and OP-1, as OP-1 is only a dealer and not executor or contractor. Hence it is prayed to dismiss the complaint with exemplary costs.
4. OP-2 filed version contending that the complainant never approached him at any point of time for any purposes. It is denied that on the recommendation of OP-2, the complainant approached OP-1 to entrust work. For the letter dated 23.12.2008 OP-2 has replied through e-mail dated 26.12.2008 denying the contentions of the complainant mentioned therein. OP-1 is not authorized agent of OP-2, any correspondences with him for application of the water proof materials over his property and consequences thereof will not bind the OP-2. Even according to the complainant he has purchased waterproof materials and applied the same to the extent of 1500 sq. ft. out of 2700 sq. ft. itself proves that he has not carried out the work diligently. The complainant has not approached the specialized persons to carry out the job, but might have approached the some local people who are adolescent in that field. The complainant in order to enrich himself approached this Forum without any hint proof as to the negligence on the part of the OP-2 in carrying out his business. In the absence of any jural relationship existing between the complainant and OP-2 no liability can be fixed against OP-2. Hence it is prayed to dismiss the complaint with costs.
5. In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Partner of the OP-1 filed affidavit evidence in support of the defence version. The General Manager of OP-2 filed affidavit evidence in support of the defence version. Both the parties filed interrogatories, the replies for interrogatories also filed.
6. OP-1 filed written arguments. Arguments of OPs heard. Complainant has not turned up, hence taken as heard. Points for consideration are:
Point No.1:- Whether the complainant is proved
the deficiency in service on the part
of the OPs?
Point No.2:- If so, whether the complainant is
entitled for the relief now claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Negative.
Point No.2:- Negative.
Point No.3:- As per final order.
R E A S O N S
8. The case of the complainant is that he along with his wife are the owners of property bearing No.156, 3rd Main, Chamarajapet, Bangalore. In the month of September and October – 2007 due to heavy rains the said property generated dampness. In order to prevent the leakage and to arrest seepage of the water from roof, the complainant purchased the required material from OP-1 on 21.02.2008. The bill produced reveals that total amount of Rs.16,767/- was paid towards the purchase of the materials. The main grievances of the complainant is he has entrusted the work of water proof to arrest the leakage of the roof to OPs-1 and 2 and the work was not carried out properly in application of the material, as a result there was deficiency in service on the part of the OPs. It is stated that the OPs executed the works by using tar felt which in itself was not sufficient enough to arrest the leakage portions.
9. The complainant has not placed any material to show that there was no privity of contract between himself and OP-2. OP-1 is the dealer of the products of OP-2. As per the invoice the materials are supplied to the complainant, there is no material to hold that OP-1 has undertaken the execution of the work. Without there being any material with regard to the execution of the work, OP-1 cannot be held responsible. In the interrogatories furnished to OP-1 by the complainant, the complainant has stated that an amount of Rs.6,000/- was paid towards laying charges, OP-1 has denied the said facts in the reply. OP-1 has clearly stated that he has not applied the product itself. In case if OP-1 has charged an amount of Rs.6,000/- towards laying the product, there was no reason for the complainant in not mentioning the said fact in the complaint. The complaint averments are silent regarding payment of Rs.6,000/- as charges for laying product. Therefore for the first time in the interrogatories supplied to OP-1, the complainant has come up with that version, the same cannot be accepted. OP-1 is only a dealer in tar and tar products and paints, under the invoice; the payment was made only towards the purchase of the products. The complainant has purchased only materials from OP-1. If he has not got applied properly, he cannot blame the OP-1. The complainant might have got done the work from some other person, as the work was not carried out properly on account of the same, the complainant must have suffered loss.
10. There is no material to hold that the product purchased from OP-1 did not possess potential enough to arrest any seepage. If the leakage proof material purchased from OP-1 was not applied properly by the person executing the work. OPs cannot be blamed for the same. In the letter dated 19.12.2008 addressed by the complainant to OP-1, it is stated that one Mr.Upendra Singh has done the application work of the product and in the letter dated 23.12.2008 it is stated that the company’s authorized applicator Mr. Ramakrishna had visited the site and has confirmed that there is 100% wrongful application of the product. Thus it becomes clear that the complainant got executed the work through one Mr. Upendra Singh who has not carried out the work properly. OPs-1 and 2 are in no way concerned with the execution of the work. Under these circumstances we are of the view that the complainant failed to prove deficiency in service on the part of the OPs. The complaint is devoid of merits, the same is liable to be dismissed. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 30th day of December 2010.)
PRESIDENT
MEMBER MEMBER
Snm:
