Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, to direct the Opposite party to refund of Rs.10,800/- along with interest at 12% p.a. and to pay damages of Rs.20,000/- with costs. 2. The case of the complainant is that for residential house at Mandya, the complainant was searching for water proof solution for the open terrace on the right side of the newly built house and the to said part of terrace, ultra tiles has been laid during construction of the house. But, water was percolating through the gaps of the tiles and used to drip at two places whenever heavy rain comes. So, the complainant thought of putting water proof work and one Mr.Balakrishna the Sales Officer of Sika India Pvt. Ltd., inspected the building in October 2007 and suggested the Opposite party who is the authorized water proof applicator for Sika construction chemicals. The Opposite party inspected the building on 10.01.2008 and assured to undertake to fill up the drip of water by applying water proofing work and gave a quotation on 15.01.2008 assuring standard and good quality of work and long life in nature and also giving guarantee for 10 years in writing. He assured that the said work will be attended for 4 days and for testing of correctness of the work, he told to fill that part of the terrace with water after 48 hours of the work and if there is nay deficiency in the work he has undertaken to attend it whenever called upon. Therefore, the complainant entrusted the water proof work to the Opposite party and paid advance of Rs.2,000/- on 18.01.2008. The Opposite party conducted water proof work on 22.01.2008 and 23.01.2008, the complainant paid the balance of Rs.8,000/- and the Opposite party has issued a receipt. On 26.01.2008, the complainant prepared water blocks on terrace on which water proof work was done and at about 9.p.m., the complainant filled up water on terrace and made to stand the water on terrace. Soon after, the said water started dropping in more places than it was before, in that terrace the dripping rate was more compared to what it was before, water proofing work was done. Immediately, the complainant telephoned to the Opposite party repeatedly and then the Opposite party replied that he will send his workers within two days. But, nobody turned up. On 29.01.2008, the complainant called the Opposite party though phone and Opposite party told that he has ordered for some materials which will be getting after a week and his men would come after they get materials. Though the complainant waited for 10 days, again the complainant contacted the Opposite party through phone, but he did not receive any call. The Opposite party has not shown any inclination to respond and Opposite party has failed to give proper service to the complainant. But, on 02.03.2008, the Opposite party came to the house of the complainant and witnessed the water proofing work and dripping of water and then assured to set right the things. But, he has not at all set right. Thus, the Opposite party has committed deficiency in service. In spite of the notice on 29.03.2008, the Opposite party has not at all come forward to repair the dripping of water. Hence, the Opposite party has effected sub-standard work and has committed deficiency in service and therefore, the complaint is filed. 3. The Opposite party has filed version, admitting the quotation issued by the Opposite party for water proof solution on the part of terrace of the house of the complainant and assurance given about the guarantee for 10 years and also admitted water proof done by the Opposite party on two days and issue of receipt for the amount received. It is denied that the complainant was suggested to fill the water on terrace for the period of 48 hours. But, he has undertaken that he will attend if there is deficiency at the later stage. The dripping of water in more places of the terrace is negligence on the part of the complainant and failed to take reasonable care to protect the work done by the Opposite party. The well dressed R.C.C. roofing will also cause the dripping is made stored on the terrace. Further, allegations are all false. The Opposite party has done work properly by using the work quality materials. The construction work made by the complainant is very poor quality material. The complainant negligently stored the water on terrace for a period of 5 days to test the work done by the Opposite party. But, the complainant was informed to test the work done by the Opposite party by the flow of water on the terrace or otherwise he has to wait for rainy season and not by storing the water on terrace. At the later stage, when the Opposite party went to the house of the complainant to attend the complaint, the complainant did not permit to enter the house. Therefore, it was not possible to attend the request made by the complainant. As such, the Opposite party was not able to attend the complaint of the complainant. Other allegations are denied and the complaint is liable to be dismissed with costs. 4. During trial, the Opposite party undertook to rectify the defects and then demonstrate about the condition of the roof and he filed a memo with report and bills. The complainant complained the defect again and the Opposite party was directed to inspect the repair work executed for the complaint of leaking. Thereafter, the Opposite party did not turn up at all. Thereafter, a Commissioner by name Sri.B.S.Jayashankar Babu, Assistant Professor, Civil Engineering Department, P.E.S. College of Engineering, Mandya was appointed as a Commissioner and he has inspected work carried out by the Opposite party and has submitted report. The Opposite party remained absent including his advocate and they have not filed any objection to the Commissioner report. The complainant has filed affidavit and documents about this case. The Opposite party has not filed his affidavit nor documents. Even at the time of arguments, the Opposite party and his counsel remained absent. 5. We have heard the counsel for the complainant. We have perused the records. 6. Now the points that arise for our considerations are:- 1. Whether the water proof work carried out by the Opposite party is defective and the Opposite party has committed deficiency in service? 2. Whether the complainant is entitled to refund of Rs.10,800/- from the Opposite party? 3. Whether the complainant is entitled to interest and damages of Rs.20,000/-? 4. What order? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that on account of percolation of water through the gaps of tiles from the open terrace on the right side of the newly built house of the complainant, where ultra tiles has been laid there was dripping of water at two places whenever heavy rain comes. The Opposite party inspected and undertook to fill up the drip of water by applying water proofing work and gave quotation on 15.01.2008 and the quotation for Rs.10,800/- is produced by the complainant. It is admitted fact that the Opposite party assured quality work and guarantee for 10 years and if there is any deficiency in the work he would attend it whenever called upon. It is admitted that on 22.01.2008 and 23.01.2008 the Opposite party attended the work. The complainant totally paid Rs.10,000/- and the Opposite party has issued receipt for Rs.10,000/- and the receipt is produced by the complainant. 9. The grievance of the complainant as per the instructions by the Opposite party for testing the correctness of the work done, he filled up water by making blocks on the portion of the terrace, where the Opposite party has executed the work, after 48 hours of the work. But, the water standing the terrace started dripping in more places that it was before and dripping rate was more compared to earlier. But, the contention of the Opposite party is that he has not improved to fill up the water after 48 hours. The complainant must have made the flow of water on the terrace or otherwise he had to wait for rainy season and not by storing the water on terrace. But, there is no written instruction by the Opposite party at all to the complainant to test work done by him in that manner. Even, the Opposite party has not filed affidavit taking that contention. Further, admittedly during pendency of the complaint, the Opposite party undertook to rectify the defect in the work executed by him and he attended the work, but again the complainant complained the dripping up of water. Again the complainant reported the defect and then though the Opposite party undertook to rectify the defect, but the Opposite party did not turn up at all. So, Assistant Professor of Civil Engineering Department, P.E.S. College of Engineering, Mandya was appointed as Commissioner to inspect the building and submit the report about the quality of the work executed by the Opposite party. The Commissioner has submitted the report. Both the sides have not filed any objections to the Commissioner report. The Commissioner has reported in detail that the first attempt to stop the water leaking, injection grouting was not satisfactory, still in the second attempt the work performed only on the surface not full to the root level and it shows the intention is to solve the problem only temporarily, in time sense and not to give solution permanently. This surface treatment still worsens the water leaking problem. He observed droplets of water in continuous manner particularly at the front of garage roof portion and also some roof portions dampens near rain water pipe surroundings and in some spots of rear roof slabs also noticed water spots in brick machinery also, at some spots below the front extended roof. More water leaking problem in the front portion, above the garage, compared to rear exposed ground floor terrace. The defect already existing ultra tiles flooring work was not idealized correctly. The leakage may cause more and more dampness in components of the structure and affects the durability of the building and two times water proofed work has not full fill its intended purpose. Therefore, the report of the Commissioner clearly establishes the defective work executed by the Opposite party, though he had given guarantee for 10 years. Hence, the complainant has proved that the Opposite party has committed deficiency in service in attending the water proof work. 10. The complainant has sought for refund of Rs.10,800/- with interest at 12% p.a. and also damages of Rs.20,000/-. It is specific case of the Opposite party that though the quotation was Rs.10,800/-, the complainant sought for rebate and the complainant paid only Rs.10,000/-. In the complaint also, the complainant has stated that he paid Rs.2,000/- advance and after execution of the work, he paid Rs.8,000/- and later he received the bill. The complainant has produced the bill issued by the Opposite party and it is for Rs.10,000/-. Therefore, the complainant is entitled to refund of Rs.10,000/- only and not Rs.10,800/- claimed. 11. The complainant has sought for interest at 12% p.a. on the said amount and also damages of Rs.20,000/-. But, it is admitted fact that the Opposite party has attended the work and thereafter during the pendency of the complaint he also attended to rectify the work and in fact, the Opposite party has submitted the bills for having purchased materials worth of nearly Rs.2,100/- and also incurred conveyance charge. So, the complainant is not entitled to interest on the said amount or the compensation. But, the complainant is only entitled to refund of Rs.10,000/- paid by him. 12. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite party to refund Rs.10,000/- to the complainant with cost of Rs.1,000/- within six weeks, failing which he is liable to pay interest at 12% p.a. from the date of complaint till payment. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 30th day of January 2009). (PRESIDENT) (MEMBER) (MEMBER)
