BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 24/03/2010

Date of Order : 31/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 193/2010

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

On 10-07-2008, the opposite party visited the house of the complainant and assured that using “Prime Seal New Cool” manufactured by Pidilite Industries the leak proofing of the terrace can be effected. He offered 10 years guarantee for the work. The opposite party agreed to carry out the work @ Rs. 25/- per sq.ft. Accordingly, the opposite party carried out the leak proofing work on 17-07-2008 and collected Rs. 10,000/- from the complainant after issuing guarantee for 7 years. But after 2 weeks during rains, the leak of the terrace persisted. Despite repeated requests, the opposite party did not respond to the same in spite of the guarantee. Thus, the complainant is before us seeking direction against the opposite party to refund Rs. 10,000/- with interest.

2. The version of the opposite party :

This complaint is barred for non-joinder of Pidilite Industries. The opposite party has no connection with the Pidilite Industries. Prime Seal is a product manufactured by the Pidilite Company. The front side of the roof of the house of the complainant alone was made of concrete. The remaining portion of the house surrounded by tiled roof. After applying the material, the opposite party directed the complainant to take steps to drain the rain water properly. If water is accumulated in the terrace that will be absorbed by the walls and the terrace would remain wet. That may be a reason for leakage if any. The complainant has filed this complaint after a period of one and a half years from the date of application of the prime seal. There is no deficiency in carrying out the work of the complainant's house.

3. The complainant was examined as PW1 and Exts. A1 to A3 were marked on his side. The opposite party was examined as DW2 and Exts. B1 and B2 were marked on his side. The expert commissioner was examined as DW1 and his report was marked as Ext. C1. The opposite party filed argument note. Heard the counsel for the parties.

4. The only point that came up for consideration is whether the complainant is entitled to get refund of Rs. 10,000/- from the opposite party as claimed by him?

5. Admittedly, the opposite party had carried out the leak proofing work of the terrace of the complainant's house. 7 years guarantee has been provided by the opposite party to the work evident from Ext. A1. The complainant asserted that he has paid Rs. 10,000/- to the opposite party to carry out the work. But the opposite party maintains that he has received only Rs. 7,000/- from the complainant. Though the opposite party had no such case in his version at the primary stage, he has belatedly claimed otherwise. So, the contention of the opposite party is not necessarily applicable in law. Law does not favour the late comer where the opposite party has put the opposite party himself in which makes him liable to redress the grievance of the complainant.

6. According to the complainant, after two weeks from the application of the leak proofing materials the leak of the terrace persisted and in spite of repeated requests the opposite party did not take steps to cure the same. The opposite party maintains that the further leaking of the terrace must be due to seepage of water through the walls on the 3 sides of the terrace or seepage of water due to the logging of water in the terrace. The expert commissioner in his report ruled out the above possibilities. The expert commissioner deposed that during his examination, the surface was dry and there was no leakage in the terrace which obviously shows that there was no logging of water at the time of examination. So, it is hardly likely that such a contention can be relied upon. However, in spite of 7 years guarantee to the consumer has not been maintained. Deficiency of service is proved squarely for which the opposite party is answerable contrary to any averments raised. The primary principle of consumer law is that 'consumer is king' and his claim prevails especially in the absence of grounds substantiated.

7. In view of the above, we partly allow the complaint and direct that the opposite party shall cure the leakage of the terrace of the complainant's premises of which he had been confident on account of the guarantee offered by him which seemingly has not been upheld for which no further charges shall be levied from the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of January 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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