CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 31st day of January, 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing: 10/06/2015
: SMT.SUMA K.P, MEMBER
: SRI. V.P.ANANTHA NARAYANAN, MEMBER
CC/81/2015
K.Nasar,
S/o. Kunhahammad (Late)
Chundakkad, Kavasseri (P.O)
Pincode-678543, Alathur, Palakkad.
(By Adv.M.Raveendran) : Complainant
Vs
M.Saleem,
(Smart Tech Fiber Glass Works)
S/o.Muhammad, Kerala Parambu,
Vannur, Alathur (P.O), Palakkad.
Pincode- 678541. : Opposite party
(By Adv.Feroze Arakkal)
O R D E R
By Smt. Suma K.P.Member
The case of the complainant is that he had approached the opposite party for stopping the leakage in the ceiling of his residential building. The opposite party applied a leak proof during March 2014. The complainant availed the service of the opposite party only on the guarantee of 15 years protection given by him. As per the above guarantee and assertion of the opposite party, that the leakage of water will not occur again, the complainant agreed to apply the leak proofs. The rate fixed as per the agreement was Rs.80/- per s q.ft. The complainant paid a lump sum amount of Rs.27,250/- to the opposite party. After applying the same, in the month of June when the rain started the leakage was again started. This information was conveyed to the opposite party. He promised to repair the same, but even after repeated requests he did not turned up. Due to the evasive attitude of the opposite party the complainant sent a lawyer notice through the forum for consumer justice on 15/05/2015 asking him to repair the same within 15days. The opposite party received the same on 16/05/2015 and he approached the complainant and promised to repair the same but nothing was done. Hence this complaint.
The complaint was admitted and notice was issued to the opposite party for appearance. Opposite party entered appearance through counsel and filed a detailed version denying all the allegations of the complaint. The complainant is not entitled for any of the reliefs claimed in the complaint. The complainant has constructed his house at about 15yrs back. Due to the leak during rainy season the roofs were all wet and the opposite party had applied the leak proof over and above the said roof. The opposite party submits that it may take minimum 3 years for drying the previous leaks that had occurred in the walls. The said leaks which appears during rainy season was not due to the alleged application done by this opposite party. At the time of entrusting the work the opposite party had informed the complainant that the application had to be done on the whole, so as to obtain the results of the alleged application. But the complainant did not agree for the same and informed the opposite party to apply the leak proof only to certain areas. During rainy season the rain water gets collected at different portions on the remaining parts and that is the reason for the alleged leakage. The rain water gets leaked through the roof through non applied areas and it spreads on the whole surface. The alleged leak which appears upon the roof is due to the leak that is occurring through the non applied areas. When the opposite parties received lawyer notice from the complainant he visited the complainant and had explained all the above facts to the complainant. The complainant was convinced at that time and had filed this complaint suppressing all the above facts. The complainant had filed this complaint without the knowledge of the proper facts. He is not entitled to get any of the reliefs claimed in the complaint. There is no deficiency of service on the part of the opposite party. The alleged leakage that appears on the roofs is due to the impact of the previous leakage. The complainant has filed this complaint only on experimental basis. Hence the complaint had to be dismissed.
The complainant had applied for an appointment of advocate commissioner to inspect the property and report with regard to the leakage. Accordingly an advocate commissioner was appointed and he had filed a report after inspecting the property. Both parties filed their respective chief affidavits. The complainant filed an application seeking permission to cross examine the opposite party. The opposite party also filed application for cross examination of the complainant. The complainant was examined as PW1, and Opposite party was examined as DW1. Ext. A1 to A3 was marked by the complainant. The report of the commissioner was marked as Ext. C1. The evidence was closed. Matter was heard.
Issues that arise for consideration
1. Whether there is any deficiency of service on the part of opposite party?
2. If so, what is the relief and cost entitled to the complainant?
Issues 1 & 2
We have perused the affidavits and the evidence produced before the forum. In the commission report filed by the commissioner he had stated that there is presence of leakage and the wall is in a wet condition. According to the complainant the leakage was due to the fact that opposite party used inferior quality products and improper application there by causing grave deficiency on the part of the opposite party. But according to the opposite party the said leakage was due to the impact of the previous leakage before application of the leak proofs and it takes time for drying the same. Another reason for the leak was due to the partial application and the rain water gets stored on the surrounding areas causing leak through the non applied surface and gets spread to the walls. Admittedly there is leakage on the roofs of the complainant. The commissioner has also clearly stated that there is presence of leakage of water. The reason for the leakage stated by the opposite party cannot be taken into consideration since the leak had occurred even after 3months of application of the leak proofs. He ought to have done the work by proper application thereby preventing the future leakages. According to the commission report the flat surface of the roof has been completely applied with the leak proof. Hence there should not be any possibility of further leakage during rainy season. Since the opposite party had also admitted that there was leak for the reasons not known he is liable for the same. The opposite party had not adduced any evidence before the forum to prove that the leakage was due the reason as stated by him. Hence we attribute deficiency of service on the part of opposite party. In the above context the complaint is allowed. The issue no. 1 is answered accordingly. Hence the complaint is allowed and we direct the opposite party to pay Rs.5000/-(Rupees Five Thousand Only)towards compensation for mental agony and stress suffered by the complainant along with Rs.3000/- (Rupees Three thousand Only) as cost of this litigation. We also direct the opposite party either to rectify the defects with regard to the leakage within one month from the date of receipt of this order or to pay Rs.10,000/- (Rupees Ten Thousand Only) towards the cost of repair of the same. The aforesaid amount shall be paid within 1 month from the date of receipt of this order failing which the complainant is entitled to get 9% interest for the said amount from the date of order till realization.
Pronounced in the open court on 31st January 2017.
Sd/-
Smt. Shiny. P.R
President
Sd/-
Smt. Suma. K.P
Member
Sd/-
Sri.V.P.Anantha Narayanan
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1- Guarantee letter issued to complainant by owner Saleem dtd:-10/03/2014.
Ext.A2- Forum for Consumer Justice issued registered letter to opposite party dtd:- 15/05/2015 (Photocopy)
Ext.A3– Acknowledge card (Original) dtd:-16/05/2015
Exhibits marked on the side of opposite party
NIL
Witness marked on the side of complainant
PW1-Nazar.K
Witness examined on the side of opposite party
DW1-Salim.M
Commissioners Report
C1-Advt.M.Alimuthu
Cost Allowed
Rs.3000/-
