BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of November 2011
Filed on : 28/04/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No. 262/2010
Between
K.C. Paulose, : Complainant
Kanjiraveli house, (By adv. Philip T. Varghese
Pazhamathottam P.O., T.D. Road, Ernakulam,
Aluva-683 565. Cochin-11)
And
1. M/s. Buildmate Builders Pvt. Ltd., : Opposite parties
34/112, Eara/92, Nochikkat, (1st O.P. absent)
Behind Mylalam Siva Temple,
Edapally, Kochi 682 024.
rep. by its Managing Director.
2. M/s. Bal Endura Adhesives (By Adv. R. Padmaraj,
(India) Ltd., 73/1B, Byregowda KNB Nair Associates
Industrial Estate, Srigandha Nagar, 2nd Floor, Morning Star,
Hegganahalli, Peenya 2nd Stage, Buildings, Kacheripady,
Bangalore-560 091 Ernakulam, Cochin-682 018)
rep. by its Managing Director.
O R D E R
C.K. Lekhamma, Member.
Facts of the complainant’s case are as follows:
The complainant is the owner of the residential building at Pattimattom in Ernakulam District. The complainant entrusted with the first opposite party to water proof the terrace of the complainant’s residential house having an area of 650 sq. ft. at a cost of Rs. 33,936/-. The first opposite party, is the authorized dealers ‘ARDEX’ brand of water proofing products manufactured by the 2nd opposite party. The opposite parties offered to give written guarantee to the product and workmanship for a period of 10 years from the date of completion of the work. The water proofing work was completed on 13-02-2007. However about 2 years from the date of work the coating started peeling off and portion of the terrace floor having a fungus like infection. The Water started seeping into the surface of the terrace causing dampness and damage to the surface. There is every indication that the damage will spread throughout the terrace area causing damage to the structure of the building. Complainant contacted the opposite parties and brought the defects into their attention. The officers of the opposite parties inspected the building and were convinced about the defects. Instead of curing the defects they offered materials for 250 sq. feet alone and directed that the cost of labour should be borne by the complainant. The complainant did not accept the offer. The complainant issued a lawyer notice dated 26-03-2010. The opposite parties received the notice. But they have not cared to rectify the defects nor have they issue any reply. The complainant contented that such defect and damage has resulted only on account of substandard product and workmanship of the opposite parties. The opposite parties are jointly and severally responsible to compensate the complainant for the mental agony distress and hardship suffered by him. According to the complainant, he is entitled to get a compensation of Rs. 25,000/- and also to get refund Rs. 33,936/- along with interest, compensation and costs of the proceedings from the opposite party.
2. Version filed by the 2nd opposite party.
The 1st opposite party had done the work of water proofing of the complainants house on 13/02/2007 is admitted. The 2nd opposite party is a reputed company and is well known for its quality products and service. It is admitted that the 2nd opposite party gives 10 years warranty for its product and work, provided that the work is done according to the specifications given by the opposite party, further that the work is done by authorized dealers/workmen of the 1st opposite party. The leaking problem in the complainant’s premises arose only because the entire area of the terrace was not treated and a portion was left untreated. The 1st opposite party advised the complainant that the entire terrace area should be treated to make water proofing effective. But the complainant stated that he is not having the financial capability to do the work for the entire terrace area. Water proofing product performs well. There is no problem whatsoever with the water proofing done on the top of the slab covering provided to the chimney. The said chimney is situated in an area well separated from the rest of the terrace. The 2nd opposite party offered to provide the materials free of cost for doing water proofing work for 250 sq. ft. which was left untreated earlier. The labour cost for laying the same should be borne by the complainant. But the complaint refused to accept the offer put forward by them. The complainant has no cause of action and is not entitled to the amounts claimed in the complaint.
3. The complainant and the 2nd opposite party appeared through counsel. The complainant was examined as PW1. Exts. A1 to A10 were marked. The opposite party No. 1 remained absent despite service of notice from this Forum. The 2nd opposite party did not adduce oral as well from documentary evidence. Heard both sides.
4. The points that arose for determination are as follows:
i. Whether the opposite parties are liable to do the water
proofing work to the complainants terrace?
ii. Whether the complainant is entitle to get refund of Rs.
33,936/- from the opposite parties as the cost of the earlier
leak proofing work. ?
iii. Compensation and costs if any
5. Points Nos. i&ii. The case of the complainant is that the water proofing work of his terrace having 650 sq. ft. done by the 1st opposite party is defective. The 2nd opposite party’s product was used for the work and the opposite party had given 10 years guarantee for the product and workmanship from the date of completion of the work. The work was completed on 13-02-2007 and about 2 years thereafter the defects started. The 2nd opposite party contended that the reason for leaking problem was that the entire terrace was not treated and a portion was left untreated.
The 2nd opposite party admitted that they had given 10 years warranty for their product as well as for the work. They further admitted that the 1st opposite party is their authorized workmen. Ext. A1 is the copy of final bill for an amount of Rs. 33,936/- with regard to water proofing work issued by the 1st opposite party to the complainant. Ext. A2 is the copy of warranty issued by the 2nd opposite party to the complainant. In which warranty has been provided to the products for 10 years. Ext. A3 is the copy of guarantee letter given by the 2nd opposite party to the complainant. And guarantee has been provided for 10 years from 13-02-2007. As per Ext. A4dated 06-01-2010 the complainant duly informed the opposite parties with regard to the defects of their work. Thereafter Ext. A6 lawyer notice was issued to the opposite parties. Ext. A7 and A8 are the acknowledgement cards of the said notices. Ext. A9 is the proposal for work. As per Ext. A2 the 2nd opposite party has given 10 years warranty for the product and the work. It seems that about 2 years from the date of work the defects were started. The opposite parties failed to prove that the reason for leaking was due to that portion of the terrace which was left untreated. Therefore, we are of the opinion that the opposite parties are liable to re-do the water proofing work of the complainant’s terrace for the same extent of area measured at 650 sq. ft. and to provide fresh warranty for the product and workmanship.
We are not ordering refund the cost of the work under dispute since as per Ext. A2 guarantee letter and A3 warranty the opposite parties guaranteed and warranted for the workmanship of ARDEX WATER PROOFING work and the product. There is no agreement between the party to refund the cost. So the claim for refund of the cost is unsustainable.
6. In the facts and circumstances of the case we are not ordering any compensation. Nevertheless the opposite parties are liable to pay litigation expenses to the complainant, since they failed to settle the dispute at the very out set.
7. In view of the said discussions we partly allow the complaint as follows:
i. The opposite parties shall jointly and severally re-do the water proofing work of the complainant’s terrace having an extent of 650 sq. ft.
ii. The opposite parties shall provide 10 years fresh warranty for the leak proofing work.
iii. The opposite parties shall jointly and severally pay Rs. 1,000/- by way of litigation costs to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order
Pronounced in the open Forum on this the 28th day of November 2011
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : Copy of letter dt. 05-02-2007
A2 : Copy of 10 year product warranty
A3 : guarantee letter
A4 : Copy of letter dt. 06-01-2010
A5 : Copy of letter dt. 03-03-2010
A6 : Copy of lawyer notice dt. 26-03-2010
A7 : A.D. Card
A8 : A.D. Card
A9 : Letter dt.08-12-2006
A10 : Copy of letter dt. 08-12-2006
