BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM

Dated this, the 10^th  day of July, 2018

                                 CORAM:     1. Sri. P. Madhav Raja, _{B.Sc., M.Li.Sc. LL.M.,} – President

                             2. Sri. Kiran Kumar_{, B.Sc., LL.M.} – Member

C.C. No.23/2016

Between                              

Smt. Danda Ramadevi, W/o. Radhakrishna,

Age: 45 years, Occu: House hold,

H.No.8-2-368,369 & 370, Main Road,

Manuguru, Khammam District.                                               …Complainant

                             And

1. M/s. Pidilite Industries Ltd,

Rep. by its Authorized Signatory.

Ramakrishna Mandir Road,

P.O. Box. No.17411,

Andheri (East), Mumbai – 400 059

2. M/s. Crystal Interiors,

Yellandu Cross Road,

Beside MRF Tyre Show Room,

Khammam.                                                      …Opposite parties

        This C.C. is coming before us for hearing in the presence of                        Sri B.Kalyan Rao, Advocate for Complainant; and of Sri. S.Venkateswar Rao Gupta, Advocate for Opposite Party No.1; and of Sri. P.B.Sri Ramulu, Advocate for Opposite Party No.2; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Sri P. Madhav Raja, President)

         This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

1.       The set of brief facts in the complaint are that the complainant is the owner of building No. 8-2-368, 369 and 370 at Manuguru Town,  Main Road. Whenever there is heavy rain due to minute leakages in edges in the said building resulted falling of water drops.  The Opposite Party No.1 is Manufacturer of the water proof chemicals and Opposite Party No.2 is Distributor, Service provider and represented that on application and treatment of their chemicals, which strengthen the constructions, particularly slabs and prevents leakages. Opposite Parties provided warranty for initial seven years for workmanship and material on treated area, and later 3 years for workmanship only. The Opposite Parties assured through letter dt:01-08-2013 to repair any damaged area at free of cost within warranty period, which is commenced from 01-08-2013. The complainant got treated terrace slab area comprising 675 Sq.ft by paying Rs.20,000/- on 24-07-2013,  and Rs.25,000/- on 20-08-2013 towards cost of their treatment to the Opposite Party No.2 by way of transfer from her Manuguru Andhra Bank branch account and also paid Rs.25,000/- in  cash to the Technician of Opposite Parties.  After chiseling slab on the said terrace by their technical personnel, the Opposite parties applied their leak preventing chemical.  After few months leakage of water repeated in several parts of slab area which was treated by opposite parties.  Complainant addressed the same to the Opposite parties and posted mails, the entire slab area treated by Opposite Parties developed leakages resulting in extensive water leakage, even for small rains it has become miserable. The interior ceiling, ward robs and electrical fixtures, fans, lights and interiors got damaged due to such leakage of water from slab and seepage in the walls. Parts of lower portion of slab fell down.                 On 09-08-2015 and 07-12-2015 complainant got posted mails and photographs of such damages to the Opposite Parties and requested to rectify the damaged slab, but Opposite Parties failed to attend the same.  Due to such damages the complainant is unable to make use of 2^nd floor of her house and it has been kept idle nearly for more than one year. On consulting some engineers, the complainant was told that chiseling of upper layer of slab by Opposite Parties entire slab has damaged, any  further repairs would not with stand leakage of water and as such slab has to be laid newly costing of Rs.1,00,000/-.  The complainant suffered loss of Rs.1,50,000/- towards damage to interior ceiling due to which the family members of complainant suffered lot of agony and hardship. Several requests made to the Opposite parties turned deaf ear then the complainant filed this complaint to order to pay Rs.3,00,000/- towards special and general damages from Opposite Parties.

2.       The complainant filed I.A.No.62/2016 praying to appoint Advocate Commissioner to assess the damages caused to the said RCC slab and interiors in the second floor of the house bearing No.8-2-268 to 370 at Main Road, Manuguru and to assess damages with the assistance of proper Civil Engineers. I.A.No.62/2016   was allowed and Advocate Commissioner with assistant of expert i.e. Assistant Executive Engineer, R&B Department, Bhadhrachalam  Section inspected the building bearing No.8-2-368, 369 and 370 at Main Road, Manuguru in the presence of respective counsels and the said Assistant Executive Engineer, R&B department  reported in his report dated:07-11-2016 that the said building is RCC Ground+1 floored building, terrace of the first floor slab is with 6.70 meter X 6.70 meter dimensions and it is of 115 mm in thickness.  To ascertain the structural strength, said building is high pillars and numbers of beams, steel is used as per regularly prescribed norms. Commercial in nature, a Bank is situated at ground floor and first floor of the building, a room with RCC slab of 115 mm thick dimensions with 0.90 meters parapet wall is situated on terrace of first and remaining is open to sky, the affected building is in 2^nd floor. Surface of second floor room slab is uneven and rugged due to chisel, applied with white coloured water proof coating. Cracks are appearing specifically, two rain spouts are provided, two PVC water tanks are situated on slab, and Parapet walls are damaged due to seepage of water from chiseled slab edges.  Said slab lay with reinforced cement concrete and said room is internally partitioned with ply wood. Seepage water marks are appearing on internal walls. Plaster of Paris ceiling below the slab is damaged due to seepage of water, bobbling and peeled parts are appearing, and brown colour patches are visible. The said room is not in habitable condition due to damaged electrical wiring and appliances.  The air condition in the room, electrical gadgets fixed to walls are not in working conditions and to get it repaired an amount of Rs.5,00,000/- is required

3.       The commissioner assisted by expert i.e. Assistant Executive Engineer, R & B observed that cause of leakage and seepage is uneven and chiseled surface on the terrace of slab.  White coloured water proof coating paste applied on rugged surface, not served any purpose.  Due to seepage of water, steel and concrete of the slab got damaged and it has to be removed along with parapet walls. The necessary is estimated for an amount of Rs.5.27 lakhs. The commissioner report and his estimation documents are marked as Ex. C-1 to Ex.C-4 along with 24 No. of photographs. 

4.       The complainant has filed the following documents in support of his complaint, which are marked as Ex.A1 to A3. 

1. Ex.A1 is the photocopy of complainant’s Bank account statement
2. Ex.A2 is photocopy of email of complainant’s husband dt: 09-08-2015.
3. Ex.A3 is photocopy of email of complainant’s husband dt: 07-12-2015

5.       On receipt of notice, the Opposite Parties Nos.1 and 2 appeared through their Counsels and filed Counters/Written Versions through their respectful counsels.      T.Sridhar filed resolution copy of Authorization and nominee on behalf of Opposite Party No.1 to appear before the Hon'ble Forum to try and pursue the matter.  He has  contended that the complainant is not a consumer as per Consumer Protection Act, 1986 as he has not availed any service from the Opposite Party No.1 for any consideration. The complainant had given work to Opposite Party No.2 for treatment of terrace slab of the complainant’s house and Opposite Party No.1 was not a party to alleged contract between the complainant and Opposite Party No.2.  No work order was issued in favour of the Opposite Party No.1, and no consideration was paid by the complainant.  It is established fact that the Opposite Party No.1 is well known company and has been pioneer in the field of consumer and specialty chemical products in India since 1969 like Fevicol, Dr. Fixit, Fevi Kwick, Fevicryl and M Seal etc. Dr. Fixit has wide range product, which is used as construction chemical and waterproofing material. The products are superior quality and Opposite Party No.1 is confident that there cannot be quality defect in the products. The Opposite Party No.1 is not involved in supervision of the application of the products, the Opposite Party No.1 products are predominantly application based products and Opposite Party No.1 is not involved in supervision of the application of the products, and not commencing on the defects if any in the application or in the structure, on which the application is to be made. The Opposite Party No.1 through his marketing chain distributes the products in the market and the concerned applicators make use these products. The role of the Opposite Party No.1 is through the advertisements or its call centre makes advice and those are only suggestive and not obligatory. The main reason in the performance of the product is the physical condition of the surface, age and nature of the structure, climate and other surrounding conditions. The actual workmanship is based on the Applicator/s, thus if Applicator is not doing his job properly, the Opposite Party No.1 product cannot be blamed. The Opposite Party No.1 had never recommended the name of the Opposite Party No.2 to carry out the alleged water proofing work and the complainant only had directly approached the Opposite Party No.2 and carried out work on its own. The DFAC call centre of the Opposite Party No.1 received the calls on 18^th and 19^th July,2013 from the complainant in which complainant enquired about the solution for leakage problem from terrace and as the complainant was talking predominantly in Telugu, because of the language issue the call centre provided contact number of the local TSI Mr.G. Sudhakar Reddy to the complainant. On 28-09-2014 when the complainant called the DFAC for enquiring about tiles jointing product, he was advised to contact K.Nagaraju, Opposite Party No.1’s local representative for the purpose. In the month of August,2015 mails were received from the complainant, that the complainant has carried out work of water proofing from Opposite Party No.2 and the Opposite Party No.2 has given some warranty in the August,2013 and the leakage problem has continued after couple of  months of getting the job done.  The Opposite Party No.1 as a good will gesture sent its representative Nagaraju, to inspect the site and on visiting of site Nagaraju informed the Opposite Party No.2 that the terrace surface is damaged due to blasting of coal mines in the nearby area. It is responsibility of the concerned Applicator to inspect and understand in structure and use and apply the material to the suit the structure and defects.  Any structure, which is more than 10 years old like the present structure requires structural Audit and requires the work to be carried out under the supervision of qualified Architect/Civil Engineer. In the present case no such precautions were taken and the work carried out was not supervised by any qualified engineer for alleged defects and also the Opposite Party No.2 carried out the work themselves and were not acting under supervision, control and advise of the Opposite Party No.1. The inferior quality as alleged by the complainant is totally incorrect and the complainant has suppressed certain vital facts in the complaint for which the complaint is liable dismissed. 

6.       In support of Opposite party No.1 filed company resolution which is marked

as Ex.B1.

Ex.B-1 is the resolution letter of Opposite Party No.2, dt. 09-06-2016.

7.       The Opposite Party No.2 filed Counter and contended that, he is a dealer for the products of the Opposite Party No.1 in Khammam town and the complainant approached the Opposite Party No.1 Company for rectifying the problem and from them the work was entrusted to the Opposite Party No.2. On their instructions the Opposite Party No.2 executed the work by using chemical products produced by Opposite Party No.1. and the complainant paid Rs.45,000/- on two occasions, but alleged payment of Rs.25,000/- in cash is false and created for the purpose of filing this complaint. The payment made by the complainant is towards cost of the material used and out of which Rs.6,500/- was taken by the Opposite Party No.2 towards working charges. There is no warranty/assurance given by Opposite Party No.2 and alleged warranty letter purported to have been issued by the Opposite Party No.2 is false and it is fabricated by the complainant for the purpose of filing this complaint. The signature on the said letter was not signed by the Opposite Party No.2 and never issued any such warranty letter to anyone much less to this complainant. The complainant's building situated near to Singareni collieries coal mining area, where excavation of coal done by way of blasting the earth and by such blasting the vibrations created and affect the structures.  The leakages of slab occurred due to the vibrations created by such blasting. Even though such leakages are effectively prevented by using the standard chemicals and effective workmanship. The complainant pretty well knows the said problem and she purposefully suppressed the said fact with malafide intention to claim the damages.  Due to such frequent leakages the complainant removed the slab for her residential house on the rear side laid new slab by consulting structural Engineers. Similarly she has to go for such replacement of such slab. The Opposite Party No.2 clearly explained to the complainant that it only prevents the leakages and not prevent any crack that may occur due to vibrations comes under blasting.  In vicinity several buildings suffered cracks due to vibrations come from coal mine blasting. The complainant requested the Opposite Party No.2 to undertake the repair as lying of new slab will cost more and also said that the room where such leakages are there is a pent house on the terrace and uses it as store room.  The allegations made against Opposite Party No.2 by the complainant are false and Opposite Party No.2 did the work correctly by using the chemicals supplied by the Opposite Party No.1. The alleged claim of special and general damages are false and this Opposite Party No.2 is not liable to pay anything as he did not give any warranty as alleged by the complainant and no direct relation between the Opposite Party No.2 and complainant for undertaking the work, as such this complaint against Opposite Party No.2 is not maintainable and may be dismiss with exemplary costs.

8.       The Opposite Party No.2 has not filed any documents in support of this contentions.

9.       The Opposite Party No.2 have filed objections against Commissioner Report that the commissioner failed to answer the main question mentioned in the work memo that Assistant Executive Engineer neither enquired opposite parties technical persons  nor enquired with the neighbours. The Assistant Executive Engineer in his report mentioned that Cracks are appearing specifically and in his conclusion he opined that the cause of leakage and seepage is due to uneven and chiseled surface on the terrace of the slab which is absurd. The Opposite Party No.1 officers, who visited the site, informed to the Commissioner that the RCC slab is of low quality and rod span is more and it is not made of quality material.  The Assistant Executive Engineer did not take sample piece of RCC slab to ascertain its quality material, nor mention the same in their report, nor given their observations on this aspect.  Terrace floor was uneven as the complainant did not level the floor. The Expert  instead of mentioning the proofs he made an allegation that the flooring was chiseled and if at all chiseling is done, he would have mentioned the thickness to the Terrace flooring, which is very important in arriving  just conclusion in deciding the complaint. The Commissioner and Assistant Executive Engineer did not venture to find out the cause of proof but have shown the interest to estimate value for laying new slab, which is objectionable and liable to be set aside.

10.     The Opposite Party No.2 have not filed any documents in support of their contentions.

11.     The complainant and Opposite Parties filed Written Arguments and advanced oral arguments.

12.     Upon perusing the material papers on record, now the points that arose for consideration is

          (I)  Whether the Opposite Party No.1 be made as the party to the

      proceedings?

(II) Whether the complainant is entitled as prayed for?

(III) To what relief?

POINT No. (I):-  

The Opposite Party No.1 mails and documents reveals that the Opposite Party No.2 has rendered the services and supplied the chemical products of Opposite Party No.1 and also observed that he had sent  an Assistant by name  Nagaraju to take care of the workmanship and assist the work. It is also admitted by the Opposite Party No.1 that through the Call Centre he has provided the contact number of the local TSI Sri G. Sudhakar Reddy and Nagaraju to the complainant thus the Opposite Party No.1 is rightly involved in the complainant rectification problem and indirectly involved in the agreement of the contract between Opposite Party No.2 and complainant. Therefore we are in view that the opposite party No.1 is rightly made a party to the proceedings and the point is answered in favour of the complainant.

Point No. (II):-

           The complainant is owner of the house bearing No.8-2-368, 369 and 370 in Manuguru Town and for its leakages and seepage of water in Terrace of said building approached the Opposite Parties to rectify the problem.  It is an admitted fact through the document the Ex.A-1 i.e. statement of the Bank through which the Payment was made and the complainant has availed the products of Opposite Parties. The opposite party No.1 says that he is the manufacturer of the products and opposite party No. 2 says that on the advice and instructions of the opposite party No.1 had carried out the repairing works with the opposite party No.1 chemicals but the opposite parties Nos.1 and 2 have not substantiated their contention with documentary proof and also concealed their agreement to avoid the litigation.   The activities of them seems to be hand in glove. The Counter of the Opposite Party No.2 and the Opposite Party No. 1 mails and documents reveals that the Opposite Party No.1 has rendered the services and supplied the chemical products of him and also observed that he had sent an assistant by name Nagaraju to take care of the workmanship and assist the work. It is also admitted by the Opposite Party No.1 that through the Call Centre provided the contact number of the local TSI Sri G. Sudhakar Reddy and Nagaraju to the complainant thus the Opposite Party No.1 is rightly involved for the rectification of the problem of the complainant and indirectly involved in the agreement of the contract between Opposite Party No.2 and complainant.  As per the counter and objections of the Opposite Party No.2, any structure which is more than 10 years old like the present structure required structural audit work and repairs to be carried out under supervision of Civil Engineer/Architect, here in the instance the Opposite Party No.1 had provided the assistance by Nagaraju  and oral support of Sudhakar Reddy a local TSI to the said work and the Opposite Party No.2  also mentioned in his counter that on the instruction of opposite party No.1 had initiated and completed the said repair work and has failed to establish. On visiting the site, Nagaraju informed the Opposite Party No.2 that the terrace service is damaged due to blasting of coal mines nearby area.  The Opposite Party No.2 admitted that he has received Rs.40,000/- through  bank account towards purchase of said chemicals, but denied Rs.25,000/- cash payment and also contended that he had retained only Rs.6,500/-  labour charges  and remaining amounts are for the purchase of Opposite party No.1 material products. It reveals that the complainant has purchased the said chemicals for the repairs and the Opposite Party Nos.1 and 2 jointly carried out the work with understanding and the Opposite Party Nos.1 and 2 has failed to show that the cracks of the said building terrace were developed due to the blasting of coal mine and due to which the leakage has happened. The warrantee letter issued by Opposite Party No.2 is a letter head.  The opposite party No.2 has denied the warrantee letter. The burden lies on him to disown it by filing with proofs and relevant documents, however the power of questioning and findings over correctness/genuineness of signature is not vested with the Forum and civil court only has jurisdiction.   As the complainant has not taken any steps in that direction, we are not in favour of the considering the warrant letter as an exhibit. The R & B, Assistant Executive Engineer, Bhadhrachalam categorically mentioned in his report that it has been observed that the cause of leakage and seepage is due to uneven and chiseled surface on Terrace slab, white coloured water proof rain coating paste applied on rugged surface, which has not served any purpose and due to seepage of water, steel and concrete of slab got damaged.  It has to be removed along with parapet walls and the cost is estimated to the tune of Rs.5.27 lakhs.  The Opposite Party No.2 have taken objections over the report of the commissioner stating that the report has mentioned that cracks are appearing specifically in slab, but in conclusion opined that the cause of leakage and seepage is due to uneven and chiseled surface on terrace of slab and without mentioning the cracks in the slab is absurd and also objected that the Opposite Party No.1 officers who visited the site, informed to the commissioner that RCC slab is very low quality and rod span is more and it is not made of quality material.  The said Assistant Executive Engineer did not take sample pieces of RCC slab to ascertain its quality nor he has not mentioned the same in their report. The said Assistant Executive Engineer instead of mentioning the proof, he has made an allegation that the flooring was chiseled and if at all chiseling done and he would have mentioned the thickness or depth of the chiseling done to the terrace flooring which is very important for arriving a just conclusion in deciding the complaint.  After going through the objections raised by Opposite Party No.2 it is observed that the Assistant Executive Engineer, R & B, Bhadhrachalam Section has not mentioned the thickness depth of chiseling in his report nor spoken about cracks, therefore chiseling  and repairing portion by doing civil works to the said terrace is not tenable, but  the Assistant Executive Engineer categorically mentioned in the report that the white coloured water proof rain coating applied not served any purpose and the photographs filed by the commissioner clearly shows  leakage and water shedding marks on the walls and also the marks of white chemical painting on the terrace.   It is also evident through the photographs that the falling of the plastering and clear damages in the room. Therefore taking the objections into consideration, we cannot come to conclusion and compute the  estimation of the slab chiseling thickness or depth of the said terrace flooring at the same time we cannot rule out the observation of expert i.e. AEE that the paste applied on rugged surface not served any purpose.  The Opposite Parties have failed to establish the quality of the product with documentary proof which was applied on the floor was leak proof.  Therefore we are in view that the Opposite Parties product was in inferior quality and it has not served the complainant purpose.  Both the Opposite Parties have failed to carry out the application with proper manner and also bounded duty of them to ascertain before carrying out any repairing work that the quality of the product, where to carry out and how to carry out the work. It is apparent that the Opposite Parties have failed to observe these factors. Therefore we are in view that the Opposite Parties are in deficiency of service and complainant is entitled for damages. The point is answered accordingly.

POINT No. (III)  It is established through the bank statement that the complainant had purchased the opposite party No.1 product for Rs 45,000/- and for the remaining Rs.25,000/- the complainant failed to produce any documentary evidence. The objection of the opposite party No.2 against the commissioner expert that the Expert  instead of mentioning the proofs he made an allegation that the flooring was chiseled and if at all chiseling is done, he would have mentioned the thickness to the terrace flooring, taking this objection into consideration we are in opinion that the complainant is not entitled the loss incurred to his terrace, but he is entitled only to the extent of cost of the products and for sufferance and costs of the litigation. Therefore, the complainant is entitled the product costs i.e. Rs.45,000/-, and Rs.10,000/- towards mental agony and Rs.10,000/- towards the costs of the litigation. The point is answered accordingly.                                                      

13.      In the result the complaint is allowed in part, directing the opposite parties Nos.1 and 2 to pay product cost of Rs.45,000/- (Rupees Forty Five Thousand only) and to pay Rs. Rs.10,000/- towards mental agony and Rs.10,000/- towards costs of the litigation within 30 days from the date of receipt of this order, failing which the amounts shall carry interest @9% per annum from the date of filing of complaint.  The opposite parties Nos.1 and 2 are liable to pay the above amounts jointly and severally.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum, on this the 10^th  day of July,2018).

                    Member                           President

                                                          District Consumer Forum, Khammam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant                                                    For Opposite parties  

       None                                                                          None

DOCUMENTS MARKED:-

For Complainant                                                    For Opposite parties

Documents marked for Advocate commissioner

Ex.C-1 is the office copy of Report submitted by Advocate Commissioner.

Ex.C-2 is the original letter from Assistant Executive Engineer (R&B) Section,   

           Bhadrachalam to Sri gade Ramu, Advocate Commissioner, Khammam.

Ex.C-3 is the attested copy of Detailed cum Abstract Estimate.

Ex.C-4 is the colour photographs (24) in number.

                      Member                         President

                                                          District Consumer Forum, Khammam.