Tamil Nadu

South Chennai

276/2010

Ranjinder Gurbax Singh - Complainant(s)

Versus

m/s.Kerakoll India Pvt Ltd.,General manager & others - Opp.Party(s)

K.Ganesan

09 Mar 2018

ORDER

                                                                                                                           Date of Filing  : 01.07.2010

                                                                          Date of Order : 07.03.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

         DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

CC. NO.276 /2010

WEDNESDAY THE 7^TH DAY OF MARCH 2018

                                              

Ms. Rajinder Gurbax Singh,

W/o. Brig Gurbax Singh,

No.5A/11, Bharadhidhasan I Cross St.,

Rajakilpakkam,

Chennai 600 073.                                                Complainant

                                      ..Vs..

 

1. M/s. Keraloll India Pvt. Ltd.,

Rep. by its General Manager and

Director of India Operations,

Kotia Nirman, 305-A Veera Desai Road,

Andheri West, Mumbai 400 058.

 

2. M/s. Kerakoll,

Rep. by its Senior Area Manager – Sales,

Having Area Sales Office at

NO.182/296 Lloyds Road,

Chennai 600 014.

 

3. M/s. Sai Enterprises,

Authorized Distributor cum

Applicator of Kerakoll,

Rep. by its Director K.Saravanavel,

Having its office at

New No.27, old No.9,

Balaji Flats - F2 1^st Floor,

Srinivasa  Iyengar IInd Street,

West Mambalam,

Chennai 600 033.                                       Opposite parties.

 

 

Counsel for complainant         :  M/s. K.Ganesan    

Counsel for opposite parties  :  M/s. V.Meenakshi Sundaram

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to rectify the defects by re-laying the entire terrace to arrest the leakage or to reimburse a sum of Rs.6,35,000/- being the cost of the materials and to pay a sum of Rs.5,00,000/- as compensation for mental agony and Rs.10000/- as cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that  the 1^st opposite party is the Kerakoll India distributor Kerakoll building solutions and the 2^nd opposite party is an Area sales office of the 1^st opposite party and  the 3^rd opposite party is the authorized distributor cum Applicator of Kerakoll distributing the products of the 1^st opposite party.  Further the complainant state that  the 3^rd opposite party has introduced himself as the Senior Area Manager – Sales of Kerakoll waterproofing solutions of the 1^st opposite party.  Further the complainant state that the 3^rd opposite party explained the quality of the 1^st opposite party’s product visually through videos and results.  The 3^rd opposite party also showed one sample of water proofing with due application of various layer by layer of Kerakoll.  After ascertaining the expert work of the 3^rd opposite party through videos and visuals the complainant agreed to engage the 3^rd opposite party services for arresting the leakage of her building.   The 3^rd opposite party also on behalf of the 1^st opposite party issued a quotation.  On 7.9.2009 after site visit by 3^rd opposite party, issued invoice claiming a total sum of Rs.6,50,000/- for due application of Kerakoll in order to set right the seepage in the ceiling and side walls.   The 3^rd opposite party also started the work.  The complainant was under the bonafide impression that the opposite parties would properly discharge their services by using Kerakoll solutions in such a scientific manner.   The 3^rd opposite party issued  undated certificate confirming and guaranteeing that all the products applied in the building.  But utter dismay after the first shower of rain during the month of November 2009 there was a serious leakage developed on the walls and ceiling of the stairs and hall below with streams of water.   The complainant called the 3^rd opposite party  through phone and by way of email dated 14.11.2009.  But there was no response.   The person who responded  stated that  he was newly appointed  senior area manager of the 1^st opposite party and the 3^rd opposite party had been replaced  by him.  One Mr. Desigan accompanied by the 3^rd opposite party came to the site and shown the leakages and has not responded properly.    Even after repeated requests and demands the opposite parties has not come forward to rectify the defects of Kerakoll arresting the leakage.   As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.  

2. The brief averments in the written version filed by the  1^st & 2^nd opposite parties is as follows:

The  opposite parties deny each and every allegations except those that are specifically admitted herein.  The  opposite parties states that the  1^st opposite party is subsidiary company of Kerakoll i.e.  Indian Distributor of Kerakoll building solutions and the 2^nd opposite party is the Area Sales Officer, Chennai.  They deny that the 3^rd opposite party is none an authorized distributor cum applicator of their product.  It is the applicator who may purchase and carry out the work on their own.  The 3^rd opposite party namely Mr.Saravanavel was working under the Kerakoll India Pvt. Ltd as the Senior Area Sales Manager at Chennai for 1 ½ years and relieved from the job during the month of August 2009.   Further the 1^st and 2^nd opposite parties state that they never appointed the 3^rd opposite party as their authorized Distributor or Applicator Kerakoll India Private Limited.  The 1^st and 2^nd opposite parties used to sell their products in Indian market through retailer and distributor and the same was available to customers like any other normal products; it the duty of the  applicator or contractor to execute the work as per the instructions in the materials  (viz) Kerakoll with specially trained person.      The 3^rd opposite party have no connection  with the 1^st and 2^nd opposite parties before engaging the service.    There is no deficiency in service or unfair trade practice on the part of the opposite parties 1 & 2 and the complaint is liable to be dismissed.

3. The brief averments in the written version filed by the  3d opposite party is as follows:

The  3^rd opposite party deny each and every allegations except those that are specifically admitted herein.   The  3^rd opposite party state that initially the 3^rd opposite party  joined Kerakoll Company on April 2007  and worked for the said company as a Area Sales Manager and other nearby districts.   Further the 3^rd opposite party states that when he was an Area Manager of opposite parties 1 & 2  water proofing works carried out in many places in Chennai including some well known leading building and architect company like L & T.  On that recommendation the complainant contracted the  3^rd opposite party.  Further the 3^rd opposite party states that after resigning from Kerakoll company the 3^rd opposite party took the distributor ship of the same company as an authorized applicator for supply and application of Kerakoll product; since the 3^rd opposite party having proper technical training on Kerakoll MNC  Italian etc.      Further the  3^rd opposite party submit that the complainant was duly informed about the registration and distributor ship of the 3^rd opposite party collected the purchase order from the complainant for the work to be carried out in their terrace for water proofing with adhesive  and Ceramic Tiles.   The entire material sent by Kerakoll company unloaded at the complainant’s premises. After duly applying the Kerakoll service by opposite parties 1 & 2 guarantee and warranty letter also will be given.  Immediately after the receipt of complaint regarding the waterproofing work the  3^rd opposite party took Mr. Desigan  who is the Manager of Kerakoll Company in Chennai to the complainant’s house and did not found any single water running through the wall or any dampness.   There is no deficiency in service or unfair trade practice on the part of the 3^rd opposite party and the complaint is liable to be dismissed.

4.   In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A17 marked.  Proof affidavit of the opposite parties filed and no documents marked on the side of the opposite parties and Ex.C1 to Ex.C3 also filed.

5.      The points for consideration is :

1. Whether the complainant is entitled to rectify the defects by relaying the terrace for arresting the leakage and dampness as prayed for ?  Alternatively whether the complainant is entitled to a sum of Rs.6,35,000/- paid towards relaying of Kerakoll as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.10,000/- as prayed for ?

 

6.  POINTS  1 & 2:

        Both parties filed their respective written arguments.   Perused the records (viz) complaint, written version, proof affidavits and documents.    The complainant pleaded in the complaint and contended that the 1^st opposite party is the Kerakoll India distributor, Kerakoll building solutions and the 2^nd opposite party is an Area sales officer of the 1^st opposite party and  the 3^rd opposite party is the authorized distributor cum Applicator of Kerakoll distributing the products of the 1^st opposite party.  Further the contention of the complainant is that  the 3^rd opposite party has introduced himself as the Senior Area Manager – Sales of Kerakoll waterproofing solutions of the 1^st opposite party and given his visiting card Ex.A1, official Kerakoll folder Ex.A2 of the 1^st opposite party.  Further the complainant contended that the 3^rd opposite party explained the quality of the 1^st opposite party’s product visually through videos and results.  The 3^rd opposite party also showed one sample of water proofing with due application of various layer by layer of Kerakoll.  After ascertaining the expert work of the 3^rd opposite party through videos and visuals the complainant agreed to engage the 3^rd opposite party services for arresting the leakage of her building.   The 3^rd opposite party also on behalf of the 1^st opposite party issued a quotation Ex.A3.  But on a careful perusal of Ex.A3 there is no such authorization  of 1^st and 2^nd opposite party found.  On the other hand the 3^rd opposite party very clearly stated in the written version that he is the authorized distributor cum applicant of 1^st and 2^nd opposite parties which also found in Ex.A3.  The 3^rd opposite party has not produced any record to prove that  he is the authorized distributor of 1^st and 2^nd opposite party except his own self serving document Ex.A3.    On 7.9.2009 after due visit by 3^rd opposite party, issued invoice claiming a total sum of Rs.6,50,000/- for due application of Kerakoll in order to set right the seepage in the ceiling and side walls.  The complainant also paid the said amount as per Ex.A4,Ex.A5, Ex.A6, and Ex.A10.   The 3^rd opposite party also started the work.  The complainant was under the bonafide impression that the opposite parties would properly discharge their services by using Kerakoll solutions in such a scientific manner.   The 3^rd opposite party issued  undated certificate confirming and guaranteeing that all the products applied in the building as per Ex.A11 would last for 10 years.  But to utter dismay after the first shower of rain during the month of November 2009 there was a serious leakage developed on the walls and ceiling of the stairs and hall below with streams of water.   The complainant called the 3^rd opposite party  through phone and by way of email dated 14.11.2009 as per Ex.A12.  But there was no response.   The person who responded  stated that  he was newly appointed  senior area manager of the 1^st opposite party and the 3^rd opposite party had been replaced  by him.  One Mr. Desigan accompanied by the 3^rd opposite party came to the site and shown the leakages and has not responded properly.  The 2^nd opposite party admitted the poor quality of material and workmanship.  Even after repeated requests and demands the opposite parties has not come forward to rectify the defects in the application of Kerakoll arresting the leakage.  Hence the complainant was constrained to file this complaint.

7.     The contention of 1^st and 2^nd opposite parties is that the 1^st opposite party is a subsidiary company of Kerakoll i.e.  Indian Distributor of Kerakoll building solutions and the 2^nd opposite party is the Area Sales Officer, Chennai.   They deny that the 3^rd opposite party is none an authorized distributor cum applicator of their product.  It is the applicator who may purchased and carry out the work on their own.  The 3^rd opposite party namely Mr.Saravanavel was working under the Kerakoll India Pvt. Ltd as the Senior Area Sales Manager at Chennai for 1 ½ years and relieved from the job during the month of August 2009.  But no record filed before this forum.  Further the contention of the 1^st and 2^nd opposite parties is that they never appointed the 3^rd opposite party as their authorized Distributor or Applicator Kerakoll India Private Limited.  The 1^st and 2^nd opposite parties used to sell their products in Indian market through retailer and distributor and the same was available to customers like any other normal products; it the duty of the  applicator or contractor to execute the work as per the instructions in the materials  (viz) Kerakoll with specially trained person.    In this case none of the instructions also filed by opposite parties 1  & 2.   Further the contention of  the opposite parties 1 & 2  is that the contract / transaction between the 3^rd opposite party and the complainant is not known to them.    The 3^rd opposite party have no connection  with the 1^st and 2^nd opposite parties before engaging the service.  But on a careful perusal of the records including commissioner’s report it is seen that immediately after the receipt of the complaint from the complainant one Mr. Desigan of 2^nd opposite party came to the site and inspected the site and questioned the quality of the materials and applications and stated that all the transactions turned out, without the knowledge of the 1^st and 2^nd opposite parties.  There is no deficiency in service or unfair trade practice on the part of the opposite parties 1 & 2.

8.     The contention of the 3^rd opposite party is that initially the 3^rd opposite party  joined Kerakoll Company on April 2007  and worked for the said company as an Area Sales Manager and other nearby districts.   He left the  Kerakoll company on August 2009, proves that the 3^rd opposite party have no connection with the 1^st and 2^nd opposite party.   Further the contention of the 3^rd opposite party is that when he was an Area Manager of opposite parties 1 & 2  water proofing works carried out in many places in Chennai including some well known leading building and architect company like L & T.  On that recommendation the complainant contracted the  3^rd opposite party.  Further the contention of the 3^rd opposite party is that after resigning from Kerakoll company the 3^rd opposite party took the distributor ship of the same company as an authorized applicator for supply and application of Kerakoll product; since the 3^rd opposite party having proper technical training on Kerakoll MNC  Italian etc.    But the 3^rd opposite party has not produced any record to prove such distributionship or trained applicator.  On the other hand the opposite parties 1 & 2  vehemently contended that the 3^rd opposite party left the company during the month of August 2009 and several contractors, retailers, distributors, customers were purchased the product of the opposite parties 1 & 2 and applied by themselves.  Further the contention of the 3^rd opposite party is that the complainant was duly informed about the registration and distributor ship of the 3^rd opposite party collected the purchase order from the complainant for the work to be carried out in their terrace for water proofing with adhesive  and Ceramic Tiles.   The entire material sent by Kerakoll company unloaded at the complainant’s premises.   But there is no record  to prove such unloading of  material directly from the opposite parties 1 & 2.  After duly applying the Kerakoll service by opposite parties 1 & 2 guarantee and warranty letter also will be given.  In this case the warranty letter issued by opposite party-3 without date to the complainant.   Immediately after the receipt of complaint regarding the waterproofing work the  3^rd opposite party took Mr. Desigan  who is the Manager of Kerakoll Company in Chennai to the complainant’s house and did not found any single water running through the wall or any dampness.  The complainant is supposed to do the painting work in their house after the Kerakoll treatment.   Since the complainant has not carried out the painting work some cracks may develop in the waterproofing treatment.  But on a careful perusal Ex.A16 it is seen that  “

1. Damp patches: We cannot say it is due to complete waterproofing failure but it seems corners are not treated well and hence possible leak from certain points.  In order to give final report we have to remove the tiling.
2. We cannot remark anything on waterproofing and adhesive whether from kerakoll for that we need to take sample and sent to our laboratory (As you said green colour waterproofing material used we do not produce green color material) we have final grey color membrance.
3. Finally what we could see is top finished surface of tiles and grouting.  We must say grouting job done in bad manner with poor workmanship and not acceptable.  Whether it is kerakoll material, we need to send to laboratory.   The level and final finish is not industry standard and cannot be called Professional laying System.”

Proves that the application of Kerakoll is not done by the 3^rd opposite party in proper manner by trained applicants.    

9.     Further the contention of the 3^rd opposite party is that the Advocate commissioner appointed by this forum did not mention the qualification of the Engineer to prove his expertise in the waterproofing, weather etc.  The Advocate Commissioner stated in his report (Ex.C1) as follows.

“Further the said Engineer has suggested that “to remove the tiles in the whole area of terrace and redo with new water proofing of good materials and lay with first quality pressed weathering tiles, joints neatly finished with cement, sand added with water proofing admixtures”.

Proves the deficiency in service committed by 3^rd opposite party.

But the 3^rd opposite arty also has not taken any steps to prove the quality of material used and the expert nature of application of the alleged Kerakoll by specially trained and skilled personal in this case proves the deficiency of service.     Considering the facts and circumstances of the case this forum is of the considered view that the 3^rd opposite party is directed to rectify the defects in the terrace within two months failing which the 3^rd opposite party shall pay a sum of Rs.2 lakhs for such repairs with a compensation of Rs.50,000/- with cost of Rs.10,000/- to the complainant.  No order as against the 1^st and 2^nd opposite parties and the points are answered accordingly. 

In the result, the complaint is allowed in part.  The 3^rd opposite party is directed to rectify the defects in the terrace within two months failing which the 3^rd opposite party shall pay a sum of Rs.2,00,000/- (Rupees two lakhs only) for such repairs with compensation of Rs.50,000/- (Rupees fifty thousand only) for mental agony with cost of Rs.10,000/- (Rupees ten thousand only) to the complainant.  No order as against the 1^st and 2^nd opposite parties.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.     

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 7^th  day of March 2018. 

 

MEMBER –I                       MEMBER-II                              PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of visiting cards issued by the 2nd & 3rd opposite parties
Ex.A2		Copy of Catalog of the 1st opposite party furnished by the 3rd opposite party
Ex.A3	07.09.2009	Copy of quotation issued by the 3rd opposite party to the complainant
Ex.A4		Copy of purchase order issued by the complainant
Ex.A5	17.09.2009	Copy of invoice issued by the 3rd opposite party
Ex.A6	21.09.2009	Copy of payment details issued by the 3rd opposite party
Ex.A7	09.09.2009	Copy of receipt for Rs.4,00,000/- issued by the 3rd opposite party
Ex.A8	23.09.2009	Copy of receipt for Rs.2,00,000/- issued by the 3rd opposite party
Ex.A9	13.10.2009	Copy of receipt for Rs.35,000/- being the full and final settlement
Ex.A10		Copy of consolidated receipts issued by the 3rd opposite party
Ex.A11		Copy of warranty certificate issued by the 3rd opposite party
Ex.A12	14.11.2009	Copy of e-mail letter sent by the complainant
Ex.A13	30.11.2009	Copy of e-mail letter sent by the complainant to the 1st OP
Ex.A14	31.12.2009	Copy of reply from the 1st opposite party
Ex.A15	04.01.2010	Copy of reply from the 2nd opposite party
Ex.A16	24.02.2010	Copy of reply from the 1st opposite party
Ex.A17		photographs

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  NIL

Court Exhibits

Ex.C1	Advocate Commissioner Report
Ex.C2 & Ex.C3	Photos and CD

 

MEMBER –I                       MEMBER-II                              PRESIDENT.