Per Shri B.A.Shaikh, Hon’ble Presiding Member.

1.      This is a complaint filed under section 12 read with section 17 of Consumer Protection Act, 1986. The case of the complainant in brief is as under.

a)      The complainant is engaged in retail jewelry business under  the name and style as “Karan Kothari Jewelers Pvt.Ltd.” at Nagpur for last so many years and earned very good reputation in the business fraternity in general and jewelry industries in particular, for its fair and ethical business practices. The complainant had three prestigious jewelry retailing show rooms in the year 2011. The complainant wanted to start new show room in Dharampeth area of Nagpur city. Hence it finalized the spot with intent to build a luxurious fourth show room for its business which would be one of its class in Nagpur. The proposed show room was to have all the amenities to suit unique and specific requirement of jewelry retail business and hence it was decided to use best quality of exterior and interior products in the said show room.

b)      The complainant hired services of opposite party (for short O.P.) No.6 as an architect to design the show room and to finalize the best quality products to be used in exterior and interior of the said show room. The O.P. No.6 had assured the complainant that he will design show room in such a way that it will be one of class in Nagpur city and will use the best quality product which will be of  high quality in terms of aesthetics and longevity. The service of O.P.No.6 were hired for consideration of Rs.5,50,000- which was to be paid in stages as agreed between O.P.No.6 and the complainant.

c)      The complainant as per the commitment and assurance given by O.P., left the entire construction work including renovation, alternation and suitable changes to the interior structure and       exteriors of the said show room, on O.P.No.6. The material and products required for exteriors and interiors of the project were finalized as per advice and suggestion of O.P.No.6.

d)      The O.P.No.6 suggested to use stones i.e. Quartz Surface Slabs as the best option in the market to suit the need of the show room and to enhance the look of the show room. The O.P.No.6 advised the complaint that the said stones be purchased from OP.Nos.4 and 5 and as per the said advice the complainant alongwith O.P.No.6 went to Hydrabad at the office of O.P.Nos.4 and 5 and finalized the Quartz, Surface Slabs of 20 MM to be the best quality of stones for the using on exterior walls. The said stones worth Rs.24,84,715/- were thus purchased by the complainant from O.P.Nos.4 and 5. Those stones were delivered at the site of the complainant at Nagpur.

e)      The said stones were to be affixed to the exterior wall of the show room. The O.P.No.6 suggested that the said stones can be fixed by using a product manufactured by O.P.Nos.1 and 2. The O.P.No.3 was their authorized distributor. Therefore O.P.No.3 was called and the samples of selected stones were shown to him (O.P.No.3). Thereafter the O.P.No.3 consulted the O.P.Nos.1 and 2. The O.P.Nos.1, 2 and 3 then inspected the site collected the simple of selected stones and held detailed talk with the complainant and O.P.No.6. It was then finalized that O.P.Nos.1 to 3 will provide the best quality of glue which shall be used to affix the aforesaid stones on the exterior walls of the show room structure as per need of the complainant.

f)       The O.PNos.1 to 3 suggested the mode as to how the selected stones needs to be affixed and assured the complainant that one of their supervisor will be available on the site at the time of affixing the said stones as per the mode suggested by O.P.Nos.1 to 3 using the products manufactured by O.P.Nos.1 and 2. The estimated cost for the product to be used for the purpose of affixing the stones was around Rs.4,00,000/-.

g.      Thereafter the products were supplied by O.P.Nos.1 to 3 at the show room site and the work of affixing the stones on exterior walls was commenced. However during the work of affixing the stones, the initial calculation made by OP.Nos.1 to 3 went wrong and the estimated quantity of glue required for affixing the stones increased from worth Rs.4,00,000/- to Rs.12,66,186/- which was paid by the complainant to O.P.Nos.1 to 3.

h.      However, after the work was completed, the stones started falling from the exterior walls of the show room, within a month from their installation. The complainant felt deceived and cheated. He requested O.P.Nos.1 to 6 to rectify the defects and do the repairing, but they paid no heed to the request. The stones started falling on the cars parked in the compound of the show room and on two occasions cars were damaged due to that event and the complaint had to pay repair charges to the complainant. On one occasion, one stone fall on security guard causing injuries to him. Complainant had to pay hospital bills for his treatment.  

i         The O.P.Nos.1 to 6 are thus guilty of not conducting their work properly as per their assurances and commitment and are liable to pay compensation for providing deficient services to the complainant.  Hence the complainant filed the consumer complaint claiming the amount on various head.     

2.      The complainant also prayed for compensation of Rs.10,00,000/- from the O.P.Nos.1 to 6 for mental harassment and Rs.50,000/- for litigation expenses and Rs.10,000/- for notice charges. He also claimed interest @ 18%.P.A. over the amount that will be awarded by this Commission.

3.      The complainant alongwith the complaint filed copies of ledger account, quotation, photographs of exterior of the site, legal notice, acknowledgment card about service of notice.

4.      The O.P.Nos.1 to 6 filed reply to the complaint and resisted the same.

5.      The O.P.Nos.1 and 2 in their common reply filed to the complaint made submission in brief are as under.

a)      The complaint involves complex question of law and facts and it required evidence in details and therefore the complainant may be directed to seek redressal of his grievance from Civil Court. The complainant has not come before this Commission with clean hands. The O.P.Nos.1 and 2 are the manufacturers of adhesive, have their office across the country and more than one thousand dealers in India and SAARC Countries. It is a company of national and international reputation. They do not undertake contract to install tiles and stones. The said works are undertaken by various contractors across the countries, who charge the completion of the work and take the responsibility of doing a good job. The complainant nowhere mentioned in the complaint that the case of falling stones was due to defect in the material or product supplied by O.P.Nos. 1 and 2. The complainant has not filed any expert opinion to show that the cause of falling stones was due to product supplied by the O.P.Nos.1 and 2. Due to fault of contractors, O.P.Nos.1 and 2 cannot be held liable. The O.P.Nos. 1 and 2 supplied the product at the new show room site and then the work of affixing the stones on the exterior walls of the show room was commenced. It is denied that the initial calculation went wrong.

b.      The O.P.Nos.1 and 2 in the beginning itself  had suggested the complainant as in what quantity the product of O.P.Nos.1 and 2 is to be used and in what type of surfaces their product should be used. The complainant did not follow the said suggestions as he was in hurry to open his show room within short period of time. Therefore for his own fault he cannot make others liable.

c.       It is reliably learnt that the complainant used white cement instead of using the product of O.P.Nos.1 and 2 in some place for affixing the stones on exterior walls inspite of objection raised by supervisor of O.P.Nos.1 and 2 and it may be the cause of falling of some stones or debonding of some stones. The O.P.Nos.1 and 2 therefore prayed that complaint may be dismissed with compensatory cost of Rs.1,00,000/-  

6.      The O.P.No.3 in his reply to the complaint made the submissions in brief are as follows.

7.      The complaint is not maintainable before this Commission. It is only the Civil Court before which clinching evidence can be adduced in respect of complex question of facts involved in the complaint. The complainant has not come with clean hands before this Commission. The O.P.No.3 alongwith O.P.Nos.1 and 2 had visited the site, collected the sample of stones and held details talk with the complainant and O.P.No.6. As per detailed consultation, it was finalized that O.P.Nos.1 to 3 will provide best quality glue which shall be used to affix the selected stone and the exterior walls of the show- room structure. The O.P.Nos. 1 to 3 have suggested the mode as to how the selected stone need to be affixed using the product manufactured by O.P.Nos.1 and 2. The complainant did not follow the suggestions of O.P.Nos.1 and 2. The work of the complainant was undertaken by various contractors. The O.P.Nos.1 to 3 have not undertaken any contract to install any tiles and stones. Moreover the complainant used white cement instead of the products of the O.P.Nos.1 in some place for affixing the stones. Therefore no liability can be fastened on O.P.No.3. He requested that complaint may be dismissed.

8.      The O.P.Nos.4 and 5 in their common written statement filed to the complaint made submissions in brief are as under.

a.      The O.P.Nos. 4 and  5 are the manufacturers of Quartz Surface Slabs. As per choice of the complainant, the said slabs were supplied by O.P.Nos.4 and 5 to the complaint. The O.P.Nos.4 and 5 are neither manufacturer nor supplier of the glue in question used for affixing the stones/slabs supplied by O.P.Nos.4 and 5. The O.P.Nos.4 and 5 have no connection with O.P.Nos.1 to 3 which supplied the glue. The tiles supplied by O.P.Nos.4 and 5 to the complainant were free from manufacturing defects. The so called deficiency in service in installation of those tiles has no concern with O.P.Nos.4 and 5 and therefore they cannot be held responsible for deficiency in service. It is not the case of the complainant that quartz slabs supplied by O.P.Nos.4 and 5 were defective. Hence it is prayed by O.P.Nos.4 and 5 that complaint may be dismissed with compensatory cost of Rs.1,00,000/-.

9.      The O.P.No.6 in his reply to the complaint made submission in brief as under.

a.      The O.P.No.6 is not a proprietary firm but it is a company duly registered under the Companies Act and therefore the complaint filed in personal capacity against O.P.No.6/Arjun Hablani is not maintainable in law. There is no privity of contract in between O.P.No.6/Arjun Hablani and the complainant as complainant never entered in to any agreement or never interested any work to Arjun Hablani in his personal capacity.

b.      There is no mention in the complaint that director of M/s.Karan Kothari Jewelrs Pvt.Ltd. passed any resolution in meeting of its Board of Directors authorizing Shri Pradeep Kothari to file the present complaint.

c.       Shri Narendra Kothari had approached Arjun Hablani alongwith his two businessman friends for initial consultation regarding interior or exterior of the proposed show room of Karan Kothari Jwellar. Shri Arjun Hablani assured Narendra Kothari that he would design the show room in such a way that it will be one of its class in Nagpur. Arjun Hablani never indulge in supply or choice of material as it is always left to the owner to use material of his choice and the place from where he wants to purchase the material.

d.      The services of Arjun Hablani were availed for Rs.5,50,000/- for designing the interior and exterior work of the proposed show room. Shri Arjun Hablani had suggested different types of material and products and Shri Narendra Kothari selected materials as per his own choice and used them in construction work. Shri Narendra Kothari had appointed specialized civil engineer Shri Kamat from Nagpur for their project as this was very specific and specialized job where some major columns of the existing structure were to be removed and all decisions to remove structural columns were taken by Shri Narendra Kothari in consultation with civil engineer Shri Kamat. The job of Arjun Hablani was only to provide elevation drawing as per the view finalized by Shri Narendra Kothari in consultation with Shri Kamat. Shri Hablani noticed during his visit at the site that at many places  alignment and level of walls and thickness of plaster was not proper. He had pointed out the said defects to Narendra Kothari from time to time, but he did not pay any heed to the same. The complainant and his uncle Shri Narendra Kothari had decided to purchase materials from O.P.Nos.4 and 5 on the advice of their own contactor. The O.P.No.6 alongwith the complainant had visited to the office of O.P.Nos.4 and 5 and at that time Shri Gautamji as introduced by O.P.Nos.4 and 5, advised the complainant that quartz surface slab of 20 MM is the best quality of stones suitable for needs of the complainant.  Therefore the complainant had finalized to place order about the same with O.P.Nos.4 and 5.

e.      The O.P.Nos.4 and 5 had suggested names of some companies for affixing their stones by using the product of those companies. The complainant selected O.P.Nos.1 and 2 from the said companies for supply of adhesive for affixing the tiles supplied by O.P.Nos.4 and 5. The O.P.No.6 Hablani had no role in selection of the adhesive of O.P.Nos.1 and 2. The O.P.Nos.4 and 5 had also suggested the complainant and Narendra Kothari to dry cladding procedure for affixing stones.  In this procedure stones are affixed keeping away from the wall. However the said procedure was ruled out by Shri Narendra Kothari and he opted for using adhesive as per his choice and convenience.

f.       The O.P.Nos.4 and 5 had also suggested to use clamps alongwith the adhesive for proper support to the stones. Shri Narendra Kothari did not procure sufficient numbers of clamps within specified time as complainant and Shri Narendra Kothari had already decided the date of opening of new show room and they did not want to postpone the opening. They went ahead with fixing of stone with adhesive without giving support of adequate numbers of clamps. Hence the complainant and Narendra Kothari cannot now blame O.P.No.6 for their own lapses and short comings.

g.      The complainant and Narendra Kothari  had side tracked and  over ruled the advice of Hablani in as much as the basic procedure of proper curing of plaster before affixing the stones was also not followed and the entire work of plaster and fixing stones was going on parallel to each other. The O.P.Nos.4 and 5 had advised to live some gaps between the stones for their expansion but no such gap was left as it would consume more time and the work would not be completed prior to the date fixed for inauguration of the show room.

h.      The O.P.No.6 was only consultant for drawing, design and elevation of the show room. No construction work or choice of material was entrusted to him. There was no written agreement in between in between Hablani and the complainant. The complainant is not entitled to seek any relief against the O.P.No.6. Hence he prayed that complaint may be dismissed with compensatory cost of Rs.1,00,000/-.

10.    The O.P.No.6 alogwith his reply filed copies of his past port, front elevation, tentative requirement of project, print out of ten         e-mails, photographs, joint of front elevation and design.

11.    The complainant filed resolution of the Board of Director of “Karan Kothari Jewelrs Pvt.Ltd.” and the copies of inspection summary, estimate, bills and photographs of the show room. The complainant also filed his evidence affidavit in support of the complaint. He then filed rejoinder to the complaint. The O.P.No.6 then filed rejoinder to his written submission/reply.

12.    This Commission also granted permission to O.P.No.6 to put interrogatories in writing to the complainant. Accordingly O.P.No.6 put interrogatories to the complainant which he replied in writing. The O.P.Nos.1 and 2 also filed rejoinder to their common reply. This Commission also granted permission to O.P.Nos.1 and 2 to put interrogatories in writing to complainant and accordingly they put the interrogatories and the complainant gave reply in writting to those interrogatories.

13.    This Commission also granted permission to complainant to appoint the Commissioner on his own to examine the stones and the glues used to affix the same on the exterior walls of his show room  and to report the cause of falling of the stone. Accordingly he appointed one of the Commissioner namely Geotech Services, who inspected the show room of complainant and conducted test in the laboratory to find out the basic cause of falling off the stones from the wall face within one month following the construction. He then prepared the report in detail, which is filed on record by the complainant.

14.    The complainant also filed reply to his letter given by O.P.No.6 on 17/05/2016. The learned advocates of complainant and O.P.No.1 to 6 also filed their respective written notes of arguments. We have perused the entire record and proceedings of the complaint. We also  heard learned advocate of the complainant, O.P.Nos.1 to 3 and 6. None appeared for O.p.Nos.4 and 5 to make oral submission at the time of final hearing.

15.    The learned advocate of O.P.No.6 in his initial submission raised objection about maintainability of the complaint on the ground that the complainant does not fall within the definition of consumer giving under section 2(1)(d) of Consumer Protection Act, as the services of O.P.No.6 were hired purely for commercial purpose by the complainant.  He further submitted that the expert appointed by the complainant in his report also gave opinion that the stones as well as the adhesive used for affixing the stones are having no defect. He also invited our attention to the submission made by the complainant  in the complaint as regards his business activities and the purpose of affixing the tiles on the exterior walls of the show room for enhancement of its businesses.  He therefore submitted that as the services of the O.P.No.6 were hired for commercial purpose, the complaint is not maintainable and it may be dismissed. He relied on the observations made by Hon’ble National Commission in the case of Kusumam Hotel Pvt.Ltd…V/s…Nycer India Ltd, decided as per order dated 30/09/2019 and reported in LAWS (NCD) 1993-9-33.   In that case also the objection was raised by the opposite party that complainant is not a consumer as purchased of tiles in question was for commercial purpose mainly  for their being fixed on the floors in the VIP suits of the complainants’ hotel at “Guruvaoor”. It was also the submission of opposite party in that case that there is a close and direct nexus between the purpose of the purchase of  the tiles and commercial activity of running the hotel for making profits on large scale carried out by the complainant. The Hon’bel National Commission held that the objection raised by the opposite party that the complainant is not a consumer and hence not entitled to seek redressal under Consumer Protection Act has to be upheld. It is also observed in the said order that admittedly the tiles were purchased by the complainant for being fixed on the floors of the VIP rooms etc. of a hotel  which the company established at “Guruvayoor”. The said transaction of purchase had a close nexus with the large scale commercial activity of running the hotel. In such circumstances the purchase of the tiles must be held to have been made for commercial purpose and thus the complainant cannot be regarded as a consumer entitled to seek any relief under the provision of Consumer Protection Act.

16.    The learned advocate of O.P.No.6 also relied on the observations of the Hon’ble Supreme Court made in the case of Lourdes Society Snehanali Girls Hostel and another….V/s…..M/s. H & R. Johnson (India) Ltd and other, reported in AIR 2016 Supreme Court 3574.   In which the Hon’ble Supreme Court referred to the aforesaid decision of the Hon’ble National Commission and observed that the appellant society, which was running girls hostel for benefit of Aadiwasi Children and maintaining the hostel free of cost, the purchase of tiles by the appellant for living the rooms of the said hostel cannot be regarded as commercial activity. The Hon’ble Supreme Court also held that the decision in the case of Kusumam Hotel Pvt.Ltd (Supra) has  absolutely no application to the fact situation of the case of Lourdes Society Snehanjali Girsl Hostel and anothers.

17.    In reply the learned advocate of the complainant submitted that the aforesaid decisions relied on by learned advocate of the O.P.No.6 are not applicable to the facts and circumstances of the present case in as much as in the present case the tiles and adhesives were not purchased for commercial purpose and there is no direct nexus  of the transaction of purchase of the said tiles and the adhesive with any commercial activity under taken by the complainant under the name and style as “Karan Kothari Jewelers Pvt.Ltd”. He therefore submitted that the complainant falls under the definition of consumer as given under section 2(1)(d) of the Consumer Protection Act.

18.    We find that section 2(1)(d) of Consumer Protection Act has defined consumer inter-lia to the effect that a person who buys goods or hires or avails services for consideration is a consumer, but  a person is not included in the definition of consumer if, who obtains goods for  re-sale or for commercial purpose or avail such services purely for commercial purpose. Thus the complaint before this Commission is maintainable only when the complainant falls within the said definition of Consumer.

19.    The careful perusal of the complaint reveals that the complaint is filed by Shri Pradeep Mahesh Kothari in the capacity of director of M/s. Karan Kothari Jewelers Pvt.Ltd. Thus in fact complainant is a private limited company. The said company wanted to start new show room at Nagpur to deal with jewelers. The complainant wanted to build a luxurious show room for the purpose of its business. The complainant hired the services of O.P.No.6 who is an expert in the field of interior and exterior work of the proposed show room. Moreover the complainant also purchased the stones called as Quartz Surface Slab from O.P.No.4 and 5. The complainant also purchased the adhesive called as glue from O.P.Nos.1 to 3. The complainant wanted to affix the said stones with the help of said adhesive on the exterior of thus propose show room so as to enhance the look of the show room.

20.    Thus we find that the main purpose of the complainant was to build the luxurious show room to provide all amenities to suit unique and specific requirement of jewelery retail business and therefore it wanted to use the best quality of exterior and interior products in the said show room. We therefore hold that the transaction about purchase of tiles and adhesive and hiring of services of O.P.No.6 had a closed nexus with the large scale commercial activity of running of the show room by the complainant. Hence we find no substance in the submission of the learned advocate of the complainant that there is no such nexus. We therefore hold that as there is a close nexus in between the aforesaid transaction and hiring of services and commercial activity of the complainant, it can be said that the tiles/stones and the adhesive were purchased and services of O.P.No.6 were hired by the complainant purely for commercial purpose and therefore the complainant does not fall within the aforesaid definition of consumer given under section 2(1)(d) of Consumer Protection Act, 1986. Thus the complaint is not maintainable before this Commission under Consumer Protection Act, 1986.

21.      Even if it is presumed for the sake of argument that the complainant falls within the definition of consumer, then in that case  the complainant has to establish that there is deficiency in service provided by the O.P.Nos.1 to 6 as it is not the case of complainant that the product supplied by the O.P.Nos.1 to 5 was defective. The expert Geotech Services, appointed by the complainant with the permission of this Commission, in his report dated 25/06/2016 also opined after conducting due investigation and laboratory test that artificial stones and three different mortars supplied by the manufacturers (O.P.Nos.1 to 5) complied to the declared standard by them for his physical properties when the tests are conducted in the laboratory. Therefore the only question remains as regards the deficiency in the service on the part of O.P. Nos.1 to 6.

22.    The learned advocate of the complainant mainly argued that it was the O.P.No.6 on whom there was responsibility to see that the stones with the help of adhesive were properly led on the exterior of the show room as per the instruction given by the O.P.Nos.1 to 5. He argued that O.P.No.6 rendered deficient service to the complainant as due to his not providing the expert level and quality service as agreed, the stones started falling down within one month of installation on the exterior.  He further  submitted that O.P.Nos.1 to 6 are guilty for not conducting their work properly as per their assurances and commitment and therefore all of them are jointly and severally liable to pay compensation for willfull deficiency in service to the complainant.

23.    On the other hand, the sum and substance of submission of the learned advocate of the O.P.Nos.1 to 5 is that no services of the O.P.Nos.1 to 5 were hired by the complainant, but the complainant purchased from O.P.Nos.1 to 5 a raw material and as the same is found to be not having defective, there is no question of holding them guilty for providing deficient service and consequently for payment of compensation to the complainant.

24.      The learned advocate of the O.P.No.6 also submitted that there was no agreement in writing in between the complainant on one side and O.P.No.6 on another side showing the details particulars of the services to be offered by O.P.No.6 and that the O.P.No.6 being an architect had no concern with the actual work of fixation of the tiles. His services were hired by the complainant for drawing and designing interior and exterior and elevation of the show room and his job was only to see that work is carried out as per design and specification mentioned by him. The  learned advocate of the O.P.No.6 further submitted that even otherwise the instructions given by O.P.No.6 to the complainant and Narendra Kothari were not followed by them of which details are given in reply of O.P.No.6 and hence the O.P.No.6 cannot be held liable for deficiency in service or for payment of compensation to the complainant.

25.      We find that there is no agreement in writing in between the complainant on one side and O.P.Nos.1 to 6 on another side to show terms and conditions and the detail particular of services hired by the complainant from the O.P.Nos.1 to 6. The complainant has given no explanation as to why no such agreement in writing was executed to show terms and conditions of the contract. In the absence of any such agreement in writing in between them, it can be said that the O.P.No.6 being an architect, his job was only drawing                    and design the interior, exterior and elevation of show room and to see that the work is carried out as per the said designs and specification.

26.    The complainant has not come with a specific case as to who was actually engaged to do the civil works about installation of tiles on the exterior of the show room. In our view it is the responsibility of the civil contractor or an engineer, who was engaged to do that work to see that the tiles/stones are affixed with the help of adhesive to the exteriors as per the instructions given by the O.P.Nos.1 to 5 and to see that the stones do not fall after installation.

27.    The expert appointed by the complainant for investigation and the report about basic cause of falling stones from the wall face within one month of the installation, in his report gave the following opinion:-

          “ From the above test results it can be concluded that all raw material i.e. Artificial stone and three different mortars supplied by the manufacturers complied to the declared standards by them for its physical properties when test are conducted in the laboratory.

          However at site, spalling of stone have taken place in reasonable quantity which shows that due care is not exercised to ensure that procedures for applying adhesive mortar and stone, are not followed on site as per instructions of manufacturer.

          All the Adhesive/mortars have specific setting time (“open time”), and if it is applied after such specific time then it forms a very weak bond with the stone. This possibility cannot be overruled as mixing takes on ground and all work of stone cladding is done from

scaffolding, where working time is more as compared to working on less heights with continuous platforms.

          From test results for Bond Strength of Adhesive, particularly LATICRETE 252 Ag SILVER, it can be observed that after “open time”, of 20 minutes the bond strength reduces to mere 10% of the original within 10 minutes. And in case of adhesive LATICRETE 111, the original strength itself is very weak and after 10 minutes of ‘open time’ (30 min), there is no bond possible.

          From photographs it is obvious that, adhesive mortar is bonded firmly to the masonry than stone. As it is applied first on wall, it must have been completed in ‘open time’. And probably stone work took more time than ‘open time’.

          Moreover “adhesive mortars” are chemical compounds and needs to be mixed in exact proportion by weight to achieve desired strength. Exact weighing of each batch is beyond control on construction site, unless dedicated trained team is employed. Any variation in proportion can lead to weak bond or delayed setting. Both cases are unfavorable for the good bonding.

          Since all stones are vertical (except on window sills), after applying mortar to wall, the stone needs to be pressed against adhesive coat of mortar til it forms a good bond with stone. If it is pressed only once against adhesive mortar and left in vertical position immediately, then it may stand in place because of inherent stickiness of mortar, but stone will try to move away because of narrow base. Weight of stone will act against the immediate bond due to stickiness, and though it may not fall immediately but stone being smooth, the bond formed will be weak unless it is kept firmly pressed till mortar sets.

          In photograph No.3 it is evident that mortar is not thorough contact with stone. Air entrapped in such voids creates negative pressure on heating during high ambient temperatures and further facilitate de-bonding. High temperature also create warping effect in thin and long sections, which must be the reason for stone slab getting lifted on window sill (photo No.4).

          All above reasons have lead to separation of stone slabs from facia at various locations.”

28.      Therefore from the aforesaid opinion of the expert it is clear that due care was not exercised to ensure that the procedure for applying adhesive mortar and stones and the instructions given by the manufacturer are not followed on the site. The O.P.Nos.1 to 6 in the absence of any specific contract in writing about their responsibility in taking such due care, cannot be blamed for not taking due care as required and for not following the instructions given by the manufacturer. It was only the contractor or an engineer doing the civil work responsible for not exercising said due care and not following the said instructions. It is also not case of complainant that no such independent contractor or an engineer was engaged for doing the aforesaid work. The said contractor or engineer is not joined to the complainant as one of the O.P.

29.      We therefore hold that complainant has failed to prove that the O.P.Nos.1 to 6 are guilty of not exercising due care and not following the proper mode required for installation of the tiles/stones. Hence no deficiency in service can be attributed to any of the O.P.Nos.1 to 6.

30.      In the result of the aforesaid discussion the complaint deserves to be dismissed.        

                                         // ORDER//

1. The complaint is dismissed.
2. No order as to costs.
3. Copy of the order be furnished to both parties free  

        of cost