IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  31^st Day of  March  2021

  Present: -  Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

         Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                                CC.57/2017

Khalid.H                                           :         Complainant

Arafa, Medayil Mukku

Manayilkulangara

Thirumullavaram P.O

Kollam-691012.

[By Adv.R.Sivadasan]

V/s

1. Proprietor                                 :         Opposite parties

         M/s Kohinoor Paints

       Happy Land Building

       Opposite Ammachiveedu Temple

      Kollam-691013.

     [By Adv.K.B.Sreekumar]

2. M/s Pidilite Industries Ltd.

        SHBS House, Door No.4/236

        Kayantikara Road, Muppathadam P.O

        Alwaye, Kochi-683110.

        [By Adv.Biju Abraham]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

1.       This is a case based on a consumer complaint filed u/s 12 of  the Consumer Protection Act.

2.       The averments in the complaint in short are as follows:-

          The complainant is the owner of a 2 storied residential building.  Recently the building had shown leakage during rainy season.  The 1^st opposite party who has been conducting a shop at Kollam advertised the advantages of a waterproofing system for old buildings which is a product branded as “Dr.Fixit”.  Induced by the publicity and advertisements about Dr.Fixit, the complainant visited the shop of the 1^st opposite party for the purpose of waterproofing his residential building to prevent leakage of rain water.  During May 2016 the 1^st opposite party visited the residential building of  the complainant and took measurements and had prepared and given an estimate of Rs.75,322/- including costs on materials and labour.  During 11 to 13^th May 2016 three employees deputed by the 1^st opposite party had carried out the waterproofing works at the residential building  of the complainant.  The complainant was made to believe that the materials used are that of Dr.Fixt brand which is having good quality and the complainant had made payment of  Rs.74000/- while carrying out the water proofing work.  But during the process of water proofing the 1^st opposite party was using a product named “Climex” instead of “Prime Seal” which is a product of Dr.Fixit whereas “climex” is a product of some other company and the 1^st opposite party  made the complainant to believe that   Climex  is more better quality and its use along with Dr.Fixit is approved by the 2^nd opposite party.  While settling the bill after receiving Rs.74000/- from the complainant, the 1^st opposite party gave a tin of raincoat paint for future use and deducted an amount of Rs.7720/- as special discount.    The said tin is still lying unused.  Bill and warranty card were not issued.  The complainant was shocked to see that even after the waterproofing, the leakage in the building continued which was against the guarantee and assurance given by the opposite parties.  The complainant immediately informed the opposite parties about the continuing leakage and demanded immediate remedy.  The agents of the opposite parties visited the site and it was revealed that crack filler powder was not used and the cracks were not properly filled.  It is clear that the products used for waterproofing were of inferior quality and it never prevented the existing leakage.  Moreover it was shockingly revealed that the 1^st opposite party played fraud upon the complainant by enhancing the area of the building from the actual area.  In fact, the total roof area of the building  was 1530 sq ft and total parapet area of the building was 317 sq ft and total shade area of the building was 356 sq ft.  The total area being 2203 sq ft.  Thus  extracted illegal amount from the complainant and thereby the 1^st opposite party has committed unfair trade practice.  Though the complainant had demanded to refund the excess amount extracted by the opposite parties and to take immediate action for the leakage of his building the grievance of the complainant has not been redressed.  The act of the opposite parties are a clear case of deficiency in service.  Due to the defects in the water proofing of the residential building the complainant is subjected to immense mental agony apart from huge monitory loss.  Hence the complaint.

3.       Opposite party 1&2 filed separate version raising the following contentions.

          The complaint is not maintainable either in law or on facts.  The complainant has  filed the complaint by suppressing material facts with ulterior motives.  The 1^st opposite party had never made any advertisement as alleged.  Dr.Fixit is a product of 2^nd opposite party.  The 1^st opposite party is only an authorized dealer.  It is admitted that the complainant had approached the 1^st opposite party  for waterproofing the terrace of  the building by using Dr.Fixit .  As required by the complainant, the 1^st opposite party deputed his workers to the house of the complainant for taking measurement and for preparing estimate.  The terrace of the house of the complainant was exposed to severe weather conditions.  The 1^st opposite party had done waterproofing works strictly as per the guidelines issued by the 2^nd opposite party as regards the application of the product.  The workers deputed by the 1^st opposite party are trained for the work.  The 1^st opposite party did not use any material other than the products of the 2^nd opposite party.  The 1^st opposite party never used climex as alleged in the complainant.  3 workers deputed by the 1^st opposite party worked for 5 days for completing the work.  The building was in such a bad condition that it had taken two days for cleaning the terrace before water proofing.  Raincoat paint was applied by the 1^st opposite party as ordered by the complainant.  The allegation that there is leakage in the building even after waterproofing is absolutely false and hence denied.  The complainant never made any complaint to the 1^stopposite party regarding leakage at any point of  time.  Immediately after getting notice from this Commission the 1^st opposite party had deputed his workers to the complainant’s house for verifying the veracity of the allegation.  The complainant did not allow them to inspect the terrace.  This attitude of the complainant is doubtful.  The 1^st opposite party is ready to rectify the leakage if any , if the allegation of the complainant is correct.  The 1^st opposite party has been engaged in the business for last 15 years and he has been using the product of 2^nd opposite party for waterproofing for last 15 years.  Innumerous works were done using the same product in the manner prescribed by the 2^nd opposite party.  No complaints reported from anywhere.  The present complaint is without any bonafides.  There is no need to use crack filler powder as a rubber coating is made before applying Dr.Fixit.  The estimate has been prepared in detail and submitted to the complainant.  The cost of the work was calculated on the basis of actual measurement.  The complainant never made any objection by taking measurement or making payment or at any point of time thereafter.  The 1^st opposite party never extracted any amount illegally from the complainant and there is no unfair trade practice on the part of the 1^st opposite party.  The product used for the waterproofing is produced by the 2^nd opposite party who was made advertisement also.  The  2^nd opposite party has been trying to escape from their liability of any inherent manufacturing defect in the product by attributing unsustainable and groundless allegations against the 1^st opposite party.  There is absolutely no deficiency in service on the part of the 1^st opposite party.  The 1^st opposite party further prays  to dismiss the complaint with its costs. 

4.The main contentions raised by the 2^nd opposite party in the written version are as follows.  The complainant has not availed any service from the 2^nd opposite party nor paid any consideration.   Hence the complainant cannot be termed as a consumer of 2^nd opposite party and therefore the complaint is not maintainable.  Dr.Fixit is  the brand of the 2^nd opposite party.  It is a good quality brand using for water proofing of the building. The 1^st opposite party made the application which is not recommended by Dr.Fixit.  Some local company products were used for the application not recommended by Dr.Fixit.  The 2^nd opposite party is a well known company engaged in the business of adhesives, specialty chemicals and construction chemicals for last more than 40 years.  Dr.Fixit is one of the well known product of 2^nd opposite party.  The said product is well known for its superior quality.  In the present case, the work was carried out by some applicator who was neither trained by 2^nd opposite party nor in any way directly associated with 2^nd opposite party.  The 1^st opposite party’s name was not recommended by 2^nd opposite party.  The 2^nd opposite party was not involved in any way in appointment, assignment of job, selection of material, application of material and supervision on the work carried out by the 1^st opposite party.  The alleged deficiency in service is only due to the mistake of the application done by the applicators deputed by the 1^st opposite party.  The 2^nd opposite party is in any way not liable for any of the mistakes occurred during the application done by the 1^st opposite party.  The 2^nd opposite party further prays to dismiss the complaint with its costs. 

5. In view of the above  pleadings  the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the 1^st and 2^nd opposite party in carrying out the waterproofing work of the residential building of the complainant?
2. Whether the complainant is entitled to get the relief sought for?
3. Reliefs and costs.

6.       Evidence on the side of the complainant consists of the oral evidence of PW1&2, Ext.P1 to P14 documents.  Evidence on the side of the 1^st opposite party consists of the oral evidence of DW1, Ext.D1 series and MO1 series.  The 2^nd opposite party has not adduced any evidence either oral or documentary.  The complainant, 1^st and 2^nd opposite party filed separate notes of argument.  Heard the counsel appearing for the complainant and both opposite parties.

Point No.1&2

7.       For avoiding repetition of discussion of materials these 2 points are considered together.  The following are the admitted facts in this case.  The complainant is the owner of the 2 storied residential building.  Leakage of the roof of the building was found during rainy season.  Opposite parties advertised the advantages of the waterproofing system for old building which is a product branded as Dr.Fixit.  The complainant induced by the publicity and advertisement about Dr.Fixit visited the shop of 1^st opposite party and requested for carrying out water proofing of his residential building to prevent leakage for rain water.  On the basis of the above request  the 1^st opposite party during the month of May 2016 visited the residential building of the complainant and taken measurement and also prepared an estimate for Rs.75372/- including cost of the material and labour charges.  The 1^st opposite party has also deputed 3 employees during 11 to 13^th May 2016 to carrying out the water proofing works at the residential building of the complainant.  It is also brought out in evidence through PW1 that the materials used for waterproofing will be  Dr.Fixit brand which is having good quality.  By believing the above representation of 1^st opposite party the complainant agreed with 1^st opposite party and made payment of Rs.74000/-.  However during the process of water proofing the employees of the 1^st opposite party was using a product named Climex instead of  Prime seal which is not a product of Dr.Fixit recommended by Dr.Fixit, Climex is an inferior quality product which is product of some other company.  However on enquiry the 1^st opposite party convinced the complainant that it was more better quantity and the use of Climex along with Dr.Fixit is approved by 2^nd opposite party.  It is also brought out in evidence through PW1 that after waterproofing the leakage of the building continued and it was against the guarantee and assurance given by the 1^st opposite party.  However the complainant informed the matter to the opposite party about the continuance of leakage and wety condition of the walls and demanded immediate remedy.   Agent of the opposite parties visited the site and it was revealed that crack filler powder was not used and that cracks were not properly filled.  It is also understood that product used for water proof were inferior quality and has not prevented the existing leakage.  It is also brought out in evidence that the 1^st opposite party who measured the area of the building had played fraud up on the complainant by enhancing the area of the building from the actual area.  According to the complainant the opposite parties had assured that remedial action will be taken and the grievance of the complainant will be redressed.  But no remedial action has been taken hence he filed the complaint.

8.       Though in the complaint there are 2 opposite parties who are proprietor of  M/s Kohinoor Paints, Kollam and M/s Pidilite Industries, Aluvae, Cochi.  There is no specific averments or allegation of deficiency in service or unfair trade practice against the 2^nd opposite party.  As per paragraph 1 to 3 of the complaint the advertisement was made by the 1^st opposite party and the complainant visited the 1^st opposite party’s shop and expressed his intention to carry out water proofing of his residential building to prevent leakage of  rain water.  Accordingly the 1^st opposite party visited the residential building  of the complainant and taken measurement and had prepared and  entrusted an estimate for Rs.75322/- including cost of materials and labour charges.  In paragraph 3 of the complaint it is stated that 3 employees deputed by the 1^st opposite party had done the water proofing work at the residential building of the complainant.    They have also made the complainant to believe that the materials used are of Dr.Fixit brand which is having good quality and the complainant by believing the representation of 1^st opposite party and his workers had made payment of Rs.74000/- during the process of water proofing.  The complainant would specifically state in paragraph 3 of the complaint that during the process of waterproofing it was seen that the 1^st opposite party was using a product named Climex instead  of Prime seal and on enquiry the 1^st opposite party convinced the complainant that it was more better quality and its use along with Dr.Fixit is approved by the 2^nd opposite party.  This is the only place where the complainant has stated the involvement of the 2^nd opposite party.  The above noted averments would not indicate that the complainant  has approached the 2^nd opposite party nor sought any advise before entrusting the water proofing work to the 1^st opposite party.  Complainant has also no case in the complaint that the 2^nd opposite party has done anything in this regard nor made any assurance or deputed any employees to carry out the water proofing work of the complainants building.  The only averments relating to 2^nd opposite party is that the 1^st opposite party told him that it is more better to use  Climex and it was more better quality and its use along with Dr.Fixit is approved by 2^nd opposite party.  The above representation on the part of the 1^st opposite party will not prove any deficiency in service or unfair trade practice on the part of the 2^nd opposite party. It is also brought out in evidence that the 1^st opposite party has received the amount of Rs.74000/- as full and final settlement from the complainant and also handed over a tin of rain coat worth Rs.7720/- for future use as a special discount.

9.       The 1^st relief sought in the complaint  is to direct the opposite parties to rectify the defective waterproofing in the residential building of the complainant using good quality product or in the alternative to refund the amount of Rs.74000/- along with interest @ 12% p.a and issue original bill and warranty card.  The 2^nd relief sought for is compensation to the tune of Rs.25000/- from opposite party No.1&2 and the 3^rd relief  sought for is costs of the proceedings from opposite parties 1 and 2.  What is the deficiency in service or the unfair trade practice committed by the 2^nd opposite party is not specifically pleaded anywhere in the complaint.  It is further to be pointed out that the complainant has filed one proof affidavit dated 01.06.2018 again filed an additional proof affidavit on 03.06.19 which is in Malayalam and also filed  the 2^nd additional proof affidavit dated 22.01.2021 which is in English.  In the 1^st additional proof affidavit filed in Malayalam language the entire case has been stated contrary to the complaint.  Paragraph No.1 of the above Malayalam proof affidavit it is stated thatH¶mw FXnÀI-£n-bpsS \nÀt±I {]Imcw Fsâ sI«n-S-¯nsâ hm«À {]q^nwKv Npa-X-e-tbä c­mw FXnÀI£n H¶mw FXnÀI-£n-bpsS  specification A\p-k-cn-¨pÅ t{]mUIvSvkv ]eXpw D]-tbm-Kn-¡m-sXbpw D]-tbm-Kn-¨-h-bn¯s¶ ]eXpw th­ Af-hn D]-tbm-Kn-¡m-sXbpw, aäv I¼-\n-bpsS DXv]-¶-§Ä A\-[n-IrXambn D]-tbm-Kn¨pw Ah-bn FÃmw D]-cn-bmbn poor workmanship-eqsSbpw Fsâ sI«n-S-¯nsâ dq^v Xmdp-am-dm¡n F\n¡v `oa-amb km¼-¯nI- \jvShpw IjvS-Xbpw hcp-¯n-h-¨-Xn-s\-Xn-sc-bmWv Cu lÀPn. In view of the above averments the work was carried out by the 2^nd opposite party which is contrary to the pleadings in the complaint.  As per the complaint the workers who has done the water proofing work were deputed by the 1^st opposite party and there is no chance of deputing the workers by the 1^st opposite party as per the averments in the complaint.  Therefore the averments in paragraph 1 of the Malayalam proof affidavit is not acceptable at all without any pleadings.  In the 2^nd paragraph of the Malayalam proof affidavit it is stated that H¶mw FXnÀI-£n-bpsS AwKoIrX hnX-c-W-¡m-c-\mb c­mw FXnÀI-£n,þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þþ hm«À {]q^n\v th­n kzo-I-cn-t¡­ \S-]-Sn-{Iaw Xmsg hnh-cn¡pw hn[-am-bn-cp-¶p.But the complainant has no such averments and allegation in his complaint.  He has also no case anywhere in the complaint that the 2^nd opposite party is the authorized distributor of the 1^st opposite party.  Even according to the complainant he has contacted only the 1^st opposite party and entered into an agreement for waterproofing the roof of  his residential building and also paid an amount to the 1^st opposite party who deputed 3 workers who carried out the waterproofing work.  As per paragraph 3 of the Malayalam affidavit the 2^nd opposite party has acted contrary to the accepted procedure and therefore the roof of his building has been damaged during the 1^st rain itself.  The complainant is having no case in the complaint that the 2^nd opposite party or the workers deputed by 2^nd opposite party has carried out the waterproofing work of his building.  It is interesting to note that the learned counsel for the complainant has argued on the basis of the averments in the Malayalam affidavit and finally canvassed for granting the relief against both the  opposite parties. The  Forum/Commission is not expected to consider the proof affidavit or relief sought for without proper pleadings in the complaint.  On evaluating the entire materials available on record we come to the conclusion no deficiency in service or unfair trade practice is alleged against the 2^nd opposite party.  Hence the evidence tendered by the complainant against the 2^nd opposite party is not acceptable at all. 

10.     In view of the materials available on record we come to the conclusion that agreement to carry out the waterproofing work is with the 1^st opposite party and the workers were deputed by the 1^st opposite party along with required materials and obtained Rs.74000/- as consideration for carrying out  water proofing work. In the circumstances the 1^st opposite party is liable for the defects if any proved in the waterproofing of the building belongs to the complainant  and the 2^nd opposite party cannot be held liable for the defective work carried out by the 1^st opposite party especially when the complainant has no case that Dr.Fixit distributed by the 2^nd opposite party is a defective product and due to the defect of that product the waterproofing were carried out at the residential building of the complainant has become defective.  There is also no materials before this Forum except the ipsy dixit of the 1^st opposite party that the product Climex was advised by the 2^nd opposite party for waterproofing the building and hence the 1^st opposite party used the same.  In the circumstances the 2^nd opposite party cannot be held  liable at all for the defect of the waterproofing work carried out by the 1^st opposite party at the residence of the complainant.

11. Now it is to be considered whether there is any deficiency in service or any unfair trade practice on the part of the 1^st opposite party in carrying out the       waterproofing work on the building belongs to the complainant.    The expert commissioner has reported as  item No.2 in P4 report that the breakage and cracks developed on the terrace, parapet and shades are due to the defective workmanship and has also stated  in paragraph 1 of his report that as much as 7 defects (as defect No. a-g)which are as follows.

1. hS¡v hiw sunshade 12 s]m«Â shSn¨p Iodn-b-Xmbn ImWp-¶p.
2. ]Sn-ªmdv hiw 3 s]m«Â shSn¨p Iodn-b-Xmbn ImWp-¶p.
3. sX¡v hiw 3 s]m«Â shSn¨p Iodn-b-Xmbn ImWp-¶p.
4. sX¡v hiw Ing¡v GXm­v a[-y-`mKw hsc shSn¨p Iodn-b-Xmbn ImWp-¶p.
5. sSd-Ên GXm­v a[-y-`m-K-¯mbn rectangle shape- Hcp s]m«Â ImWp-¶p.
6. Parapet-ÂhS¡v hiw 7 s]m«Â shSn¨p Iodn-b-Xmbn ImWp-¶p.
7. Parapet-ÂsX¡vv hiw 3 s]m«Â shSn¨p Iodn-b-Xmbn ImWp-¶p. 

As item No.3 the commissioner has noted the present nature of the wall of the prayer room soaked in the rain water.  He has specifically noted that he found water mark on the top of the prayer hall as water was filled on the terrace as directed by him.  Under item No.5 the commissioner has noted that ‘ terrace –sâ apI-fn 2 Ub-ao-ä-dn 7 Øe¯pw Nn½n-\n-bpsS apI-fn 1 Ub-ao-ä-dn 5 Øe¯pw IqSmsX sNdnb sNdnb spot IÄ 12 Øe¯pw ImWp-I-bp-­m-bn.  BbXv F´p ImcWw sIm­mWv kw`hn¨sX¶v t_m[n-¸n-¡m³ Ign-bp-¶n-Ã.  PW2 has opined in P4 report that above defect was occurred due to the defective workmanship and use of substandard materials.  But the 1^st opposite party who was present has opined that it was due to the effect of heavy rain and heat produced by sunrays.  Anyhow the 1^st opposite party has admitted in the written version that if on any ground the complainant is not satisfied waterproofing work carry out by the opposite party he is ready to rectify the same.  It is also clear from the available materials that there is a warranty of 7 years for the waterproofing work carry out by the 1^st opposite party.  But the photographs produced by the commissioner would indicate breakage of roof and resultant leakage at the initial stage of the warranty period itself.

12.     It is brought out in evidence that Ext.P5 logo and board in respect of 2^nd opposite party is seen installed in front of the 1^st opposite party shop.  But according to DW2 the same was not installed by the 2^nd opposite party nor installed the same with permission of the 2^nd opposite party which would indicate that the advertisement using the logo of the 2^nd opposite party has been made and installed by the 1^st opposite party without the consent of the 2^nd opposite party.

13.     It is also brought out in evidence that the commissioner has taken measurement of the area covered by water proofing on the terrace, parapet and shades.  As per P4 report water proofing on the ground floor roof is 715 sq.ft., parapet 170 sq.ft and shade 315 sq.ft the area covered by water proofing on the 1^stfloor has been separately noted in P4 report by the expert commissioner (PW2) which are as follows.   Parapet 190 sq.ft., shade 41 sq.ft, roof 781 sq.ft.  The total area covered by water proofing on the ground floor and 1^st floor are 1200+1012=2212.  But the opposite party has measured the area incorrectly and charged for excess area of 112 sq.ft.  In the circumstances it is clear that the complainant has committed foul play in taking measurement of the water proofing area and levied excess charge for 112 sq.ft. also.  On evaluating the entire materials discussed above it is clear that there is gross deficiency in service and unfair trade practice on the part of the 1^st opposite party in carrying out waterproofing work of the residential building of the complainant and therefore the complainant is entitled to get his residential building water proofed afresh or in the alternate entitled to get back amount to Rs.74,000/- collected from him.  It is also brought out in evidence that as the 1^st opposite party has not properly carried out the water proofing work of  the residential building, there is leakage of  water which has caused  much mental agony to the complainant who is the aged and ailing senior citizen apart from financial loss.  Therefore the complainant is entitled to get compensation also.  In the view of the facts and the circumstances of the case we are of the view that the complainant is entitled to get compensation to the tune of Rs.15,000/- and costs Rs.10,000/- from the 1^st opposite party.  Point answered accordingly.

Point No.3

14.  In the result complaint stands allowed in the following terms.

1. The 1^st opposite party is directed to rectify the defective water proofing of the residential building of the complainant using good quality product of Dr.Fixit and also issue original bill and warranty document within 45 days from today or in the alternative refund   Rs.74000/- collected from the complainant with interest at the rate of 6% p.a from the date of complaint till realisation.
2. The 1^st opposite party is also directed to pay Rs.15,000/- as compensation with interest at the rate of 6% p.a from the date of complaint rill realisation.
3. The 2^nd opposite is exonerated from liability.
4. The 1^st opposite party is directed to pay Rs.10,000/- as costs of the proceedings to the complainant.
5. The 1^st opposite party is directed to comply with the above directions within 45 days from the date of receipt of  a copy of this order failing which the complainant is entitled to recover Rs.74000+15000 with interest at the rate of 9% p.a from the date of complaint till realisation with costs Rs.10000/-

Dictated to the Confidential Assistant  Smt. Deepa S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   31^st day of  March 2021.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

         Forwarded/by Order

        Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :Khalid.H

PW2                :Adv.George Varghese       

Documents marked for the  complainant

Ext.P1             : Estimate/bill dated 10.05.2016

Ext.P2             :Warranty card

Ext.P3&P4     : Commission report and Mahazar

Ext.P5 series : Photographs

Ext.P6 series :  Photographs

Ext.P7 series : Lawyer notice and acknowledgement card

Ext.P8             : Receipt dated 29.01.2019

Ext.P9             :Lawyer notice and postal receipts

Ext.P10          :Visitors card

Ext.P11          :Copy of reply of RTI

Ext.P12          :Copy of appeal under RTI

Ext.P13          :Telephone bill

Ext.P14          :Newspaper cutting

Witnesses Examined for the opposite party:-

DW1               :Nousher

DW2               : Raghuraj.P.K

Documents marked for opposite party:-

Ext.D1series&MO1 series  : Photographs(14 Nos)

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

         Senior Superintendent