By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows: -
1. The complainant who is a retired Head teacher and differently abled man. He constructed a house during 2018 January at Kakkadampoyil, vendekkupoyil. The first opposite party approached the complainant and requested to entrust plastering work of his house and said that he is using a new material called Greensum Whytal Gypsum Plaster and if that whytal gypsum material is used for plastering there is no requirement of watering and putty work for painting. The material provides cooling effect and life warranty, assured by the first opposite party. The first opposite party also issued a brochure which stated “വീട് തേക്കാu ഇനി മണv എന്തിന്....?, മണv , സിമന്റ് എന്നിവയ്ക്ക് പകരം ഒരൊറ്റ മെറ്റീരിയv , ഗ്രീന്സം പ്ലാസ്റ്റര്...”
2. Impressed by the words of the first opposite party and attracted by the notice issued by the opposite party, the complainant entrusted work to the first opposite party. As per the oral agreement the complainant agreed to pay 35 rupees per square feet to the opposite party and the total extent of square feet was 2,577/-. The first opposite party finished his work during the month February 2018 itself. But within 5 months thereafter the plaster portion started to fall off. Several parts of the wall whytal gypsum plaster broken and separated. The almost the entire house turned ugly. The complainant immediately contacted the first opposite party and the first opposite party said that he will inform the second opposite party and the issue will be solved. Thereafter first opposite party and work supervisor came to the spot and verified the same and also found the grievance as genuine. The first opposite party and the supervisor agreed to repair the work. The first opposite party issued a telephone number to the complainant and instructed to contact second opposite party also. Accordingly, the complainant contacted the second opposite party and the second opposite party also agreed to repair the defects. But the opposite party did not repair the defects as agreed. So, the complainant was not able to provide the house for rent which was his source of livelihood. The first opposite party had issued a receipt dated 15/02/2018 for Rs.90,000/- towards the work. The complainant alleges the opposite party utilized less quality material and carried out the work negligently and thereby the wall of his house became defective. The complainant submit that he is a differently abled man, senior citizen and retired teacher who has been provided defective service by his own old student. Hence, he prays for refund of the amount received by the opposite party along with compensation of 5,00,000/- and cost of 10,000/-.
3. On admission of the complaint the notice was issued to the opposite parties and the opposite parties entered appearance and filed version. The first opposite party filed version on behalf of second opposite party also.
4. The opposite parties denied the entire averments and allegations in the complaint. According to opposite parties the complaint is not maintainable and liable to be dismissed.
5. The opposite parties contended that the complainant used materials not for his own purpose but he constructed small rented cottage for making benefits and to let out for the parties for earning additional benefits and not at all for livelihood and so, the complaint is not maintainable. The act of complainant amounts commercial in nature and so the complaint cannot be entertained before the Commission.
6. The opposite parties denied that the first opposite party met complainant in first week of January 2018 and sought to entrust the work of plastering of the villa of the complainant at VendakkamPoyil, Kakkadampoyil, that the first opposite party promised that application of new product Greensum Whytal Gypsum plaster can avoid use of multiple materials like sand , cement , that the first opposite party assured if the same is applied putty work need not done , no watering the walls , life time warranty and cooling effect will exist etc. The opposite party also denied that he produced a notice before the complainant for verification. The first opposite party submitted that he is member in watts up group of GUPS, Paramba and he posted the leaf let of green sum and the complainant is also member in that group. The complainant after seeing the information given in the watts up group contacted the first opposite party and enquired about the application of the product to his rented quarters. The opposite party contended that it had clearly specified that the material can be applied only to the interior walls and he suggested not to have plastering of the exterior walls and thereafter to complete the interior walls by using the material categorize or specified in the brochure. But the complainant in order to reduce his expenses wanted to carry out the work of the interior combination to the exterior walls also but the first opposite party specifically denied and specified that there is every possibility of water clog due to the climatic conditions prevailing at the locality. But the complainant compelled the opposite party to carry out the same in the exterior also. The opposite party submitted that it is on the compulsion of complainant who is a retired head master and senior citizen, the first opposite party who was forced to undertake exterior work also for the same amount of interior work but the risk purely was with the complainant. The first opposite party very specifically shown the details provided in the brochure to the complainant. But even then, complainant compelled the first opposite party to undertake the work on guaranty and risk by complainant himself and all that was indemnified by the complainant, because of close nexus in relation to watts up group. The opposite party admitted that the complainant found and verified the brochure issued/put in watts up group and also separate copies were provided to complainant by the opposite party and also convinced the chances of water clog for exterior work. The opposite party submitted that it is apparent and clear that the neither first opposite party nor the second opposite party or the company never ever made any sort of promise or guaranty for exterior plastering by the use of green sum material and it is specifically mentioned and made an end note that the present material is not probable or cannot be used for exterior works. The opposite party had made clear that they will be bringing out new product for exterior works but not the present material and therefore it was the complainant to himself taken the risk of applying the material at the exterior wall and it was due to his compulsion the same was applied in the exterior wall and therefore certain hair line damages seen in the plastering and that was obviously due to the compulsion of the complainant. The opposite party submitted that due to the compulsion of the complainant the first opposite party undertook the plastering of 2,577/- square feet at the rate of Rs. 35/-per square feet to the total tune of Rs.90,195/-. The first opposite party completed the work within 15 days as agreed in a gracious manner. The first opposite party also submitted that while doing the work he had specifically given instructions to the complainant to use high quality primer and whether proof paint for exterior application due to the fact that the plastering was done not as advice but to take preventive measures for long lasting. It is also submitted that they had advised for the use of good quality primer (Berger non- alkaline ) and good quality water proof paint (Apex Ultima). But the complainant used very low-quality paint without proper application of primer and thereby due to the weather condition a hairline crack seen occasioned at one of the plastered areas. The opposite party was willing for the rectification of the same but the complainant was not ready for the same. But was greedy for money and not for rectification of the alleged defects seen due to improper application of primer, paint etc. The same was caused due to water clog. Due to the climatic condition and the ferocious rain affected in the area during August 2018.
7. The specific contention of the opposite party is that the guaranty given by the opposite party is that only for the interior plastering and the exterior plastering was purely out of picture because the same cannot be provided for the opposite parties since there is no such life time warranty or guaranty exist for exterior plastering with the use of the present article and which all are very well clearly known to complainant and all documents pertaining to the same has clearly mentioned in the warranty, which is applicable only for the interior plastering .
8. The opposite party denied the contention that after five months of plastering started to stripped down but there was a small hairline crack occasioned in an area and which was promised to be rectified by the opposite party then and there itself. But the complainant was not willing for repairs. It is submitted that there was no guaranty or warranty for the exterior paint plastering. It is also submitted that the painting was stripped down at certain areas due to the water clogging and the same is caused because of the specific and clear-cut factor that he did not used proper primer or whether proof painting but used some very low-quality emulsion and striping of paint is caused only because of the same and it is only because of complainants on fault.
9. The first opposite party submitted that he informed the second opposite party regarding the issue and the second opposite party verified and found that the defect was due to poor quality of primer paint use. The first opposite party furnished details of the second opposite party and the complainant in turn contacted second opposite party and the second opposite party clearly narrated the details and offered curative measures but sought to give assurance that the complainant will use quality primer and paint but which was not at all agreeable to the complainant. The opposite parties sent their work force for curative measures seen in plastering with the material and labor but which was not permitted by the complainant to carry out. The complainant was demanding 10,00,000/- rupees and he was not in requirement of any sort of curative measures. The complainant was demanding money but not to rectify the defect. The opposite party submitted that the construction of the complainant might cause around Rs.3,00,000/- in total but the claim before the commission is for Rs.5,00,000/- which reflect the character and conduct of the complainant and he is interested in unlawful enrichment without any legal sanctity or purpose. The total area of the construction is less than 400 square feet.
10. The opposite also submitted that the complainant used second hand windows and shutters for the building. The construction was done in very economical manner without posting any much amount and is believed that the maximum expenditure might have been less than Rs.3,00,000/- for the construction of the entire structure including panting which also done in very less value item in the market.
11. The opposite party submitted that the notice issued by the complaint was received and had spoken to the lawyer and also to the complainant but the complainant demanded 5,00,000/- rupees which was obviously illegal and false. But the complainant certainly reduced from 10,00,000/- to 5,00,000/- which is reflected in the complaint. The first opposite party was being close associate in the watts up group, his friends were trying to settle the matter and as per instructions of friends no reply was issued to the notice. The complainant was very adamant and he was in need of money to construct other quarters from the money received from the opposite parties. The submission of the opposite party is that there was no any sort of deficiency in service but the complainant compelled to carry out the work for the purpose of reducing the expenditure and for that purpose compelled to the opposite party to apply the material for exterior wall which was not intended. The improper plastering with cement mortar causes trouble to interior also if that is not properly protected by good primer and weather shield paints. Hence the prayer of the opposite party is to dismiss the complaint with exemplary cost to the opposite party.
12. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5. Ext. A1 is a photo copy of brochure of green sum plaster. Ext. A2 is a photo copy of voucher issued by SAAS builder Pookottumpadam dated 15/02/2018. Ext. A3 is a letter issued by the second opposite party to the complainant dated 27/04/2018. Ext. A4 is series of photographs (4 in numbers). Ext. A5 is photo copy of receipt for Rs.300/- issued by Arun Studio and Video dated 20/07/2018. The documents produced by the opposite party marked as Ext. B1. Ext. B1 is copy of brochure green sum plaster.
13. Heard both side, perused affidavit and documents. Both sides filed notes of argument also.
The following points arise for consideration: -
1) Whether there was deficiency in service on the part of opposite parties?
2) Relief and cost?
14. The case of the complainant is that he constructed a villa and entrusted the first opposite party for plastering impressed by the brochures Ext. A1 and B1 issued by second opposite party. The product is called Greensum Plaster which assured life time guaranty against any damage due to poor quality of material. The product was introduced by the first opposite party who is none other than an old student of the complainant and the complainant entrusted the work of plastering area of the villa around 2,577/- square feet for Rs.90,000/-. The opposite party did the work within stipulated time. But thereafter within 5 months the plastering of the villa completely damaged and started to fall down. The villa became ugly which cannot be rented for third parties. The contention of the complainant is that the villa is constructed for his lively hood. Due to the defects to the plastering complainant immediately contacted the opposite parties and the technical workers of the opposite party visited the site and assured rectification of defect. But the opposite parties did not act as assured. Hence this complaint.
15. The contention of the opposite party is that the work was carried out by the opposite parties but the product was only meant for interior plastering and not meant for plastering exterior. The same has categorically explained in the document Ext.B1 which the complainant is very well aware. The first opposite party submitted that they will bring out new product for exterior wok and the present material cannot be used for exterior work. The complainant himself has taken risk of applying the material at the exterior wall and it was due to his compulsion the same was applied on the exterior wall and therefore certain hairline cracks seen in plastering and that was obviously due the compulsion of the complainant. The opposite party also has got a contention that they had advised for the use of good quality primer and good quality water proof paint but the complainant used very low-quality paint without proper application of primer and thereby due to the weather condition hairline cracks seen occasioned at one of the plastered areas. The opposite parties were willing to rectify the defect but the complainant was greedy for money and not prepared for the rectification of alleged defect seen to the plastering. The opposite party also submitted the same was caused due to water clog due to the climatic condition and the ferocious rain affected in the area during August 2018. The submission of opposite party is that the guaranty was given only for the interior plastering and the exterior plastering was purely out of picture.
16. In this complaint the complainant produced Ext. A1and opposite party produced Ext. B1 document, which are brochures of the product. But they are with different averments. The attractive and impressive question projected in both documents is that “why sand for plastering of house. Single material for sand and cement Greensum Plastum വീട് തേക്കാu ഇനി മണv എന്തിന്...? മണv, സിമന്റ് എന്നിവയ്ക്ക് പകരം ഒരൊറ്റ മെറ്റീരിയv ഗ്രീന്സം പ്ലാസ്റ്റര്”: Ext. A1 it has stated life time material warranty, service of qualified labors and dealership throughout state of Kerala. Ext. A1 does not reveals that the product is not meant for plastering exterior of the house. But Ext. B1 brochure produced by the opposite party has got a contention that the product is not meant to use for exterior of the building. But the fact is that the font used for explaining the restriction is in a microscopic size which normally a consumer is not expected to realize at once. The contention of the opposite party is that the product was not meant for exterior use was categorically explained to the complainant but even then, the complainant compelled to use the product for the exterior plastering. But the admitted case of the opposite party is that the villa of the complainant was plastered an area of 2,577 square feet and the opposite party had issued Ext. A2 document dated 27/04/2018 for the same. The certificate state that “we hereby certify that an interior plastering area of 2577 square feet in your house/building is plastered without product Greensum whytal plaster. The complainant produced Ext. A4 series, 4 photo graphs which shows that there is defects in plastering of the villa of the complainant. The defect is apparent one and for that an expert opinion is not required. Moreover, the affidavit submitted by the both opposite parties also admitted that there is defect in plastering to the villa of the complainant. So, the perusal of the affidavit and documents it can be seen that there are defects to the plastering of the villa of the complainant. It is also can be seen that the brochure issued to the complainant and the brochure produce by the opposite party regarding the same product varies by averments. The averment in the Ext. A1 brochure produced by the complainant does not reveal restriction of use of product for the exterior plastering. But the Ext. B1 brochure reveals in a microscopic letter there is restriction for using the material for exterior plastering. The affidavit of the opposite parties admitted the defect to the plastering and they were prepared to rectify the defect, but the complainant was not willing to do the same. Hence it can be seen that there was defective service from the side of opposite parties and through the publication of brochures as part of advertisement with different version, there is unfair trade practice also. So, the Commission holds that there is unfair trade practice and deficiency in service on the part of opposite parties.
17. In this complaint the version and affidavit were filed by first opposite party on his behalf and on behalf second opposite party. But the argument not was filed by the first opposite party alone. The first opposite party submitted that he is only a worker and plastering work was done by the first opposite party using product of the second opposite party. The second opposite party is the manufacturer of product and they supplied the material to the first opposite party for the work and the first opposite party conducted the plastering work under the supervision of second opposite party. The first opposite party submitted that he is not aware of the scientific or technical part of the product and its durability and finishing part. The complainant by reading the advertisement given by the second opposite party decided to do the plastering work of his villa using the product manufactured by the second opposite party and thereafter approached the first opposite party for doing the plastering work. The workers also supplied by the second opposite party with stage wise supervision of the second opposite party. The complainant agreed with second opposite party and decided to use the product of the second opposite party for plastering and the complainant entrusted the work with first opposite party. The argument of the first opposite party is that he is not responsible for the damage caused due to any type of manufacturing defect of the product. The first opposite party argued that the plastering work done by him was with utmost care and caution as per the guide lines given by the second opposite party company. The first opposite party submitted that he got only small amount of Rs.6/- per square feet. The argument of the first opposite party is that there was no such crack, falling down of plastering, ugly look of plastering portion.
18. It can be seen that the version as well as affidavit filed by the first opposite party for himself or on behalf of second opposite party. But at the time of hearing the first opposite party alone filed argument note with the contention which do not find any place in the version or the affidavit. The attempt of the first opposite party is to evade from the liability which may be caused due to defective service of the opposite parties. The perusal of version as well as affidavit the contention is that the product which is only meant to interior plastering was used for the exterior plastering. The complainant at his own risk it was compelled to do by the opposite parties. If the contention of the first opposite party was correct, he could have produced any document to prove that the complainant was served with information furnished in Ext. B1 advertisement. In the absence of evidence to show the same the Commission finds that the complainant approached the opposite parties on the basis of Ext. A1 and the opposite parties provided the material as stated in Ext. A2. Ext. A4 series being the photographs of the defective plastering, we do not consider requirement of any sort of expert report to establish the same. The opposite party admitted that they have received 90,195/- rupees towards the plastering expense. It can be seen that the complainant has not produced any document to establish the expected expense for re-plastering or to rectify the defect in the plastering. So, the only remedy the Commission can provide is to direct the party to refund the cost of material received by them. The complainant is also entitled for a reasonable amount of compensation also. Considering the entire aspects, we allow Rs.50,000/- as compensation on account deficiency in service and unfair trade practice and thereby caused in convenience and hardship to the complainant. The opposite parties also directed to pay Rs.10,000/- as cost.
19. In the light of above fact and circumstances we allow this complaint as follows: -
- The Opposite parties directed to refund pay Rs.90,195/- to the complainant as cost of the product received by the opposite party.
- The opposite parties directed to pay Rs.50,000/- as compensation to complainant on account of deficiency in service and unfair trade practice and thereby caused inconvenience and hardship to the complainant.
- The opposite parties also directed to pay Rs.10,000/- as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite party is bound to pay 12% interest on the above said entire amount from the date of order till realization.
Dated this 27th day of June, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A5
Ext.A1: Photo copy of brochure of Greensum plaster.
Ext.A2: Photo copy of voucher issued by SAAS builder Pookottumpadam dated
15/02/2018.
Ext A3: Letter issued by the second opposite party to the complainant dated
27/04/2018.
Ext A4: series of photographs (4 in numbers).
Ext A5: Photo copy of receipt for Rs.300/- issued by Arun Studio and Video dated
20/07/2018.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Copy of brochure green sum plaster.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
