BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
Complaint No.: 119/2016
DATE: 12.08.2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complainant/s:
- Shri.R.V.Chimmalagi,
R/o: No.F3, 1st Floor,
Shreyas Appt,Keshavanagar,
State Bank Colony, Dharwad-580007.
(M) 9480941938
2. Shri Koppalkar
3. Shri Hebsur.R.V
4. Shri Bhat Bolan .V.R
5. Shri Bhat.T.G
6. Shri Kulkarni.S.R
7. Shri Jamakhandi.P.H
8. Shri Mutalik.V.N
9. Shri K.M.Mudhol
10. Shri Jakati.S.N
(In person)
V/s
Respondent/s: Shri Santosh G.Gabbur, Proprietor,
M/s S.G.Enterprises,
Expert in water proofing,
No-1, Aditya Arcade Bldg,
Beside Nayak & Company,
Near District Court, P.B.Road,
Dharwad-580008.
(M) 9945305590/7411239097
(Adv.Shri.M.B.Pujar)
O R D E R
By: Shri. B.H.Shreeharsha: President.
1.The complainant has filed this complaint claiming for a direction to the respondent for completion of the work before commencement of the monsoon 2016 or to repay the amount paid and to grant such other relief.
Brief facts of the case are as under:
The case of the complainants is that complainants are the flat owners of “Shreyas apartment”. In the year 2014 the complainants have noticed leakage in the slab and tank. Hence they approached the respondent and entrusted the work of water proofing solution to their common terrace and overhead tank. As such the respondent gave quotation for Rs;1,41,770/- to complete the work . But the complainants have agreed to pay Rs; 1,35,000/- and paid Rs;1,25,000/- on different dates on instalments and kept Rs;10,000/- due. The respondent had assured guarantee of the performance for 5 years. The work carried out by the respondent is not satisfied and leakage continues. Due to leakage the complainants have sustained damages to their domestic items. This was repeatedly brought to the notice of respondent by phone and also requested to carry out repair work. But not attended. Since monsoon was approaching the complainants got issued notice to the respondents on 16/4/2016 calling upon to carry out the repair work, but not replied nor complied despite service of the notice. Which amounts to deficiency of service. Hence the complainants have filed the instant complaint praying for the relief as sought.
In response to the notice issued by this Forum the respondent appeared and contest the matter by filing detailed written version. The respondent protest the complaint contending that the very complaint as brought is not maintainable either in law or on facts. Further the respondent taken contention that the respondent is not aware of the entrustment of leak proofing work as per the quotation and pray for dismissal of the complaint. Among such other admissions and denials the respondent admits the quotations and also the consent given by the complainant to carry out the work at the cost of Rs;1,35,000/-. While the respondent denied the guarantee of 5 years for performance with regard to the work done . Further the respondent denied all other complaint awarements and put the complainants to strict proof of the same. Further the respondent avered when the leak proofing works was taken the respondent noticed heavy cracking and wide damage both in the terrace and tank. After that the same was brought to the notice of the complainants and informed to them that mere leak-proof solution work is not sufficient in order rectify the damage gleeting coba work to be carried out which requires additional cost. For that the complainants have told to do solution work after that they will see. Hence as per the wish of the complainant’s solution treating work was done. In the month of May 2014 the complainants have paid only Rs:1,15,000/- and remaining amount have not been paid. Still the complainants have to pay Rs;16,770/- further the respondent aver even after solution treatment the complainants called and the respondent attended and done additional work. But the complainants have not paid for those works. Further the answering respondent taken contention that at any time the respondent has not given any guarantee as such the respondent has not committed any deficiency in service and pray for order for payment of balance amount kept due by the complainants and to dismiss the complaint with heavy cost.
On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
The complainant and respondent have admits sworn to evidence affidavit. Complainant relied on documents. Heard. Perused the records.
Finding on points is as under.
- In negative
- In negative
- As per order
R E A S O N S
P O I N T S 1 & 2
On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the facts the complainants have entrusted the work to the respondent and the respondent had carried out.
Now it has to be determine whether the respondent has committed deficiency of service? If so, for what relief the complainant is entitle.
Since the facts have been revealed in detail which requires no repetition
Crux to be determine is whether the respondent had given 5 years guarantee towards performance of the works carried out as contended by the complainant.
On going through the pleadings of the both the parties, the complainant contended the respondent has given five years guarantee .While the respondent disputes and denied the same. Though the complainant has not pleaded in the pleadings at the time of argument LC for complainant brought to the information of this Forum that the complainants have occupied the premises in the year 1996 . In the month of May 2014 they have noticed leakage in the slab as well as in the overhead water tank on the terrace[d1] . After that on the advice of complainant’s well-wisher one Koppar the complainant approached the respondent and entrusted the work to the respondent based on the resolution adopted by the complainants. At the time of quotation the respondent assured the complainants five years guarantee towards the performance of the work and further assured no leakage for five years. But the works carried out by the complainant not satisfactory and leakage continues. While the respondent denied these facts and contended on looking into the condition of the terrace, the respondent told the complainant that solution treatment is not sufficient for the damages, it requires gleeting coba work and it costs more than that of the quotation given for water proofing solution leakage treatment. During that time the complainant have insist to carryout work as per quotation by water proof solution treatment. Accordingly he done the work. But the complainant have not settled the amount as undertaken by them and kept due of the same. Even thereafter the complainant approached and accordingly the respondent attended and carried out additional work but the complainants have not paid any amount. Hence the respondent pleaded no deficiency in service, contending that at any time he has not given any assurance or guarantee. Perusal of Ex.C-1 to 3 quotations do not reveals any assurance or guarantee as contended by the complainant. It is also the case of the complainant that based on the resolutions adopted by the complainants the work was entrusted to the respondent. But the complainant did not produced any documents to show that they have adopted resolution and while giving quotation the respondent had assured and given five years warrantee. In the absence of evidence in support of the contentions taken by the complainants that the respondent had assured 5 years guarantee cannot be acceptable and believed. Further as per the own admission of the complainants they have occupied the flats in the year 1996 and as per their own admission for leakage they approached the respondent in the year 2014 i.e., after lapse of 18 years. By this it cannot be take away from the inception of construction till 2014 the terrace was not leaking. There might be leakage from its inception i.e., from the date of constructions. Under those circumstances there are chances of detoriation of the structural materials during these period. And weaken the terrace causing more damages and mere water proofing solution treatment is not sufficient to stop leakage as contended by the respondent. Taken into consideration of the circumstance and position of the building it require gleeting coba work as contended by the respondent.
In the mean time during the time of the prosecution of the present complaint this Forum advised both the parties to arrive for amicable settlement and to put end for the disputes. The attempt failed, resulting for the instant order on the complaint.
As discussed supra the complainants have fairly failed to establish their case of deficiency in service, hence complainants not entitle for any relief much less the reliefs as claimed. Both in the pleading as well as in the evidence the respondent pleaded the complainants are in due of the amount for the works he had carried. The complainants also admits the same. Since the complainants have not been satisfied with the works, it is not fare and proper to direct the complainant to pay the same or to claim the same by the respondent. The due amount has been waved by this order.
In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively and accordingly. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
Order
Complaint is dismissed. No order as to cost.
(Dictated to steno, transcribed by her and edited by us and pronounced in the open Forum on this day on 12th of August 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
GDB