DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  31^st  day of  July, 2023 

Present      :    Sri. Vinay Menon V., President

                  :   Smt. Vidya A., Member                       

                  :   Sri. Krishnankutty N.K., Member                               Date of Filing:  28/09/2020     

                                                                                  CC/117/2020

Mahesh,

S/o. Ashokan,

Kavalathupadam House,

Mudappallur, Palakkad                                                -            Complainant

(By Adv. Sreenath Venu)

                                                                                    Vs

1. Sarath Kumar,

Proprietor,

Build Arch Developers,

Opp. Shiva Temple,

Methancode, Vandazhi (PO),

Palakkad. 

2. The Proprietor,

Sandline Adhesives,

Perundurai, Erode,

Tamilnadu – 638 056.                                                -           Opposite parties  

            (OP1 by Adv. Sreejith S.

              OP2 set exparte)  

O R D E R

By  Sri. Vinay Menon V., President

1. The complainant entered into an agreement with OP1 to plaster his residential building using the product manufactured by the 2^nd opposite party. The cost of the project was Rs.33.5/- per sq.ft for 10,000 sq.ft. The work extended from 15/5/2020 till 27/7/2020. After plastering it was found that the plaster was dusting out and its adhesive quality was very less. Aggrieved thereby the complainant caused issuance of lawyers notice for which there was no reply. Hence this complaint.
2. Opposite party No.1 entered appearance and repudiated complaint pleadings. The opposite party stated that the complainant had opted for the plaster that was applied after seeing another project. After the complainant had raised the complaint, the 2^nd O.P. had inspected the site and had informed that the plastering used for the complainant was different from what was used in the earlier project that was shown to the complainant.  Hence,  the first opposite party recommended using of putty.  The 2^nd party found it difficult to supply the putty in view of Covid restrictions. Without considering the practical difficulties, the complainant filed this complaint. The complaint is only liable to be dismissed. The MOU entered into between the complainant and first OP is not enforceable through this Commission and is enforceable only through a Civil Court.
3. O.P. 2 did not enter appearance and was set exparte.
4.  Based on the pleadings,  the following Issues are to be decided:

1. Whether OP 1 has carried out the works and is liable and responsible?
2. Whether the product supplied by OP2 is defective in nature?
3. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties ?

4.         Whether the complainant is entitled to receive any of the reliefs sought for ?

5          Any other reliefs?

5.(i)      Complainant adduced documentary evidence which are marked as Exts. A1 to A5.            Even though the OP1 had filed application to cross examine the complainant they failed to cross examine the complainant within time granted. Hence evidence was closed. Thereafter the OP filed another application as I.A. 187/2023 to recall witness. But the Opposite parties had filed this application without serving a copy and had wasted over one and half months. Hence this IA was rejected.  Thereafter the OP had made no attempts to reopen the evidence till taking the matter for orders on 19/7/2023.  

   (ii)     OP1 filed proof affidavit. They had no documents for marking.

   (iii)    Commission report filed by the advocate commissioner was marked as Ext.C1. There was no objection to marking the same. No objection was filed to Ext. C1 also.      

Issue No. 1

6.         1^st O.P.’s contention was that he was not a party to the agreement with the complainant and 1^st OP had no knowledge regarding the complainant’s transactions with the 2^nd O.P.  The product was purchased by the complainant himself. The rate fixed as Rs.33.5/ per sq.ft was inclusive of the cost of product and labour.  The project of the construction was not done by the first opposite party and he has no obligation and liability to the complainant. The complainant has himself completed the work of puttying   and the 1^st opposite party has nothing to do with puttying.  (At this juncture we would like to make it clear that there is some ambiguity regarding the style in which the version is prepared.)

7.         In order to substantiate his case, complainant has produced and marked Ext.A1. The complainant has no case that this document was not issued by them. His only case is that enforcement of the terms and conditions of this document can be made only through a Civil Court. Hence, it stands proved that the 1^st OP had issued Ext. A1, which was accepted by the complainant, thereby giving rise to a valid agreement.

8.         Ext. A5 is the reply notice issued by the 1^st O.P. In the 2^nd page, at the start of the 2^nd paragraph, the O.P.1 has admitted that the complainant had raised a complaint after completion of the work. In paragraph 4 of the version also the 1^st party has made the same statement, which can be construed as an admission of the fact that the 1^st O.P. had completed the works as per Ext. A1 agreement.

9.         Thus it is clear that the 1^st O.P. has carried out the work in terms of Ext. A1 and can be proceeded against.

             Issue No. 2     

10.       The unambiguous case of the complainant is that the plaster which was purchased by the complainant and applied by the first opposite party started dusting out. In order to prove his case he took out an expert commissioner. The expert commissioner submitted his report which was marked as Ext.C1. As already stated supra, none of the parties had filed objection to Ext. C1.

                        Contents of Ext.C1 can be divided into two parts.  One part is with regard to the workmanship carried out by the 1^st opposite party and the 2^nd part is with regard to the cause for the peeling off and dusting off of the plastering.

            Observation regarding workmanship of OP1.

11.       With regard to the work carried out by the first opposite party the relevant part of the report is seen in page No.2 of Ext.C1 (shown as page No.4).

            “Quality of work:- The workmanship of plastering seems to be fine as it is trowelled smooth and gives a putty finish even without applying putty”. 

            The 2^nd reference with regard to the workmanship find place in the 2^nd paragraph in the same page under the heading “Remedial Measures Taken”.

            Line 4 in para 2 – “…Application of putty is not a remedy for the defect in plastering because it is not the quality of workmanship that affected the strength of plaster”.

12.       Thus the expert commissioner has reported that the workmanship is not at fault. No objection whatsoever is forthcoming regarding the finding of the expert commissioner in Ext.C1.

            Observation regarding Product Quality

13.       In the same page, in the paragraph starting with “Quality of Work”, the expert has stated as follows:

            “…At many places the plastering seems to be weak in strength, which can be removed even with nail scratch. The nail holding capacity of the plaster is also much less which is evident from the peeling of plaster where the pipe lines are fixed to walls using clamps”.

14.       The “Observations and Inference” of the expert commissioner is as follows:

            “1) The strength of plastering done is poor as it is evident while checking the abrasive strength.

            2) Nail holding capacity is less as it is evident from peeling of plaster were nails are driven.

            3) This can happen due to many reasons like reduced usage of cement in mixture, (from brochure  it is 1:4), longer period in storage (shelf life is shown as 6 months), improper curing, quality of water used for mixing and curing, atmospheric conditions etc. Since as the quote was made for supply and application of ready mix plaster, it is the duty of the contractor / applicator to ensure all these factors. 

            4) Plastering is not a part of structural support to the building. Hence it can be made fairly fool proof by applying two coats of exterior quality wall putty. This can prevent further deterioration of plaster.  The cost of the same would be Rs.96,000/- (Rs.10 per sq.ft x 9600 sq.ft approx) any branded exterior quality putty can be used for this purpose”.

15.       In observation 3, the expert commissioner has stated that  as the quote was made for supply and application of ready mix plaster, it is the duty of contractor to ensure that all care has to be taken. This observation finds support in Ext. A1 agreement. Clause 5 of Ext. A1 states that “The application process should be according to the guidelines suggested by the company.” The 1^st O.P. was bound by agreement to adhere to the terms and conditions of Ext. A1.

 16.      The following facts can be ascertained by a reading of the aforesaid documents:

            1.         Workmanship of the 1^st O.P. is not at fault.

            2.         Abrasive and nail holding capacity of the plaster is less.

            3.         Cause of this problem may be due to problems, which the contractor (1^st O.P.)     ought to have taken note of.

            4.         Clause 5 of Terms and Conditions in Ext. A1 supports the observation of the          expert commissioner that the 1^st O.P. had to carry out the application process in accordance with the guidelines suggested by the company.

17.       Thus it is clear that the product is not defective, the application process is.

            Issue No. 3.

18.       It may seem that there is a contradiction in Ext. C1 report, when the expert commissioner states that the workmanship is not at fault, but the contractor failed to take note of the various guide lines made by the company. We attribute the confusion to the limitations of language.

                        The application process includes step by step procedures. From taking it out of the bag, preparing the mixture in its appropriate ratio and the actual process of plastering (applying) is a set of individual processes forming part of a single process, application. Expert was referring to the process of laying of plaster when he referred to the workmanship being good. But this statement does not apply to the procedures like usage of cement, checking the period of expiry, curing process, water quality etc. On these counts, the 1^st O.P. failed to take adequate care.

19.       Thus we hold that the complainant succeeded in proving deficiency in service on the part to the 1^st O.P.

            Issue Nos. 4 & 5 

20.       Apropos the findings in the Issues above, we hold that the 1^st O.P. is liable and responsible to make good the loss suffered by the complainant. The complainant has stated that the damage could be rectified by way of applying 2 coats of exterior quality wall putty. But this report was made as early as 18.01.2021. We are unaware of the present condition of the complainant’s house. At this juncture, after over 2 years and 6 months the entire plastering would be ruined. It would suffice to say that the application of plaster by the 1^st O.P. was botched up. The complainant could not enjoy the fruits of the money expended due to the negligence of the 1^st O.P. The nature of the damage is not something that can be separated from the other. Hence the complainant is to be reinstated to his position as he had been before entering into an agreement with the 1^st O.P. Therefore we allow the complaint holding as follows:

1.         The 1^st O.P. is directed to pay Rs. 3,35,000/- to the complainant with interest at    the rate of 10% from 28/09/2020 (date of filing of complaint) till date of repayment.

2.         The 1^st O.P. is directed to pay Rs. 25,000/- as compensation to the complainant.

3.         The 1^st O.P. is directed to pay Rs. 15,000/- as cost of these proceedings to the  complainant.

4.         The 1^st O.P. shall comply with the above order within 45 days from receipt of this Order failing which the1st O.P. shall be liable to pay Rs. 200/- per month or part thereof till the date of final payment.

                  Pronounced in open court on this the  31^st  day of July, 2023.        

                                                                                                                                Sd/-

                                                                                                            Vinay Menon V

                                                                President

                        Sd/-

                   Vidya.A

                                        Member        

               Sd/-                                                 Krishnankutty N.K.

                                                                                                                               Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 –  Original quotation dated 15/5/2020

Ext.A2 – Original postal receipts

Ext.A3 – Original Postal acknowledgment   

Ext.A4 –  Original unclaimed notice  

Ext.A5 – Original reply notice issued by OP1

 Exhibits marked on the side of the opposite party:

Nil

Court Exhibit: 

Nil

Third party documents: 

 Nil

Witness examined on the side of the complainant:

Witness examined on the side of the opposite party: 

Nil

Court Witness:

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.