O R D E R

Paul Gomez, Member.

1. The complaint stems out of the following facts :

The complainants engaged the opposite party to conduct leak proofing work over the flats owned by 2^nd and the 3^rd complainant. An amount of Rs. 47,040/- was received by the opposite party for the same. But the venture was ultimately proved to be colossal failure. Therefore, they are demanding a total amount of Rs. 60,000/- towards compensation for the deficiency in service on the part of the opposite party.

2. In the version filed by the opposite party, the allegations are denied. He do not admit that he had agreed to perform the leak proofing work. According to him, what he had undertaken to do was to arrange the materials and labour for doing the said work on the terrace. Since the building is an old one naturally one can expect leakage at the terrace. Therefore in his opinion, this complaint lacks bonafides and is devoid of any merit.

3. The complainant was examined as PW1 and Exts. A1 to A7 were marked on their side. The opposite party and his witness were examined as DW's 1 and 2 respectively. Report of expert was marked as Ext. C1. The learned counsel on both sides were heard.

4. The following points emerge for settlement :

1. Whether the leak proofing work was executed by the opposite party?

2. What was the extent of damage?

3. What are the reliefs, if any?

5. Point No. i) :- The dispute is with regard to leak proofing work purportedly assigned to the opposite party on the terrace of the apartments owned by the complainants 2 and 3. They claim that they have paid Rs. 47,040/- to the opposite party to perform leak proofing work. As the work has prove to be total failure, they are demanding Rs. 60,000/- as compensation. The contention of the opposite party is that he has not executed any leak proofing work. What he has done in this regard is the supply of materials and labour and he has levied Rs. 7,840/- as supervision charge. The report submitted by the expert cannot be considered as a report of an expert, rather it is only a one sided argument note in furtherance of the contentions of the complainant. Moreover, the report cannot be relied upon since the expert was not available for cross-examination as he was bed ridden due to terminal disease. Hence the opposite party urges us to dismiss the complaint with costs.

6. The opposite party disowes any liability mainly due to the fact that he has not executed the impugned leak proofing work. He has neither submitted any quotation nor received any remuneration other than that for supervision of the work. He admits that he has supplied materials and labour. But the materials before us speaks otherwise. Ext. A1quotation for repainting devotes a portion of it for specifications regarding terrace leak proofing. Ext. A2 is more specific in nature where the title of the document itself states that it is bill for terrace leak proofing works. Grand total for the work is given as Rs. 47,040/-. The bill provides the break up of prices and charges of materials and labour. Ext. A3 letter furnished to the Executive Committee by the 2^nd and 3^rd complainants also corroborates the proposition that work undertaken and executed by the opposite party was one of leak proofing and not that of merely supplying materials and labour. The same has been reinforced by Ext. A4 letter. Hence, we have no hesitation in concluding that the work assigned to the opposite party was one of leak proofing on the terrace and not that of supervision of the work.

7. Point Nos. ii) & iii) :- An expert commissioner was appointed by the Forum to examine whether there was still leakage on the roof and such other incidental matters. He has submitted a detailed report after inspecting the site and examining the matters specified in the I.A. leading to his appointment and the work memo submitted by the parties. Eventhough, the report was marked as Ext. C1, due to some sad turn of events, he could not mount the box. The opposite party has vehemently challenged the veracity of the report. Whereas the expert was not available for cross-examination, it is not legally permissible to adduce much credence to the report. Still both parties agree upon the fact that truss work has been done over the roof of the impugned flats. This goes to show that in spite of the efforts made by the opposite party to prevent seepage of water through the concrete roof, the complainant had to finally depend on truss work to provide comfort from percolation of rain water in side through concrete roof. In this regard, the finding of the expert in para E is pertinent to note. He reports that the spots through which water percolates are the corresponding spots over which work was done by the opposite party. This finding clearly indicates that the leak proofing work done was a failure. Regarding the extension of damage to the complainants on account of deficiency in service on the part of the opposite party, we have no reliable evidence other than the report of the expert. In the face of the expert not being cross-examined by the opposite party, we cannot unduly depend on the report to assess the extent of damage. Any how, some guess work cannot be avoided in calculating the quantum of damage. The complainants have urged us to direct the opposite party to pay Rs. 60,000/- towards compensation. Keeping in view, the amount incurred by them for leak proofing and subsequent expense for carry out truss work over the same roof, we do not think that the said amount is an exaggerated figure. In the facts and circumstances of the case, the complainants are not entitled for any other reliefs.

8. To wind up, the complaint is allowed and the opposite party is directed to pay the complainants 2 and 3 a total amount of Rs. 60,000/- (Rupees sixty thousand only) towards compensation for the deficiency in service in carrying out the leak proofing work, which amount is equally divisible between them.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the aforesaid sum shall carry simple interest @ 12% p.a. from the above stipulated date.

Pronounced in open Forum on this the 30^th day of June 2011.