ORDER<br /> <br /> Sri. Jacob Stephen (President):<br /> <br /> The complainant has filed this complaint against the opposite party for getting a relief from the Forum. <br /> <br /> 2. The brief facts of this complaint are as follows: The complainant originally belongs to France had came down in Kerala in the year 1968 and constructed a permanent residential building in the year 1990 at Aranmula Panchayat. Subsequently in the year 2003, an additional construction was made on the north of adjoining the old building with a sitting space on the ground and a small swimming pool in the first floor. In the year 2004, the complainant noticed a crack in between the old building and the new structure. The walls of the old structure were also started cracking. In the rainy season, there was intense leak through the gap. In order to stop the leakage, the complainant contacted the opposite party who were engaged roofing works and they were entrusted to fill up the gap in between the old building and the new structure. One engineer and workers of the opposite party came down and done the works entrusted to them without executing any agreement or contract and collected Rs.11,774/- on 4.7.2005. Even after the said works, the leaking continues. As the work done by the opposite party was not satisfactory, the complainant sent an Advocate Notice on 29.11.2005 calling upon the opposite party to cure the defect or to pay compensation for the acts of the opposite party. On getting the above said notice, the opposite party sent a reply raising untenable contentions. Even after this, the opposite party has not turned up for curing the defects in the works done by them. The acts of the opposite party is a deficiency of service and he is liable to compensate the damages and cost caused to the complainant. Hence the complainant filed this complaint for seeking an order for realising a total amount of Rs.25,000/- from the opposite party on various heads and cost of proceedings.<br /> <br /> 3. In this case, the opposite party filed his version raising the following contentions: That the complaint is not maintainable either in law or on facts. The opposite party is doing the business of marketing and execution of structural engineering compounds and other allied materials. The complainant approached the opposite party for doing the structural repair work. Accordingly, they have inspected the building and found that there are inherent defects in the structural works of the complainant’s building, which cannot be cured by any easy method. So they advised the complainant to abstain from the suggested work, as it is not advisable for the defects noted in the building. But the complainant persuades the opposite party to do some filling works in the cracks to avoid the leakage. Accordingly, they have done certain works to avoid the leakage. The objective of the work as instructed by the complainant was only to reduce the gap developed in between the 2 structures. They also informed the complainant the demerits of the works well in advance and she was prepared to face the results without any complaint as for her it was only a experiment. After the completion of the work, they have given a bill for Rs.11,774/- which was given by the complainant. They further stated that they have done the work only because of the continuous and frequent request of the complaint and her helpless situation. The inherent and structural defects in the original building further degenerated day by day and work done by them in effective. Because of this, the leakage continued and it is so happened solely because of the original defects existed prior to their work and there is no deficiency of service from their part. So they prays for the dismissal of the complaint with their cost.<br /> <br /> 4. On the above pleadings, the following points were only raised for consideration as the maintainability of this case was already found in favour of the complainant by order-dated 25.7.2006.<br /> <br /> (1)Whether the complainant is entitled to get a relief as prayed for in the <br /> complainant?<br /> (2)Reliefs and Costs?<br /> <br /> 5. The evidence in this case consists of the oral evidence of the complainant who has been examined as PW1 and the documents produced by the complainant, which are marked as Exts.A1 to A3 on the basis of the proof affidavit filed by the complainant. For the opposite party, the opposite party was examined, as DW1 and they have no documents for supporting his case. After closure of the evidence, both sides heard.<br /> <br /> 6. Points 1 & 2: The complainant’s case is that the opposite party is a firm dealing in repairing and construction works of buildings and they are also experts in curing the defects of leaking of the building roofs. So the complainant contacted the opposite party and entrusted the works for stopping the leakage of her building for Rs.11,774/-. Accordingly, the opposite party carried out certain works on the roof of the building by filling the gap of the cracks developed in between the old and new structure. They have filled up the above said gap by using certain materials and receive the money for the works done. The complainant expected a good result in this work, but unfortunately the complaint’s expectation becomes misplaced. Even after the works done by the opposite party, leaking in the building continues. According to the complainant, the opposite party has not take much care in the works by using inferior quality materials. This according to the complainant, said deficiency of service from the part of the opposite party. So she had caused legal notice to the opposite party either to rectify the defective works or to compensate the loss and damages caused to the complainant due to the deficiency of service of the opposite party. But the opposite party has not turned up to yield the demands of the complainant. <br /> <br /> 7. In order to prove the case of the complainant, she had deposed before the Forum in tune of her allegation and produced the bill of the opposite party dated 4.7.2005 for an amount of Rs.11,774/- which is marked as Ext.A1 and the office copy of the Lawyer’s Notice sent by the complainant which is marked as Ext.A3 and the photocopy of the reply notice sent for the opposite party which is marked as Ext.A2.<br /> <br /> 8. The main contention raised by the opposite party is that they have carried out the above said works on the basis of the request and compulsion of the complainant. Before starting the work, they have clearly convinced the complainant that the proposed work will be a waste and nobody can expect good result for this work. The opposite party’s assessment regarding the proposed work was on the basis of the structural defects of the building. The real defect of the building is the crack developed in between the old and the new structure, which cannot be cured by the proposed repair work. <br /> <br /> 9. In order to prove the contentions of the opposite party, the opposite party was examined as DW1. They have not produced any documents in their favour. <br /> <br /> 10. On a perusal of the deposition and Exhibits, it is clear that there is no written agreement between the parties for the execution of the work. In the absence of a written agreement, we are not able to find out the rights and liabilities of the parties of this case. From the available evidence, it is doubtful whether there is any warranty or guarantee for the works undertaken by the opposite party. It is evident from the complaint, Ext.A3 notice, affidavit and the deposition of PW1 that there is a gap in between the old and new structures and it is developing day by day. That gap is the result of the structural defect of the building. The opposite party clearly stated in their version as well as in the deposition that they have not undertaken the works for rejoining the gap and they have undertaken only the filling of the gap. Even after the filling of the gap, the gap in between the 2 structures developed more due to the structural defect of the building. Because of the increase in the gap, leakage continues. They are not responsible for it because they have not given any assurance to the quality of the works.<br /> <br /> 11. Considering the nature of the disputes between the parties, expert evidence is required for the settlement of issues, which is lacking in this case. The complainant failed to adduce expert evidence in this case. From the above discussions, we are of the opinion that the complainant had failed to establish deficiency of service against the opposite party and hence this complaint is not allowable.<br /> <br /> 12. In the result, this complaint is dismissed. No cost.<br /> <br /> Declared in the Open Forum on this the 29th day of August, 2008.<br /> <br /> Jacob Stephen,<br /> (President) <br /> Smt. C. Lathika Bhai (Member) :<br /> <br /> Sri. N. Premkumar (Member) :<br /> Appendix:<br /> Witness examination on the side of the complainant:<br /> PW1 : Louba Schild.<br /> Exhibits marked on the side of the complainant:<br /> A1 : Photocopy of the bill dated 4.7.2005 for Rs.11,774/- issued by the opposite <br /> party to the complainant.<br /> A2 : Photocopy of the Reply notice dated 10.12.2005 issued by the opposite party <br /> to the complainant’s Advocate.<br /> A3 : Photocopy of the legal notice 29.11.2005 issued by the complainant to the <br /> opposite party.<br /> Witness examined on the side of the opposite party:<br /> DW1 : Joby Thomas<br /> Exhibits marked on the side of the opposite party: Nil.<br /> <br /> <br />