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O. Sivanandan Vs. C.K. Kumaran - Court Judgment

LegalCrystal Citation
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided On
Case NumberFirst Appeal No. 158 of 2006 (Arisen out of Order Dated null in Case No. of District)
Judge
AppellantO. Sivanandan
RespondentC.K. Kumaran
Excerpt:
.....was given for a period of 15 years from 10.6.2002 to 10.6.2017. a2 is the specification of the water proofing work performed by the appellant/opposite party. a2 particulars of work and cost of the said work would show that the appellant/opposite party has done water proofing, plastering and some other extra work amounting to a total of rs. 73,851.40 issuance of a1 and a2 documents is admitted by the appellant/opposite party. it is true that a1 guarantee certificate issued by the opposite party o. sivanandan as applicator would show that roofit mix water proof plaster s.p.506 was used for the water proof work. it is to be noted that the appellant/opposite party has also undertaken the work of plastering. it is further to be noted that a1 certificate would also show that the contract.....
Judgment:

SHRI. M.V. VISWANATAN : JUDICIAL MEMBER

The appellant is the opposite party and respondent is the complainant in C.C. 131/05 on the file of CDRF, Kozhikode. The complaint therein was filed alleging deficiency in service on the part of the opposite party in doing the leak proofing work for the house of the complainant. The complainant claimed refund of the amount of Rs. 73,851.40 received by the opposite party for doing the leak proofing work and also for compensation of Rs. 25,000/- for the mental agony suffered by the complainant, and also for the financial loss to the tune of Rs. 1,00,000/- with cost.

2. The opposite party entered appearance and filed written version denying the alleged deficiency in service. He took the contention that the complainant is not a consumer coming within the ambit of Consumer Protection Act and that the complaint is bad for non joinder of the manufacturer of “Roofit Mix Water Proof Plaster S.P. 506” that the guarantee was issued by the manufacturer and that the manufacturer will be liable for the quality of the substance. It is further contended that the complainants building was having structural defect and so the opposite party is not liable to rectify the leakage. The opposite party has also contended that the complaint is filed to avoid payment of the balance amount of Rs. 23,851/- due from complainant to the opposite party. Thus, the opposite party prayed for dismissal of the complaint.

3. Before the Forum below, the complainant was examined as Pw1 and the opposite party as Rw1. Exts. A1 to A4 and B1 were marked on the side of the parties to the said complaint. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 29th December 2005 allowing the complaint and thereby directing the opposite party to make the subject building completely leak proof within 2 months from the date of the said order, failing which the opposite party is made liable to pay Rs. 50,000/- as damages to the complainant. The complainant is also awarded compensation of Rs. 10,000/- with cost of Rs. 500/- Aggrieved by the said order the present appeal is preferred by the opposite party therein.

4. When this appeal was taken up for final hearing there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the Memorandum of the present appeal. He argued for the position that the complainant has not succeeded in establishing his case of deficiency in service. It isfurther submitted that the complainant in C.C. 131/05 is not maintainable as the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. Thus the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below.

5. The points that arise for consideration are ;

1)Whether the respondent/complainant can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986?

2) Whether the complaint in C.C. 131/05 is bad for non joinder of necessary party?

3) Whether the complainant inC.C. 131/05 on the file of CDRF, Kozhikode had succeeded in establishing the alleged deficiency in service on the part of the opposite party?

4) Is there any sustainable ground to interfere with the impugned order dated 29th December, 2005, passed by CDRF, Kozhikode in C.C. No. 131/05?

6. Points 1 and 2 : Admittedly the respondent/complainant entrusted the leak Proofing work to the appellant/opposite party and that the appellant/opposite party completed the aforesaid work on 10.6.2002. The appellant/opposite party has also issued A1 guarantee certificate dated 10.06.2002. As per A1 Guarantee Certificate a guarantee was given for a period of 15 years from 10.6.2002 to 10.6.2017. A2 is the specification of the Water Proofing work performed by the appellant/opposite party. A2 particulars of work and cost of the said work would show that the appellant/opposite party has done Water Proofing, Plastering and some other extra work amounting to a total of Rs. 73,851.40 Issuance of A1 and A2 documents is admitted by the appellant/opposite party. It is true that A1 guarantee certificate issued by the opposite party O. Sivanandan as applicator would show that Roofit Mix Water Proof Plaster S.P.506 was used for the Water Proof Work. It is to be noted that the appellant/opposite party has also undertaken the work of plastering. It is further to be noted that A1 certificate would also show that the contract of Chemical leak proofing work was undertaken by the opposite party without the consent or convince of the manufacturer, Roofit Mix Water Proof Plaster S.P. 506. It is further to be noted that the respondent/complainant had no occasion to purchase the Roofit Mix from its manufacture. It is also to be noted that the appellant/opposite party purchased Roofit Mix Water Proof from the manufacturer. The guarantee if any given by the manufacturer was only to the appellant/opposite party. As far as the respondent/complainant is concerned, the guarantee for the said work was given by the appellant/opposite party. So the complaint filed without incorporating the manufacturer as a party to the complaint can be treated as proper. As far as the complainant is concerned, the manufacturer of Roofit Mix Water Proof Plaster S.P. 506 is not a necessary party. If that be so, the Forum below is perfectly justified in rejecting the contention of the appellant/ opposite party that the complaint is bad for non joinder of necessary party.

7. The appellant/opposite party contended that the respondent/complainant is not a consumer under the Consumer Protection Act. 1986. Admittedly, the complainant entrusted the contract work with the opposite party in the year 2002 and the said work was completed on 10.06.2002. The appellant/opposite party, has admitted in his written version that the work was performed on a total cost at Rs. 73,851.40 and that he received Rs. 50,000/- from the complainant. It can be seen that the appellant/opposite party received consideration for the work which was entrusted to him. In such a situation, it can be concluded that the respondent/complainant availed the service of the appellant/opposite party for consideration. Then, it can be held that the complainant who availed the service of the appellant/opposite party on consideration is a consumer coming within the ambit of the Consumer Protection Act. 1986, as it stood on 10.06.2002. Thus, it can be seen that the transaction between the complainant and the opposite party came into existence prior to the amendment by Act. 62 of 2002. The aforesaid amendment came into effect on 15.3.2003. Prior of the said amendment, service hired or availed for commercial purpose was also included by the Consumer Protection Act, 1986.

8. The complainant alleged deficiency in service on the part of the opposite party in executing the said work which was completed on 10.6.2002. So, the complainant who availed the service of the opposite party can be considered as a consumer coming within the ambit of the consumer Protection Act. 1986. The Forum below has rightly relied on the decision rendered by the Honble National Commission in Lt. Col. B.N. Sharma Vs. M/s. S.T.P Ltd. Reported in 1992 (1) CPR 777. The transaction involved in the aforesaid reported case (Supra) was also related to Water Proofing treatment done by the opposite party therein and that the service therein was also availed prior to the amendment Act, 62 which came into effect on 15.3.2003. Moreover, the service availed by the complainant in getting the water proof work done has nothing to do with earning of profit. The complainant availed the service of the opposite party for doing the contract work of water proofing inorder to prevent leakage of water in the complainants house. The said service availed by the complainant can not be treated as the service for commercial purpose.

9. It is to be borne in mind that earning of profit is integral part of commercial activity. But in the case of letting out a residential building for occupation can not be considered as a commercial activity. A person can invest his money by investing the same in F.D in a commercial bank and thereby he may earn income by way of interest. The aforesaid earning of income can not be treated as earning of profit. Likewise, a person may invest his money for purchasing residential building or for constructing a residential building. Subsequently, he may let out the said building on rent. The earning of rent by letting out his residential building will not come under the term commercial activity. Earning profit is entirely different from earning income. A person may be earning income from his employment in government service or in a private concern. Earning of income by such employment would not amount to earning of profit. The aforesaid examples cited above would show that the complainant who earned income by letting out his residential building would not come under the term commercial activity or commercial purpose. The contention of the appellant/opposite party that the complainant availed the service of the appellant/opposite party for commercial purpose can not be accepted.

10. The definite case of the appellant/opposite party is that the respondent/complainant availed the service of the appellant/opposite party for effecting water proofing for the said building and subsequently the respondent/complainant let out the said building for rent. If that be so, the service availed or hired by the respondent/complainant had no direct nexus or link with the so called commercial activity or commercial purpose. Thus in all respects, it can very safely be concluded that the complainant who availed the service of the opposite party is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. Hence these points are found against the appellant/opposite party.

11. Points 3 and 4 :- Respondent/complainant availed the service of the appellant/opposite party for preventing the leakage to the subject building. The appellant/opposite party executed the aforesaid contract work on a total consideration of Rs. 73,851.40 Ext. A2 particulars of the said contract work issued by the appellant/opposite party would establish that fact. Issuance of A2 document is not disputed by the opposite party. The appellant/opposite party has also issued Ext. A1 guarantee certificate dated 10.6.2002. The aforesaid guarantee certificate would make it clear that the appellant/opposite party had given guarantee for the said work for a period of 15 years ranging from 10.6.2002 to 10.6.2017. It is the definite case of the respondent/complainant that the work executed by the appellant/opposite party was defective and during the guarantee period there occurred leakage of water. It is also to be noted that the complainant categorically pleaded that the leakage of the building was noticed just 2 years of the completion of the water proof work. The fact that during 2004, the complainant approached the opposite party alleging deficiency in service on the part of the opposite party is rather admitted. The opposite party as Rw1 categorically admitted that the complainant approached him during 2004 with the complaint of leakage to his residential building which was repaired by the opposite party. Issuance of A3 lawyer notice and A4 Reply Notice during December, 2004 would also make it clear that there was leakage of the said building which was repaired by the opposite party during June, 2002. Thus, it can be seen that there was defect in the water proofing work carried out or executed by the opposite party. The guarantee provided for 15 years did not get to the complainants building. The evidence on record would show that the assurance given by the opposite party by issuing A1 Guarantee certificate could not be fulfilled. The Forum below is perfectly justified in holding that there was deficiency in service on the part of the opposite party in doing the water proofing for the building earned by the complainant.

12. The opposite party as Rw1 has got a case that there was structural defect for the building. The complainant has only deposed that there was leakage to his building and he entrusted the water proofing (leak proofing) work with the opposite party. He also deposed that the leakage occurred due to defective construction. The mere fact that the complainant as Pw1 has deposed that there was defective construction can not be taken as structural defect. No way it is admitted by the complainant that his building was having structural defect. It is to be noted that structural defect to building is not covered by A1 guarantee certificate. But, the opposite party has not succeeded in establishing his contention that the said building was having structural defect. It is further to be noted that the opposite party has also done the plastering work for the roof of the building. The aforesaid plastering work was done for the sole purpose of preventing leakage in the roof. But even there after, the said building was having leakage within 2 years of the water proofing work. Thus, the appellant/opposite party is answerable for the leakage to the said building. The leakage was noticed by the lapse of 2 years of the water proofing work.

13. The learned counsel for the appellant/opposite party argued for the position that the complainant failed to establish the alleged deficiency in service he also pointed out that the complainant has not adduced any expert evidence to show that there was leakage to the said building which was repaired by the opposite party by doing the chemical leak proofing work. It is to be noted that the complainant filed O.P. 131/05 alleging deficiency in service in doing the water proofing work by the opposite party. The opposite party entered appearance and filed written version. But in his written version, there is no case for the opposite party that there was no leakage to the roof of the said building within 2 years of the water proofing work done by him. A reading of the written version filed by the opposite party would make it clear that there occurred water leakage to the said building even after doing the water proofing work during June, 2002. It is the case of the opposite party that the building was having structural defects and some other defects in the construction and that the building is very old one and that is why the said building happened to have leakage even after doing water proofing work. It is the case of the opposite party that he had not given any guarantee for the water proofing work done by him and that he can not be made liable to pay compensation to the complainant. It is further to be noted that the complainant issued A3 lawyer notice and the opposite party issued A4 reply notice. In A4 reply notice, also the opposite party had no case that there was no leakage to the building after doing the water proofing work during June, 2002. On the otherhand, in A4, reply notice, it is contended that the building is more than 25 years old and the construction was done by the complainants father and the leakage of the building occurred not due to his deficiency in service but on account of the inherent defect and old age of the building. The opposite party as Rw1 has categorically deposed that he was aware at the beginning itself that the leakage of the said building could not be avoided. He categorically deposed that even at the time of doing the water proofing work he was sure and certain that there may occur water leak to the said building. He was of the view that the leak proofing can be done only for a period of 5 years. Thus, the admission on the part of the opposite party would make it clear that there was no necessity for expert evidence to establish the alleged deficiency in service on the part of the opposite party. The Forum below can be justified in finding deficiency in service on the part of the opposite party and thereby directing the opposite party to make the subject building. Leak proof at the cost of the opposite party with a default clause to pay Rs. 50,000/- damages in the event of failure on the part of the opposite party in making the building completely leak proof. The Forum below is also justified in awarding compensation of Rs. 10,000/- to the complainant with cost of Rs. 500/- Thus, the impugned order passed by the Forum below is to be upheld. There is no reasonable ground warranting interference at the hands of this Commission. These points are answered accordingly.

In the result, the appeal is dismissed. The impugned order dated 29.12.2005 passed by CDRF, Kozhikode, in C.C. No. 131/05 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.


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