SOUTHERN EXPLOSIVES vs CENTURY PEST CONTROL SERVICES LTD

THE complainant in O. P. 624/99 on the file of District Forum, Chennai (South) is the appellant herein. The case of the complainant was as follows:

IN September 1998, the complainant noticed the presence of termite in some wooden cup boards in their office at No. 161-A Greams Road, Chennai-6 which was a then recently constructed 3 storeyed building with all modern facilities. The complainant had let out a portion in the ground floor to another Company and they were having their office there. The complainant after consulting experts, decided to spray anti-termite chemical in the affected area and also do such other treatments as advised by the pest/termite control experts. With a view to permanently eliminate termites, the complainant invited offer from several pest control concerns. The opposite party gave an estimate of Rs. 24,700 and assured that the complainant had to do complete spraying of pesticides on the walls, ceilings, fittings, furniture, flooring and other uncovered area in the premises. Termite attack would not relapse or be found again in any place in the premises. The complainant believing the words of the opposite party permitted them to carry out their work as desired and by spraying necessary pesticides and chemicals in the entire building. The opposite party after they completed their work, issued a certificate of guarantee for 5 years and assured the complainant that the premises would be safe from subterranean termite for a period of 5 years from 1. 12. 1998. The opposite party was paid Rs. 24,700 on 25. 12. 1998. On 16. 2. 1999, the complainant noticed termite attack in one of the cup-boards in the premises. The opposite party was informed by the complainant to repay the amount of Rs. 24,700 collected and also damages. The opposite party acknowledged the receipt of the letter, but failed to visit the premises of the complainant to prevent future recurrence. The complainant took all possible steps to reduce further damage and kept the undamaged files, books, etc. separately. The complainant noticed the attack of termite in some other areas including the floor, lofts, and the directors, cabins. The loss caused could be in the region of Rs. 1,50,000. The complainant called upon the opposite party by notice dated 27. 5. 99 to repay the entire amount collected and also pay a sum of Rs. 2 lakh by way of damages. Though the opposite party offered to do the needful, it failed to carry out any work in the premises and again on 8. 7. 1999 the termite had attacked and caused further damage. The opposite party had not done their work properly. They had not used proper chemicals. In the said circumstances, the complaint came to be filed. The opposite party resisted the complaint contending inter alia as follows: The complaint was not maintainable: The complainant was not a person within the meaning of Section 2 (1) (m) of the Consumer Protection Act. The opposite party never gave any promise that the termites would never attack a building after treatment and in the letter dated 7. 11. 1998, the opposite party clearly stated that it was impracticable to trace the colony in the soil and eliminate it. The opposite party promised in their letter dated 23. 11. 1998 that they could check up once in six months on payment of a sum of Rs. 500 and spray insecticides. Even in the guarantee letter, the opposite party informed that they would carry out such treatment as might be necessary at no extra cost. The complainant placed the order by their letter date 26. 11. 1998 and then only, the opposite party gave a letter of guarantee dated 1. 12. 1998. The complainant informed the opposite party over telephone about the appearance of termite on 16. 2. 1999 and immediately the service crew of the opposite party went to the premises of the complainant and administered treatment without charging any fee. Again, the opposite party attended the complaint on 25. 2. 1999 on receipt of letter dated 23. 2. 1999 from the complainant. It was not correct to say that the stationery and furniture in the premises of the complainant got damaged as also the floors, lofts and the directors'' cabins. The opposite party used to attend complaints of the complainant then and there without any delay. The complaint was totally misconceived. The complainant had misinterpreted the terms of the contract between them and the opposite parties. After exchange of legal notice, the complainant never made any phone call or issued any letter. Termites occurred due to various reasons and there was no method by which absolute protection could be offered by anybody and the pest control treatment could present its spreading. The opposite party used proper chemicals and employed experts in the field. There was no negligence in their service.

Before the District Forum, on the side of the complainant Exs. A1 to A38 were marked while on the side of the opposite party Exs. B1 to B7 were marked. While the Advocates'' Reports were marked as Exs. C1 and C2. The District Forum found that there was no proof to show that there was termite attack in the premises of the complainant as stated by the complainant. Further, in the letter of guarantee Ex. A4, the opposite party never stated that the termites could not attack once a structure was treated for the same. There was no proof produced by the complainant that the stationery, furniture, bills, account books got damaged or eaten away by termites thereby lofts and cup-boards became totally useless and dis-assembled and the furniture got damaged beyond repair. The complainant had also not proved that the termites were noticed on 18. 3. 1999 and on 18. 7. 1999. No photographs were produced to prove their allegations. Holding that the complainants had not established their case the District Forum by order dated 28. 3. 2003 dismissed the complaint. It is as against that, the present appeal has been filed.

MR. Nataraja Shankar, learned Counsel for the complainant made the following submissions. The District Forum had totally ignored the exhibits filed by the complainant and also the efforts taken through the Forum to establish their case. The complainant had produced with negatives 27 photographs (Exs. A20 to A28) to show the area of the termite attack. The complainant also took out an application for admission of Advocate Commissioner to inspect the premises and submit report to the Forum. The complainant had also made an application for sending the samples to test. The Advocate Commissioner had collected the sample from the premises. No orders were passed by the Forum with regard to the application for sending the samples for test. The District Forum therefore was wrong in finding that the complainant had not made an effort to prove his case. The District Forum failed to note that the Advocate Commissioner appointed for inspection of the premises gave notice to both the parties and inspect the premises. The District Forum ought not to have totally ignored the report of the Advocate Commissioner. The District Forum had not considered much less looked at the photographs filed with negatives to show the termite attack of the premises. When the complainant''s Counsel sought permission to examine the photographs the District Forum had observed that an elaborate and detailed investigation need not be done. The District Forum had erroneously passed an order stating that the complainant had not produced any proof for the attack of termite. Even in the reply notice, the opposite party had admitted that on 18. 3. 1999 and 24. 3. 1999 they had visited the premises to treat the termite which clearly showed that the termites were present on those days. Instead of acting on this admission by the opposite party, the District Forum was in error in holding that there was no proof of attack of termite on 18. 3. 1999. The District Forum in its order dated 28. 3. 2003 had spoken about a letter dated 7. 11. 1999 which was not produced by the opposite party before the Forum. In the absence of the said letter, the Forum ought not to have relied on the same. The District Forum omitted to note that Ex. A4 should be read together with Exs. A1 and A3. The District Forum while considering Ex. A4 had assumed several factors not before it. The alleged service undertaking given by the opposite party was contrary to their own assurance made in Ex. A4, wherein they had admittedly offered to carry out the treatment for a period of 5 years at no extra cost. The opposite party had made the complainant believe that the termite found in the premises was totally eradicated not just controlled. Once the opposite party undertook the job controlling the spread of termites could not be permitted to say that they had only agreed to do the treatment with no cost and the spread over could not be controlled. The District Forum had misconstrued the guarantee given after periods of the work. The District Forum failed to see that the complainant had produced Ex. A35 to show that work was subsequently given to another Pest Control Agency who had offered similar guarantee. The District Forum failed to look into opinion of the experts given in the case. Ex. B1 work done by the opposite party was not as per the opinion of expert. Thus there was deficiency in service on the part of the opposite party. The opposite party had not produced any material to show the nature of the chemical or pesticides used by them. The District Forum erred in rejecting the report of the Advocate Commissioner Mr. T. K. S. Gandhi on the ground that he had made an inspection in the absence of the opposite party. The ready fact that the 2nd Advocate Commissioner collected samples would show that there was termite attack. The District Forum had not properly considered the correspondence between the parties. This was clearly a case of unfair trade practice. The District Forum ought to have allowed the complaint and granted relief to the complainant. Per contra, Mr. P. V. Raghavan, learned Counsel for the opposite party made the following submissions: The complainants by their letter dated 23. 4. 98 Ex. A6 complained about termite attack on 16. 2. 1999 and 18. 3. 1999 resulting in loss to their records and furniture and demanded refund of Rs. 24,700. The opposite party attended to the complaints as could be seen from Exs. B2 to B6. The District Forum rightly relied on Ex. A4 guarantee which provided that in the event of the said structure being invested with subterranean termites at any time during the period of guarantee, the opposite party should undertake to carry out such treatment as might be necessary to render the said structure free from termite infestation at no extra cost to the owner of said premises subject to the conditions stated therein. It was never the promise of the opposite party, the termite attack in a building would cease after treatment. Even in the first letter dated 7. 11. 1998, it was clearly mentioned by the opposite party, that it was impracticable to trace the colony in the soil and eliminate it. The subsequent letter date 21. 11. 1998 Ex. A 1 also made it clear that there could be follow-up checkup after three months by letter date 23. 11. 1998 (Ex. A31 ). The opposite party said that they would carry out regular checkup once in six months on payment of Rs. 500 and spray insecticides if there was infestation. The letter Ex. A4 also clearly stated that if the structure was infested, the opposite party would carry out such treatment as might be necessary at no extra cost. The letter of guarantee did not state that there would never be any attack of termites once the structure is treated for the same. The contention of loss is absolutely inconsistent, imaginary and also completely bereft of any details. The complainant was a corporate body and was expected to adhere to facts as they were and not make statements which were totally inconsistent which could not be substantiated. The attitude exhibited by the complainant after getting the job done, trying to deprive the respondent of their rightful remuneration by raising fanciful claims is somewhat disgusting. The contention in the complaint in para-8 that the opposite party failed to visit the premises, despite repeated telephone calls was false as would be evident from Exs. B2 to B6 showing that the complaints were attended then and there and this would further go to show the attitude of the complainant. It would appear that the complainant carried out pest control treatment through another company by name Pest Control India Ltd. Even before the filing of the complaint which was clearly seen from one of the documents Ex. A35. The opposite party could not be held responsible after third party had tampered with the original work done by the complainant without their knowledge. It was not open to the complainant to seek either an analysis or an appointment of Advocate Commissioner since the building and the materials would not be the same as they were. Exs. A4 guarantee contained an important condition that it would not cover termite attack entering structure through any future additions or extensions made to the structure. It was seen that the appellant themselves had stated that there were many cabins of officers and quite a lot of ledgers and other records. It was also seen that there were records of tenants as old as of the year 1992-93 to 1994-95. It is quite possible that these could have been responsible for bringing in the termites. The complainant had tried to establish deficiency on the part of the opposite party more by implication than by facts. The District Forum had rightly held that the complainant had not proved any negligence or deficiency by the opposite party.

THE material document in the present case is Ex. A4 i. e. the copy of letter of guarantee dated 1. 12. 1998; it is a 5 years guarantee, it says that in the event of the said structure being infested with subterranean termites at any time during the period of guarantee, the opposite party undertook to carry out such treatment as might be necessary to render the said structure free from termite infestation at no extra cost to the owner of the said premises subject to the following conditions. It is stated: "this guarantee does not cover termite attack entering structure through any future additions or extensions made to the structure at plinth level. It is in the interest of the owner to ensure that any future additions and extensions to the structure at plinth level are properly treated of termite attack and covered by a separate guarantee". The guarantee given by the opposite party does not say that after the treatment for termite infestation, there will not be a recurrence; what it says is, after treatment by the opposite party in the event of there being infestation with subterranean termites during the period of guarantee, the opposite party would carry out such treatment as may be necessary to render the said structure free from termite infestation. Apparently, after the opposite party had treated for termites and used chemicals and pesticides there was recurrence on 16. 2. 1999. This apparently was brought to the notice of the opposite party, who treated the recurrence. Ex. A31 dated 23. 11. 1998 is the copy of periodical check up undertaken by the opposite party that provides that the opposite party would carry out regular check up besides once in every six months from the date of completion of the anti-termite treatment and in that process they would check up all the wood works, stationeries and all the termite prone areas and spray pesticides, in case, it was infested by the insects. The charges for the above mentioned operation were fixed at Rs. 500 per checkup visit. This is responded to by the opposite party by Ex. A2 date 26. 11. 1998. It says among other things that the warranty should be for 5 years and separate certificate should be given for the warranty. To avoid any recurrence after treatment as mentioned in the letter of the opposite party dated 23. 11. 98 regular checkup every six months from the date of first application carried out at the cost of Rs. 500 which would be paid after inspection/check up of each time. The opposite party by letter Ex. A3 dateed 1. 12. 1998 stated that they gave post-construction anti-termite treatment on 28. 11. 1998 and the same got completed in all respects on 1. 12. 1998. To the said letter were enclosed the bills for Rs. 24,700 and a 5-year guarantee certificate is Ex. A4 it has already been referred to. Ex. A32 is the copy of the letter from the complainant to the opposite party, it bears date 23. 2. 1999. In this letter, it is stated that termite attack had occurred in the 4th floor of the premises, resulting in destruction of valuable stationary on 16. 2. 1999, Thus, these had been brought to the notice of Mr. Andrew Elwin of the opposite party, that the area was treated, that the complainant was not satisfied and were apprehensive that the termite attack at any other spot and that warranty given by the opposite party was meaningless. The letter asked the opposite party to explain how this had happened in spite of the treatment given on 28. 11. 1998. The letter made a request to the opposite party to do the needful for the total prevention and elimination of termites during the warranty period. It it seen that after 16. 2. 1999, there were treatments given subsequently on 25. 2. 1999, 19. 3. 1993, 24. 4. 1999 and 24. 4. 1999. On 19. 3. 1999 under Ex. B4, the complainant wrote to the opposite party to state that they were dissatisfied with their services that after the initial treatment there was an attack on 16. 2. 1999 for which the loss of stationery worth more than Rs. 10,000, that again there was an attack on 18. 3. 1999 which caused damage of furniture to the tune of Rs. 10,000. In the above circumstances, the opposite party was to refund the amount of Rs. 24,700 along with the amount for the loss caused. On 26. 4. 1999 under the original of Ex. A7 a telegram was sent to the opposite party making a demand for Rs. 24,700 given for the pest treatment, Rs. 50,000 for the loss already caused. On 27. 4. 1999 under the original of Ex. A8, the opposite party wrote to the complainant bringing to their notice the contents of the guarantee to the effect that in the event of the said structure being infested with subterranean termites at any time during the period of guarantee, they would carry out such treatment as might be necessary to render the said structure free from termite infestation at no extra cost to the owner of the said premises. The letter further stated that in case there was re-appearance of termites, the necessary treatment would be carried out to control the infestation. Thereafter the lawyer''s notice dated 27. 5. 1999 came to be given which was responded to by a reply on 3. 6. 1999 from the Counsel for the opposite party. There are photographs which show that there was really recurrence after the treatment given by the opposite party. That the termites could not be eliminated completely is a matter of record. But then having regard to the arrangement between the parties whether the opposite party could be held responsible for the recurrence is a moot question. Indeed, once damage is caused even after the treatment for pest it will be difficult to restore the status quo ante. But then the very stand of the opposite party was that it was impossible to eliminate the termites completely. In fact, one of the letters found in the bundle and which is also referred to in the order of the District Forum in page-6 of its order is dated 7. 11. 1998, wherein, it is mentioned that, it is impracticable to trace the colony in the soil and eliminate it. Though the letter has not been indexed and given an exhibit number. It was part of the records and the contents were taken into consideration by the District Forum in reaching the conclusion it did. The letter is addressed to the opposite party and dealing with the post-construction anti-termite treatment, it states as follows: "the termite enter buildings unobserved from below the ground, perforating the foundation and spread to upper levels through joints, floors, walls cavities, etc. They penetrate tiny cracks in concrete and also build covered runways which are made of soil and which enable them to traverse hard to poke materials and provide them with lines of communication between their nest and target. The workers of the subterranean types have their nest inside the soil. So they have to return to soil. It is impracticable to trace the colony in the soil and eliminate it. So all wood soil contacts are broken to make it more difficult for the termite to reach the wood. A suitable chemical barrier prevents the termites from reaching the wood in the buildings and the termites in that building from getting back to the soil. So under the above circumstances, we hereby suggest our post-construction anti-termite treatment for your above mentioned godown which carries 5 years guarantee. As already noted this is dated 7. 11. 1998 i. e. prior to the complainant entrusting the work to the opposite party. It is to be noted that even after this letter, the complainant chose to entrust the work to the opposite party. The guarantee letter also clearly mentions about what the opposite party would do, in case of recurrence. Thus, the complainant was fully aware that there could not be a total annihilation of the termites. There was every possibility of recurrence and to the extent possible the opposite party would give treatment and prevent further attacks. It was not an absolute guarantee. It would appear that after the alleged failure on the part of the opposite party to prevent the recurrence of termite attack, the complainant had brought some other pest control people and had the job done for them. This aspect has been adverted to by the opposite party. The opposite party had relied on Ex. A35 filed by the complainant to show that the complainant had carried out pest control treatment through another company by name Pest Control India Ltd. , even before the filing of the complaint and this would amount to tampering with the original work done without their knowledge. In that context, there was justification on the part of the opposite party to object to visit of an Advocate Commissioner to collect the samples for examination by the laboratory. Whatever it is from what we have discussed above, it would appear that the complainant had been posted with a full picture of what could happen after treatment for termites i. e. to say that there could be recurrence that there could not be total elimination and in the event of recurrence, the opposite parties would give treatment. The learned Counsel Mr. Nataraja Shankar relied on a judgment of the Delhi State Consumer Disputes Redressal Commission in Mohan Lal v. Pest Control (India) Ltd. , I (2005) CPJ 664. In that case, deficiency in service in not providing termite treatment of good quality was alleged. The District Forum dismissed the complaint. The matter went before the State Commission. As per the agreement between the parties in that case, the opposite party was to conduct one major treatment followed by one routine check up every year. The complainant was assured that termite treatment would be so effective that there would be no problem of termites. The treatment was not effective as the complainant approached the opposite party time and again and as many as seven complaints were made in a period of 20 months. The State Commission found that there was deficiency in service on the part of the opposite party and taking an overall view of the matter allowed the appeal and directed the payment of compensation of Rs. 5,000 for deficiency in service besides costs. In our view, the decision is clearly distinguishable there was an assurance made by the opposite party in the case that after they treated for termites there would be no problems after. That is not the case here. We have already referred to the letter date 7. 11. 1998 sent by the opposite party to the complainant to the effect that it would be impossible to destroy the termites forever. There would be recurrence for which, there was a guarantee to treat again by the opposite party. For all the reasons stated, we concur with the conclusion reached by the District Forum and dismiss the appeal. There will be no order as to costs.

WE would like to make certain observations. Before entering into contracts, the parties concerned have to clearly spell out what they want and what they can do. They should not give assurances which cannot be kept. Pest control being what it is, it is not possible to bracket cases of deficiency relating to pest control agreements with other transactions. If the experts are not confident that there could be total destruction of the termites they should make it clear to the other party. The parties also should understand the position clearly and enter into the contracts. They should not later on complain that the experts had not adhered to the terms of their assurances. Appeal dismissed.