F.A.NO.28/2006
[Against order in C.C.No.635/2001 on the file of the DCDRF, Chennai (South)]

DATED THIS THE 18th DAY OF NOVEMBER 2009

Berger Paints India Ltd., |

rep. by Divisional Sales Manager (Retail) | Appellant/Opposite Party

126, Peters Road, |

Chennai 600 086. |

Vs.
M.J. Saikumar, |

U-Block, Old No.31, New No.4, | Respondent/Complainant

10th Street, Anna Nagar, |

Chennai 600 040. |

The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to pay a sum of Rs.70,000/- towards the cost of the paint and labour incurred by the complainant, to pay a sum of Rs.25,000/- towards compensation and Rs.1,000/- for cost. The District Forum allowed the complaint directing the opposite party to pay Rs.50,000/- towards painting and labour charges, Rs.10,000/- towards compensation and Rs.1,000/- towards cost. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.26.10.2003 in C.C.139/2003.



This appeal coming before us for hearing finally on 26.10.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:



Counsel for the Appellant /Opposite party : M/s.B. Harikrishnan & N.Ramiah,

Advocates.

Counsel for the Respondent/ Complainant : M/s.V.Balaji & A.Sermaraj, Adv.,



HON’BLE M. THANIKACHALAM J, PRESIDENT



1. The opposite party in COP.635/2001 on the file of the District Consumer Disputes Redressal Forum, Chennai (South), is the appellant.



2. The respondent herein as complainant, has filed a case before the District Forum, Chennai (South) for the recovery a sum of Rs.70,000/-, being the cost of the paint and labour incurred by the complainant, and for a further sum of Rs.25,000/- as compensation for mental agony, on the grounds that he had purchased the paints, manufactured by the opposite party, on the basis of the quality assurance given by them in the advertisement as well on the basis of the warranty for a period of 5 years, by paying a sum of Rs.14,176.32 under various Invoices, that spending a sum of Rs.56,000/- towards the labour charges, he painted the new house, having qualified painter, following the instructions given by the opposite party, that the emulsion paints on the wall have started to peel off, not only on the inner walls, but also on the exterior walls of the house, that having complained to the opposite party also, it failed to yield any positive result, followed by a legal notice, that in view of the inferior quality and sub-standard paint supplied by the opposite party, the complainant was compelled to suffer a damage, monetary loss as well mental agony, for that, the opposite party should held responsible. Thus, the claim.



3. The appellant/opposite party in their Written Version inter alia contended, that the claim is barred by limitation, that the peeling off paint in the walls must be only due to seepage of water in the walls of the building, that the painter would not have followed the instructions of the opposite party properly while painting the products of the opposite party, for which, the opposite party cannot be held responsible and that the other allegations are specifically denied, thereby, praying for the dismissal of the complaint.



4. The parties have filed Proof Affidavits as well as certain documents including, an Advocate Commissioner’s Report namely Ex.C1.



5. The trial Forum while evaluating the pleadings and the evidence, came to the conclusion that there was warranty for five years and therefore the claim is not barred by limitation, that within the warranty period, as proved by the Advocate Commissioner’s Report, paints were peeled off and therefore it should be construed, as deficiency in service or the opposite party has not supplied good quality of the paint in conformity with warranty, whereas they have sold inferior quality paint. Thus concluding, an order came to be passed, directing the opposite party, to pay a sum of Rs.50,000/- towards painting and labour costs and Rs.10,000/- towards compensation, and another sum of Rs.1,000/- as cost, thereby, causing grievance to the opposite party, which resulted, in preferring the appeal, impugning the findings.



6. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.



7. The main submission of the learned counsel for the appellant are; that (1) the claim is barred by limitation (2). at the time of the sale of the paints in question, there was no warranty and therefore on that basis, the complainant is not entitled to claim any amount, since the warranty itself came to be introduced only in the year 2004; (3) while applying the paint or painting the walls, the painter would not have followed the instructions available for painting, the company paints, and for the mistake committed by the complainant or his labourers, if the paints were peeled off, the opposite party cannot be held responsible. Elaborating the above submissions, taking us to the documents also, a forcible submission was made, to dismiss the appeal.



8. On the other hand, it is the submission of the learned counsel for the complainant/respondent, that when the complainant has pleaded the warranty in the complaint, the same was not denied and therefore, it should be presumed that the opposite party has given warranty of five years even at the time of the purchasing of the paint and in this view, the claim is not barred by time; since it was made within the warranty period, that only following the instructions available for painting, house was painted and only because of the inferior quality of the paint, the problem had occurred, for which, the opposite party should be held responsible.



9. It is the settled preposition of law that the onus of proving the defect in the goods, purchased, at the first instance, lies only with complainant and then only if at all, the burden would be shifted to the opposite party, to disprove the case of the complainant. In this case, as rightly urged on behalf of the appellant except the affidavit of the complainant, no other kind of material evidence is available to prove, that only due to the inferior quality of the paint, the problem had occurred. As on answer to this point, the learned counsel for the complainant would submit that when it is not possible, that the goods purchased in this case namely paints is not amenable to analyze, then the Forum has to depend upon the averments in the complaint, which is supported by the Proof Affidavit. There cannot be any quarrel on this point, but we afraid to apply this principle in this case. It is the specific averments in the complaint, that the paints supplied by the opposite party, were of inferior in quality or sub-standard. This could be well established by examining the peeled paint itself, if steps had been taken, and it is not necessary that the original paint alone should be available to find out the inferior quality or the sub-standard material said to have been supplied by the opposite party. By collecting the painting from the walls, examining scientifically, certainly it could be proved, that ingredients were of substandard, and the standard paint also could be assessed, to certain extent. This procedure is not followed, whereas Commissioner’s report is very much relied upon, which is in our opinion may not be much useful, to fix the standard of the paint or procedure adopted while painting.



10. The opposite party, when the dispute was raised, has categorically stated that the fault in the application and seepage in the wall must be the cause for the problems reported. Therefore, it is the duty of the complainant to prove that they have followed the instructions at least by procuring an affidavit from the painter, who had painted, whether he is a qualified painter or not, and whether the walls were properly prepared to face the painting etc., In this case, such an affidavit has not been filed, and therefore we would say that the complainant failed in his attempt, to prove that the paintings were done properly, following the instructions and there was no seepage of water, in any of the walls in the house of the complainant. The Commissioner’s report would suggest, that there was no complete peeling off, whereas, the peeling off of the paint has taken place then and there, and this kind of problem would occur, generally, due to the seepage of the water, probably arising in the construction defect. Therefore, accusing the Company alone, as if they had supplied sub-standard paint, failing in their duty to prove the averments, in our opinion, the complainant is not entitled to succeed. For the above said reasons, we conclude that the complainant failed in his prime duty, in proving the averments in the complaint, namely, the paints supplied were sub-standard or inferior quality as well they have followed the instructions while painting.



11. The main point very much relied on by the appellant, to defeat the complainant/respondent, is question of limitation. Section 24–A of the Consumer Protection Act, 1986, mandates the Fora or the Commission, as the case may be, not to admit any complaint unless it is filed within two years, from the date, on which, the cause of action has arisen. It is nowhere stated, that the complaint has to be taken on file if it is filed within the warranty period. Even within the warranty period also, if the cause of action had arisen, that alone should be taken as the commencement of period of limitation, since the Section does not say that the period should be calculated from the date of expiry of the warranty. In this view, we are of the opinion that even assuming that there was warranty (which we will discuss infra also), if the case is not filed within two years, from the date of cause of action, that should be held as barred by limitation. In this context, we have to say, when the cause of action has arisen for the complainant to file the case.



12. Admittedly, paints were purchased in the month of February 1998 by paying a sum of Rs.14,176.32, house was painted by paying labour charges in the same month, and the last date of payment appears to be on 28.02.1998, as seen from Ex.A5. The complaint is silent about the date of cause of action. Before filing the case, as seen from the letter dated 25.05.2000, where we find no plea of warranty, the complainant has stated the problem of peeling off of paint surfaced about a year and half back itself, that means, peeling of paint started elsewhere in November 1998, that should be date of cause of action, whether warranty is there or not. Thereafter, on 12.01.2001, when another notice was issued, wherein also it is said, that peeling had taken place within the period of 10 to 12 months i.e. from the date of painting. As adverted above, painting over by the end of February 2008. If we calculate 10 months, we will be taken back to December 2008, and that should be the month giving cause of action, since the complainant had noticed, according to him, inferior quality of the paint or unfair trade practice or deficiency in service as the case may be. Therefore, within two years from there i.e. on or before January 2001, complaint should have been filed on or before 2001, to maintain a complaint as mandated under Section 24-A of the Act. But, in this case, as seen from the original complaint, it was filed only on 19.12.2001, thereby, showing clearly barred by limitation, in the sense, filed after two years, which is prohibited. Therefore, the submission of the learned counsel for the complainant/respondent, that the case has been filed within five years i.e. within the warranty period, which will come to an end of February 2003, should be taken in time, is not acceptable to us. Therefore, irrespective of the other defence, the complaint is liable to be rejected, which was not properly considered by the lower forum, for the reasons assigned by us.



13. Now, let us see, was there a warranty as urged before us. True, when the complainant had pleaded, that there was five years warranty, the same was not specifically denied. No other documents were filed, indicating warranty was given by the opposite party, while supplying the paints. Warranty, generally, this kind of material, must be from the date of manufacturing or something like that. We do not have the particulars, when the warranty commences, such as whether it is from the date of production or from the date of painting etc., Invoices were also not filed and marked. The non-denial of the warranty period, cannot be taken, as if it is admitted, since the pleadings cannot be strictly, construed as available under C.P.C. As a substitute to prove the warranty, website print out displayed, by the opposite party was produced, which would indicate that the warranty, is also provided for Berger Paint.



14. As seen from the print out made available to us, for certain kind of paint (Luxury emulsion, Emulsion, premium emulsion) life is given as 5 years plus. It is the specific case of the opposite party, that when the complainant had purchased the paint in the year 1998, there was no warranty and in support of the same, he has also produced certain documents, informing that the literature concerning “Lewis Berger Home Painting” was posted on our website only during the year 2004 to educate our customers”. Thus, an attempt is made to say only from the year 2004, warranty was given, and before that, there was no warranty. In the absence of any proof available on the side of the complainant, including the paint tin, where the warranty would be available, as well as, invoices indicating the warranty, we are constrained to accept the submission of the learned counsel for the appellant, that the warranty would have come to existence only from 2004 and if so, for the complainant, the same was not available since he had purchased the paint in the year 1998. Assuming, the warranty is available, for the reasons assigned by us supra, still we are of the view, the complainant has not made out the case, as alleged, namely, inferior quality of the paint or sub-standard or following the instructions, they have painted the house or the claim is in time. Unfortunately, the trial forum has not considered all these facts, whereas, placing reliance upon the Commissioner’s report, as if that will prove the substandard alleged, ordered payment, to which, we are unable to subscribe our view.



15. The Commissioner’s Report would suggest, what was the position on the date of his visit, and certainly it will not disclose, what is the quality of the paint, and how it was painted etc., and therefore placing reliance of the Commissioner’s Report, we are unable to conclude, the complainant has made out the case. Our attention was drawn to a case decided by the National Commission in “Honda Siel Cars India Ltd., & Anr Vs. Divyang Jain & Others” reported in “III (2008) CPJ 17 (NC)”, where the Commission has held that sub-standard quality of paint used proved on the facts, that during warranty period, there was fading of paint in the car purchased by the complainant therein. In the case, involved in the decision, the painting was done by the Company itself and therefore when it is proved, there was fading of the paint, National Commission has come to the view, it is a sub-standard quality, which principle cannot be extended to our case, in view of the fact, applications were made only by the complainant or the labourers, admittedly, not by the opposite party or by his technical man. For all these reasons, the appeal is meritorious and acceptable.

12. In the result, the appeal is allowed. The order of the District Forum in OP No.635/2001, dt.30.11.2005 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.

The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.