DATE OF FILING : 3.12.2015

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the 22nd  day of  February,  2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P    MEMBER

CC NO.357/2015

Between

Complainant       :     Francis Scaria, 

  Parakkattil House,  

  Parappuzha P.O.,

  Thodupuzha, Idukki.

  (By Adv:  K.M. Sanu)

And

Opposite Parties                                          :   1.  The Proprietor, 

       Indian Hardware Stores,

       Thodupuzha East P.O.,

       Idukki. 

       (By Adv:  Babu Sebastian)

  2.  The Managing Director,

       Asian Paints Ltd.,

       6A Shanthi Nagar,

       Mumbai – 400 055.  

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that,

 

Complainant purchased paints from the 1st opposite party's shop for his newly constructed house in the year 2012.  As recommended by the 1st opposite party, complainant purchased interior and exterior paints manufactured by 2nd opposite party branded as Apex Ultima and Royal.  At the time of purchase, the 1st opposite party explained about the quality, durability and finishing of these paints and also convinced the complainant that the company offering 5 years warranty from affecting dust, mildness and moss.  Complainant applied the paint in interior and exterior of his building with trained painters in the month of August, 2013.  Complainant purchased paint for an amount of Rs.2 lakhs and paid labour charge of Rs.3 lakhs for painting his house.  Complainant purchased all the painting materials from 1st opposite party.  The complainant purchased this brand paint on the basis of information and advertisement carried out by 

(cont....2)

-  2  -

the 2nd opposite party in the print and electronic media, as well as the durability and warranty is specified by the 2nd opposite party in their brochure also.  Unfortunately, the entire paint that applied in the walls of the building is put out and formed bubbles.  Moreover, the paint is faded out in some part of the walls.  The complainant further contended that, opposite parties sold this product on the pretext that, is having high quality and durability and is an unfair trade practice.  Immediately after realising the defects of the product, complainant lodged a complainant complaint before the 1st and 2nd opposite parties through the toll free number of 2nd opposite party and thereafter the experts of the 2nd opposite party inspected the building and offered 20 litre paint and 3 labour charges, since the building is having 2800 sq. mtrs and the complainant spent around 5 lakhs for painting this building,   the complainant denied this offer.  Again the representative of 2nd opposite party inspected the building and opined that the defect in painting caused due to the inferior quality of the sand which was used in construction.  Complainant further averred that the painting of the building is completely worn out within 2 years of its application and it caused much mental agony and financial loss to the complainant.  Alleging deficiency in service and unfair trade practice against the opposite parties, complainant filed this petition seeking relief such as to direct them to pay Rs.5 lakhs to the complainant being the cost of the painting of the building and also direct them to pay compensation and cost.

 

Upon notice, 1st opposite party entered appearance and filed detailed reply version.  In the version, 1st opposite party contended that, when the complainant approached to order the paint, the employees of 1st opposite party explained and detailed about the items and as such, he has proceeded with.  The 1st opposite party advised the complainant that walls shall be free from humidity and 100% dry before applying the paint and the complainant assured to do so and intimated that it is absolutely fit for painting.  The complainant without adhering to the specification briefed to him in person and also in the  brochure, carried out the painting work employing unskilled local coolies despite the presence of humidity on the wall and it ultimately resulted in to bad results.  After getting information about this, the 1st opposite party informed it to 2nd opposite party and a team was appointed by them to look into the issue and on verification by their expert team found that the paint was applied with unskilled local painters in the presence of humidity on the wall resulted into all the defects.  The M-sand used for plastering the wall was also found defective.  Despite all these troubles, the opposite party agreed to provide sufficient quantity of paint and materials to cover the portion having complaint, but the adamant attitude of the complainant put up this complaint with least merit and bonafides.       (cont....3)

-  3  - 

In their version, the 2nd opposite party contended that this opposite party is a renowned manufacturer of various types of paints and their products are acclaimed for its class and quality.  The product pass through stringent quality checks and tests trials before the actual start of the commercial production.  They have been conferred with various awards and certifications such as Golden Globe award, ISO 9001 by the BVQI for quality of paints etc.  Opposite party further contended that the products purchased by the complainant is a well established product in the market and over a period of years, the consumers are using the product and the complainant had purchased it after being satisfied with the quality of the same.  The opposite party further contended that the allegation of the complaint in respect of paints purchased by him in absence of expert report, miserably failed and the instant complaint deserves to be dismissed.  In the present case, the paints purchased by the complainant is having no warranty and hence this opposite party is not liable to provide any service to the complainant.  However, this opposite party had promptly attended the issues reported by the complainant and found that it is due to the high moisture level in the walls, the same was informed to the complainant.  The service executives had explained the complainant on the need of enough number of coats to be applied which will impact on paint performance.  The service executives further informed the complainant that, in case the complainant opting to do waterproofing, as a gesture of goodwill, 4 ltrs of top coat was offered.  Hence this opposite party is not liable for the claims made by the complainant and the complainant is prima facie unsustainable.  

 

Evidence adduced by the complainant and opposite parties by way of proof affidavit and documents.  Complainant was examined as PW1 and Exts.P1(series) and P2 marked.  Ext.P1(series) are the bills issued by 1st opposite party.  Ext.P2 is the brochure of paint.  Ext.C1 is the commission report.  

 

From the defence side, one Manikantan R.K., Area Manager of 2nd opposite party was examined as DW1.  Exts.R1, copy of power of attorney and Ext.R2, complaint visit report are marked.  

 

Heard both sides.

 

The POINT :-  We have heard the counsel for complainant and opposite parties and had gone through the records.  It is an admitted fact that complainant purchased painting materials from 1st opposite party's shop and applied it to his newly built house.  As per Ext.P1 bills, it is seen that the 

(cont....4)

-  4  -

complainant purchased paint materials for Rs.2 lakhs.  Ext.P2 is the brochure of paint.  This matter is not denied or challenged by the opposite parties.  It is also noted that within 2 years of the application of paint, damages occurred and on inspection, the sales executives of the opposite parties confirmed the defect  and they offered to cure the affected area free of cost.  This matter is specifically admitted by both the opposite parties in their respective reply version.  Since the affected area is very vast, the complainant denied the proposal.  The learned counsel for the complainant submitted that they applied paint nearly about 2800 sq. feet and the offer of 4 ltrs of paint and three labourers will not be sufficient to compensate the complainant.  At the same time, the learned counsel for the opposite party pointed out that, the alleged damages in painting caused due to the use of M-sand in building construction and moreover, the paint was applied in a moisturous wall with inexperienced labourers.  Eventhough opposite parties 1 and 2 put such a serious allegation, no evidence is produced by them to corroborate it.  Since the 2nd opposite party is the will established manufacturer of different types of paint and having much experienced technical people in this field, they can easily found out the reason for the alleged defect stated in the complaint and they can report it before the Forum.  But here, none of the opposite parties made any effort to find out what is the actual reason for peeling of paint from the walls and forming  bubbles in the wall.  Except one sales manager, opposite party has not produced any expert in this field to convince the Forum that the defect caused to the painting of the walls of the building is due to the application of paint with unskilled labourers on the walls having high moisture.  Moreover, opposite party has not took any effort to send the sample of paint  in the same batch to a chemical analysis laboratory for getting a report affirming its quality as stated in the reply version.  In their reply version, 2nd opposite party denied the warranty of the product which the complainant purchased.  At the same time, the person who appeared for and on behalf of the 2nd opposite party deposed that the paint which the complainant purchased is having 7 years warranty especially exterior paints.  Here, on examination, the expert appointed by the Forum found that paint pulled out from the walls and he found bubbles in almost all area of the inside and outside wall.  Further the commissioner reported fading of colour in some parts.  This report was marked as Ext.C1 and none of the opposite parties denied the findings of the expert commissioner.  Moreover, opposite parties failed to produce a work memo to the commissioner directly or through the Forum to ascertain the actual defect caused in the painting.

 

In this instant case, on perusal of the evidence on record, the Forum found that the version of the complainant is believable and the opposite parties has 

(cont....5)

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miserably failed to adduce any evidence to counter the allegation levelled against them by the complainant and by producing and selling of an inferior quality product on the pretext that is a high quality product amounts to unfair trade practice and hence both the opposite parties are liable for this.

 

Hence under the above said circumstances, the complaint allowed.  Opposite parties 1 and 2 are directed to cure the defect in the painting of the alleged building or else opposite parties 1 and 2 are directed to pay Rs.2 lakhs to the complainant as compensation along with Rs.5000/-as litigation cost, jointly and severally, within 30 days from the date of receipt of a copy of this order, failing which the amount of compensation shall carry 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 22nd day of February, 2019

 

           Sd/-

   SRI. S. GOPAKUMAR, PRESIDENT

  Sd/-

  SMT. ASAMOL. P, MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -   Francis Scaria.

On the side of the Opposite Party :

DW1              -  Manikantan R.K.

Exhibits :

On the side of the Complainant :

Ext.P1(series) -  bills issued by 1st opposite party.  

Ext.P2           - brochure of paint.  

Ext.C1           -  commission report.  

On the side of the Opposite Party :

Ext.R1             -  copy of power of attorney and

Ext.R2           - complaint visit report.

 

     Forwarded by Order,

 

 

 

        SENIOR SUPERINTENDENT