ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in supplying defective materials and for refund of the cost of the said materials i.e., Rs.51,343/-, labour cost of Rs.1,50,000/- including polishing charges along with interest at 24% p.a.,  and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

OP1 is the manufacturer of paints and wood polish and OP2 is the sales and distribution branch in Bangalore and OP3 is the retail seller of OP1 product.  Complainant was constructing a house at Hosakote Bangalore. He was in need of good polish materials and purchased from OP3 and took the assistance of MRF company area sales Executive one Sri.Shivakumar for applying the said polish to his wooden flooring and to the stair case. He gave full instruction to his skilled labour as to how to use the polish.  By following the same the complainant through his labours applied the polish to the wooden floor and the stair case.  After leaving 12 hours after application of the paint, the entire thing became white colour and all the materials and the labours got wasted.  Shivakumar the Executive was called and was explained regarding the damage.

3.      It is contended that the area sales manager of OP1 and 2 also visited the spot and collected the information and informed him that they would get back to him after discussing the problem with the company, but never did so.  In view of this he was put to lot of financial loss due to the supply of wrong material.  He purchased 80 liters of the polish worth Rs.51,343/- and also spent Rs.1,50,000/- for labour. The polish covered 314 sq. feet of floor area and 690 sq. feet of stair case area.  His intention of polishing the entire house with wooden polish went in vein. He has to issue legal notice to OP demanding for damages and cost of the material and the labour.  Inspite of receiving the same, OP remained silent and did not respond and also complied with the demand and hence the complaint.  

4.      Upon the service of notice, OP1 and 2 appeared before the Commission and filed their version.  Whereas OP3 though served with notice, remained absent and hence placed exparte.  In the version filed by OP1 and 2, it is contended that the complaint is not maintainable. It is invalid, filed on baseless grounds. It is false, malicious, incorrect and filed with malafide intention and is an abuse of process of law and just to take advantage of his own wrong doing.  It has admitted that OP1 is the subsidiary of MRF Group, a leading manufacturer and distributor of paints and coats.  It has retained its leadership in polyurethane finish segment. It is a preferred choice for dealers and customers.  It is cost effective durable eco-friendly,  quality product. It has fully equipped state of art manufacturing units and has a branch and distribution centre.  

5.      It is contended that there is no defect in the materials and the polish manufactured and supplied by it to the complainant. They had properly instructed the painters of the complainant about the usage and application of the paint materials including the tips on how to mix the paint along with the hardener and thinner.  The white patches appearing after applying the wood coat HS sealer clear and one coat of floor coat mat finish is because of the higher film thickness which is an application issue and not a defect attributable to paint polish thinner hardener.  The white patches were not found on all painted areas and only at few places where the application was faulty incorrect and improper.  It sent well trained paint technicians to the complainant’s place to show the correct method of applying the polish. Soon after this proposal complainant refused the offer given by them to send their experts.  The local painters appointed by the complainant did not possess the knowledge and skill to apply the paint in the recommended manner and for their act of omission OP1 and 2 cannot be held liable and responsible.  

6.      It is further contended that the claim of the complainant is untenable and unmaintainable.  The product manufactured by them is on of the highest quality and undergo various test and quality tests before release to the market.  OP1, 2 and 3 properly advised and gave tips regarding mixing of the paint along with hardener and thinner to the men of the complainant.  The issue arose due to the wrong application of the polish with incorrect proportion and mixing of thinner and hardener which is not due to the quality of polish.  OP2 personally visited the complainant’s house on 25.09.2019 to know the cause and afterwards visiting the manufacturing facility of OP1 for cross verification regarding the quality of counter samples of the same batch of polish, thinner and hardener that was purchased by the complainant from OP3 and found that the entire batch was of good quality and there was absolutely no issue in that respect.  

7.      It is contended that on 30.102.2019 in order to resolve the issue and to provide best services, it scheduled a meeting of the complainant with the OPs and one Selvan Paul, the General Manager of sales and marketing and also to send the expert technicians to explain and train the painters of the complainant regarding usage of the product for the desirable result.  Though the complainant accepted the proposal at the meeting later, retracted and denied permission and did not allow the paint technicians of OP to show the application process and demanded money from them.  OP1 and 2 have not received any complaint from any of its customers in respect of the said product.   The claim of the complainant is unrighteous and hence prayed the forum to dismiss the complaint by imposing exemplary cost.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

POINT No.1:-

10.   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant purchased the paint, thinner and the hardener manufactured by OP1 and 2 sold by OP3.  It is also not in dispute that the complainant applied the said paint, hardener, thinner to the floor and to the stair case.

        11.   It is his case that, he after getting instructions as to how the mix has to be made in respect of the paint, thinner and hardener, got it applied through his experienced painter.  After applying the same to the surface, the said surface became white.  According to him it is a defective product given to them and has requested for the refund of the cost of the product and also the labour charges of Rs.1,50,000/-.  He has issued legal notice to the OPs.  

        12.   On the other hand, the contentions taken by the OPs are that with malicious intention and mala-fide intention, to gain wrongfully has filed this complaint as the product purchased by the complainant was compared with the same batch of the product and found that there was no defect in the product and it is the workers of the complainant who have not mixed the product properly and painted the same and that is why white patches have appeared.  

13.   Though it has taken the said contention, it has also contended that after getting the complaint by the complainant, it attempted to rectify the same by employing its own painters and employees and the complainant in the beginning agreed for the same, whereas, he did not allow the employee to meddle with the things.  There is no evidence put forth by the OP, regarding the defective application of the product over the surface by the employees of the complainant.  If at all, there was any defect in the mixing of the paint, the thinner or the hardener by the employees of the complainant, OPs could have obtained their names and would have put them in the witness box and would have elicited as to what was the procedure that was followed by them in mixing the said products and what was the defect that it found by them in applying the same.  No such thing has been attempted by the OPs.  As per the photographs produced and also as per the email correspondences that had taken place between the complainant and the OPs, the white marks that has occurred after painting was brought to the notice of the OP which took the same to its higher authorities to get it sorted. From this it becomes clear that after applying the paint white patches have occurred. It is to be observed here that before applying the plaint/polis, OPs gave suitable instructions about mixing of the product to the painters of complainant when such being the case, it cannot be assumed that the paints of complaint have divided from the instruction given to them and done wrong thing in mixing and applying the product. In view of this we have to hold that there is defective product sold to the complainant by OP3 which was manufactured by OP1 and 2.

14.   Under the Consumer Protection Act 2019 under chapter 6 in respect of product liability, a Product Liability action can be brought by the complainant against a product manufacturer or product service provider or a product seller as the case may be for any harm caused to him on account of a defective product.  Section 84 of the Act provides the liability of the product manufacturer, section 85 regarding liability of product service provider and section 86 regarding liability of product seller;

“84. Liability of product manufacturer

(1) A product manufacturer shall be liable in a product liability action, if—

(a) the product contains a manufacturing defect; or

(b) the product is defective in design; or

(c) there is a deviation from manufacturing specifications; or

(d) the product does not conform to the express warranty; or

(e) the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.

(2) A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.

85. Liability of product service provider

A product service provider shall be liable in a product liability action, if—

(a) the service provided by him was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise; or

(b) there was an act of omission or commission or negligence or conscious withholding any information which caused harm; or

(c) the service provider did not issue adequate instructions or warnings to prevent any harm; or

(d) the service did not conform to express warranty or the terms and conditions of the contract.

86. Liability of product sellers

A product seller who is not a product manufacturer shall be liable in a product liability action, if—

(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or

 (b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or

(c) he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or

(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or

(e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.”

15.   In this case OP1 and 2 are the product  manufacturers and the OP3 is the product seller. OP3 has no control over the designing, testing, manufacturing, package or labeling of a product that cause harm, or he has altered for modified the product. He has no failure on his part to exercise reasonable care in assembling inspecting or maintaining such product and there is no material placed by the complainant that he did not pass on the warning on instruction of the product manufactured regarding the changes involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.  

16.   In the complaint there is no mention of any disregard by the OP3 regarding not providing the details and warnings.  Anyhow, harm has been caused at the time of polishing the surface of the floor/wall/the stair cases.  In view of this we hold that there is deficiency in service on the part of OP1 and 2 in respect of the said product. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

17.   Under the circumstances, we are of the opinion that if the OP1 and 2 are given an opportunity to rectify the mistake by their expertise the ends of justice will met. In view of this, OP1 and 2 are directed to enter into the premises of the complainant and see what is the exact position and rectify the mistakes that has crept in respect of using of the materials to the satisfaction of the complainant. The same has to be carried out within 30 days from the date of receipt of this order. In case they are unable to solve the problem they are liable to refund the cost of the materials purchased from OP No.3, which was manufactured by OP1 and 2 along with interest at 12% p.a., on the said amount.  OP1 and 2 are also directed to pay Rs.5,000/- towards litigation expenses and Rs.5,000/- towards damages for causing him mental agony and physical hardship.  Since no materials is placed for having paid Rs.1,50,000/- towards labour cost for the painters to carry out the work, the said request of the complainant is hereby denied. Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.

2.  OP No.1 and 2 are directed to rectify the mistakes that has crept in respect of using of the materials within 30 days from the date of receipt of this order. In case they are unable to solve the problem they are liable to return the cost of the materials purchased from OP No.3, along with interest at 12% p.a., on the said amount.

3.   OP No.1 and 2 are jointly and severally directed to pay Rs.5,000/- towards litigation expenses and Rs.5,000/- towards damages.

4.  O.Ps No.1 and 2 are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5.   Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her, corrected and then pronounced by us in the Open Forum on this 16^TH DAY OF MARCH 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Photographs

Ex P2: Copy of the Tax Invoices

Ex. P3: Copy of the documents of transfer of funds.

Ex P4: Copy of the legal notice issued to OP

Ex P5: Posta receipts.

Es P6: Copy of the letter.

Ex P7: Copy of the photos of the products.

Ex P8: Copy of the visiting card.

Ex P9: Copy of the application procedure.

Ex P10 : Email correspondences.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Shivakumar G Authorized Representative of OP No.1 and 2

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Power of Attorney executed by OP No.1 and 2.

MEMBER                        PRESIDENT