IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 31st day of May, 2022
Filed on 30.12.2021
Present
1. Sri.S.Santhosh kumar, BSc, LLB (President)
2. Smt.C.K.Lekhamma, BA, LLB (Member)
In
CC/No.311/2021
Between
Complainant:- Opposite parties:-
Sri. Hamid Shali 1. Asian Paints Ltd
Shalida Manzil, 6A,Shanthi Nagar
Nangiyarkulangara Santha Cruz East
Harippad Mumbai-400055
Ph : 9497636513 Rep.by its MD
(Exparte )
2. Asian Paints Ltd
AGS Gardens,XI/493
Kottiyam, Kollam
Rep by its MD
(Eaparte )
3. M/s HHYS Inframart
Mukkavala
Kayamkulam.P.O
Alappuzha
(Adv. M.R.Salim for 3rd OP)
O R D E R
SMT.C.K.LEKHAMMA (MEMBER)
1. The brief facts of the complainant case is as follows:-
The complainant used the products of Asian paints and expert services of the companies staff for painting his new house. There was an agreement for performing the work dated 2/10/2017. As per the agreement Asian Paints offered seven years warranty and offered they would be finished the work within 30 days of starting the same. The total costs for the work, including costs of paints and labour costs fixed to Rs.12,91,500/-.
Opposite parties have failed to complete the work either within 30 days or within 3 months. The agreed work performed through the 3rd opposite party, who is the authorized dealer of the Asian Paints Ltd, the 1 and 2 opposite parties. The complainant was working at that time in Gulf. More than one occasions he was forced to cancel his return tickets because of the failure of opposite parties to perform the work within the extended agreed period and thus he suffered heavy loss for cancellation of air tickets in the last moments. At last, the complainant was constrained to warn legal consequences, so the work was completed in the month of March 2018.
But within a short span of one year the painting started to show its poor quality. The complainant sent registered notice to the opposite parties vide complaint no. 05054622331 & 0505462332. Accordingly, the authorized officials of the 1st opposite party inspected the site and building and on the basis of their report the 1st opposite party agreed to offer some solution and informed the complainant vide communications dtd. 8/7/2021 vide CN.N. KR2118046835 and CN.No. KR2118046840 that Asian Paints would carry some correction work worth Rs.87,411/-.
It is also informed the complainant that necessary direction was given to the 3rd opposite party to perform the work arranging labour. It is also informed that credit note was issued to the 3rd opposite party for that purpose. Since there was no movement from the 3rd opposite party the complainant directly contacted the persons of them, but they were saying some lame excuses. At last the complainant sent lawyer’s notice to all the opposite parties through registered posts dtd. 18/11/21. The 1st and 2nd opposite parties even did not care to furnish any reply to the notice nor did any positive act to settle the problem. The 3rd opposite party used to furnish a reply stating untenable contentions stating that the complainant is bound to pay certain sum to them. The movement of the complainant by filing complaint directly to Asian paint is not tenable and the 3rd opposite party threatened that they will proceed against the complainant for realizing the balance amount due from him. But nothing is mentioned in the reply notice with respect to the credit note issued by the 1st opposite party to settle the grievances of the complainant.
The 3rd opposite party however, agreed the agreement and the work performed by them. If the 3rd opposite party is legally entitled to get anything from the complainant they can take appropriate action to realize it, but in fact they are not legally entitled to get anything from the complainant. On receiving the advocate notice the 1st opposite party had a duty either to ask the 3rd opposite party to perform the rectification work or to cancel the credit note and transfer the amount to the complainant so as to enable him to rectify the deficiency in the work. But they failed to do it and prefer to keep mum. Hence filed this complaint and seeking following reliefs.
a)To direct the opposite parties to perform the offer they made either through their workers or direct the 1st opposite party to pay the offered amount with 12% interest from the date of offer so as to enable the complainant to perform the work to rectify the deficiency in the painting work.
b) to direct the opposite parties to pay a compensation of Rs. l lakh for the loss and sufferings of the complainant including mental agony.
c) to direct the opposite parties to pay the entire costs of this proceedings.
2. Version of the 3rd opposite parties is as follows:-
3rd opposite party contended that they have carried out the painting works of complainant’s house as instructed and directed by the Asian paints Ltd the 1st opposite party. 3rd opposite party carried out the said work through the trained labours who had got training from the 1st opposite party directly. They had carried out the work in furtherance of a quotation approved by the complainant and carried out the work promptly and accurately. But the complainant didn’t pay the entire amount as per the quotation to 3rd opposite party and still now an amount of Rs.83,000/- is there as due. In spite of frequent demands from the 3rd opposite party the complainant has not paid the said amount so far.
Complainant did not prefer any complaints to 3rd opposite party so far directly. On the other hand complainant directly preferred complaint to Asian Paints. That, the complainant did not approach 3rd opposite party, only to avoid the payment of above said amount, which is due to 3rd opposite party. 3rd opposite party is in preparations to initiate legal proceedings against the complainant for the realization of the due amount. On realizing the said fact complainant preferred this complaint only as a precautionary measure.
There were no delays from the part of the opposite parties in performing the painting works of complainant’s house. It is false to say that more than one occasion the complainant could have forced to cancel his return tickets because of the failure of the opposite parties to perform the work. The statement that due to failure of the opposite parties to perform the work the complainant suffered heavy loss is false and hence denied by the 3rd opposite party.
Whenever the complainant placed some complaint, the 3rd opposite party responded immediately. That it is true that the complainant send a legal notice to the 3rd opposite party also and for that notice the 3rd opposite party already gave reply by showing the real aspects. The complainant doesn’t have a cause of action. The complainant has no right at all to get any of the reliefs asked for in the complaint and the complaint is liable to be dismissed with the cost of the 3rd opposite party.
3. Points for consideration are as follows:-
1. Whether opposite parties has committed a deficiency in service? If so what would be the relief?
2. Whether the complainant is entitled to realize Rs.87,411/-, the amount covered under Ext.A2, from the opposite parties 1&2?
3. Whether the complainant entitled to get any amount as per Ext.A2 from the opposite parties?
4. Reliefs and costs?
4. The complainant appeared in person and he tendered oral as well as documentary evidence. Ext.A1 to A4 were marked in which Exts.A1 and A2 are series.1st and 2nd opposite party remained exparte and the 3rd opposite party appeared through the counsel. Complainant field argument notes thereafter, we have heard both sides.
5. Point.Nos.1 to 3:-
The short facts of complainant 's case are that he had purchased Asian paints, the product of 1st and 2nd opposite parties and also availed expert services of their staff for painting his new house. As per Ext. A1 both parties entered into an agreement through 3rd opposite party, the authorized dealer. opposite parties have offered 7 years warranty and also agreed the work will be finished within 30 days. But they failed to comply with the said assurances. According to the complainant within one year itself after the painting, started to show its poor quality. The complainant brought this fact to the notice of the opposite parties. The 1st opposite parties officials inspected the site and building and realized the defects. It is informed the complainant that they have given direction to the 3rd opposite parties to perform the correction work worth Rs.87,411/-, for that issued Ext.A2 series credit note. But opposite parties did not do anything. Consequently, issued the lawyer's notice to them. No reply was received from opposite parties nos.1 & 2 except 3rd opposite parties. The complainant alleging deficiency in service and claiming the amount covered as per Ext.A2.
Upon notice, the 3rd opposite parties appeared and filed version. It was alleged that as per the quotation they have carried out the painting work promptly and accurately with the instruction and direction of the 1st opposite parties. But the complainant did not pay the entire amount as per the quotation. Thus an amount of Rs. 83,000/-is still due towards the 3rd opposite party. Despite repeated demands, the complainant has not paid the said amount.
Admittedly, the painting was done by the 3rd opposite party as per the Ext.A1 series of agreement and quotation between the complainant and opposite parties. Pw1, complainant deposed that the offers shown in Ext.A1 were accepted. As per A1, the amount was handed over to the 3rd opposite party. The counsel appearing for the 3rd opposite party argued that the complainant failed to prove the allegation of poor quality work with the support of an expert commission report. On that point, PW1 deposed that the defects are visible and were realized during the inspection of ops 1&2 and hence, they have awarded compensation. Therefore, it is not necessary to take out an expert report or opinion. It is averred in the complaint that based on inspection the 1st opposite party assured to find out a solution for rectifying the defect. Accordingly informed the complainant that they have issued Ext A2 series credit notes to the 3rd opposite party. On perusal of Ext. A2 series, it appears that those are credit note dt.8.7.2021 vide CN.No.KR2118046835 and CN.No.KR2118046840 issued by 1st opposite party to the 3rd opposite party, it is mentioned in both that ‘Order Reason:-Retail Sales Complaints’, as per said documents 1st opposite party had shipped paints worth Rs.87,411/-(Rupees Eighty seven thousand four hundred and eleven only)is shown in the description, to the address of 3rd opposite party. This is not specifically denied by the 3rd opposite party. On the contrary, they have alleged that Rs.83,000/- is still due towards them by the complainant. On going through the evidence we found that said allegation is baseless since nothing before us to prove either in the shape of oral or documentary evidence. opposite parties nos.1 & 2 failed to appear before the Commission and substantiate their part. So it can be presumed that they have no convincing evidence against the complainant. In the absence of reliable evidence, we have no hesitation to hold that all the opposite parties are committed to deficiency in service. Therefore, the complainant is entitled to get compensation from the said opposite parties and also entitled to get the amount covered under Ext.A2 as Rs.87,411/-from the 1st and 2nd opposite parties. Seemingly, the 3rd opposite party is a service provider, they are the authorized dealer of the 1st and 2nd opposite parties hence they are duty-bound to provide service to the compt. Moreover, none mounted the box on behalf of the 3rd opposite party to adduce evidence regarding the allegation of the due amount and also did not adduce any documentary evidence to prove the money transaction. On the above point Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy council beginning from the decision in Sardar Gurbaksha Singh. V. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kripa Singh Vs. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Kharagjit Carpenter V. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Sugbakshsh Singhs case (AIR 1927 PC 230) (Supra). The Allahabad High Court in Arjun Singh V. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass V. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under section 114 of the Evidence Act against a party who did not enter into the witness box.”
The opposite parties have failed to disprove the allegations in the complaint. As a service provider and product seller, the 3rd opposite party is equally liable to pay compensation for deficiency in services.
In the facts and circumstances of the case, the complainant is entitled to get litigation cost from the opposite parties since the opposite parties ought to have settled the dispute at the very outset.
6. Point no.3:-
In the result, the complaint is allowed in part and direct as follows:-
1. Ops are jointly and severally liable to pay Rs.50,000/- (Rupees fifty thousand only)as compensation for deficiency in service and opposite parties 1&2 are liable to pay Rs.87,411/-( Rupees Eighty seven thousand four hundred and eleven only ) the amount covered in Ext.A2 series, to the complainant. Failing which the said amount shall carry interest @9% p.a from the date of compliance of this order till realization.
2. opposite parties are jointly and severally liable to pay Rs.10,000/-(Rupees Ten thousand only) towards the cost of proceedings to the complainant.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 31st day of May, 2022.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Hameed Shali(Complainant)
Ext.A1series - Copy of Painting estimate and agreements
Ext.A2series - Offer of the respondent on complaina
Ext.A3 - Copy of lawyers notice dt. 18/11/2021
Ext.A4 - Notice issued by the 3rd opposite party
Evidence of the opposite parties:-Nil
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
