By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act to get direction against the opposite parties to repaint the entire exterior of the complainant's house at the cost of the opposite parties or in case of failure to do so, to permit the complainant to carry out the repainting work and to recover the costs thereof from the opposite parties.
2. Brief of the complaint:- In the year 2011 October complainant done the painting work of the exterior portions of the newly constructed house using the paint manufactured by opposite party No.1 on believing the advertisements given by opposite party No.1 that the paint is resistant to algae and fungi. But within a few months of completion of painting itself algae and fungi started appearing on the exterior of the newly constructed and newly painted house of the complainant. Complainant immediately informed this to opposite party No.3, they assured that they shall inform the technician of opposite party No.1. The entire painting work was done by professional painters as per the directions and instruction given by opposite party No.3 at the time of purchase, and painting was completed by December 2011. Complainant alleged that he spent Rs.2 lakh as the cost of paint manufactured by opposite party No.1 and marketed under the name and style of Asian paints and he also spent more than Rs.50,000/- as labour charge. At the time of purchase the opposite parties No.1 to 3 had given 5 year guarantee against algae and fungi to the exterior of the house, if they apply the paint manufactured by this opposite party No.1. But within a few months of completion of painting itself and after commencement of rainy season during June 2012, algae and fungi started appearing on the exterior of the newly constructed and newly painted house of the complainant. Once a company technician had visited the house, though he was convinced of the complaint, no solution was sorted by him. Then on 19.08.2013 the complainant sent a Legal Notice to this opposite parties calling upon the opposite parties to redress the grievance of the complainant by repainting the entire exterior of the complainant's house at the cost of the opposite parties. Though opposite parties have received the notice they have not responded so far. Hence filed this complaint, alleging deficiency of service and unfair trade practice from the part of opposite parties.
3. Notice served to opposite parties, opposite party No.1 and 2 filed version. Opposite party No.3 not present, hence set ex-parte and proceeded with case.
4. Opposite party No.1 and 2 filed version in brief it is as follows:- The opposite parties denied the case in the complaint stating that they have sold Apex Classic White to the complainant not Apex Ultima. As per their knowledge cracks were present on the wall and were not filled while doing the painting work, hence a proper recommended procedure of paint application was not followed as mentioned on the part of complainant. The complainant has not used skilled labours to perform the painting job hence the problems might have occurred. Only two layers of paint was visibly observed during the site inspection by the company's representative. On site visit and inspection evidently a third coat was missing. The fungal growth for which the complainant is complaining is actually a fungal growth and is only happening in areas where cracks are present and not anywhere else. They submitted that no substandard quality paint is manufactured and not supplied for sale. The labour charges and cost of the paint also disputed by the opposite parties and they further stated that they never offered 5 year guarantee against algae and fungi to the exterior of the house and soon after getting complaint from the complainant through opposite party No.3, this opposite parties arranged a technician to visit complainant's house. The representative tried to make the complainant understand that it was not due to any defect of the paint, but cracks were present on the wall and were not filled while doing the painting work hence a proper procedure of paint application was not followed by the complainant. Opposite parties admitted that they have received lawyer notice but due to some reasons they could not send reply. They also submitted that the paint sold by them is free from manufacturing defects and they were not liable to compensate the loss incurred to the complainant. Hence prayed to dismiss the complaint.
5. On considering the complaint, version, documents and evidences the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the side of opposite parties?
2. Relief and cost.
6. Point No.1:- Complainant filed affidavit and examined as PW1. Ext.A1 to A4 documents were marked to prove his case. Ext.A1 is the Bills given by opposite parties to the complainant. Ext.A2 is the copy of the Lawyer Notice. Ext.A3 is the Postal Receipts. Ext.A4 is the Acknowledgment Cards.
7. The case of the complainant is that during the month of October 2011 he started painting work of his newly constructed house. Paint worth more than Rs.2,00,000/- manufactured by opposite party No.1, marketed and distributed under the name and style Asian paints (opposite party No.2), were purchased by the complainant from opposite party No.3. The bills available with the complainant regarding purchase of the paint were produced and the same were marked as Ext.A1 Series. The complainant spent Rs.50,000/- as labour charge for the painting works. Complainant noticed the advertisements given by opposite party No.1 that the paint is resistant to algae and fungi and the same will protect the exterior of the complainant's house from algae and fungi. The opposite parties No.1 to 3 had also given a 5 year guarantee against algae and fungi to the exterior of the house if the paint manufactured by opposite No.1 is to be applied to the exterior of the complainant's house. The entire painting work was done by professional painters as per the directions and instruction given at the time of purchase and the painting was completed by December 2011. Within a few months of completion of painting itself and after commencement of rainy season during June 2012, algae and fungi started appearing on the exterior of the newly constructed and newly painted house of the complainant. On noticing the same, the complainant had immediately contacted opposite party No.3. Then a technician had visited and inspected the house but no solution was received till the date of complaint.
8. Complainant further argued that the situation with regard to the exterior of the complainant's house has worsened now and after the present rain, it is now seen that the algae and fungi has now spread and a large area of the complainant's house and the exterior of the house is infested with algae and fungi and as a result the appearance of the complainant's newly constructed house has been rendered shabby. As a result of the algae growth spots have appeared on the exterior walls of the complainant's house. This has resulted in ridicule of the complainant among his friends and relatives and has caused great mental agony to the complainant and his family. The complainant had purchased the paint manufactured by opposite party No.1 to be applied to the exterior of his house only believing the advertisement and campaign put up by opposite party No.1 saying that its exterior paint will resist and prevent algae and fungi. All the opposite parties have turned a blind eye. to the complainant's grievances and have not sent any service personnel's to rectify the defect even after repeated requests by the complainant.
9. The complainant alleges that the opposite parties have thus willfully cheated and defrauded the complainant and has not adhered to the promises given by them at the time of purchase and has not been prompt in rendering after sales services and has not complied with the guarantee given by them. Thus there has been deficiency in service on the part of opposite parties No.1 to 3. As per I.A.16/2015 an Expert commissioner had appointed and he filed Commission Report it was marked as Ext.C1. In the Commission Report it is stated that he noticed algae and fungi over the exterior of the complainant's house also he noticed cracks over the walls and in his opinion the presence of algae and fungi were due to the defects of the paint. He cannot assess the actual cost to repair the cracks it can only done by a building engineer or an expert building worker. In his opinion it need around 30 liters of paint to repaint complainant's house and need almost 30 labours work for the completion of the repainting work and the cracks can be cleared by using putty. He assessed the total expense for the whole work to the tune of Rs.1 lakh.
10. Opposite parties not present to cross examine PW1 and not adduced any evidence to oppose the case. On going through the evidences and records we found that even though some cracks were noticed by the commissioner the whole exterior of the wall appeared algae, fungi and black spots. Complainant spent a huge amount in order to complete the painting work. But immediately after it showed defects. Unexpected black dots and the presence of algae and fungi were noticed by the commissioner all over the wall area, also he noticed cracks over the walls. Opposite party contented the case of the complainant through their version stating that it is due to the cracks, the presence of algae and fungi were happened. But complainant argued that he need repainting cost from the opposite parties excluding the areas where cracks were present. Even though complainant assessed the loss to the tune of Rs.1,00,000/- this forum of the view that, nothing before the Forum is to prove that opposite party offered 5 year guarantee. Admittedly the presence of algae and fungi was there in the exterior wall of the house immediately after the painting work. Even if opposite party No.1 and 2 version filed they were not adduced oral evidence, opposite party No.3 is remaining ex-parte. The case of the complainant stands proved through Ext.A1 Bills and Ext.C1 commission Report. On going through the entire evidences we opine that complainant is entitled to get a portion of cost of repainting work from the opposite party. Point No.1 is found accordingly.
11. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get a portion of cost of repainting work with cost and compensation. The Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite parties were jointly and severally directed to pay Rs.50,000/- (Rupees Fifty Thousand) as half amount of the cost of repainting as assessed by the commissioner. Opposite parties is also directed to pay Rs.5,000/- (Rupees Five Thousand) as cost and compensation to this complainant. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 27th day of January 2016.
Date of Filing:28.11.2013.
PRESIDENT :Sd/-
MEMBER :Sd/- MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Siddique Davari (Affidavit). Complainant.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1(Series). Bills. (23 Nos).
A2. Lawyer Notice. Dt:19.08.2013.
A3(Series). Postal Receipts (3 Nos).
A4(Series). Acknowledgment Cards(2 Nos).
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
