Vakolapipeline Road,

Sanctacruz(E) Mumbai 400 055     Opposite parties                                       

2.     The Proprietor,

     Central Hardwares,

     Main Road, Payyannur.

          (Rep.by Adv.R.Shyam Kumar)

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay a sum of   `3, 00,000 as compensation.

          The case of the complainant in brief is as follows:  The 2^nd opposite party and their salesman prompted Asian paints as the appropriate and good quality paint fit for the house of the complainant. So complainant’s husband purchased Royal Luxury Emulsion paint of Asian paints for a sum of `44,508 through three bills. The painters under the contractor T.M.Ashraf have painted the house and an expense of `42,000 incurred in that count. 2^nd opposite party and his salesman specifically assured that the paint will have a life of at least 5 years without any change if it is painted. Expert workers carried out the painting work following the instructions received from pamphlets and paint vessels.  The wall premier was also applied while applying the sating Enamel. After completing the painting work, the complainant and her husband went to their place of employment at Malasia. Again the complainant returned to India during July 2009 with a planning to arrange their son’s marriage. But on seeing the surface of her house she became disappointed since the paints were peeled off from the painted surface at almost all places. The entire house was seen ugly. People around were murmuring and ridiculing. 2^nd opposite party visited the house and convinced of the defects of the paint. 2^nd opposite party promised to solve the problem contacting 1^st opposite party. One Mr.Arun representing 1^st opposite party inspected the house and convinced of defect. He promised to redress the grievances. The representative of 1^st opposite party from Calicut and Bangalore also visited the house and reiterated the promise to redress the grievances. But they did not solve the problem. Lawyer notice replied by 1^st opposite party with false contentions. They contended that the house is surrounded by vegetables and plants and that its presence is one of the reasons for damage of the painted surface. This baseless contention is painful. The complainant has spent more then one lakh rupees for completing the painting work. Inner and outer wall completely damaged. Complainant has spent more than `1, 00,000 for repainting.

          Opposite parties appeared and filed version jointly denying the entire allegations of complainant. It is denied that the complainant’s husband has purchased Royal Luxury emulsion paints of Asian paints for a total worth of `44,508 through three bills. No assurance was given in respect its “Royal Luxury Emulsion” and paint quality is always subject to following the application procedure as prescribed on the said product. Complainant ever purchased paints of the opposite party No.1. The paint was not applied as per the instructions given by the opposite parties. Opposite party also denied that they have given assurance that the life of paint is 5 years without any change. It is further denied that the painter under T.M Ashraf have painted the house with Asian paints by taking care and caution. Her entire house seen ugly is also denied. On technical inspection it was found that the walls are with heavy moisture and dampness was found in all most all the walls of the complainant’s house. Some part of the house was badly affected with moisture problems due to heavy water seepage. It was the duty of the painter to rectify by curing seepage and moisture problems and then to apply paint on dry surface. The painter painted it without curing the seepage and moisture problem and resulted paint peeling out from the wall. Local primer was used as base coat before the paint coat. Complainant had not used the Asian paints recommended primer. The procedure adopted by the complainant is in direct contradiction to the standard application procedures recommended on the items. The problem is owing to poor workmanship of the painter. The documents 1 to 3 reveal that all the purchases were made by one Ashraf and not by the complainant. There are chances of misappropriation of the paints of the opposite party purchased by the said Ashraf by using some other inferior quality paint to the house of the complainant by him for his illegal gain with ulterior motive. There is no deficiency in service on the part of opposite party. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, PW2, DW1, DW2.CW1 Exts.A1 to A5 and Ext.C1.

Issue Nos.1 to 3

          Complainant painted his house with Royal Luxury Emulsion paint of Asian paints in the month of March/April 2009 and on completion of painting work complainant and her husband went to  Malasia, the place of their employment. When they returned again during July 2009 with the idea of their son’s marriage it was seen the entire painting work was damaged. It was peeled off from the painted surface at almost all places.

          On the contrary opposite party denied the purchase of Royale Luxury Emulsion paints of Asian paints through the bills produced by the complainant. But opposite parties contended that on their technical inspection they found that the walls are with heavy moisture and dampness was found in almost all the walls. It was painted without curing the seepage problem. The problem aroused not because of the substandard quality of the paint but of poor workmanship, non compliance with recommended procedures and the excessive moisture.

          The power of Attorney holder Mr.Mohamed adduced evidence by way of affidavit evidence. He has stated that second opposite party recommended Asian paint to complainants house and thus her husband purchased the paint for an amount of `44,508.At the time of purchase 2<sup>nd</sup> opposite party assured that Asian paint is suggested on the basis of enquiry of suitability of the area of  complainant’s house. Ext.A1 to A3 are admittedly  bills for the purchase of paint from 2<sup>nd</sup> opposite party. Opposite party contended that the bills are not in the name of the complainant but they have no case that it was not purchased for complainant.  PW1 also stated that he was also present at the time of purchasing the paint. PW1 further states that the workers under the contractor T.M.Ashraf carried out painting work in the house of the complainant. They were carried out the work very carefully and diligently. They were experts and have more than 10 years experience in this field. They have done this work following the instructions on the tin paint and directions of 2<sup>nd</sup> opposite party. Mr.Ashaf/PW2 adduced by affidavit evidence that the complainant had entrusted painting works to him and accordingly he also went with her husband in order to purchase the paint which was brought from 2<sup>nd</sup> opposite party. He has also stated that Asian paint was purchased for an amount of `44,508 since 2^nd opposite party convinced them that the quality of the paint was good. He has further stated that 3 workers and he himself carried out the work in accordance with direction of 2^nd opposite party and instructions given on the paint materials with enough care and caution. He had also deposed that  2^nd opposite party promised that there shall be no mistake of any kind for at least five years for the paint suggested to be painted. PW2 deposed in cross examination that Ext.A1 to A3 are purchase bills  for complainant and it is not correct to say that articles other  than purchased for her is included in the bills. Articles purchased for her as per Ext.A1 to A3 and the bill were issued in his name. PW2 also deposed that the amount after deducting the discount in Ext.A1 to A3 is `44,503.To another question he has deposed that these bills are for articles purchased only for complainant. It was different shade paints. Moreover DW1 categorically stated in his evidence that “cash receipt is with respect to the paints sold by our dealer”. Hence in the light of evidence Ext.A1 to A3 bills undoubtedly reveals that the paint used for the complainant’s house is purchased from the shop of 2^nd opposite party, the dealer of 1^st opposite party. Thus complainant’s pleading with respect to purchase of paint is fully correct.

          The central point that requires close scrutiny is with respect to the allegation of quality of paint and of the procedure of its application. The averment of the complainant is that the substandard quality of the pint is the basic reason for its failure whereas, opposite party contended that the painter applied the paint without curing the seepage and moisture problem which resulted paint peeling out from the wall. It was also contended that the recommended Asian paints primer had not been used and the procedure adopted by the complainant is in direct contradiction to the standard application procedure recommended by Asian paints. Poor workmanship of the painter also pointed out as a reason for the failure of painting.

          Complainant pleaded that the painters under T.M.Ashraf have painted the house with Asian paints by taking care and caution. All of them in his team are highly expertise painters with an experience for more than ten yers.Mr.Ashraf/PW2 deposed in cross examination   that  he had been  doing painting work for the last 15 years. He started doing painting work at the age of 22 years and now he attained 37 years old. He is also running an institution ‘Ashraf Arts’. This evidence together with the pleadings shows that there is no need to disbelieve about the experience of the painter. But his qualification in connection with the painting work other than experiences has not been given. Fifteen years work experience anyway can be considered to say he is a good worker to apply painting, though cannot be expected anything on theoretical side, the scientific effect on different conditions.

          The serious contention raised on the side of the opposite parties is that the paint was applied without curing seepage and moisture problem which they contended as the reason for peeling out the paint from the wall. Expert commissioner inspected the spot and submitted report which marked as Ext.C1. His finding reveals that the painted surface eaten by ants was visible on the day of visit. It is also found that complainant applied premier suggested by Asian paint on the walls before painting except for the dining room. He has further stated that Dampness and moisture were not visible to naked eye or felt by contact. He has used a moisture meter brought by the opposite party but suggested the reliability to determine only after reading the manual. Anyhow moisture meter showed Red on 70 percentages of the effected parts. The manual Ext.A1 (a) gives the interpretation of reading thus: “The instrument measures wood moisture equivalent in building  materials other than wood. Wood moisture equivalent WME is the moisture level in any building materials (as if in closes contact and in moisture equilibrium with wood) expressed as an equivalent% moisture content of wood. The relevant readings of the 7200 measures water content of the material, therefore, the 7200 closely indicates the relative dampness of different materials. Warming false readings can be obtained when measuring  a surface which has salt contamination or has a covering i.e. wallpaper etc. which may have a high carbonaceous content”.

 Sample readings taken over as large on area as possible, should show up any areas which may be suspect .

Note: Carbonaceous materials are present in some breeze blocks. The scale is colour coded to aid measurement

I.e. Green          =   OK/safe            

     Red              = May need further investigation

    Flull scale     + Danger, immediate action necessary

The plaster scale ranges from 8% to 20%

The Concrete scale ranges from 5% to 14%

Expert commissioner was examined as CW1. He has deposed  in cross examination that he is not qualified enough to speak of chemical aspect of paint. He said he has work experience about paint. He has deposed that he was not aware whether there is any instrument to read the dampness or not. He has further deposed that it was because of the compulsion of opposite parties 1 and 2 that he has used the moisture meter. The instrument brought was one used to measure wood moisture. Any how the instrument ultimately cannot be depended to arrive at a conclusion since the guidance notes of manual makes clear that “it must be reiterated that the meter reading is only a guide. Knowing the actual moisture content does not indicate whether that material is “dry or wet”. If the instrument is to helpful to realize the material is dry or not, practically speaking it cannot be made use of having a conclusion. Commissioner deposed that it is possible with naked eye to understand whether there is dampness or not. There was no dampness in the physically affected area. As per meter 70% of the affected portion contains moisture. He has also stated that as per the brochure the moisture meter was not reliable. Answer to a related question CW1 deposed that he has expressed the opinion on reading the brochure. So also he has deposed that he knows what are the procedures to be taken before painting is done. When he was asked what was applied his answer was primer was applied”. But he is also answered that he is not able to say application were made in accordance with the directions of Asian paints. He was not aware whether water proofing was done or not. In the cross examination he has further stated that the affected area was up to 90 cm from the bottom. It was not affected upper part of the wall in the ground floor. In the first floor it was seen affected just below the ceiling up to 45 cm. This evidence of the expert commissioner creates suspicion that the affected area are those parts wherin the possibility of dampness and moisture might have been existed since the affected area is upwards from the ground  level and down words from the ceiling. CW1 further stated that he cannot say whether there was moisture or not. He is not also able to say what was the reason for eating the paint by the ants. He was  answering that it was not possible for him to say finally whether the failure of the painting had been occurred due to the defects of Asian paint or not. In short the report Ext.C1 and the evidence adduced by the commissioner as an expert has not been capable of giving any correct idea with respect to the subject  mater that leads to a reasonable conclusion. The main weakness of the report Ext.C1 is that the commission did not take pain to explain how he arrived at the findings shown in report. Taking into account the fact that he has categorically deposed in the witness box that he cannot finally say whether or not defect of the Asian  paint was  caused for the failure of painting and the absence of explanations for his findings in Ext.C1 Commission report, it is difficult to come in to conclusion that the paint used was substandard and bad quality.

          PW1 in his cross examination deposed that “ Ddp-¼-cn-¨-sXm-gnsI _m¡n `mK§fn paint\p XI-cm-sdm-¶pT CÃ. Hmtcm apdn-I-fn-epT tF-j-y³ s]bnâknsâ 2þ3 If-dmWv D]-tbm-Kn-¨n-cp-¶-Xp. BI-f-sdm-¶pT fade BIp-Itbm damage BIp-tI.bm sNbvXn-«n-Ã.. Paintsâ XI-cm-dp-sIm-­mWv Ddp-¼-cn-¨-Xp. Ddp-¼-cn¨ Øe-¯pT AÃm¯ Øe-¯pT Npa-cn ASn-¨Xp Htc s]bnâmWv”. Though the opinion of PW1 is that the paint eaten by the ants as a result of inferior quality of paint he admits that ant eaten the paint only in the bottom portion of the wall and near the ceiling. Naturally the possibility of moisture and dampness in these affected area is more since there is possibility of  percolation from ground to upwards and from, ceiling to down wards. Evidences goes to show that other places there is no ant eating or colour fading. PW1 deposed that “ Ddp-¼-cn¨ Øe-¯pT AÃm¯ Øe-¯pT Npa-cn ASn-¨Xp Htc s]bnâmWv”.’ If that be so, that other places remained unaffected without fading or ant eaten that only shows the reason for failure is not that of the quality of the paint but of some other reasons probably moisture and dampness. The evidence of the commissioner that he was not able to say the applications were made in accordance with the direction of Asian paints and also not aware whether water proofing was done or not creates doubts whether necessary precautions had been taken to overcome the affect of moisture and dampness.

          The painter PW1 claims to be an experienced painter and as per his evidence Asian paints is well known and he had used the paint to colour many place and he had not heard of any complaint about Asian paint ever before. He/PW2 deposed in cross examination thus: “Asian paints t]cp-tI« Øm]-\-amWv. Asian paintssâ s]bnâp aäp ]e-Ø-e-§-fn-ep-T-A-Sn-¨n-«p­v CXp-t]mse ]cmXn ap¼p-­m-bn-cp-¶n-Ã. ]s£ Ct¸mÄ D­m-Ip-¶p-­v. BcpT ]cmXn sImSp-¯-Xmbn And-bn-Ã.’. The evidence reveals that during the  16 years of experience of PW2 this is the first and the only complainant that he had experienced about Asian paint. He has no experience of his own hearing of  such a complaint about Asian paint ever before in his career of  16 years.  This evidence of PW2 indicates that more precaution has to be taken to determine the quality of the Asian paint. It has also to be taken in to account that on information of complainant the opposite party attended without delay though not solved the grievances of the complainant. It is an admitted fact that 2^nd opposite party has visited the house of the complaint after getting information. It is also an admitted fact that   representatives of the 1^st  opposite party from Calicut and Bangalore had visited his house. Though not solved the problem paying visit to the house of the complainant so as to observe the complaint can be considered as positive approach. What they contended primarily is that the Royale Luxury Emulsion was observed to be improperly applied without any premier, whereas, it should have applied wall primer water thinnable or solvent thinnable before applying Royal  for proper adhesion. It has also pointed out that in case of Apex system; primer was applied but whereas satin Enamel was directly applied without following the user instructions on the product. Here also one coat of wall primer should have been applied before applying product for proper adhesion.

Exct.C1 reveals that Expert Commissioner has found that complainant applied primer suggested by Asian paint. But he has not explained the way in which he has realized this fact. Another fact in his finding is that the ground floor rooms are affected at a height of 90 cm from the floor level and the first floor rooms at a length of 45 cm below ceiling. He has not given any explanation why other places are not affected. It is not also explained the peculiarity of affected area. An explanation should have been given what is the reason for effecting this failure particularly on the area at a height of about 90 cm from the floor level and so on at a  distance of 45 cm downwards from  ceiling. There is no complaint in other area. It is the same paint that has been used on the entire wall but almost at definite area it is seen the painting has became a failure in all the rooms. Evidence goes to show that the alleged phenomenon appeared in all rooms alike only on a similar portion leaving other places in all the rooms everywhere with good painting. If the paint is substandard quality we cannot expect such a perfect appearance of the paint on other areas, that too in all the rooms similarly. The perfectness of the paint seen maintained on a large area, do create an impression that the failure of paining need not necessarily be as a result of its substandard. The available evidence does not prove that the paint used is substandard. The complainant has not been able to place sufficient materials that lead to conclude that the paint used for painting the house of the complaint was substandard quality paint.

          Under the circumstances of lack of sufficient materials to hold that the Asian Pain used by the complainant is poor quality it is not possible to cast deficiency in service on the part of opposite parties. Hence the issues 1 to 3 found against complainant

In the result, the complaint is dismissed.

               Sd/-                      Sd/-           Sd/-

President               Member       Member          

                                      APPENDIX

Exhibits for the Complainant

A1 to A3. Cash bill issued by 2^nd OP

A4.Copy of the lawyer notice sent to OP

A5. Reply notice

Exhibits for the opposite party:

Nil

Exhibts for the court

C1.Commission report

Witness examined for the complainant

PW1.Muhammed Kunhi

PW2 T.M.Ashraf

Witness examined for the opposite parties:

DW1.Mohan Kumar.R

DW2.Sudakar

Witness examined for the court

CW1.Ajay.S

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent