KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.780/2012
JUDGMENT DATED 29/07/2013
(Appeal filed against the order in CC No.74/2010 on the file of CDRF, Kannur dated 27/08/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANT:
Maimoona.T.M.,
Kuthirummal House, Thalichalam,
P.O. Elambachi, Kasargod District.
(By Adv: Sri. M. Sasindran)
Vs
RESPONDENTS:
1. Asian Paints Ltd.,
Asian Paints House, 6A Shantinagar,
Vakolapipeline Road, Sanctacruz (E), Mumbai-400 055.
2. The Proprietor, Central Hardwares, Main Road,
Payyannur-670 307.
(By Adv: Sri. T.P. Lekshmanan)
JUDGMENT
SMT. A. RADHA : MEMBER
Dissatisfied by the Order in C.C.No.74/2010 on the file of CDRF, Kannur the complainant preferred this appeal.
2. It is the case of the complainant that the complainant purchased Royal Luxury Emulsion paint of Asian paints from the 2nd opposite party for a sum of Rs.44,508/-. He had to spend Rs.42,000/- towards the painting charges. The 2nd opposite party assured that the paint will last at least 5 years without any change. The wall primer was also applied when the painting works were done in the month of March/April 2009. When the complainant came from Malasia in July 2009 she was disappointed on seeing the surface of her house. The paint was peeled off in almost all places. The 2nd opposite party visited the house and was convinced of the defects of the paint. Thereafter the representatives of 1st opposite party from Calicut and Bangalore visited the complainant’s house and promised to redress the grievance. Though the opposite parties visited they have not rectified the defects and hence filed this complaint before the Forum below. The complaint is filed for Rs.3,00,000/- as compensation to the complainant.
3. The opposite parties filed version jointly denying the purchase of Royal Luxury Emulsion paint of Asian paints. It is also contended that the paint was not applied as per the instructions given by the opposite parties. No assurance was given that the life of the paint is for 5 years. The wall primer (solvent thinner) is to be used before applying the paint for proper adhesion. It is contended that on technical inspection it was found that the walls are with heavy moisture and dampness in almost all walls of the complainant’s house. The other contention is that the complainant’s site is having heavy vegetation and the house is amidst the paddy field. The Asian paints whether interior or exterior do not contain any ant attractions. Hence the allegation of presence of ants in the painted area is not sustainable. The seepage in the wall has to be removed and the insecticides to eradicate should have applied by the complainant before painting. The opposite parties are not liable for any loss caused resulting paint peeling from the wall. It is also stated that the workmanship of the painters without curing seepage and moisturization resulted in the peeling of the paint.
4. The evidence consisted of the oral testimony of the PW1, PW2 and documents were marked as A1 to A5 and C1 on the part of opposite parties DW1, DW2 were examined.
5. The arguments put forward by the counsel for the appellant is that on completion of the painting work it was found that the paint was peeling on almost all the places. The complainant purchased the paint for Rs.44,000/- and around Rs.42,000/- as painting charges. The work was done by an efficient painting contractor very carefully. The painters are experts having 10 years experience in this field. The paint was purchased from the 2nd opposite party and the quality of paint was assured for 5 years. The painting work was carried out by expert painters following the instructions from the pamphlets provided and also from instruction for use on the paint vessels. The wall primer was also applied while using satine inamal. Though the 2nd opposite party promised to solve the problem they conveniently evaded from it. The lame excuses contended by the opposite parties are that the house is surrounded by vegetation and plants and it was very near to the paddy field. The finding of the Forum is not based on the real facts and circumstances of the case. The opposite parties had no objection with respect to the report of the Commissioner and even then the Forum below discarded the same. The appellant applied the primer suggested by the respondents prior to the painting. It is in evidence that the dampness and moisture were not visible at the time of painting. There is also no method available to check the moisture presence. No specific instructions were given by the opposite parties with regard to the application of paint in the moisture area. It is also clear from the contentions raised in the version of opposite parties that no instructions were given anywhere regarding the application of paint in moisture area. This is clearly an unfair trade practice on the part of opposite parties. The painting was done in the month of March/April and there is no chance of moisture in the surface of the wall. Hence the findings of the Forum below is not proper. He also pointed out that there is no document or expert opinion or technical support brought out by the respondents to show that the moisture or dampness on the surface of the wall is the reason for peeling off the paint. The evidence of PW2, who is an expert painter, also shows that Asian paint is a reputed company. In the argument the counsel again reiterated that the representatives of the 1st opposite party visited the complaintant’s residence and inspected the present condition of the house. He was convinced that there had peeling of the paint in the complainant’s house. So it is an admitted fact that there had peeling of paint and the ants were seen in the areas having moisture presence and other places. After admitting the defects of the products the respondents assured to clear the defect but later on they kept away from their promise. This also amounts to deficiency in service and unfair trade practice on the part of opposite parties. It is also prayed for allowing the complaint in favour of the appellant.
6. The respondent’s counsel submitted that the paint was not applied as per the instructions given by the respondents. It is also asserted that no assurance was given that the life of the paint will last for 5 years without any change. The counsel also argued that the complainant used the paint without taking appropriate care and caution. The painter who is alleged to be an expert has not done the work properly. He also pointed out that on technical inspection it was found that the walls are with heavy moisture and dampness in almost all the walls of the complainants also. In some part of the house badly effected with moisture problems due to heavy water seepage. The result of paint peeling happened without curing the seepage and moisture problems. He also pointed out that the complainant had not used the Asian paints recommended primer. Secondly the poor workmanship also is a strong reason for the bad condition of painting. The usage of inferior quality paint by the workmen will also lead to the low quality of the painting. The painting was done in the month of April and the defects pointed out only in the month of July. Moreover, the building is surrounded by vegetation and very near to the paddy field. There is every chance of getting moisture to the building. There is no deficiency in service on the part of opposite parties. The opposite parties are reputed painting company and their products are made out through various scientific process under strict supervision. Hence no unfair trade practice can be alleged on the part of opposite parties. No evidence is brought out by the complainant to prove the peeling is due to the defect in the paint. The moisturized area is to apply with additional primer suggested by the painting company. The Commissioner inspected the place and filed a report as Exbt.C1. As per the Commission Report only chemical tests can determine the cause of ants seen in the painted surface. The peeling of the paint was seen in the ground floor rooms at a height of 90 cm from floor level and 45 cm ceiling in 1st floor. He also reported that the house is situated at a distance of 9 mtrs from paddy field and 1st floor of the house is elevated to a height of 1.8 mtre from the level of paddy field. The moisture metre provided by the respondent showed level ‘Red’ which means it needs further investigation. The complainant had not taken out any chemical test to prove whether the paint is suffering from any defect. In the absence of proper evidence the Forum below rightly dismissed the complaint.
7. We have heard both the counsels in detail and gone through the documents. The complaint is filed for compensation for the defect in the painting found out in her house. The complainant purchased the Asian paint from the 2nd opposite party and painted her house in the month of March/April. It was during the visit of the complainant in July it was noticed that the paint was peeling off. The ants were also coming out from the painted area. Though the respondents visited and inspected the complainant’s house nothing came out fruitful and evaded from promises made by them. It is clear from the documents that the complainant purchased the painting materials from the 2nd opposite party who is the dealer of the 1st opposite party. In this context, we have to point out that the commissioner was appointed to verify and report regarding the position of the complainant’s house. It is reported that though the moisture was not felt in touch or by naked eye it is reported that the house is surrounded by vegetation and is very near to the paddy field. Further the complainant asserted that the painter was an expert and was having experience of 10 years in painting does not find any place in evidence as his work was not supervised by anybody. It is not clear from the documents that whether he had used the same paint or the same primer. Mere assertion that he used the quality paint and primer cannot be taken into evidence. The report of the Commissioner also states that the quality is to be checked by chemical analysis which was not done in this case by the complainant. Even if the quality is to be proved the chemical analysis is highly necessary to prove the case of the complainant. At this stage it is not possible to find out the quality of paint nor the moisture or dampness in the building. Even assuming that the painter used appropriate primer with the Asian paints, the existence of moisture in the area reading shown as ‘Red’ in the moisture metre is to be taken into consideration. The presence of ants is not examined and nothing is brought out in evidence by the complainant to prove the quality of the paint. In the absence of evidence the complainant failed to prove his case.
In the result, appeal is dismissed and we uphold the order passed by the Forum below.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.780/2012
JUDGMENT DATED 29/07/2013
sa
