BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 10^th day of November 2017

                                                                                                Filed on : 13.03.2013

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No.199/2013

                                               O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

Lured by the advertisements, the complainant had purchased paints from the 1^st and 2^nd opposite parties who are the manufacturers of paints and the 3^rd opposite party is the distributor.  In the advertisements issued by the 1^st and 2^nd opposite parties, they had promised that if Asian Paints are used, the walls will be free from fungal and algae and the 3^rd opposite party, who is the authorized dealer, had ensured the complainant that the advertisement and guarantee given by the 1^st and 2^nd opposite parties are true and will be honored.  The complainant had purchased the Asian paints and other related materials suggested by the 3^rd opposite party who is the authorized agent of the 1^st and 2^nd opposite party for about Rs.1 lakh during November 2009 and January 2010. The entire building including the wall, doors and all features of the house of the complainant were painted using the above paint. The painting was done by expert painters who had done the painting after complying with necessary applications such as puttying, leveling etc. The guarantee offered by the opposite parties were that for a period of 5 years, no further painting of the house will be needed. But the entire tress work is seen covered with fungi and algae growth.  The entire appearance of the building has been deteriorated due to the low quality of materials supplied by the opposite parties. The materials supplied by the complainant did not match the promise made by them. On seeing the ugly growth all over the building the complainant had informed the opposite party regarding the facts. After receipt of the complainant the opposite party had deputed one Area Manager Mr. Dinu Soman who visited the building of the complainant for inspection. Though the said representative visited the house of the complainant twice, ie.,on 10.02.2012 and 24.02.2012, he did not conduct any special inspection using any machine. On 29.03.2012, the complainant had received a letter from the opposite party and stated in the letter that the representative who had visited the building had given a report that the fungal growth was seen on Satin Enamel, dust on Royal Luxury Emulsion and algal growth on exterior walls where Apex Weatherproof Exterior Emulsion was applied. The above allegation of the person who had visited the house of the complainant was false and without any verification that he did not conduct any sort of examination using any equipment during the time of his visit. The fungal and algal growth was due to the use of substandard materials manufactured by the 1^st and 2^nd opposite parties and supplied by the 3^rd opposite party. Though they had promised through their advertisements that the materials manufactured by them are of a particular standard, they failed to keep that promise. The complainant had informed the defects long ago and the opposite party had not cared to cure the defects so far. At last, the complainant was offered with 8 liters of Satin Enamel along with labour purely as ‘goodwill gesture’. But it is contented that the complainant is entitled for getting the replacement for the entire materials purchased by him. The complainant is not requesting for any curtesy. He is seeking to replace the substandard paint with quality assured paints along with labour. Due to the growth of fungi and algae serious health problems developed and allergic inflammation were felt to inmates including infant child. In this case, the opposite parties have resorted to unfair trade practice by giving false advertisements and canvassing business of the materials manufactured by them which are of substandard quality by promoting them by giving 5 years guarantee. The acts of the opposite parties is clear case of unfair trade practice and also there occurred deficiency in service on their part.  Thus the complainant is before us seeking direction against the opposite parties to supply 80 ltrs paint worth about Rs. 1 lakh sufficient to complete the painting and provide service of 90 labours to complete the painting work or in the alternative pay an amount of Rs. 67,500/- towards the labour charge and the complainant again seeking compensation of Rs. 5000/- along with costs. Hence the complaint.

2)       Version filed by the 1^st and 2^nd opposite parties are as follows:

          The opposite parties alleged in their version that this complaint filed is not maintainable under the provisions of the Consumer Protection Act, 1986. The opposite parties contended in their version that complaint filed by the complainant is false, frivolous, baseless and not maintainable either in law or in facts. The complaint is also barred by limitation. The complaint is therefore liable to be dismissed on this ground alone. The opposite parties are ISO 9001:: 2000 standards Company. The certification is a confirmation of the fact that the company is complying with all the requirements of ISO 9001:2000 standard. This clearly collaborate the facts that the opposite parties maintains a very high standard in manufacturing paints. The opposite parties used to verify the quality of their product at different stages and no compromise is made in respect of any deviation from these procedures and policies.  No substandard material is used for the manufacturing the disputed product and the production department carried out                 in-process checks as indicated by the research and development department.  The 1^st and 2^nd opposite parties denied that all the averments made in the complaint are false promise towards the usage of products manufactured by the opposite parties. All advertisements published on the products promotion of the opposite parties 1 and 2 are subject to certain terms and conditions. The 1^st and 2^nd opposite parties specifically denied and challenged the statement on engaging any expert painters for painting in premises. The complainant has failed to submit any documents to support his statement. The 1^st and the 2^nd opposite parties had provided warranty and not guarantee of its products as is mentioned in the complaint. The said warranty could only be availed under some specific conditions like following of proper painting procedure while application of paints and registering the said warranty online post purchase.  We put the complainant to strict proof of evidence supporting his statement of a proper procedure of painting followed by him.  Also it is clearly stated in the warranty card of the 1^st opposite party that to claim the warranty the purchaser needs to register the warranty online within a specific time of purchase. The opposite parties 1 and 2 have not provided any inferior quality of product to the complainant and the opposite parties were not admitting any defects in the goods or liability to pay any compensation. No deficient service or unfair trade practice happened on the side of the 1^st and 2^nd opposite parties. The complainant failed to produce substantial evidence to prove his allegations stated in his complaint.  The complainant is therefore not entitled to get any of the relief sought for in his complaint and the complaint is liable to be dismissed.

3)       There is no version filed by the 3^rd opposite party. Evidence in this case consists of proof affidavit filed by the complainant and documents Exbt A1 to A4 were marked on the side of the complainant.  The complainant is examined as PW1.  Witness of the complainant examined as PW2.  Expert Commissioner examined as PW3 and commission report marked as Exbt.C1. Witness of opposite parties 1 and 2 were marked as DW1 and exhibits B1 and B2 were marked on the side of the 1^st and 2^nd opposite parties.  Heard the Counsel for the complainant and the opposite parties.

4)       Issues came up for considerations are as follows:

1. Whether the complaint is maintainable before this Forum?
2. Whether the complainant has proved deficiency in service or unfair trade practice on the side of the opposite parties?
3. Whether the opposite parties are liable to supply 80 ltr. paints about worth Rs.1lakh to the complainant.?
4. Whether the opposite parties are liable to pay an amount of Rs.67,500/- to the complainant towards labour charge?
5. Whether the complainant is entitled to get compensation and costs of the proceedings from the opposite parties?

5)       Issue Nos. (i) and (ii)

The 1^st and 2^nd opposite parties argued that the complainant had purchased paints and other related materials suggested by the 3^rd opposite party who is the authorized agent of the 1^st and 2^nd opposite parties for about Rs.1 lakh during November 2009 to January 2010.  In paragraph 12 the complainant it is stated that “since serious defects appeared immediately after the application of the paint causing serious monetary loss to the complainant, the opposite parties are bound to clear the defects in toto by meeting the entire expenses”. The cause of action arose when serious defects appeared immediately after the application of paints. At the time of cross examination of the complainant as PW1, he categorically stated that the paint was applied on the house on November 2009 and presence of algae and fungi had seen fag end of 2010. Hence it is evident that even according to the petitioner, the cause of action for this complaint arose in the far end 2010 when algae and fungi growth developed immediately after applying of paints. In this case, the complainant had filed the complaint on 13.03.2013. ie, after the 2 years of developing fungi and algae. From the above facts pointed out that the complainant had filed this complaint after the limitation period of 2 years.  The section 24 A of Consumer Protection Act, 1986 specifically stated that District Forum shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.  The complainant has not filed any affidavit explaining the delay caused in instituting the complaint. On the above grounds, the above complaint is filed out of the statutory period of 2 years and the same is not maintainable.

6)       The complainant argued that lured by the advertisement of the 1^st and 2^nd opposite parties he had purchased the defective paints and related materials.  In the advertisement shown by the 1^st and 2^nd opposite parties, the opposite parties had promised that the walls will be free from fungi and algae.  But, the complainant miserably failed to produce the above said advertisements relied on by him before this Forum. The complainant also failed to prove that the opposite parties had supplied substandard quality products to him. We discard the above said arguments in the absence of the substantial evidence.

7)       The opposite parties made serious objection regarding the Exbt. C1 Commission Report, and the opposite party alleged that the Expert Commissioner without any scientific base and without even conducting any test or analysis as provided under Section 13 C of the Consumer Protection Act, 1986 has submitted the report. The Expert Commissioner was not at all qualified for executing the work and that he has given his opinion only based on surmises and conjectures. Expert Commissioner was examined as PW3 and at the time of cross examination, he deposed that his qualification is B.Tech Civil Engineering and is not an authority to say anything about painting and related issues. He further deposed that bachelor/diploma in painting technology or M.Sc (organic chemistry) is the suitable degree for analyzing the quality of the painting products and its application. The Expert Commissioner, himself says that he is not a qualified or fit person for analyzing the painting works. Hence we are not relying on the expert commission report.

8)       The complainant stated in his complaint and argued that the guarantee offered by the opposite parties was for the last 5 years, no further painting of the house will be needed.  But, except for the averments made by the complainant not produced any warranty card or proof for the same.

9)       In the above facts and circumstances, we are of the opinion that the above said complaint filed after the statutory period and that the complainant miserably failed to prove any deficiency in service on the part of the opposite parties. Since, the complaint is not maintainable before this Forum, the complaint is liable to be dismissed on that ground itself.  On merit side also, the complaint is found not allowable.  Hence the complaint is dismissed.

10)      Issue Nos (iii) to (v)

Having fond the issues (i) and (ii) against the complainant, we are not inclined to consider and to decide issue No. (iii), (iv) and (v).

11)     In the result we find that this complaint is liable to be dismissed and is accordingly dismissed.

        Pronounced in the open Forum on this the 10^th day of November 2017.

Sd/-Sheen Jose, Member

Sd/-Cherian K. Kuriakose, President

Sd/-Beena Kumari V.K., Member

                                                          Forwarded by Order

Senior Superintendent

Date of Despatch   :

          By Hand      :

          By Post       :

APPENDIX

Opposite party’s Exhibits     ::   

Depositions  :

          PW1  : Nimesh Paul

          PW2  : Krishna Kumar

          PW3  : P.R. Giri Kumar

          DW1  : Sanju S.

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