SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/s 12 of Consumer Protection Act 1986 for an order directing the opposite parties to pay compensation of Rs.50000/- to the complainant for the deficiency of service on their part.
The case of the complainant in brief
The complainant’s sister Apsha’s marriage was scheduled to be solemnized on 16/05/2018. Then the complainant decided to paint his house on 16/03/2018. The complainant approached OP2’s shop to purchase OP1’s paint named as Asian Paints 2nd OP showed the colour palette of the Aisian paints to the complainant for selecting the colour available there. The complainant selected different varieties of paint as numbered 8435, 8255, 0587, 7308, 8650 and 0509 in colur palette for Rs.7871/-. After purchase of paint he painted the house and he noticed that Grey tint (No.8435 in the colour patette) does not produce expected result. So it is totally different from colour patette. Then the complainant approached OP2 to inform the colour variation. Then OP2 examined the sample of the said paint and state that colour variation due to manufacturing defect. There after complainant filed a complaint to OP1 also. After receiving the complaint OP1 and OP2 inspected the complainant’s house. Then OP1 states that the colour variation on accounts of mixing of paint. Again 01/05/2018 the complainant purchased Royal Emu Base RB2 paint in the colour palette. The complainant again noticed the colour variance. After that the complainant enquired about the complaint which he sent to OP1. But that complaint is found closed without informing the complainant. Thereafter the complainant send a lawyer notice to both OPs on 07/06/2018. Both OP’s sent reply notice stating false contentions. But the OPs are not ready to cure the defects of the paint. So the complainant has got mental agony and financial loss. So there is deficiency of service on the part of OPs. Hence the complaint.
OP No.1 entered appearance before the commission and filed his written version. OP2 set ex-parte. OP1 contended that the products manufactured the product pass through stringent quality checks and test trials before the actual start of the commercial production. More over the paint supplied to him being defective without relying on any expert report from a recognized and notified laboratory under sec.13(1) of Consumer Protection Act. So the complainant has not produced any expert report. The tainting machine at its OP2’s store. The dealer prepares a shade by selecting the “shade code” after which the tainting machine dispenses colorant is the precise proportion into the selected base paint, which is then mixed to create the correct shade. So the colour variation is due to manufacturing defect vehemently denied by OP1 and the complainant is not produced any proof for the same. So OP No.1 is not liable to compensate or refund the cost of the product. There is no deficiency of service and unfair trade practice on the part of OPNo.1. The complaint is liable to be dismissed with cost. On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the OPs?
- Whether the complainant is entitled for any relief?
- Relief and costs?
The evidence on merit of the oral testimony of Pw1 and Ext.A1 to A7 documents and C1 commission report also marked. No oral evidence and documents from the side of OPs.
Issue No.1
The complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by OP No.1. The document Ext.A1 to A7 and commission report Ext.C1 were marked on his part to substantiate his case. According to the complainant Ext.A1 and Ext.A2 shows the tax invoice clearly shows that the complainant purchased OP1’s product in OP2’s shop. In examination Pw1 states that "painte ൻറെ കളർ അടിച്ചു കഴിഞ്ഞപ്പോൾ വേറെ കളർ ആയി മാറി. പുറത്തു അടിച്ച paint നു ആണ് പരാതി. paint കമ്പ്യൂട്ടറിൽ മിക്സ് ചെയ്താണ് തന്നത്." In Ext. A3 is the colour palette issued by the OP1 but after painting the house the colour palette does not produce the expected result. So the complainant informed the matter to both opposite parties. But opposite parties are not ready to redress the grievance caused to the complainant. As per Ext.A6 and Ext.A7 the opposite parties content that paint as per the order placed by the complainant by choosing the numbers in the palette. Moreover the paint mixing was done as per the order of the complainant. So there is no deficiency of service on their part. But in Ext.C1 report the commissioner stated that (code No.8435) ഭവനം paint അടിച്ചത് പരിശോധിച്ചപ്പോൾ കളർ palatte ലെ കളറും ഭവനത്തിലെ നിലവിൽ ചെയ്ത paint ഉം കളർ വ്യത്യാസമുണ്ട്. ഭവനത്തിന്റെ പുറം ഭാഗങ്ങളിലാണ് പരാതിയിൽ പറഞ്ഞ paint അടിച്ചിട്ടുള്ളതെന്നു പരാതിക്കാരൻ പറയുകയുണ്ടായി. Paint അടിച്ച ചില ഭാഗങ്ങളിൽ ഡാർക്ക് കൂടുതലും ചില ഭാഗങ്ങളിൽ ഡാർക്ക് കുറവും അങ്ങനെ രണ്ടു തരത്തിൽ കാണപ്പെട്ടു. സൂര്യാസ്തമനത്തിനു ശേഷം ഭവനത്തിലെ ലൈറ്റ് ഓൺചെയ്തു പരിശോധിച്ചപ്പോൾ ഒരേ ഏരിയ യിൽ തന്നെ കളർ വ്യത്യാസം കാണപ്പെട്ടു. So it is clear that there is deficiency of service and unfair trade practice on the part of opposite parties. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue No.2 & 3
As discussed above the paint purchased by the complainant after painted his house he noticed that the paint named Grey tint (numbered as 8435 in colour palette) is totally different from colour palette. It is noticed by Advocate commissioner and reported in C1 report also. But the complainant was not produce the documents shows the estimate labourer work and rectifying by re-painting work etc. So the complainant is entitled to get the total cost of the paint from opposite parties. Therefore we hold that the OPs jointly and severally liable to refund the total cost of paint Rs.7871/- to the complainant along with Rs.7000/- as compensation andRs.5000/- as litigation cost. Thus the issue No.2 and 3 also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties 1 and 2 jointly and severally to refund the total cost of paint Rs.7871/- to the complainant along with Rs.7000/- as compensation and Rs.5000/- as litigation cost within 30 days of receipt of the order. In default the complainant carry 6% interest per annum for Rs.7871/- from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exhibits for Complainant
Ext.A1 - Tax Invoice dated 16/03/2018
Ext.A2 - Cash receipt dated 01/05/2018
Ext.A3 - Colour palette
Ext.A4 - Lawyer notice
Ext.A5 - Reply notice by OP1
Ext.A5 - Reply notice by OP2
Ext.A6 - Poster receipt and acknowledgement
Ext.C1 - Commission Report.
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Senior Superintendent
