SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint for compensation costs etc. The averments in the complaint can be briefly summarized as follows The complainant is working as a pharmacist of SIMS Hospital, Kollam Induced by the advertisement of the opp.party 1 and 2 in the newspaper and medias in respect of a new brand paint by name Apex Altima Weather Coat Paint, he approached the 2nd opp.party for purchasing the said paint on 21.1.2006. The complainant has a building having outer area of 900 sq.ft.. The Manager of the 2nd opp.party one Saju informed the complainant that Apex Ultima is a new brand exterior weather coat paint fit for the above purpose. He has further informed that the above paint will cover an area of 80 sq.ft. with one liter paint. The complainant purchased 20 litres of Apex Ultima in addition to varieties of paints for a sum of Rs. 22,455/-. When the account is settled the opp.party informed the complainant that due to lack of Base material for mixing the paint will be delivered on the next day. However, the paint was delivered only on 27.1.2006. When the painting was started it was noticed that the paint could cover only ¾ area of the building against the assurance given by the 2nd opp.party.. Though two to three coat paints were applied in the above area it could not cover the colour of the previously applied paint. The complainant and his painter met the manager of opp.party 2 and informed the same. But the manager has poured filthy languages on the complainant in front of the customers and also tried to manhandle them. It caused mental agony and loss of reputation to the complainant . Neither at the time of purchase nor thereafter the manager did not tell the complainant the application of paint Apex Ultima. The consumer has a right to be informed about the application of a commodity, its quality and its standard which amounts to deficiency in service. Due to the above attitude of the 2nd opp.party the complainant approached the sales Executives of Asian Paints one Jyothish and Anwar and informed the matter. They visited the complainant’s house and inspected the building and took the sample of the paint for further enquiry and follow up action. Thereafter the complainant again met the 2ndopp.party who agreed to visit the house of the complainant but he did not turn up as promised. During the discussion with the Sales Executive the complainant could gather that the mixing of the paid by the 2nd opp.party’s worker would have been the reason for the substandard quality of the paint.. The mixing of the paint may have been done by some one without expertise which resulted in the unwarranted loss to the complainant for which the 2nd opp.party is liable to make good . The complainant has spent Rs.16,000/- as labour charge for painting his building. If the building is to be painted and make it defect free manner he has to spend more than Rs.20,000/- further . He is also entitled to get Rs.10,000/- towards compensation for mental agony. Hence the complaint. The 1st opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts. It is true that the first opp.party is the manufacturer of Asian Paints and 2nd opp.party is the dealer. The Apex Altima is a premium quality water based modified acrylic, anti algal, high performance exterior emulsion manufactured by the 1st opp.party and was launched in Kerala in December 2005. Since it’s lanch more than 1000 kilo liters of the same product have been sold in Kerala There is absolutely no complaint as regards the quality of the products. It is not known to this opp.party as to weather the 2nd opp.party has told the complainant that Apex Ultima Paint will cover an area of 80 Sq. ft. with one liter paint.. This opp.party have never given any assurance in the form of advertisement. This opp.party is unaware of the alleged exchange of words made between the complainant and the 2nd opp.party. It is true that the complainant approached the Sales Executive of 1st opp.party. After the visit of the Sales Executive of this opp.party suggested that the customer use exterior primer on the wall before applying the finish coat. On 30.4.2006 the painter appointed by the Sales Executive of this opp.party used the Exterior Wall Primer and Apex Ultima Tangerine shade on one of the walls of the complainant’s residence which was already painted with wedge wood paint. The wedge wood shade was covered in two coats of Apex Ultima and the complainant has expressed his satisfaction. The first opp.party is the largest paint manufacturing company in India and has been the leader in the Paint industry. The paint manufactured by the 1st opp.party is of the highest standards and does not in any way suffer from any defect. If any deficiency in service is occurred as alleged in para 5 of the complaint, the 2nd opp.party is solely liable for the same. The allegation in the complaint that the complainant had sustained huge loss is denied. The averments in para 7 of the complaint is also denied.. The problem faced by the complainant is not due to any defect in the quality of paint manufactured by the 1st opp.party. Therefore, this opp.party is not liable for any loss or damage as alleged . There is no unfair trade practice and deficiency in service on the side of the first opp.party. Hence the first opp.party prays to dismiss the complaint with their costs. The 2nd opp.party filed a separate version also contending that the complaint is not maintainable and the complainant is not a consumer. It is true that the complainant on 2`1.1.2006 purchased 20 liters of Apex Ultima and different varieties of paints for Rs.22,455/- from this opp.party. But as there was no sufficient quantity of the Basa Cement this opp.party informed the matter to the complainant and assured him that the paint shall be delivered on the next day itself and accordingly on 22.1.2006 itself , the paint was delivered to the complainant at his residence. At the time of purchase the complainant did not inform the Manager or any other staff of this opp.party that he has used Apex Wedge Wood for the building previously and all the statements to the contrary are quite ill motivated and hence denied. The averment that the paint was delivered to the complainant only on 27.1.2006 is also false and hence denied.. The Manager of this opp.party has informed the complainant that one liter of Apex Ultimate paint will cover an area of 55 sq.ft. The allegation that the manager told the complainant that the paint Apex Ultima will cover an area of 80 sq.ft. with one liter is false and hence denied. The Manager on 22.1.2006 knowing that the complainant has used Apex Wedge Wood for the building previously specifically instructed the complainant to apply Apex Ultima only after applying one coat of Asian Exterior Cement Primer On the complaint made by the complainant the Manager of this opp.party visited the building and found that the complainant had applied the Apex Ultima disregarding the instructions given to him and that Asian Exterior Cement Primer was not applied before applying Apex Ultima and when this aspect was brought to the notice of the complainant he had admitted the said mistake. The averments that the Manager of this opp.party poured filthy languages on the complainant in front of the customers and tried to manhandle them causing mental agony and loss of reputation is false and hence denied. There is no deficiency in service or unfair trade practice on the part of this opp.party . When the Apex Wedge wood is applied on outer wall surfaces it will be of bluish gray colour In such cases, invariably primer coat has to be applied before using any colour on that surface. Moreover, if the apex ultima is to be painted on a surface where the apex wood edge is already applied surely one coat of primer paint has to be applied in advance and unnecessary no the final result of the colour shades will be different one. When the he Manager of this opp.party went to the house of the complainant to deliver the paint strict instructions to the complainant that before applying the colour shade the wall surface has to be painted with one coat of primer. The complainant so as to save money has ignored such warnings. The loss if any sustained to the complainant was not due to any laches or default on the side of this opp.party but due to the fault of the complainant himself. The none -disclosure of the technical aspect to a customer would never make a gain, either financial or otherwise to the opp.party so it cannot be believe that the opp.party’s official had suppressed such an important point. The non coverage of the previously applied colour was solely due to the non application of the cement primer. So the allegations that the mixing was done by some inexperienced staff of this opp.party in negligent manner and that has caused the problems is baseless. The allegation that that the complainant has expended Rs.16,000/- towards labour charges and Rs.20,000/- would be required to get the building free from defect are all false and hence denied. There is no unfair trade practice or deficiency in service on the part of this opp.party. Hence this opp.party also prays to dismiss the complaint with their costs. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.parties 2. Reliefs and costs. For the complainant PW.1 and 2 are examined. Ext.P1 to P4 are marked. No oral or documentary evidence was adduced by the opp.parties. POINTS: The complainant purchased 20 liters of Apex Ultima Exterior emulsion from opp.party 2 is admitted. The paint was not delivered on the same day is also not disputed. When opp.party 2 says that the paint was delivered on the next day the complainant would say that it was delivered after six days. According to the complainant the delay was due to non availability of base material for mixing. The contention of the complaint is that the opp.party 2 purchased the base material locally and mixed the paint which reduced the quality of the paint. It is the further case of the complainant that opp.party 2 has not given proper instruction for the usage of the paint as it was a newly introduced paint. The definite contention of opp.party is that it was due to the lack of experience of the painter engaged by the complainant the whole complication arose. It is contended that the Manager of opp.party 2 gave all instructions to the complainant regarding the usage of paint. There was also instructions printed in the container in this regard which the complainant and his painter failed to notice before painting is started. It is the further case that the complainant did not apply cement primer on the surface before painting which is the reason for the poor coverage and not the quality of the paint. Admittedly the complainant approached the opp.parties after beginning the painting complaining of the poor coverage and quality of paint and both the opp.parties have visited the house of the complainant and conducted inspection . In fact opp.party 1 has taken sample of the paint but the result of analysis was not produced before the Forum or given to the complainant from which in adverse inference can be drawn that the quality of the paint was poor. An expert was appointed who filed Ext. C1 report. The expert has given 3 reasons for the poor coverage [1] that there was some deterioration in the quality of the paint supplied [2] surface preparation was not done before applying Apex Ultima and primer application was needed for better coverage which was not done [3] The paint has been over diluted. The expert has stated that the above 3 aspects jointly contributed to poor coverage. The expert further reported that there was alone formation in the walls which is also indicative of poor quality of paint. As pointed out earlier the non production of the report on the sample paint taken by opp.party 1 from the complainant’s house is highly suspicious and leads to an inference that the non production of the same is because on analysis it was found that the quality of paint was poor. The allegation of the complainant that the quality of paint was affected due to mixing with inferior base materials also remains unimpeached. PW.2 the expert in his report has stated that one of the reasons for poor coverage was the deterioration in the quality of paint which can either be caused due to mixing of the paint with inferior quality base material or it can be caused at the time of manufacturing. The burden to establish the same is on the opp.parties which they failed to discharge. There is contributory negligence on the side of the complainant also for the poor coverage of paint in not applying primer and over dilution. It is not disputed that the complainant on the next day of starting painting approached opp.party 2 and thereafter opp.party 1 with the complaints of paint. When the complainant approached the opp.parties it was their duty give proper instructions especially when at that time Apex Ultima was a newly introduced paint. This aspect coupled with the 1st reason stated by the expert would establish to some extent deficiency in service on the part of the opp.parties1 and 2 . In these circumstances we feel that it is only just and proper to direct the opp.parties 1 and 2 to refund the value of Apex Ultima paint to the complainant. Point found accordingly. In the result the complaint is allowed in part directing the opp.parties 1 and 2 to refund the value of Apex Ultima paint Rs.4811/- and Rs.3200/- as compensation and costs. The order is to be complied with within one month from the date of receipt of this order. Dated this the 23rd day of November, 2010. . I N D E X List of witnesses for the complainant PW.1. – Vinod.N. PW.2. – Suresh Kumar Pillai List of documents for the complainant: P1. – Certificate P2. – Receipts P3. - Photographs P4. Bills issue by caravan colour bank C1. – Expert Report List of witnesses and documents for the opp.party : NIL | 
