BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 432 of 2015

Date of Institution: 10.7.2015

  Date of Decision: 23.5.2016

Sh. Kuldeep Singh aged 48 years old son of Sh. Piara Singh, resident of 1183, Japani Avenue, Backside Old Police Station, Chheharta, Amritsar

Complainant

Versus

1. Harjee Batteries & Paint Store, through its Partner/Proprietor/Incharge, G.T. Road, Sharifpura, Near Punjab & Sind Bank, Amritsar
2. Asian Paints Limited through its Director/Partner/Managing  Director/Incharge/Principal Officer, 6-A, Shanti Nagar, Santacruz (East), Mumbai 400 055

Opposite Parties

Complaint under section 11/12 of Consumer Protection Act, 1986

Present:    For the Complainant                            :Sh.Vimal Sharma,Advocate

For the Opposite Parties No.1 & 2      : Sh.Pardeep Arora,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Sh.Anoop Sharma,Member

Order dictated by:

Sh.S.S. Panesar, President.

1.       Kuldeep Singh complainant has brought the instant complaint under section 11 and 12 of  the Consumer Protection Act, 1986 on the allegations that marriage of the son of the complainant namely Komalpreet Singh was scheduled to be performed on 9.3.2015. Before the said marriage  of the son of the complainant, complainant started work of white washing  and painting at the residential house. For that purpose, complainant purchased Asian Paint from opposite party No.1  vide invoice No. 1532 dated 21.2.2015 for a sum of Rs. 15750/-. Opposite party No.2 is the manufacturer of the said paint. Opposite party No.2 is a well reputed and renowned  company  in paint business. Under this belief  complainant purchased the paint  of Asian Paint Brand for valuable consideration and as such complainant is a consumer  as defined under the Consumer Protection Act and the complainant  is entitled to invoke the jurisdiction of this Forum. The work of entire white wash and paint was got done at the house of the complainant through the skilled professional painters. It is pointed out that complainant has purchased Nut Brown Shade of the paint but, after few days of its application on the doors and windows, the shade of the said paint got changed . The paint started showing dark and light patches on the doors and windows which has seriously caused damage to the windows and doors of the residential house of the complainant. The entire  look of the residential house of the complainant became shabby . Due to this reason reputation and image of the complainant has also been lowered  in the eye of close relatives and other respectable , who visited the house of the complainant on the occasion of marriage of his son. In this regard, complainant approached opposite party No.1  but he did not listen to the complainant and rather he openly declared that he was not responsible for any defect and also threatened the complainant to do whatever  he wanted to do. Thereafter the complainant made complaint to opposite party No.2 , who sent its representative at the house of the complainant. But, however, the representative did not satisfy  the complainant  and rather started alleging that it is the responsibility of concerned shopkeeper from whom complainant has purchased the paint. Besides oral requests, a legal notice dated 17.4.2015 was also served by the complainant through his counsel upon the opposite parties. But instead of complying with the said legal notice, a false and frivolous reply dated 30.4.2015 was sent by opposite party No.1 and opposite party No.2  issued a letter dated 22.4.2015 in response to the legal notice dated 17.4.2015 . From the aforesaid facts, it becomes quite evident that the opposite party No.1 has sold the paint of sub standard quality to the complainant  in the name of  Asian Paint which amounts to deficiency in service , mal-practice  , negligence . It  also seems that the opposite parties have played fraud with the complainant for which complainant also reserves his right to take separate legal  recourse as provided under criminal law  as well as other relevant provisions of law. The complainant has prayed for the following reliefs vide instant complaint:-

(i)      Opposite parties may be directed to refund the amount of ?Rs. 15750/-  as per bill dated 21.2.2015 and also to pay Rs. 12000/- as labour charges spent by the complainant .

(ii)     Opposite parties be also directed to pay compensation of Rs. 50000/- as well as litigation expenses were also demanded.

Hence, this complaint.

2.       Upon notice opposite parties appeared and filed written version contesting the claim of the complainant taking certain preliminary objections therein inter-alia that the complaint is false, frivolous, vexatious and is an abuse of the process of this Forum , therefore, the same is liable to be dismissed under section 26 of the Consumer Protection Act, 1986; that this Forum has got no jurisdiction to entertain and try the present complaint. In the complaint, complainant has alleged fraud and cheating. Such serious averments require a proper trial by a civil/criminal court and voluminous evidence has to be adduced which is not possible in summary proceedings ; that even otherwise also, it is important to note that on receipt of the complaint, an inspection was done by the Company’s representative on March 18^th, 2015 and the following observations were made :

1. Premium Gloss Enamel was applied on Doors and windows.
2. When site was visited dark & light patches were observed. As per the complainant and the answering opposite party No.1 the dark and light patches starts showing within 5 min of application.
3. The system followed was filling putty in some areas, followed by 2-3 coats of Premium Gloss Enamel Paint application & shade Nut Brown was prepared in Base EB20.
4. The material was available at the site batch No. A 340, Mfd dated 07/2014. Sampling was done at the site in different ways, as asked by the customer to do so.
5. Also applied a test patch on the door in terrace where the defect was already present. Sanding with emery paper was done and then applied the material available at the site. It was allowed to dry no defect was observed.
6. The opposite party No.1  did the sampling in the ground floor on the door. Sampling in the ground floor (with 3 no brush as per the customer’s requirement) was done. It was allowed to dry for some time. Again no defect was observed. Moreover the complainant & opposite party No.1 checked the sample in the light of torch. But no defect was observed.
7. Then asked to apply (with 5 no. brush as per the complainant’s requirement), the application was done applied and then allowed to dry. The complainant & Opposite party No.1 again checked the sample in the light of torch, but no defect was observed.
8. It was also observed that paint was not properly mixed before application on the doors and windows . Also Premium Gloss Enamel id directly applied without application of primer which is incorrect and strictly not recommended.

In view of the above , it is clear that the problem at the site, if any , was due to application error and is not due to any defect in the paint ; that the present complaint does not disclose any cause of action against the replying opposite parties. Thus for want of cause of action, the present complaint is liable to be dismissed ; that complainant is not entitled for any compensation or relief from this Forum  ; that complaint has been filed with malafide intention  and ulterior motive to extort money from the opposite parties ; that the present complaint is nothing  but it is a  desperate attempt to extort  unjustified money from the opposite parties. It is  submitted that complainant has not produced any photographs and documents germane to substantiate his alleged complaint. It is humbly submitted that before this Forum, no cause of action exists against the opposite parties . The present complaint deserves to be dismissed in limini at the very threshold by this Forum. In parawise reply, allegations made in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove Sh.Vimal Sharma, Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of bill dated 21.2.2015 Ex.C-2, copy of legal notice Ex.C-3, postal receipts Ex.C-4 & Ex.C-5, letter dated 22.4.2015 Ex.C-6, reply to legal notice Ex.C-7, affidavit of Waryam Singh son of Ajit Singh Ex.C-8, photographs Ex.C-9 to Ex.C-14, wedding card Ex.C-15.

4.       To rebut the aforesaid evidence Sh.Pardeep Arora, Adv.counsel for opposite parties No.1 & 2 tendered affidavit of Sh.Ajit Singh,Area Manager M/s. Asian Paints Ltd. Ex.OP1/A, copy of report Ex.OP1.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the parites.

6.       On the basis of the evidence on record , ld.counsel for the complainant has vehemently contended that complainant purchased Asian Paint from opposite party No.1 vide invoice No. 1532 dated 21.2.2015 for an amount of Rs. 15,750/-. Copy of the invoice/bill is Ex.C-2. Opposite party No.2 is the manufacturer of the  Asian Paint purchased by the complainant. As such the complainant has proved himself to be a consumer  under the Consumer Protection Act. The work of the entire white wash and paint of the house of the complainant was got done from skilled professional painters  by the complainant. The complainant had purchased Nut Brown Shade of the paint  but after few days  of its application on the doors and windows   the shade of the said paint got changed and it started showing dark and light patches on the doors and windows, which gave a shabby outlook of the house. The photographs showing bad condition of the paint at the house of the complainant are Ex.C-8 to Ex.C-14. On account of this, reputation and image of the complainant has been lowered in the eyes of the close relatives and friends , who visited the house of the complainant on the occasion of marriage of his son. The complainant approached opposite party No.1 but it did not listen to the complainant and rather openly declared that it was not responsible for any defect and also threatened the complainant to do whatever he wanted to do. Thereafter, the complainant made complaint to opposite party No.2, who sent their representatives at the house of the complainant. But they did not satisfy the complainant and rather  started alleging that it is the responsibility of the concerned shopkeeper from whom the complainant  had purchased the paint. Besides oral requests a legal notice dated 17.4.2015 , copy whereof is Ex.C-3, was also served by the complainant through his counsel upon the opposite parties, postal receipts accounts for Ex.C-4 and Ex.C-5 respectively . Instead of complying with the said legal notice , a false and frivolous reply dated 30.4.2015 Ex.C-7 was given by opposite party No.1 and opposite party No.2 issued letter dated 22.4.2015 Ex.C-6 which is also based on wrong facts.

7.       Ld.counsel for the complainant further contended that it has become evident that opposite party No.1 had sold paint of sub standard quality to the complainant in the name of Asian Paint and on account of which, the complainant suffered great harassment, inconvenience as well as monetary loss. It is further stated that opposite parties have played fraud with the complainant for which he reserves his right to take separate legal recourse as provided under  the law.

8.       It is further contended that  keeping in view the facts and circumstances of the case, it becomes quite evident that the reputation of the complainant has been lowered in the eyes of the public at large . Opposite parties are guilty  of deficiency in service , mal practice, negligence and unfair trade practice on account of which the complainant has suffered mental pain, agony, harassment and inconvenience. It is contended that instant complaint may be allowed in the terms of the prayer made in the complaint.

9.       However from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has not got the alleged goods tested from some expert u/s 13(c) of the Consumer Protection Act, 1986,the provision in relation thereto is very clear  so that a concocted, malicious , frivolous claim  of the complainant may be dismissed  and the case may be decided on merits as per law laid down by the  competent  court. Opposite parties  find it expedient to refer to and rely upon the judgement of Hon’ble National Commission reported in 2004(2) CPR 165 Smt.Vimlesh Dixit Vs. Dr.R.K.Singhal  and the judgement of the Hon’ble National Commission reported in 2004(2) CPR 45 (NC) Inderjeet Singh Vs. Dr. Jagdeep  Singh.

10.     Not only that , this Forum has no jurisdiction to entertain the present complaint. In the present complaint, the complainant has alleged fraud and cheating practised by opposite parties No.1 & 2 upon the complainant. Such serious averments require a proper trial by civil/criminal court and the  voluminous evidence has to be led which is not possible in a summary trial. . The matters like fraud and cheating involve complicated questions of law and facts and therefore, this Forum having summary jurisdiction, is not in a position to decide the case in view of the averments made in the complaint.

11.     Even otherwise also, on the receipt  of the complaint , an inspection was done by representative of opposite party No.2 on March 18,2015 and vide report Ex.OP2, following observations were made:-

1. Premium Gloss Enamel was applied on Doors and windows.
2. When site was visited dark & light patches were observed. As per the complainant and the answering opposite party No.1 the dark and light patches starts showing within 5 min of application.
3. The system followed was filling putty in some areas, followed by 2-3 coats of Premium Gloss Enamel Paint application & shade Nut Brown was prepared in Base EB20.
4. The material was available at the site batch No. A 340, Mfd dated 07/2014. Sampling was done at the site in different ways, as asked by the customer to do so.
5. Also applied a test patch on the door in terrace where the defect was already present. Sanding with emery paper was done and then applied the material available at the site. It was allowed to dry no defect was observed.
6. The opposite party No.1  did the sampling in the ground floor on the door. Sampling in the ground floor (with 3 no brush as per the customer’s requirement) was done. It was allowed to dry for some time. Again no defect was observed. Moreover the complainant & opposite party No.1 checked the sample in the light of torch. But no defect was observed.
7. Then asked to apply (with 5 no. brush as per the complainant’s requirement), the application was done applied and then allowed to dry. The complainant & Opposite party No.1 again checked the sample in the light of torch, but no defect was observed.
8. It was also observed that paint was not properly mixed before application on the doors and windows . Also Premium Gloss Enamel id directly applied without application of primer which is incorrect and strictly not recommended.

12.     In view of the above report, it becomes clear that the problem at site, if any, was due to application error and it was not due to any defect in the paint. The paint and paint products supplied to the complainant were of highest quality with no quality issue. It is further pertinent to mention here that the role of primer is very important during application of paint, it provides the necessary adhesion with the surface for and top coat applied on the primer if applied as per the recommendations. The complainant has failed to demonstrate any deficiency in service on the part of the replying opposite party. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance. In the present case,  the opposite parties have provided the best quality product. The burden of proving the deficiency in service is upon the complainant. But the complainant has not been able to establish any wilful fault, imperfection, shortcoming or inadequacy  in service of the opposite parties . Deficiency in service has to be distinguished from the tortious acts of the opposite parties. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages  but he cannot  insist  for grant of relief under the Act  for the alleged acts of commission and omission attributable to the opposite parties, which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be  informed (sic). Even if that person or authority rendering  service had taken all precautions and considered all relevant facts and circumstances in the course of transaction and that their action or the final decision was  in good faith, it cannot be said that there had been any deficiency in service.

13.     Since onus to prove deficiency in service is upon the complainant and he having miserably failed  to prove the same  and the further fact that the opposite parties by expert report Ex.OP1, have clearly established that there was wrong application of paint products and on account of which, some sort of patches appeared and the experts of the complainant satisfied the complainant at the spot after proper application of paint and paint products. The complainant has failed to prove his case. Even otherwise also the complainant having taken the plea of fraud and cheating, this court has no jurisdiction to entertain and try the present complaint. Further more, it was the duty cast upon the complainant to get the paint products tested from some expert u/s 13(c) of the consumer Protection Act  and he having not complied with the same, the complaint deserves dismissal. Consequently, instant complaint fails and the same is ordered to be dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated : 23.05.2016

/R/                                                                         ( S.S.Panesar )

President

                              ( Kulwant Kaur Bajwa)           (Anoop Sharma)

                                                Member                         Member