SMT. RAVI SUSHA  : PRESIDENT

         This complaint has been   filed by the complainant under sec.35 of the Consumer Protection Act 2019 ,for getting an order directing opposite parties to pay an amount of Rs.4,00,000/- to the complainant with 12% interest  and also to pay  cost of the complaint.

 The facts, in brief, are that  on seeing the advertisements of wall painting companies, the complainant was convinced with the offers of 2^nd OP.  The 2^nd OP has offered 10 years guarantee for the wall paints manufactured by them, the complainant contacted the officials of 2^nd OP.  Thereafter the officials  of the 2^nd OP visited the house of  complainant and under took the painting and polishing work and other related work  of the newly constructed house.  Later official  of 2^nd OP visited the sight and a quotation dtd.21/10/2019 for a total sum of Rs.2,86,634/- for carrying out the painting and other related works were submitted  and the  same was approved by the complainant.  The 1^st OP is the supplier of 2^nd OP.  As per the  quotation  the work is to be started on 21/9/2019 and to be completed on 4/11/2019 by the OP.  But the work was not started on time and not completed till date.  Full payment was made to the 1^st OP and accordingly he fixed a date for his house warming ceremony. It is submitted that the work done by the  OPs  is of poor quality and substandard.  After their work the paints were peeled off in many areas of the surface of the inner and outer walls including the parapet.  Bubbles  were formed and the paint layers were torned off.  On making complaint to the OPs, later a panel of experts from  2^nd OP visited the house site and an inspection report was prepared.  The inspection report reflects the deficiency of service on the part of the OPs.  Due to the substandard and poor quality of workmanship, the entire amount spend by the complainant were put in vein.  Presently the paints were peeled off on most of the places in the outer and inner walls.  The entire paints are to be scrubbed off and repainting  is to be done.  Complainant sent lawyer notice to OPs, they received  notice but no reply so far.  Hence filed this complaint  for getting the relief  as claimed.

     After receiving notice, 1^st OP remained absent.  Neither filed written version nor contest the case.  Hence 1^st OP was proceeded against  exparte.

   2^nd  OP filed reply to the complainant’s allegations in the complaint stating that the relationship between the 1^st OP and  2^nd  OP is on a principal to principal basis.  The products manufactured by the 2^nd OP are acclaimed for its class and quality, that the products pass through stringent  quality checks and test trials  before the  products are sent to the market. The products also go through a process of quality inspection  and  are approved by the  appropriate authority. 2^nd OP submits that there were multiple contractors hired was appointed by the complainant for various other  masonry works occupying the site causing hindrance in seamless execution of work. It is submitted that due to the indifference of opinion between the complainant and OPs the  complainant’s father is dealing directly and paying the  amounts to the OPs.  After the completion of work the OPs  have done complementary  work on 2 walls of the complainant’s house.  Complainant demanded for doing additional  works  which were neither covered under quotation nor was it offered under the complementary services offered.  It is further submitted that the company representatives were visited the site inspite of  lock down restrictions.  It is stated that the issues  were observed  due to any quality of the paint or deficiency  of service provided,  these issues arose  due to faulty masonry work.  The rework activity at the site of  complainant was also done and further  2^nd OP were also paid an amount of Rs.25,000/- as full and final  payment  towards  the alleged defect in the product, the whole transaction is barred by the doctrine of estoppels against any future claims. It is submitted that  this complaint is vague, frivolous and merit less  therefore the complaint  is liable to be dismissed.

       Complainant  filed his proof affidavit and documents. Examined as PW1.The documents got marked Exts.A1 to A5 series and Ext.C1.PW1 was subject to cross-examination by 2^nd OP.  During the pendency of this case, complainant has taken  steps to inspect the house and note the lie, nature and condition of newly build house of complainant, the damages caused to the painting of the house etc.  As per the petition , Mr.C.V.Sudevan, Consulting Engineer and valuer was appointed as expert.  He has filed report, marked as Ext.C1(subject to proof). For clarifying the contentions in Ext.C1, complainant has filed witness list  to examine the  expert commissioner.  But the summons was returned, with endorsement that  ”he is no more”.  Since the expert commissioner was appointed by this commission, there is no question of genuiness  of the Expert and his report.  2^nd OP has not filed any objection to the report.  Hence Ext.C1 report can be taken into account as an evidence in this case.  At the evidence stage, 2^nd OP has not adduced either oral or documentary evidence.  After that  both learned counsels  of the parties filed their  respective argument notes .

   We have perused the record carefully, submitted by the complainant and also considered the submissions of both learned counsels.

   The learned counsel of complainant submitted that as per the  quotation,  the work is to be started on 21/9/2019 and to be completed on 4/11/2019 by the OP.  But the work was not started on time and not completed till date.  It is submitted that the work done by the  OPs  is of poor quality and substandard.  After the work the paints were peeled off in many areas of the surface of the inner and outer walls including the parapet.  Bubbles were formed and the paint layers were torned off.  On making complaint to the OPs, later a panel of experts from  2^nd OP visited the house site and an inspection report was prepared.  The inspection report reflects the deficiency of service on the part of the OPs.  Due to the substandard and poor quality of workmanship, the entire amount spend by the complainant were put in vein.  Presently the paints were peeled off on most of the places in the outer and inner walls.  The entire paints are to be scrubbed off and repainting  is to be done.

    The learned counsel of 2^nd OP during the argument time questioned the locus standi of the complainant to file this complaint and also challenged the veracity of the expert report(Ext.C1).  It is submitted that the father of complainant , is the owner of the house and hirer of the service of  2^nd OP and the 2^nd OP clearly mentioned in his version  that the complainant ‘s father is dealing directly and paying the amounts to the OPs.  It is submitted that definition of consumer mentioned in Sec.7(2) of Consumer Protection Act 2019 , consumer means “any person  who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.  In this matter complainant  filed above said  complaint, claiming that he is the absolute owner of the residential house and he has constructed the house.

     With regard to this point, Sec.7(2) of Consumer Protection Act 2019 clearly states that beneficiary of such  service other than the person who  hires the  service with the approval of the person, also becomes a consumer.  Here complainant is the son of Mr.Janardhanan.  There is no dispute regarding to  the said fact and also it is evident(from the address) that both of them are residing together.  So the complainant certainly becomes the beneficiary of the service hired  from the OPs.

   It is the settled principle of law that no suit or claim should be defeated on mere ground of non-joinder of necessary parties have not been made parties in the complaint.  It also appears to us that Consumer Protection Act is a pro-consumer legislation.  In the instant case Ext.A5 series shows conversations between the complainant and 2^nd OP and also admitted that the amount Rs.25,000/- was received by the complainant sent by 2^nd OP, which reveals  that complainant has direct dealings with 2^nd OP in the matter connected with this case.  So just claims should not be defeated on mere technicalities.

   There is no dispute that the paint was purchased from 1^st OP and the manufacturer of  it is 2^nd OP.

  It is evident from the record that Ext.A1 quotation has been issued in the name of complainant and OP has not denied the purchase amount of paint of Rs.2,86,634/- .  OP further contended that no warranty was issued.  But on perusal of Ext.A1, it is  specifically mentioned that” Be assured about the quality of our painting service as we offer you upto 3 year warranty.  The warranty varies depending on the product applied”.  Here the point to be noted  that OP does not have a case that the complainant’s father selected low quality product having no warranty.  Further from Ext.A5 series( e-mail messages) reveal that OP had admitted the defects as alleged by the complainant, happened after applied the paint of 2^nd OP.

   Here 2^nd OP further contended that the entire disputes between complainant and 2^nd OP were settled and complainant has received Rs.25,000/- towards full and final settlement.  So complainant does not have right to  litigate against them.  The said contention was denied by complainant.  It is evident from the record(Ext.A5 series) that from E-mail communication between complainant and 2^nd OP dtd.22/7/2020 ie complaint about undone painting work, as well as the allegedly damaged  art work at the  house was settled for an amount of Rs.25,000/- and the complainant has received the same, which does not mean that the entire claim of the complaint was settled by OP.

   In Ext.C1, the expert has observed that” some portion under the sunshade starting to notice  green slime algae or clumps of moss were seen on the painted area.  Exterior walls, living room, kitchen, bed rooms and dining area seen discoloured, damaged and bubbles appearing making it look ugly.  Door are not polished, southern  side of the house some portion near the steps not painted is seen incomplete.  Pillars are pale and ugly.  Few portion  paint  were torn and peeled off and the expert opinioned that the paint peel off is due to low quality/expired paint  brands, will fail  easily leading to cracks.  Peel off, wet spots and bulges of  paint on walls.”

    2^nd OP has not filed any objection to expert report.  Thus through Ext.C1 report complainant has proved his allegation about the paint used in the house.

   Moreover it is pertinent to be noted that nobody represented 2^nd OP Asian Paint Ltd, entered into the witness box for tendering evidence to prove their contentions.  Mere contention in the  version itself is not sufficient.  Further 2^nd OP did not raise any contention in his version that complainant does not have locus standi to file this complaint.  Without stating facts in the version, raised at the evidence and argument time cannot be entertained and accepted. Further 2^nd OP failed to establish his contention that  the defect arised due to  the work done  by inexperienced labours.

  However there is evidence to show that the paint supplied by 1^st OP to the complainant(Ext.A1 is in the name of complainant) were of low quality and painting work done were became defective.  So there is deficiency in service on the part of OPs.  1^st OP as a dealer is also responsible by selling low quality material to his customer. Thus the complainant has every right to get relief because since long, the OPs have been using  money  given by complainant. 

       In the result, complaint is allowed in part.  Opposite parties 1&2 are  directed to pay Rs.1,50,000/- to the complainant  towards the expenses for the repainting work and compensation for the mental agony caused to him.  Opposite parties are further directed to pay Rs 10,000/- towards cost of the proceedings to this case. Opposite parties 1&2 are jointly and severally liable to  pay the amount within one month from the date of receipt of certified copy of this order.  Failing which Rs.1,50,000/- carries interest  @9% per annum from the date of order till realization.  Complainant can execute the order  as per provision of Consumer Protection Act 2019.  

Exts:

A1-Quotation dtd.21/10/19

A2-  lawyer notice 28/9/20

A3- postal receipt

A4(series)- Acknowledgment card(2 in Nos.)

A5-e-mail communications

C1-Expert commission report

PW1-Jaygeeth.P- complainant

Sd/                                                                 Sd/                                                    Sd/

PRESIDENT                                             MEMBER                                        MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                  ASSISTANT REGISTRAR