Haryana

Panchkula

CC/49/2015

YAMUNA POWER. - Complainant(s)

Versus

KANDRAP TRADERS. - Opp.Party(s)

COMPLAINANT IN PERSON.

04 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                               

Consumer Complaint No	:	49 of 2015
Date of Institution	:	13.03.2015
Date of Decision	:	04.11.2015

 

Yamuna Power and Infrastructure Ltd., Registered Office at Sardana Nagar, Ambala Road, Jagadhri, Yamunanager-135003, through its Director-Mr.Rajeev Sardana s/o Sh.Sham Sunder Sardana, R/o H.No.39, Sector 27-A, Chandigarh.

                                                                                      ….Complainant

Versus

1.       Kandarp Traders, Plot No.346, First Floor, Industrial Area, Phase-1, Panchkula through its Manager.

2.       Asian Paints Home Solutions, Plot No.346, First Floor, Industrial Area, Phase 1, Panchkula through Amit Syngle, President-Sales, Marketing and Technology.

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Sunil Kumar, Adv., for the complainant. 

Mr.Chetan Gupta, Adv., for the Ops.

ORDER

(Anita Kapoor, Member)

 

1. In brief, the case of the complainant is that he engaged the service of OPs for doing paint in the entire house No.39, Sector 27-A, Chandigarh and the Ops had charged total amount of Rs.4,11,099/-from the complainant from time to time (Annexure C-1 to C-19). In pursuance of which, the Ops issued warranty cards No.CHD1300053 (Annexure C-28 to C-46) valid upto 31.12.2014 and as per the warranty cards if any defect occurred in the first year, repair/repaint/replacement would be carried out and OP would bear 100% of the total replacement cost on rework on the site and that OP would repaint the site as per warranty terms. After completion of work, the complainant noticed some defects as cracks and peeling of paint. The complainant requested the Ops time and again to repaint the defected portion on the site as per the terms of the warranty but no action was taken by the Ops. The complainant also sent an email on 07.07.2014 to the Ops and requested to rectify the defects. The complainant approached the Ops personally several times but to no avail. The complainant also issued legal notice dated 31.07.2014 and 27.10.2014 (Annexure C-48 and C-49) but to no avail. Alleging that the aforesaid act amounts to deficiency in service and unfair trade practice on the part of the Ops, the complainant has filed the said complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objection and submitted that the complaint has no territorial jurisdiction as the paint work had been done at U.T., Chandigarh. It is submitted that the complainant is a private company doing commercial work and hence it is not covered under the definition of consumer. It is submitted that the warranty cards were also issued in the name of company. It is submitted that the problems at the site were already present at the site before the start of work at the site and the same was corroborated by the Site Evaluation Format which had been signed by the representative of the Ops and the complainant. It is submitted that it has also been mentioned under clause 10 & 11 that there was dampness/leakage/seepage and there was presence of cracks i.e. plaster cracks, joint cracks, conceal cracks and structural damage. It is submitted that the abovesaid clauses are not covered under the warranty, waterproofing needs to be done and cracks repaper after painting. It is submitted that the warranty is void because of the presence of damages, moisture and cracks on the site. It is submitted that the Op No.2 used the ‘state-of-the-art’ technology in the process of manufacturing its paints and followed documented procedures for the production and distribution of its products. It is submitted that if the products manufactured do not confirm to the standards established by the OP no.2-company, the same are not approved for sale in the market. It is submitted that OP No.2 has its own research and development department which is responsible for developing new products on the basis of customer requirements received from Marketing Function and to improve the performance of the existing products. It is submitted that the OP No.2-company has its quality assurance departments in each of its plants belonging to the Decorative Business Unit to check the quality of raw material, packing material and finished products, ensure the quality of products at every stage of production is as per prescribed guidelines and ensuring compliance to the established procedures, policies and norms laid down for the manufacture of paints. It is submitted that the performance tests for all paints products were carried out prior to release of design for manufacturing of paint. It is submitted that the paint is made with proper procedure and is of marketable quality and only approved raw materials are used in final paint. It is denied that the complainant had paid Rs.4,11,099/- whereas the Ops received Rs.4,06,986/-. It is submitted that the warranty should be void in the following events i.e. (i) Dampness or presence of moisture, if moisture treatment has not been carried out by APHS Smart Care Products, for the affected areas. (ii) Fungal or Algal Growth. (iii) Structural Cracks. It is submitted that the representatives of the Ops visited the site in October, 2014 and February, 2014. It is submitted that the complainant was duly informed that the issues at the site were not covered under the warranty terms as per warranty documents. It is submitted that no legal notice has been received by the OP-company till date. Thus, there is no deficiency in service and untrade practice on the part of OPs and prayed for dismissal of the complaint.
3. Replication to the written statement has been filed by the counsel for the complainant.
4. Both the parties have adduced their evidence. The counsel for the complainant has tendered in evidence affidavit Annexure C-A alongwith documents Annexure C-1 to C-50 and closed the evidence. On the other hand, counsel for the OPs has tendered in evidence affidavit Annexure R-A alongwith documents Annexure R-1 to R-20 and closed the evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully and minutely and also perused the written arguments filed by the counsel for the Ops.
6. The very maintainability of the complaint was challenged on behalf of the OPs during the course of hearing on a plain averment that the relevant house (wherein the contracted job was undertaken by the OPs) was not personal of the complainant and it having been made available to him by the employer, a commercial venture, the complainant does not become a consumer within the definitional meaning of one entitled to make a grievance under the Consumer Protection Act. before a Forum. In support of the averment, reliance was placed upon “HUDA Vs. Seema Handa” (2004) CPJ 6 (SC) wherein consumer was the find as under:

     “(d) “consumer means any person who –

(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services 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 services other than the person who ‘hires or avails of the services for consideration paid or promised, or partly paid any partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but doe not include a person who avails of such services for any commercial purposes;

Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment”

                                  (emphasis added)”

7. However, the cue to the controversy lies elsewhere. The law on the point was laid down by the Hon’ble Apex Court in (2009) 3 SCC 240 (Karnataka Power Transmission Corporation and another Vs. Ashok Iron Works Pvt. Ltd. and a ruling rendered by the National Consumer Disputes Redressal Commission in Controls and switchgear company limted vs. dailerchrysler india pvt.Ltd. and another (iv) 2007 CPJ-i.
8. In the present case, it is apparent that the relevant house was meant for occupation by the Director of the complainant and the house was not to be used for any commercial purposes. That fact itself indicates the applicability of the judicial pronouncements relied upon by the complainant and the inapplicability of the judicial pronouncement relied upon by the OPs.
9. Insofaras the factum of various defects (averred by the complainant herein) is concerned, the OPs have not controverted it. They have opted to harp upon the fact that only approved raw materials were used in the paint and that only the paint approved by a lab was used and further that the material used was of high quality and that “Even minor deviations from specification are not accepted. No substandard material is approved for usage. All rejected material are marked appropriately and kept in specified locations to avoid mix up. The rejected material is either scrapped or sent back to the vender for rectification. Root cause for such rejections is identified alongwith the vender to ensure that such rejections do not recur in future.”
10. It would be apparent from a perusal of the written statement on the whole and the extracted pleadings in particular that the OPs are making averments which would appear to be ideal in character. The OPs have not related those averments to the facts of this complaint. The Forum cannot decide upon the validity or otherwise of the grievance on the basis of an averred ideal scenario. A determination of controversy of this type has to come about on the basis of the available facts of the case.
11. Interestingly enough, the complaint made a precise averment in the course of Para-7of the complaint that legal notice (Annexure C-48, Annexure C-49) were served upon the OPs before the complaint came to be filed and that the latter did not even opt to respond to it. The corresponding para of the written statement does not even aver that the legal notices had been responded. That fact also enures for the legal benefit of the complainant.
12. For the discussion as also reasoning recorded in the preceding paras of the order, we are of the considered view that he complaint has been able to prove that there was deficiency on the part of the OPs in the execution of the contracted work and that entitles the complainant to the grant of relief. We would, while allowing the complaint, order as under: -

     (i)      The OPs shall repaint the house of the complainant failing which to pay a sum of Rs.4,11,009/- to the complainant. No interest shall, however, be paid on that amount.

     (ii)     OPs shall pay a sum of Rs.10,000/- to the complainant as the compensation for the mental agony and harassment caused to the complainant;

     (iii)    OPs shall also pay a sum of Rs.5,000/- as the cost of litigation to the complainant.

13. OPs shall comply with this order within a period of one month from the date its communication to it comes about.
14. A copy of this order shall be forwarded, free of cost, to the parties to the complaint. File be consigned to records after due compliance.

 

Announced

04.11.2015        S.P.ATTRI        ANITA KAPOOR         DHARAM PAL

                          MEMBER         MEMBER                      PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         ANITA KAPOOR

                                                          MEMBER