BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 84/2002 <br /> Dated : 30.05.2008<br /> Complainant:<br /> K. Bhaskaran Nair, T.C 29/1463, ‘Vaisakh’, Palkulangara, Thiruvananthapuram. <br /> (By adv.M. Ananthapadmanabhan)<br /> Opposite parties:<br /> 1.M/s Syam Motors (P) Ltd, N.H.Byepass, Eanchakkal, Karali, Petta P.O, Thiruvananthapuram.<br /> (By adv. P. Rajkumar)<br /> 2.M/s M.R.F Autocoat Centre, M.R.F. Ltd., Speciality Coating Division, Tarapur Towers, 826, Annasalai, Chennai-2.<br /> <br /> (By adv. Nair Ajaykrishnan)<br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 21.06.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.04.2008, the Forum on 30.05.2008 delivered the following:<br /> ORDER<br /> SMT. S.K. SREELA: MEMBER<br /> <br /> The brief facts of the case are as follows: The complainant had entrusted his car for autocoat painting with the 1st opposite party on 28.06.2000 and the car was returned after painting on 31.07.2000 and the 1st opposite party had received Rs. 15,500/- from the complainant towards the entire cost for the same. Further the opposite parties had assured and guaranteed that the use of M.R.F autocoat paint will prevent the fading of the colour and prevent further damages on the painted surface such as formation of bubbles, peeling of the paint etc. for a period of 5 years and if at all any such damage occurred, that would be rectified by the opposite parties in their expense. But unfortunately, cracks and bubbles appeared on the paint surface of the car within a period of six months, which had occurred due to the bad quality of paint and poor workmanship, and the same was informed to the 1st opposite party in April 2001. Though the 1st opposite party had informed that they will rectify the defects after consultation with the 2nd opposite party, no such action is seen taken. Hence this complaint for refund of the amount along with compensation and costs.<br /> The opposite parties filed versions separately. The 1st opposite party in their version contended that there was no defect in the painting and the complainant took delivery of the car after being completely satisfied about its condition. That the complainant had never approached them complaining about the paint and connected work. All the work has been done with M.R.F Autocoat paint supplied by the 2nd opposite party. This opposite party came to know about the defects in the paint only after the receipt of notice of this Forum. Complaint is absolutely baseless and prays for dismissal of the complaint with costs. <br /> The 2nd opposite party contends that there is no dispute between the complainant and this opposite party as contemplated in the Consumer Protection Act so as to involve the jurisdiction of this Forum against this opposite party. The 1st opposite party is a franchisee of the 2nd opposite party and as per the franchisee agreement the 2nd opposite party nothing to do with the 1st opposite party in its workmanship and service authorities. There is no manufacturing defect in M.R.F Autocoat paint as pleaded by the complainant. The complainant has no case that this opposite party has made any unfair trade practice or defects in M.R.F Autocoat paints or deficiency in service and hence prays for dismissal of the complaint as against this opposite party with costs. <br /> Parties adduced their evidence by way of affidavits and Exts. P1 to P5 were marked on the part of the complainant and Ext. D1 marked on the part of 2nd opposite party. The commission report has been marked as Ext. C1.<br /> <br /> The points that would arise for consideration are:-<br /> (i)Whether there is any manufacturing defect or deficiency in service on the part of the opposite parties?<br /> (ii)Whether the opposite parties are jointly and severally liable?<br /> (iii)Reliefs and costs.<br /> Point (i):- Admittedly the painting work of the complainant's car has been done by the 1st opposite party. There is no dispute with regard to the payment also. The main dispute is with regard to the poor workmanship, methods of painting and the quality of paint used. The complainant alleges that the said M.R.F Autocoat paint was guaranteed by the opposite parties for a period of 5 years against any defects arising within this stipulated period, but unfortunately the defects appeared on the surface of the paint of the car within 6 months and further alleges that though the said defects were informed to the opposite parties they have failed to cure it. The painting work is seen done, as per Ext. P1, on 31.07.2000. The lawyer's notice is seen sent on 11.10.2001. Accordingly, the complaint has been seen brought to the notice of the opposite parties vide Ext. P2, which is evidenced from ext. P4 series acknowledgement cards. Hence the contention of the 1st opposite party that they were never informed about the said painting complaint of the car is baseless and found against them. <br /> An expert commissioner has been appointed bythe Forum for ascertaining the said painting work and he has filed his report which has been marked as Ext. C1. The commissioner has observed the following complaints in the disputed car. <br /> 1.Colour fade noticed. No glossy finish.<br /> 2.Bubbles on the painted surface were noticed at different places on the car body. This is mainly due to poor surface preparation prior to painting, application of Autocoat paint before drying fillers etc. <br /> 3.Cracks on painting were observed atvarious places of the car body.<br /> 4.Painting was not properly done on inside of dickey door.<br /> 5.Surface finish of the painted body was very poor at various places of the car body. <br /> The commissioner has further observed that the quality of painting of the Ambassador car with M.R.F Autocoat paint is not fulfilling the quality offered by the manufacturer of the paint. The commissioner has come to the following conclusions. <br /> 1.The quality of the painting was very poor and not satisfactory.<br /> 2.The life of the painting was highly reduced due to process complaint. <br /> 3.The major reason for the complaints observed was inadequate surface preparation before the painting-presence of rust, grease/oil content on the surface. Final painting before drying the fillers is another reason. <br /> 4.Bubbles and cracks were developed on the painted surface of the car at various places.<br /> 5.The car needs full repainting. <br /> Ext. C1 is supported by photographs evidencing the same. Opposite parties have filed objection to the Ext. C1 report stating that his findings are not supported by any scientific study or chemical analysis and he is not an expert to determine the defect, quality of the paint or manufacturing defect of the paint in issue. Though the opposite parties have filed objections separately, no steps have seen taken to examine the commissioner to corroborate the same. The commissioner has not been examined by the opposite parties in order to prove otherwise. Hence this Forum is left with no other option than to rely the commission report, Ext. C1. <br /> Point (ii):- The complainant has successfully proved his complaint. The next issue to be considered at this juncture is who is liable to compensate the complainant, whether both the opposite parties are jointly and severally liable to compensate the complainant the loss caused to him. The 2nd opposite party has contended that the 1st opposite party is a franchisee of 2nd opposite party and as per clause 2.9 of the franchisee agreement, Ext. D1, 'Any legal claim on the party of the second part by any of its customers/clients for unsatisfactory workmanship or for any other franchise related work routed through Consumer Forum or courts of law/judicature has to be contest, settled by the party of the Second part unilaterally. The party of the first part will refrain, as the policy from entering into such disputes.' And further as per clause 3.3 of the franchise agreement, it reads as follows:- 'It is clearly agreed between the parties that (a) the party of the second part is not in any sense an agent of the party of the first part.(b) The party of the First part shall not be liable for any loss caused to a third party by any act or omission of the party of the Second part in the conduct of its painting or coating operation using the SBAR process or any other business operation.' The 1st opposite party has never denied the same also. Ext. D1 is between MRF Ltd. And M/s Syam Motors. Accordingly both parties are bound by the terms of the agreement. In the light of the above, it is found that the manufacturer, the 2nd opposite party, cannot be held liable for the loss caused to the complainant on account of defective painting and hence absolve the 2nd opposite party from the liability cast against them.<br /> Point (iii):- As per Ext. P1, the complainant has paid Rs. 15500/- towards MRF Autocoat painting and body levelling. For the foregoing discussions and circumstances, the complainant is found entitled for the refund of the same. This Forum finds Rs. 5,000/- as reasonable compensation for the mental agony and other difficulties suffered by the complainant due to the deficiency in service on the part of the 1st opposite party. Complainant had taken out an expert commission in this case for which the complainant had borne the cost for the same which the complainant is entitled to be refunded. <br /> In the result, the 1st opposite party shall refund Rs. 15,500/- to the complainant. The 1st opposite party shall also pay an amount of Rs. 1,000/- towards compensation and Rs. 2,500/- towards costs to the complainant. Time for compliance one month. There is no order against the 2nd opposite party.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th May 2008.<br /> <br /> G. SIVAPRASAD, <br /> President<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> O.P.No. 84/2002<br /> APPENDIX<br /> <br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Cash bill No. 261dated 31.07.2000 from 1st opposite party.<br /> P2 - True copy of advocate notice dated 11.10.2001 issued to the 1st and 2nd opposite party.<br /> P3 - Postal receipt dated 31.10.2001. <br /> P4 - Two A/D cards dated 01.11.2001 and 02.11.2001.<br /> P5 - Booklet containing the advertisement of the opposite parties. <br /> <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> NIL<br /> V COURT EXHIBIT<br /> <br /> C1 - Commission Report<br /> <br /> <br /> PRESIDENT<br /> <br />