Date of filing : 29.03.2011
Date of order : 15.07.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT.
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc.,B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A. MEMBER - II
FRIDAY THE 15TH DAY OF JULY 2022
CONSUMER COMPLAINT NO.7/2011
Mr. S.R. Baboo,
S/o. N. Ranganathan,
No.4/1068, Bakiya Lakshmi Street,
Venkatesapuram,
Palanipet Post,
Arakkonam Town and Taluk,
Vellore District. …Complainant
-Vs-
1. M. Perumal (Propreitor),
Sri Murugan Hardwares,
Maniyakara Street,
Arakkonam – 631 001.
2. The Manager,
Mrs. Barani Paint Industries,
No.29, Balu Mudali Street,
Chennai – 600 021. …Opposite Parties
Counsel for complainant : Thiru. G. Kalaimani
First opposite party : Set exparte (07.09.2011)
Counsel for second opposite party : Thiru. S. Sathiyamurthy
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.BL., PRESIDENT,
This complaint has been filed under section 12 of Consumer Protection Act 1986. The complainant seeking direction to the opposite parties to pay Rs.1,00,000/- as compensation for the loss and damages with interest.
1.The case of the complaint is briefly as follows:
The first opposite party is a dealer and the second opposite party is a manufacturer of paint. The name of the paint is “Bharani Paints”. The complainant constructed a new house in the year 2010. He wanted to paint his house. The first opposite party came to the complainant place and canvassed for the purchase of second opposite party’s paint and further represented the paint of the second opposite party are good in quality, very good in standard, purity, potency and has “ISO Certified Quality Paints” and also assured the guarantee for that usage. Believing the words and assurance offered by the first opposite party, the complainant decided to purchase the product of the second opposite party. Accordingly, the complainant purchased Royal Primer Paints of 40 litres on 10.04.2010 for Rs.2,685/-. He also purchased other colour paints, on 14.04.2010 for Rs.5,000/- and on 16.04.2010 for Rs.1,200/-. After purchasing the paints from the first opposite party, the complainant engaged professional painters, and painted his house by using Primer Paints on outer side of compound wall, and all over the house, then the colour paint was used. After completion of the painting work, within one-month rainy season started. After falling of rain water on outer parts of his house, the said new paintings were fully damaged and chipped off like newspaper. In the result all the outer parts of the complainant’s house painting were totally damaged for the above reason, the newly constructed house of the complainant looked very ugly and looked like a dilapidated house. Thereafter, the complainant engaged an expert Civil Engineer, a painter to inspect and verify the quality of paints and painting works. The said experts clearly reported to the complainant that, the painting used in the house is of sub-standard quality. Damage of the painting caused the complainant into shock, mental agony, torture, loss of money, loss of employment to the complainant. All the above damages were only of because of sub-standard quality paints, supplied by the first and second opposite parties. Hence, the complainant approached the first opposite party in person and brought them to his house for inspection. After personal inspection of the first opposite party, they assured that they will contact second opposite party and made proper relief and remedy to the complainant. But no relief work was done by the first and second opposite parties. Hence both of them are vicariously liable to compensate for the above said damages. Hence the complainant issued a legal notice on 03.07.2010. Though both the opposite parties received the notice, they have not come forward to rectify the above said damages caused to the complainant’s house, due to sub-standard materials by the opposite parties. For clearing the above said damages the complainant must redo the whole process of the painting work for which he incurred Rs.50,000/-. The complainant suffered pain and suffering. Hence this complaint is filed.
2. The written version of second opposite party is as follows:
There is no privity of contract as between the second opposite party and the complainant. The complainant has falsely implicated the second opposite party in the above complaint. It is devoid of merit both in facts and law. Hence the above complaint is liable to be dismissed with exemplary cost. The second opposite party states that they are not the manufacturer of Royal Primer Paints and accordingly, the above complaint is liable to be dismissed. They claim that they do not manufacture, under the brand name of ‘Royal Primer Paint’. They did not supply any paint what so ever to the first opposite party. in fact, that they are manufacturing paints under the name of ‘Décor’ which is solely meant for interior painting. The second opposite party do not manufacture paints for exterior wall painting. If the complainant had used the paints meant for interior application, for the purpose of exterior wall painting, the complainant has to blame none but himself, as he had contributed to the alleged pealing of exterior wall painting by way of using the paint, meant for interior wall painting for exterior purpose. Further they state that before using any paint whether for interior or exterior purpose one has to study the quality of water, moisture content in the air and the mixing ratio of paint. The paint mixture has to be made, taken into account of the nature the surface and the quality of water. In this case the complainant did not undergo the paint quality and mix determination test, before selecting the paint in question. The complainant has used the material meant for interior painting, for exterior purpose without consulting anyone’s discretion. The complainant did not seek any opinion from the second opposite party on mix determination test, before selecting the paint in question. The complainant has used the material meant for interior painting for exterior purpose, without consulting anybody and without anyone’s discretion. Hence the complainant alone is solely responsible for alleged loss, in question. Complainant out of his sheer negligence has contributed for alleged loss. As a result, for the foregoing reason, this complaint is liable to be dismissed with exemplary cost. The documents relied on by the complainant can in no way, either established or fasten the liability on the second opposite party.
3. In this case, even though the notice was received by the first opposite party from this Commission. For several opportunities given and there was no representation on the side of the first opposite party and therefore, the opposite party was called absent and set exparte.
4. Proof affidavit of complainant filed. Ex.A1 to Ex.A11 were marked. Proof affidavit of second opposite party filed. Written argument of complainant filed. But there was no evidence let in the part of the second opposite party.
5. THE POINTS THAT ARISES FOR CONSIDERATION ARE:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief the complainant is entitled to?
6. Point Nos. 1&2: The case of the complainant is that he has purchased the following points from first opposite party for painting his house, on 10.04.2010 Royal Primer Paint – 40 litres colour paints, for a total sum of Rs.8,893/-. He also alleged that the said paints were manufactured by the second opposite party. After the painting work was over, within a month the rainy season started. The exterior parts of his house painting, were peeled off like newspaper. Hence the complainant communicated the same to the first opposite party. The first opposite party also visited the house of the complainant and inspected the same. They also assured that they will take, this issues to the second opposite party, who is the manufacturer of the said paint. However, nothing happened. Hence the complainant issued the legal notice, but there was no reply. Hence the complainant filed this complaint.
7. The first opposite party remained exparte and the second opposite party denied the allegation of the complainant. The second opposite party stated that they neither manufactured the alleged paint nor supplied the same to the opposite party. as they are only manufacturing the interior paint name ‘Décor’. Further they also contented that the complainant might have used unskilled labourers for the purpose of painting, therefore there may be some mistakes that has happened while mixing the paint. Further the complainant mistakenly painted the interior paint, for exterior portion of the house. Therefore, the problem might have occurred only due to the contributory negligence of the complainant. When we go through the Ex.A1, A2, A3, which are the receipts filed by the complainant for the purchase of the alleged paints. We find only “Sri Murugan Hardware’s” i.e. the first opposite party, we did not find the name of the second opposite party in the aforesaid bills. It is duty of the complainant to prove his case, but in the present case the complainant did not produce any invoice in the name of second opposite party. Further the complainant did not plea warranty against the paintings. It is settled position of law that burden of proving the defects in the goods, purchased at the first instance lies only with the complainant and then only the burden shifted to opposite parties to disprove the case of the complaint. In the present case the complainant failed to produce any substantial material, to inculcate the second opposite party for causing deficiency in service. He also did not produce the empty paint tin of the second opposite party, so as to prove as against the opposite party. Therefore we find that the complainant failed to prove that there is a deficiency on the part of the second opposite party, but at the same time it has not been ruled out that the first opposite party might have supplied inferior quality paint to the complainant, which might have been unbranded or adulterated one. The first opposite party has chosen not to appear before this Hon’ble Commission, for repudiating the claim of the complainant. Hence, we have no other option except accepting the contention of the complainant, that the first opposite party has sold the inferior quality paints to the complainant and as a result the entire exterior painting of the complainant was damaged. Therefore, the first opposite party was solely responsible for the damages. These point Nos. 1 and 2 are decided in favour of the complainant.
8. Point No. 3: We have already decided in Point Nos. 1 and 2 that there is deficiency in service on the part of the first opposite party. Hence the first opposite party is hereby directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) for cost of Repainting and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.5,000/- (Rupees Five Thousand only) towards cost to the complainant. This Point No.3 is also answered accordingly.
9. In the result this complaint is partly allowed. The first opposite party is hereby directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) for cost of Repainting and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.5,000/- (Rupees Five Thousand only) towards cost to the complainant within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of order to till the date of realization. As against the second opposite party this complaint is dismissed.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 15th July 2022.
Sd/ Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
Ex.A1 – 10.04.2010 - Memo / Voucher slip for purchasing of paints from the
first opposite party’s shop
Ex.A2 – 14.04.2010 - Memo / Voucher slip for purchasing of paints from the first
opposite party’s shop
Ex.A3 – 16.04.2010 - Memo / Voucher slip for purchasing of paints from the
first opposite part’s shop
Ex.A4 – 03.07.2010 - Copy of the representation letter by the complainant to the
opposite parties 1 and 2
Ex.A5 – 24.07.2010 - The sending of written representation of the
Complainant to the second opposite party by the
professional courier receipt
Ex.A6 –28.07.2010 - The sending of written representation of the
complainant to the first opposite party by the
certificate of posting (COP) receipt
Ex.A7 – 12.01.2011 - The office copy of the legal notice issued to the opposite
parties 1 and 2 by complainant counsel
Ex.A8 – 14.01.2011 - The served acknowledgment card for receiving the legal
notice by the first opposite party
Ex.A9 – 18.01.2011 - The served acknowledgment card for receiving the legal
notice by the second opposite party
Ex.A10 -12.01.2011 - The postal receipt for certificate of posting sent to
opposite parties 1 and 2
Ex.A11 - The photos of the damaged paints in the complainant’s
house
LIST OF SECOND OPPOSITE PARTY SIDE DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
