BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 12/09/2011

Date of Order : 31/01/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 483/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :-

In October 2008, the complainant purchased 20 litres of Asian Paints Apex from the 2^nd opposite party @ Rs. 240/- per litre which was manufactured by the 1^st opposite party. The complainant preferred to purchase the product by believing the representation that the Apex provides excellent resistance against growth of algae and fungi on the walls. The 1^st opposite party has also offered a warranty for 5 years for the quality and durability of the product. After 2½ years from the painting, the complainant noticed that the painting has started fading and fungi growing in some areas. On 14-06-2011, the complainant lodged a complaint with the opposite parties. The representative of the 1^st opposite party visited and examined the painting, but subsequently there was no response. On 25-07-2011, the complainant approached the Peoples Council for Social Justice. At their instance, a meeting of the complainant and the representatives of the 1^st opposite party was convened. In the meeting, the 1^st opposite party agreed to supply 4 litres of paint for repainting. The complainant was not agreeable to the same. Hence, the complainant seeking the following reliefs against the opposite parties :-

1. To direct the opposite parties either to supply 20 litres of paint and paint the house of the complainant or to pay a total amount of Rs. 21,500/-.

2. To pay Rs. 10,000/- towards compensation and Rs. 1,500/- towards costs of the proceedings.

2. The version of the 1^st opposite party is as follows :-

The complainant has not produced any document to prove the purchase of the paint. On receipt of the complaint, the representatives of the 1^st opposite party visited the premises of the complainant on 08-07-2011. It was found that algae was seen in the terrace of the complainant's residence. The affected area is a horizontal surface and clogging of water was found to be the reasons for the algae growth. It has nothing to do with the quality of the paint manufactured by the 1^st opposite party. All titled surface are prone to algae growth and such surface are excluded from the warranty. As a gesture of goodwill, the 1^st opposite party offered to supply sufficient paint to the complainant to repaint the affected area free of cost. The complainant refused to accept the offer. There is no deficiency in service or unfair trade practice or negligence on the part of the 1^st opposite party. The complainant is not entitled to get any of the reliefs as prayed for.

3. In spite of receipt of notice from this Forum, the 2^nd opposite party opted not to contest the matter for reasons not stated. The complainant was examined as PW1 and his witness was examined as PW2. Exts. A1 to 3 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the 1^st opposite party. Heard the counsel for the contesting parties.

4. The points that arose for consideration are as follows :-

1. Whether the opposite parties are liable to supply 20 litres of paint and to repaint the house of the complainant or to pay an amount of Rs. 21,500/- to the complainant?

2. Whether the complainant is entitled to get compensation and costs of the proceedings from the opposite parties?

5. Point No. i. :- According to the complainant, in October 2008, he purchased 20 litres of paint from the 2^nd opposite party which was manufactured by the 1^st opposite party. The complainant did not produce any document in support of the purchase. However, in reply to the complaint of the complainant before the People's Council for Social Justice, the 1^st opposite party submitted Ext. A3 reply reads as follows :-

“With reference to the captioned subject, we wish to put it on record that on receipt of the complaint from the above named customer, an inspection was done on July 8 2011 by company's representative. During the inspection growth of algae was seen on the terrace of customer's house.

Affected area is a horizontal/titled surface and clogging of water is responsible for algae growth, it has nothing to do with the quality of paint supplied to the customer above named. All tilted surfaces are prone to algae growth, for that reason such surfaces are excluded form the product warranty. It is worthwhile to mention that the site is almost two & half years old and customer failed to produce invoice and empty container, it is presumed that genuine Asian Paints products were purchased by the customer.

In view of the above you are informed that company is not in a position to accede to the demands of Mr. Varghese. Although company is under no obligation to compensate the customer, nevertheless company appreciates customer's loyalty to brand “Asian Paints” and willing to supply paint products to him, sufficient to re-paint the affected area, free of charge and same shall be without product warranty.

We hope and trust that your esteemed organization will take the matter in true sense and right perspective”

6. In Ext. A3, the 1^st opposite party stated that they are ready to provide the required paint to the algae affected area to which the complainant was not agreeable. PW2 is a painter by profession, he has been in his profession for the last 30 years. PW2 deposed that he had painted the house of the complainant by using the paint manufactured by the 1^st opposite party and purchased from the 2^nd opposite party. Nothing is on record to disbelieve the deposition of PW2. Admittedly, the painting lasted for 2½ years without any problem. It is pertinent to note that apart from the oral testimony of the complainant, there is no evidence to prove that he had purchased 20 litres of paint or to prove its price.

7. However, since the 1^st opposite party did not controvert the warranty of 5 years for their product, we are of the firm view that the agony of the complainant would be abated by an order to the 1^st opposite party to provide 20 litres of the same brand to the complainant.

8. Point No. ii. :- The grievance of the complainant having been sufficiently met, we refrain from ordering compensation and costs of the proceedings.

9. In the result, we partly allow the complaint and direct that the 1^st opposite party shall provide 20 litres of “Asian Paints Appex' to the complainant.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of January 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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