BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.77/12.

Date of instt.: 14.02.2012. 

                                                 Date of Decision: 31.03.2015.

Jaspal son of Albel Singh, aged 40 years, resident of Village Kurar near Shiv Temple Sub Tehsil Kalayat, Distt. Kaithal (Haryana).

                                                        ……….Complainant.      

                                        Versus

1. M/s. Laxmi Paints & Hardware Store 13, Aggarsain Market, Kaithal through its partner/proprietor.

2. Manufacturer & Marketed by Ultra Tech Cement Limited (Unit Birla White) (Wall Care White Cement based putty) Kharia Khanger, Distt. Jodhpur-342606 (Rajasthan) Regd. Office Ahura Centre Mahakali Caves Road Andheri (E)-Mumbai-400093 through its M.D./Manager.s

..……..Opposite Parties.

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

Before:           Sh. Rajbir Singh, Presiding Member.

     Smt. Harisha Mehta, Member.

Present :        Sh. P.R.Shandilya, Advocate for complainant.

Sh. Ashotosh Sharma, Advocate for the opposite party.No.1.

Sh. P.P.Kaushik, Adv. for Op No.2.

                       ORDER

(HARISHA MEHTA, MEMBER).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased Birla White putty and material of paint on 07.11.2011 from the Op No.1 for a consideration of Rs.30,005/- vide cash memo No.8238 dt. 07.11.2011 and the complainant also purchased the 25 bags of the putty for a consideration of Rs.470/- per bag, but the Op No.1 has not issued the bill of the above-said putty to the complainant.  It is further alleged that the complainant engaged the labourer to use the Birla White putty on the wall for a wages of Rs.60,000/-.  It is further alleged that the labourer put the putty on the wall as per instructions of Ops, but after ten days, the putty used on the wall started to spoil/remove (papri) from the wall.  It is further alleged that the labourer prepared the paint (mixed) to use on the wall, but due to remove (papri) of the Wall Putty, the paint could not be used on the wall.  So, the paint prepared for the same has become useless and damaged.  It is further alleged that the pluster of the cement on the wall has become damaged completely and cannot be remained like for again putty and paint.  It is further alleged that the complainant has suffered a financial loss of Rs.2,15,000/- due to supply of low sub-standard Birla White Putty material by the Ops.  This way, the Ops are deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite parties appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdictionl that the complainant has concealed the true and material facts from this Forum.  There is no deficiency in service on the part of answering Op, rather it is complainant who has lodged the false complaint/claim on account of false and concocted facts.  There is no expert report on the file to prove the fact that there was sub-standard wall putty supplied by the answering Op or any damage is caused due to that material.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.

3.     Op No.2 filed the written statement on the same line as of Op No.1 and so, prayed for dismissal of complaint.     

4.     In support of their case, both the parties submitted their affidavits and documents.  

5.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely.

6.     We have gone through the case thoroughly.  From the facts and circumstances of the case, evidence available on the file and arguments advanced by ld. Counsel for both the parties, it emerges that the complainant purchased 25 bags of the putty for the consideration of Rs.470/- per bag.  The complainant contended that the said putty used on the wall as per instructions of the respondents.  The Ops also argued that it is absolutely wrong that the paint used on the wall has become useless or damaged due to sub-standard material of wall putty.  For this purpose, the local commissioner was appointed.  The building was inspected by the L.C. in the presence of complainant as-well-as Ops.  According to the report of local commissioner, the building was three storied and the construction was almost new i.e. two years old approximately.  On the entire building, putty was applied.  At the spot, one sealed and one half sealed bag of “Birla White Putty” was lying in the premises.  The sealed bag was also inspected in the presence of both the parties and their counsel.  There was no denial on the part of respondent that the bags of putty were not of their company.  The perusal of building revealed that there were patches on the wall due to separation of putty from the plaster and the same are duly shown in circles in attached photographs.  Ld. Counsel for the Ops No.1 and 2 had given objections on the report of local commissioner.  The complainant had also given reply to said objections.  In this regard, ld. Counsel for the complainant has also submitted an authority reported as Dalip Singh & others Vs. Smt. Gurdayal Kaur, 2011(4) CCC page 233 (P&H), wherein it has been held by Hon’ble Punjab & Haryana High Court that Local Commissioner-Not examined as a witness-There is no impediment from relying upon the report of local commissioner as it is part and parcel of the Court file and relevant and admissible piece of evidence.  Local Commissioner-Appointed by Court-Objections to the report of local commissioner-not maintainable.  We can also rely upon the authority reported as Kaur Singh Vs. National Insurance Co. Ltd., 2013(3) CLT page 126 (NC), wherein it has been held that Insurance Claim (vehicle)-Survey report is an important document and cannot be brushed aside, particular when it is based on immediate spot survey.  The said authorities are fully applicable to the present case, whereas the authorities submitted by ld. Counsel for the Ops reported as Maharashtra Hybrid Seeds Company Ltd. Vs. Gadesula Harinath & others, 2014(2) CLT and Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. & others, 2010(1) CPC page 1 are not applicable to the present case because the facts of these authorities are almost different from the present case.  So, we are of the considered view that the Ops are deficient while rendering services to the complainant.

7.     Thus, in view of above discussion, we allow the complaint partly and direct the Ops to refund Rs.11,750/-, the cost of 25 bags wall putty and further to pay Rs.2,000/- as lump sum compensation on account of harassment, mental agony and cost of litigation charges.  Both the Ops are jointly and severally liable.  Let the order be complied within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of commencement of order till its realization.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.

Announced.

Dt.31.03.2015.

                        (Harisha Mehta),                 (Rajbir Singh),   

                             Member.                              Presiding Member.