BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

Complaint No.153 of 2014

                                                                 Instituted On: 10.12.2014

Decided On: 09.04.2015

Prof. Ramesh Kumar Sharma son of Sh Pritam Chand Sharma resident of H.No.438-B, Rajindera Estate, Moga Tehsil and District Moga.

Complainant

Versus

1.        M/S Ram Gopal Ved Parkash, Partap Road, Moga, Tehsil and District Moga through its Proprietor Bal Krishan.

2.        Marketing Manager, Asian Paints, Ltd. , 6-A Shanti Nagar (Shanta Karuz), Mumbai-4000055.

Opposite Parties

Complaint under section 12 of The

Consumer Protection Act, 1986.

Coram:       Sh.S.S.Panesar, President

                   Smt Vinod Bala, Member

Present:     Complainant in person with Sh Jagdish Bawa Advocate

                 Opposite in person with Sh Gurmeet Singh Dhaliwal Adv. Cl.

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ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against  M/S Ram Gopal Ved Parkash, Partap Road, Moga, Tehsil and District Moga through its Proprietor Bal Krishan (herein-after referred to as ‘opposite party No.1’)- & Marketing Manager, Asian Paints, Ltd. , 6-A Shanti Nagar (Shanta Karuz), Mumbai-4000055 (herein-after referred to as opposite party No.2) directing them to pay Rs.1,00,000/- on account of  compensation for causing mental tension and harassment beside Rs.25,000/- as costs of litigation.

2.                Brief facts of the complaint are that complainant Ramesh Kumar purchased three buckets of paint of 20 Kg. each and four tins of 5 Kg. each brand of Asian Paints Ultima Exterior from opposite party No.1 for a consideration of Rs.25,500/- vide bill No.3089 dated 4.08.2014. After purchasing the same, the complainant arranged skilled painter and labour for the purpose of painting of his house and he paid Rs. 25,000/- as labour charges to them. It has been pleaded that after using the same, the complainant found that the paint has been peeling off the walls in the form of patches from the whole surface. Further it has been pleaded that due to defective paint sold by opposite party No.1, the building of the  complainant has been looking ugly. The complainant served a legal notice upon the opposite parties regarding the payment of compensation due to

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loss suffered by him. But the opposite parties inspite of making payment of compensation, only opposite party No.2 gave reply to the notice pleading therein that the bill, which was issued by opposite party No.1 was bogus and that the product, which was sold by opposite party No.1 was not produced by him. Due to the negligent act of the opposite parties, the complainant is suffering from mental and physical harassment and economic loss.  Hence the present complaint.

3.                Notice of the complaint was given to the opposite parties Opposite party Nos. 1 & 2 appeared through Sh.Gurmeet Singh Dhaliwal Advocate and filed joint written reply contesting the same. They took up preliminary objections that the complaint is false, frivolous and vexatious; that this Forum has no jurisdiction to entertain and try the present complaint; that a complicated question of law and facts are involved ; that the complainant lodged a complaint No.505089574 with opposite party No.2; that on the complaint of the complainant, opposite party No.2 sent his representative, who observed that the defects were due to faulty application of paint, primarily as a result of moisture and cracks on wall surface and not using exterior wall primer before application of paint coat; that all paint manufacturing units of the Decorative Business Unit of opposite party No.2 in India are ISO 9001: 2000 certified; that the authenticity of bill dated 04.08.2014 is disputed; that opposite party No.2 uses ‘the state-of-the-art’ technology in the process of manufacturing its paints and follows documented procedures for the production and

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distribution of its products; that the opposite party No.2 has established procedures and policies that it observes with regard to controlling the quality of the products manufactured by it and no compromise is made in respect of any deviation from this procedure and policies.  On merits, opposite party Nos.1 & 2 took almost the same and similar pleas as taken up in the preliminary objections. All other allegations made in the complaint were specifically denied being incorrect and it is stated that the complaint deserves to be dismissed.

4.                In order to prove his case, the complainant tendered in evidence his affidavits Ex.C-1 and copies of documents Ex.C-2 to Ex.C-18 and closed his evidence.

5.                To rebut the evidence of the complainant, the opposite party Nos.1 & 2 tendered affidavit Ex.OP1& 2/1 of Sh.Chirag Pilkhwal, Unit Manager and copies of documents Ex.OP1& 2/2and closed their evidence. 6.                We have heard the learned counsel for the parties and have also carefully gone through the record.

7.                On the basis of evidence on record, learned counsel for opposite party Nos.1 and 2 has vehemently contended that complicated question of law and facts are involved in the matter and procedure being summary in nature before this Forum, the matter is liable to be relegated to Civil Court for deciding the same.

8.                It has further been contended that defect pointed out in the paints were due to faulty application of paint, primarily as a result of

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moisture and cracks on the wall surface and not using exterior wall primer before application of paint coat. Simple fact that the paint has peeled off at several places in patches, was on account of negligence on the part of the painter appointed by the complainant for that purpose and no fault can be based on to opposite party Nos.1 and 2.

9.                Learned counsel for opposite party Nos.1 and 2 further contended that opposite party Nos.2 uses state of the art technology  in the process of manufacturing its paints and follows documented procedures for the production and distribution of its products.  It appears that the product used by complainant in the case in hand does not belong to opposite party No.2. The complainant has miserably failed to prove that the paint used by him was sold by opposite party No.1 and has been manufactured by opposite party No.2 and the complaint is also liable to fail on that score also.

10.              On the other hand, learned counsel for the complainant has vehemently contended that the complainant purchased the product i.e. paint from opposite party No.1 vide bill Ex. C-2 dated 04.08.2014 for an amount of Rs.25,550/-. Opposite party No.1 is the authorized distributor for opposite party No.2 i.e. the manufacturer of the paint. This fact has not been denied by opposite party Nos.1 and 2 in their written statement nor Bal Krishan, Proprietor of opposite party No.1 has made into the witness box to deny the factum of purchase of Asian paints by the complainant vide bill Ex. C-2. In such a situation to contend that Asian paints purchased vide bill Ex. C-2, were not sold by opposite party No.1 or that those were not

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manufactured by opposite party No.2, does not appeal to reason. The learned counsel for the complainant has further contended that opposite party No.1 has sold the defective paint while opposite party No.2 being manufacturer have indulged in unfair trade practices. As such, the complainant is liable to be refunded the price of the paint as well as charges incurred by him on labour besides damages for mental agony and litigation expenses to be assessed by this Forum.

11.               We have given thoughtful consideration to rival contentions.

12.              There is no denying the fact that when the Asian paints purchased vide bill Ex. C-2 were applied to the premises belonging to complainant, the paint peeled off at various places in patches soon thereafter. It is also admitted fact that the said factum was brought to the notice of the opposite parties. It is also the case of opposite parties that a representative of them visited the spot in pursuance of the complaint filed by the complainant. But however, the reason given by opposite parties for peeling off paint at various places, does not appeal to reason because the alleged representative of opposite party No.2 did not make into the witness box to narrate the cause of deterioration of the paint. So much so even the name of the said representative does not find mention either in the written reply or in the notice,  copy whereof is Ex. C-4 on record. In such a situation, the only inference which can be drawn under the circumstances would be that the paint supplied by opposite party No.1 & manufactured by opposite party No.2 was defective in nature. The complainant had spent

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Rs.25,500/- on purchase of the paint and it is the case of the complainant that he had incurred expenditure to the tune of Rs.25,000/- as labour charges for application to the premises. Since the paint peeled off at various places in patches soon after, it gives a shabby look to the building and photographs Ex. C-6 to Ex. C-18 bear witness to the said fact. The evidence produced by the complainant has gone unrebutted on record as the opposite parties have produced only one witness i.e. Chirag Pilkhwal OP 1,2/1 who filed affidavit Ex. OP1,2/1. The said witness had no personal knowledge about the consumer dispute in question and he has made deposition being a unit manager of M/S. Asian Paints Limited i.e. in official capacity.

13.              The contentions of learned counsel for opposite party Nos.1 and 2 that the matter being complicated in nature is required to be relegated to the Civil Court, is not well founded because this Forum has jurisdiction to decide the consumer dispute summarily on the basis of evidence produced before it. In our considered opinion, the evidence produced by both the parties on record is sufficient to dispose off the present controversy and we do not deem it necessary to relegate the case to the Civil Court for decision.

14.              On the basis of aforesaid discussion, it transpires that the paint material sold to the complainant vide bill Ex. C-2 was defective in nature and opposite party Nos.1 and 2 are deficient in services and they are also guilty of unfair trade practices and the complainant is liable to be

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compensated in accordance with law. We hold that opposite party Nos.1 and 2 being distributor and manufacturer respectively are jointly and severally liable to refund the amount of Rs.25,500/- i.e. the bill amount besides Rs.10,000/- as compensation for labour charges and mental agony. Besides that opposite party Nos.1 and 2 are also liable to pay Rs.2,000/- as litigation expenses to the complainant. The complaint stands partly allowed accordingly. Opposite party Nos.1 and 2 are given one month time for making the payment, failing which they shall also be liable to pay interest @ 6% on the amount of Rs.25,500/- from the date of filing of the complaint until full and final payment. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

                                       (Vinod Bala)                   (S.S.Panesar)

                                    Member                           President

Announced in Open Forum.

Dated:09.04.2015.