BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 75/2012.
THIS THE 2nd DAY OF AUGUST 2013.
P R E S E N T
1. Sri. Prakash Kumar B.A. LLB. PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- G.T. Reddy, Age: major, Occ: Legal
Practitioner, R/o. H.No. 9-19-9, Munnurwadi, Raichur.
//VERSUS//
RESPONDENTS :- 1. M/s. Shanthi Hardwares, Opposite Poornima
Theater, Gunj Road, Raichur- 584 201 (Karnataka).
2. The General Manager, ASIAN PAINTS LTD., No. 6-A, Shantinagar, Santacruz EAST- Mumbai- 400 055. Maharastra State.
Date of institution :- 06-09-2012.
Date of disposal :- 02-08-2013.
Complainant represented by Sri. H. Earanna, Advocate
Respondent No-1 represented by Sri. Sateesh.V. Advocate.
Respondent No-2 represented by Sri. Shridhar Prabhu, Associates.
This case coming for final disposal the Forum on considering the entire material and evidence placed on record by the parties passed the following.
ORDER
By Sri. Prakash Kumar, President:-
The complaint is filed by the complainant against the Respondents U/sec. 12 of Consumer Protection Act 1986.
2. The complaint in brief is that, the complainant for painting his house and shop in the month of October-2010 and November-2010 purchased Asian Paints and allied products from the Respondent No-1 and manufactured by Respondent No-2 and used them to paint his house. However within a week the paint vanished due to which the complainant suffered loss of Rs. 2,00,000/-. Regarding this the complainant made complaint before the Respondent No-1 who brought the same to the knowledge of the Respondent No-2 who in turn sent their officials on 06-06-2012 to inspect the house of the complainant. The said officials gave report to Respondent No-2 who assured the Respondent No-1 and the complainant that, they will take action for re-painting or to reimburse the loss, within a week, but they never did either of them. Therefore the complainant got issued a legal notice on 06-07-2012 to the Respondents for which there was no response. The act of the Respondents amounts to deficiency in service. Therefore the complaint for reliefs as prayed for.
3. On service of notice the Respondents appeared through their respective counsel and Respondent No-1 did not file his written version and Respondent No-2 filed the written version which is as follows;
4. The complaint is not maintainable either in law or on facts. The complainant has clearly admitted that the paint was bought for his shop and to conceal the said fact. The complainant has applied whitener. Since the transaction involved is commercial complaint is not maintainable. The complainant has failed to specify as to what was the defect in the goods. The complainant produced the receipts from 6th October 2010 to 30th April 2012 totally 22 receipts and some of the receipts were not issued to the complainant, because his name is not appearing in the said receipts. Therefore it is clear that, the complainant has falsely produced the documents and on this ground alone the complaint is liable to be dismissed. The complainant has failed to prove that, the very same paint allegedly bought from Respondent No-1 is the one he applied to his shop and house. It is quite possible that, he did buy the paint manufactured by Respondent No-2, but applied some other paints to his shop and house. According to the complainant the paint was bought in October-2010 and says that, the cause of action arose on 06-06-2012. Hence, it is quiet possible that, the paint bought by the complainant and the one applied are two different paints. The complainant has failed to prove that, the Respondent No-1 is the sole and exclusive dealer of Respondent No-2 products. The invoices also did not indicate the name of the products of the Respondent No-2. The fact remains that, the complainant bought different products and is now blaming Respondent No-2. There is no privity of contract between the Respondent No-2 and complainant. Hence, the Respondent No-2 is not required to maintain its goods upto a particular standard as per the contract. However it is true that, the Respondent No-2 is required to keep the products inconformity with law. The complainant alleged unfair trade practice, but has not proved as to what unfair trade practice the Respondent No-2 was engaged in. The complainant has not produced the sample of goods as prescribed in Section 13. Hence, this forum has no jurisdiction even to admit the complaint, without the alleged defective goods being produced by the complainant. Without admitting that the paint manufactured by Respondent No-2 was used in the shop and house of the complainant, the complainant is put to strict proof of the same. The complainant has not indicated that, he appointed any painter to paint his shop. If he had appointed any painter, the complainant would have made him a party. If he has not made the painter a party, then the complaint is not maintainable. Since nowhere in the complaint it is indicated that, the painter was appointed, it is to be presumed that, the complainant himself painted the house. The complainant being not trained to paint the house is most likely to have missed out on the important instructions. Hence, on this ground alone, the complaint is not maintainable. The complainant has to prove beyond doubt that Respondent No-2’s paint was applied by him in his shop and his house for which a full fledged trial has to be conducted which is beyond the scope of this forum. This complicated facts and circumstances cannot be proved under summary proceedings. The matter can be tried by Civil Court alone. On this ground also the complaint is not maintainable.
5. The contents of Para No-2 of the complaint are denied as false. It is denied that Respondent No-2’s paint was applied by the complainant. It is true that the officials of Respondent No-2 went to inspect the house and shops of the complainant on 06-06-2012, but at that time they were repainted by the complainant. Once the complainant has repainted the shops and house it was impossible for Respondent No-2 to ascertain whether the complainant had applied the paint manufactured by Respondent No-2. The contents of Para No- 4 & 5 of the complaint are denied as false. A copy of the legal notice was sent to Respondent No-2 for information, it was never indicated that the legal notice was for any action from Respondent No-2. The contents of Para No. 6 to 8 of the complaint are denied as false. The complainant has never been able to prove any defect in the paint. If the paint was defective, the complainant could have requested the Forum to send the samples to the laboratory for testing and got it tested for quality deficiency if any. No such things are forthcoming. The complainant has filed this complaint for illegal gains. The contents of Para- 9 & 10 of the complaint are denied as false. All other averments in the complaint which are not specifically admitted and which are contrary to the interest of the Respondent No-2 are denied. Therefore the complaint be dismissed in the interest of justice.
6. Complainant to prove his case filed his affidavit which is marked as PW-1 and relied on five documents which are marked as Ex.P-1 to Ex.P-5. The Respondent No-2 has not produced any evidence.
7. Arguments heard on complainant’s side.
8. The points that arise for our consideration are:
1. Whether the complainant proved deficiency in service on the part of the Respondents’ against him.?
2. Whether the complainant is entitled for the reliefs prayed for.?
3. What order?
9. Our answer on the above points are as under:
(1) In the Negative
(2) In the Negative.
(3) As per final order:
REASONS
POINT NO.1 :-
10. When a consumer alleges defect or poor quality in the goods purchased by him, he must prove it by producing expert’s evidence if such defect or defects cannot be ascertained by mere look or test of the said goods visually. This is the law. In support of this rule of law, we rely on the decision reported in I (2011) CPJ 322 (NC) (Oriental Insurance Company Ltd., V/s. (Amarjeet Singh Kawatra & Ors) and CTJ 208 421 (SCDRC) (Sree Masthi Enterprises V/s. Kallingal Iqbal). In the verdict given by the Hon’ble National Commission cited supra it is observed thus;
The Factum that the car in question was insured against certain risks and it got damaged due to automatic fire within four days of its delivery being not in dispute, the crucial question which was required to be answered before fixing the liability on one party or the other, was whether the car in question caught fire on account of any manufacturing defect or for some other cause and, if so, what that cause was. To decide such a question opinion of some independent expert having skill and expertise to give opinion in such matters ought to have been obtained than deciding the question by discarding the opinion of the Surveyors/ Investigators.
In the decision of the State Commission cited above it is held;
When manufacturing defects in the product are alleged, the same should be proved by taking out a Commission that should be competent and qualified in that field.
However here in this case though the complainant alleged poor quality in the paint purchased by him from Respondent No-1 and alleged to have been manufactured by Respondent No-2, he has not produced any expert’s evidence or report to prove his allegation. In this case the expert’s evidence is very much necessary as the poor quality in the paint cannot be ascertained by us by examining it visually. That opportunity is also not given to us by the complainant as he has not produced the paint before us during trial or at any time. The scientific report/chemical report by an expert given after examining the paint chemically in the laboratory is very much necessary to arrive at any conclusion with regard to the quality of the paint purchased by the complainant. But the complainant has not taken any paint to see that the paint purchased by him was being sent to Scientific/chemical report by an expert. Therefore on this ground itself, the complainant’s case has to fail.
It is true that though the Respondent No-2 filed written version he has not produced evidence in support of his contention even after giving sufficient opportunity for the same. However on this ground the case of complainant cannot be upheld because any person alleging the fact must establish the same by leading co-gent and convincing evidence and such a fact cannot be deemed to have been established merely on the presumption that the Respondent’s side has not contested the case of the complainant. Here in this case also though the Respondents have not produced any evidence or contested the case of the complainant, presumption cannot be drawn that the paint supplied by the Respondents is of poor quality. The poor quality of the paint alleged by the complainant has to be proved by him by producing necessary co-gent and convincing evidence and the same cannot be proved except with the evidence of an expert. But no such evidence of an expert’s produced by the complainant. For the said reason also the complainant’s case has to fail.
11. Further the complainant has not complained about the poor quality of the paint immediately or within a reasonable time of its purchase and use. The paint was also not purchased by him in one go or within a limited period of time. The process of the purchase of paint and it is use went on for years together. According to the bills produced by the complainant the first lot of paint was purchased on 11-10-2010 and the last one on 30-04-2012. This shows that the complainant had not painted his house/shop in one stretch. That means the paint purchased by him was not used in one stretch and the process of painting went on for years together. Under such circumstances the paint container being opened and partially used and then the remaining paint kept for long period and then used, cannot be ruled out. Under such circumstances the paint losing its quality and affectiveness, is highly possible which will be reflected when it is used for painting the wall. Under such circumstances the manufacturer and seller of the paint cannot be blamed for its poor quality. Besides this the painting process must be entrusted to a professional in the said work and if no such professional is engaged and some other person under takes to paint the wall there is every chance of he not using the paint in the manner instructed by the company. The complainant has not stated or adduced evidence to show that he engaged a professional to paint the wall of his house/shop. If a layman paints the wall it may give poor result and on account of this also the complainant might not have obtained expected result while painting his house for which the Respondents cannot be blamed. There is also no evidence that the paint was used as per the instructions given by the company. On account of non adherence to the instructions given by the company also the poor result may occur in the paint. For all these reasons also the case of complainant has to fail.
12. Further the first complaint was found made by the complainant on the quality of paint purchased by him seems to have been 06-07-2012, whereas the first lot of paint was alleged to have been purchased on 11-10-2010. If there was poor quality in the paint, the complainant would have lodged the complaint about it immediately or within a reasonable time. But it is not so. The complaint was at belated stage. Last but not the least out of twenty two bills/ tax invoices produced by the complainant to prove his case only in four the complainant’s name is mentioned and in rest of the bills the column meant for the name of the customer is blank. Therefore the logical conclusion could be that these blank bills do not belong to the complainant.
For all the reasons, discussed above we are of the opinion that the complainant has failed to prove his case with cogent and convincing evidence. Therefore deficiency in service cannot be attributed against the Respondents. Accordingly this point is answered in the Negative.
POINT NO.2:-
13. As the complainant has failed to prove his case and deficiency in service on the part of Respondents he is not entitled for any reliefs prayed for in the complaint. Accordingly this point is answered in the Negative.
POINT NO.3:-
14. As per order below:
ORDER
The complaint filed by the complainant is dismissed.
There is no order as to cost.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open court on 02-08-2013 )
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Prakash Kumar
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur
