Order No. 13 dt. 06/06/2017
The case of the complainant in brief is that the complainant is the owner in respect of three storied building situated at 31,/14A, K.P. Mukherjee Road, P.O. Barisha, East Park, P.S. Thakurpukur, Kolkata. The complainant in order to protect the building used the product of Berger Paints on the exterior wall of the building. The o.ps. gave the warranty of seven years from the date of issue but the paint of the exterior wall of the house of the building faded away. The complainant initially lodged a complaint in the month of Dec. 2012 for taking remedial measure. The complainant thereafter made further request to o.ps. for taking necessary steps but no action was taken. Subsequently the complainant sent a lawyer’s letter on 22.6.13 but no action was taken on the part of o.ps. In view of the said fact the complainant filed this case praying for direction upon the o.ps. for repainting of the entire exterior wall of the building of the complainant at the cost of o.ps. along with compensation of Rs.3 lakhs.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that there was a bonafide mistake on the part of o.ps. regarding the rectification of the defect and which was informed to the complainant by a letter dt.9.9.13. It was also stated that the claim of the complainant for repainting the wall measuring about 6000 sq.ft. is baseless and false. The warranty certificate mentioned that the warranty shall be limited only to the extent of making good the affected area and it shall not cover any consequential losses. The o.p.s denied that there was any manufacturing defect, in fact as it appear that due to over dilution which have been done by local painters engaged by the complainant has caused the alleged fading in the wall painted. However, the company was ready and willing to take adequate steps and agreed to supply man and material at its own cost only for the affected area. There was no deficiency in service on the part of o.ps. and the fault was committed by the local painter engaged by the complainant and the local painter at the time of application of the paint failed to apply the ratio of use of volume of paint and its application on the surface of the wall may not have been done in the proper manner which resulted into such fading and as such, o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant purchased the Berger Paints manufactured by o.p. no.1.
- Whether there was any defect in applying the material on the exterior wall of the building.
- Whether there was any deficiency in service on the part of o.ps.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant being attracted for providing the warranty in respect of the paint manufactured by o.p. no.1 applied the said paint on the exterior wall of the building of the complainant. It was specifically stated that warranty period of applying such paint would be seven years from the date of its use but within a few months it was noticed that the colour of the paint faded away for which the complainant made several correspondences with o.ps. and in the month of Jan. 2013 one Sumanta Sarkar, Branch Manager of o.p. no.1 visited the house of the complainant and after inspection he along with his assistant opined that there was deficiency and admitted the facts of poor quality of used paint on the exterior wall of the house and they assured the complainant that repainting of the house will be done at the cost of the company, but nothing was done for which the complainant had to file this case praying for direction upon the o.ps. for repainting the exterior wall of the building of the complainant along with compensation.
Ld. lawyer for the o.ps. argued that the warranty relates to the repainting would be made at the cost of the company in respect of the affected part, not the entire wall of the said building. Ld. lawyer also emphasized that the wrong application of the painting by the local painter such type of defect may occur. The complainant in order to show that there was any manufacturing defect in respect of the said paint the complainant could not file any expert’s opinion. In view of such fact ld. lawyer for o.ps. argued that if the o.ps. are given opportunity to repaint the affected part of the building that can be done at the cost of the company and since there was no deficiency in service on the part of o.ps. the case is to be dismissed.
Considering the submissions of the respective parties it is undisputed fact that the complainant used the Berger Paint for the exterior wall of the building. The complainant claimed that the painting was faded away within a short period of time and the said fact was brought to the notice of o.ps. but no action was taken by o.ps. On perusal of the documents filed by the complainant it appears that the company informed the complainant that the company is ready to supply the material for repainting the front portion which affected in some area due to over dilution. The company shall bear the labour charges upon the complainant’s production of a quotation from his painting contractor and thereafter the company will rectify the said affected part of the painting as well bear as the labour charges. The complainant in spite of getting such assurance from o.ps. did not cooperate with o.ps. and filed this case praying for direction upon the o.ps. for repainting the entire exterior wall of the building as well as compensation.
On perusal of the materials on record we find that the warranty relates to the affected part not the entire wall where the paint was applied of the exterior wall of the house of the complainant. The complainant in order to show that there was any manufacturing defect no document has been filed to that effect. Since the complainant made allegation against the o.ps. regarding the quality of the paint provided to the complainant but no convincing document has been filed to that effect to accept the contention of the complainant. In view of such fact we hold that for adjudication of the case o.ps. are to be given direction for bearing the cost of the repainting of the affected part of the exterior wall of the said building and the complainant is also be directed to procure the document from the contractor regarding the labour charges to be involved in such repainting and also quantum of paint of the affected part to be provided by o.ps. which is to be supplied by the shop wherefrom the complainant purchased the said paint. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.244/2014 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed make arrangement for the repainting of the affected part of the exterior wall of the said building and the cost is to be borne by the o.ps. as well as free paint is to be provided for such painting and are further directed to pay to the complainant compensation of Rs.2000/- (Rupees two thousand) only for harassment and mental agony within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
