DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 29^th day of June 2019 

Present  : Smt.Shiny.P.R,  President

               : Sri. V.P.Anantha Narayanan, Member                                                  Date of Filing: 19/11/2015

      CC/179/2015

George.M.V, S/o.Varkey,

Manimala House, Thachampara PO,                                                        - Complainant

Machamthodu, Palakkad.

(By Adv.K.Dhananjayan)

  Vs

1. M/s.Asian Paints Ltd,

    6A Shanthi Nagar, Santhacruz East,

    Mumbai

2. M/s.Asian Paints Ltd,

    6A Shanthi Nagar, Santhacruz East,

    Mumbai - Rep. by its

    Manager/Authorized Signatory/

    Principal Administrative Officer                                                             - Opposite parties

   (1^st & 2^nd opp.parties Advs.G.Ananthakrishnan & A.K.Philip)

3.  The Proprietor, Blue Line

     Hardwares and Electricals,

     Opp.Tower, Thachampara, 

     Palakkad.  

                                                                                      O R D E R

By Sri. V.P.Anantha Narayanan, Member  

The facts of the case are briefly discussed below.

                The complainant had purchased 15 liters of oil primer from the 3^rd opposite party which is manufactured by the 1^st and 2^nd opposite parties by paying Rs.14,380/- on 31/12/2014 and the 3^rd opposite party has issued a cash invoice/purchase bill for the same to the complainant.  According to the complainant, the oil primer paint is used in walls of his house to get a clear finish for the walls when painting.  The company (Asian paints limited) boasts of the quality of the oil primer and its specialty is that it is easily washable and there is no need to add or mix water to use it and on the walls it can be directly used on the surface of the wall.  The exact colour of the wall primer after being dried would be pure and stainless white and the stipulated time for its drying after painting is three days.  According to the complainant, the company also states that after painting with the product purchased by the complainant, when it dries up it will emerge to be a perfect pure and stainless white finish, which will considerably reduce expense on final painting on the surface of the wall which has already become smoothened.  Before final painting the company used the primer to paint his house which has approximately 4250 square feet to paint as per the directions issued and mentioned on the carton by expert painters.  He has used the disputed primer on the entire wall surface and ceiling inside the house.  Then he waited for three days for drying it with a hope of seeing a magnificently bright stainless white colour.  But against his expectations, when dried instead of bright stainless white colour, it emerged to a smoky pale yellow colour which appears to be very dirty and awkward.  According to the complainant, since the subject product is oil based, it is very difficult to wash and remove it completely to make the wall as before because the entire wall has become dirty due to the painting with the product and the complainant was forced to change his house warming ceremony from 2014 December to 2015 January, as pleaded by the complainant.  According to the complainant, the quality of the distributed product is inferior and substandard and hence to remove all the dirtiness of the oil primer paint, the complainant has to deploy 65 labourers with rough emery sheets. detergent, mild acid etc and after that the complainant has used ordinary powder wall primer to paint the house for which purpose complainant has purchased from the 3^rd opposite party APEX T PRIMER  20 liters paying Rs.10,000/-.  After noticing the substandard quality and suffering a bitter experience the complainant lodged a complaint by online to the 1^st opposite party.  After receiving the complaint, officials of the opposite party company inspected the complainant’s house and got convinced about the truth and orally promised to make good its cost and pay damages.  Thereafter no positive response came from the side of the opposite parties.  Hence, lawyer notice was sent by the complainant through his counsel to the opposite parties demanding them to pay him damages of Rs.64,572/- occurred due to this incident.  All the opposite parties have received the lawyer notice and on behalf of the 1^st & 2^nd opposite parties, there was sent an ad-interim reply dated.14.07.2015 and then on 23^rd September 2015 denying allegations mentioned in the complainants notice.  The complainant also has denied the denial stated in the reply notice of the 1^st and 2^nd opposite parties.  In the first reply notice 1^st and 2^nd opposite parties asked the complainant’s counsel to wait for a final reply in which the contentions made by the opposite parties 1 & 2 are quite contrary to the facts of the issue which are emphatically denied by the complainant.  The allegations against the complainant in the reply notice that due to improper use of the product by the complainant yellow patches occurred is not correct and hence the same is denied vehemently.  Due to the manufacturing, distributing and selling of the substandard and inferior quality product, the complainant has sustained a financial loss of Rs.63,572/- due to subsequent purchase of primer paint and 80% labour charge.  Thus complainant pleads that due to the purchase and use of inferior quality and substandard product the complainant has suffered financially and mentally.  As per the Consumer Protection Act 1986 manufacturing, distributing and selling a product not having the required quality is a tort and deficiency of service and the complainant is legally entitled to get Rs.64,500/- as damages for the deficiency and unfair trade practice committed by the opposite parties.  Complainant is also entitled to get Rs.25,000/- as compensation for the mental agony suffered by him in addition to cost of litigation.  Thus complainant is entitled to get Rs.1,00,000/- from the opposite parties.  Therefore complainants prays to this Hon’ble Forum to order the opposite parties to pay Rs.1,00,000/- to the complainant as total damages due to deficiency in service committed by them. 

                Complaint was admitted and notices were issued to the opposite parties to enter their appearance and filed their versions.  Notice against 3^rd opposite party was served but they were called absent and they were set ex-parte.  As per the written version filed on behalf of the opposite parties 1 & 2, it is contended that these opposite parties deny all the allegations contained in the complaint except those specifically admitted.  These opposite parties contend that from perusal of the present complaint it is observed that the averments made therein are vague, baseless and made with malafide intention.  The complainant has made misconceived and baseless allegations regarding paint supplied to him being of inferior and substandard quality without relying on any expert report from a recognized and notified laboratory under section 13 (1) of the Consumer Protection Act 1986 and deficiency in service without any documentary evidence to support the allegations made in the complaint.  Also the complaint does not come within the definition of Consumer Disputes under the Consumer Protection Act as there is neither any manufacturing defect proved in the paint supplied to the complainant nor any deficiency in service or unfair trade practice being established against these opposite parties.  These opposite parties further argue that the products purchased by the complainant are well established products in the market and over a period of years the consumers are using the products and the complainant had purchased the product after being satisfied with the quality of the same; all the products manufactured by these opposite parties are marketed only after the prototype of the same is approved by the appropriate authority.  All the products manufactured by these opposite parties are put through stringent quality checks, control system and tests by the quality department before being cleared for despatch to the market.  The products of the opposite party are certified by ISOS Ltd, for quality and this standard specifies requirements for a quality where an organization needs to demonstrate its quality to consistently provide products meeting, customers satisfaction and applicable statutory and regulatory requirements.  Section 13 (1) (C) of the Consumer Protection Act 1986 states that “where the complainant alleges a defect in goods, which cannot be determined without proper analysis or tests of the goods, the District Forum shall after obtaining a sample of the goods, send it to the appropriate laboratory with a direction that such a laboratory makes an analysis or test with a view to find out whether such goods suffer any deficiency alleged in the complaint or from any other defect”.  According to these opposite party the allegations of the complainant in respect of paint purchased by him in the absence of an expert report miserably fails and this complaint deserves to be dismissed.  Complainant had failed and neglected to follow the guidelines as recommended for the paint to be used for the exterior namely correct application procedures – do’s and dont’s for maintenance and performance of the paint used.  These opposite parties argues that complainant had applied only primer and not top coat that APDCP oil primer is a primer used for surface preparation and cannot be used as top coat.  The complainant ought to have applied acrylic wall putty and use top coat over it after following the painting process properly.  According to these opposite parties, the complainant is required to follow certain procedures for painting namely to ensure the surface conditions, apply wall putty, the correct primer, top coat and proper paint application method to be followed.  The complainant has grossly violated the terms and conditions by not following the instructions in choosing the paint and not following the correct procedure.  In this case the opposite parties also rely on other terms and conditions of warranty which states that “Asian Paints is not responsible for damage that occurs as result of the complainant’s failure to follow the instructions intended for the products, as result of misuse, abuse, contamination, improper or inadequate maintenance”.  The correct procedure is complete curing of plaster and cleaning of surface, filling of cracks, filling of holes and dents, application of wall putty, application of exterior wall primer and application of top coat.  The complainant can also get all the details of the application procedure in the company’s official website namely www.asianpaints.com”.  These opposite parties state that in view of the faults on the part of the complainant, he is not entitled for the reliefs claimed in the complaint.  These opposite parties further contend that they have checked and verified the products of the same batch and found that there are no issues in the products of the same batch and complaints lodged by the complainant are properly attended to.  On inspection of the complainant’s site, it was learnt that the application process followed at the site was not correct.  When the TSO of these opposite parties visited the complainant’s site, he found that the complainant had only applied primer and not top coat – APDCP oil primer is used for surface preparation and cannot be used as top coat.  Therefore the TSO advised the complainant to follow the painting process properly and apply top coat to resolve his problem.  Complainant applied the top coat and reported that he is again facing the same problem of yellow marks appearing on his wall.  On receipt of the complaint, the TSO along with CSO of these opposite parties visited the complainant’s site and observed that there were some yellow marks, upon further diagnose/verification it was found that there were no issues with the other products of the same batch.  Hence complainant was instructed that he should apply acrylic wall putty and use top coat over it after following the painting process properly but according to these opposite parties, complainant was not ready to accept the same.  These opposite parties also contend that there is no manufacturing defect in the goods purchased by the complainant nor any deficiency in service on the part of these opposite parties.  Regarding the averments made in various paras of the complaint proper replies are given by these opposite parties or denied.  Regarding the averments made in paras 2, 3 & 4 (1) of the complaint, the TSO had advised the complainant to follow the painting process properly and is to apply acrylic wall putty, there after apply top coat in order to resolve the mentioned problem but the complainant refused to follow his instructions.  The averments made in para 4 (2) and para 4 (3) of the complaint are denied by these opposite parties.  Regarding the averments made in para 4 (6) of the complaint these opposite parties contend that on receipt of the complaint filed, registered the same deputed its TSO for the site visit of the complainant, on inspection it is learnt that the complainant had only applied primer and not top coat, APDCP primer is used for surface preparation and cannot be used as top coat, the TSO who visited the complainant advised him to follow the painting process properly, but the complainant refused to follow his instructions that is to apply to top coat acrylic wall putty primer and use top coat cover.  Regarding the averments in para 4 (6) of the complaint, to the legal notice issued through his counsel demanding these opposite parties to pay damages of Rs.64,572/- to the complainant, these opposite parties sent an ad-interim reply dated.14.07.2015 and later on 23.09.2015 denying the allegations contained in the complainant’s notice.  On receipt of the legal notice the same was replied in which the opposite parties detailedly explained to the complainant to apply a correct primer to a new surface to examine and ensure that it is sealed properly, to ensure coating adhesion, painting on unprimed surface is not recommended, painting on an unprimed wall is also a reason for the issues.  The executives of these opposite parties had explained to the complainant the causes for the issues is not due to poor quality of paint of these opposite parties but due to improper paint application method followed.  But the complainant is not ready to accept that the paint supplied was defect free; as a goodwill gesture the opposite parties offered to the complainant to provide fresh materials required for painting his site which is denied by the complainant who has demanded exorbitant amounts towards compensation and damages.  Hence the opposite parties argue that they are neither guilty of any negligence, deficiency in service, unfair trade practice nor liable for the claims of the complainant.  The averments made in paras 7 & 8 of the complaint are also denied by these opposite parties.  Therefore these opposite parties pray to the Hon’ble Forum that since the complainant has failed to make out a premafacie case against these opposite party, the present complaint may be dismissed against these opposite parties 1 & 2. 

                Complainant filed chief affidavit and also additional affidavit so also the opposite parties 1 & 2.  The 3^rd opposite party is set ex-party.  Advocate Kannaraj was appointed as Advocate Commissioner to inspect the property and file a detailed report.  Exts.A1, A2, A3 series, A4 series, A6 & A7 were marked from the side of the complainant.  Advocate commission report was marked as Ext.C1.  Primer produced before this Forum was marked as MO1.  Exts.B1 to B4 were marked subject to proof from the side of the opposite parties.  Complainant was cross examined as PW1.  Complainant filed notes of arguments and was heard. 

The following issues crop up in this case namely.  

1. Whether the opposite parties have committed deficiency in service and unfair trade practice towards the complainant
2. If yes, the relief and cost available to the complainant?

Issues 1 & 2 in detail

                Complainant has produced before this Forum Exts.A1 & A2. A3 series & A4 series, Ext.A6 & A7 to support their pleas.  Ext.A1 is a retail invoice number: 5329 dated.31.12.2014 issued by the 3^rd opposite party for the purchase of articles which shows name and address of the 3^rd opposite party, details of articles purchase, their price and also grand total amount.  Ext.A2 is a retail invoice number: 0616 (bill dated.27.08.2015) issued by the 3^rd opposite party for the purchase of articles which shows articles sold, their rate and quantity and grand total amount. Ext.A3 series is a copy of lawyer notice dated.08.06.2015 issued to the 1^st opposite party along with postal receipt and acknowledgment card by complainant’s counsel on behalf of the complainant calling upon the 1^st opposite party to make payment of Rs.63,572/- to the complainant together with fees and notice charges of Rs.1,000/-.  Ext.A4 series is a copy of lawyer notice dated.08/06/2015 sent to the 3^rd opposite party along with postal receipt and acknowledgment card by the complainant’s counsel calling upon the 3^rd opposite party to make payment of Rs.63,572/- to the complainant along with fees  and notice charges of Rs.1,000/- within fifteen days of the receipt of this notice.  Ext.A6 is a reply notice dated.14/06/2015 sent by the 1^st & 2^nd  opposite party to complainant’s counsel which denies the allegations made in the notice dated.08/06/2015.  This reply notice also asks the complainant to await the opposite parties final reply.  Ext.A7 is a reply notice dated.23/09/2015 sent by opposite parties 1^st & 2^nd to complainant’s counsel to the notice dated.26/05/2015 sent by complainant’s counsel which states that it will deal with each and every allegation made in the notice dated.26/05/2015.  Exts.B1 to B4 were the evidences filed by the opposite parties before this Forum which were marked subject to proof from the side of the opposite parties.  Ext.C1 is the report filed by the Advocate Commissioner which discloses the following:- the Advocate Commissioner took the warrant and gave notices to the advocates of the complainant and the opposite parties and visited and examined the walls of the complainant’s house on 30/11/2017 and at the time of his inspection, the complainant, his advocate and the advocate of the opposite parties were present in the complainant’s house.  As per commission report the complainant’s building measures approximately 3000 square feet area and It was a two storied building approximately 1500 square feet area each in ground floor and 1^st floor respectively.  At the time of his inspection all the painting works of the house were finished.  According to the complainant the whole painting works were finished before two years.  At the time of his inspection the ceiling and walls of the exterior side of the building were painted in white colour and it was very clear.  There were no yellow patches/shades or black patches were visible in the exterior walls or ceiling of the building.  At the time of his inspecting the interior ceiling and interior side walls were painted in white colour, the side walls of the ground floor hall, approximately having 42 feet length and 22 feet width and 12 feet height.  some yellow shades and black patches are visible in the walls and the ceiling of this hall; the same yellow shades and black patches are visible in the walls and ceiling of the two bed rooms having the measurement of 15 feet length and 15 feet width and as per the complainant the side walls were painted two coats and ceiling painted in one coat.  At the time of advocate commissioner’s inspection, the same yellow shades and black patches are visible in the side walls of the kitchen which is measured as 15 feet length and 10 feet width.  The same yellow shades and black patches are visible in the side walls of the dining halls which are measured as 15 feet length and 15 feet width, the same yellow shade and black patches were also found in the work area which is measured as 15 feet width and 15 feet length.  At the time of the advocate commissioner’s inspection in the first floor of the building also the same yellow shades and black patches are found in the ceiling and side walls of the hall measured as 42 feet in length and 22 feet in width, the same yellow shades and black patches were found in the side walls and ceiling of the two bedrooms measured as 15 feet in length and 15 feet in width.  The commissioner also reported that, according to the complainant, after removing the oil primer by using emery paper applied putty properly and painted the side walls two coats and ceiling one coat with white cement.  The yellow shades and black patches in the side walls and ceiling inside the house appears as a dirty look.  Advocate commissioner also reported that complainant has kept his house very clean and neat.  The house building of the complainant is situated approximately more than 500 meters away from the public road and there is no such possibility of dust accumulating on the painted surface; the fading of the painted surface cannot be due to passage of time also.  The 1^st and 2^nd opposite parties raised objection to the commissioner’s report filed as follows.  According to them inspection report of the advocate commissioner cannot be taken as evidence because, the in-question commissioner is an advocate by profession and not the technical expert to assess whether the issues alleged by the complainant is due to defects in the paint or due to any other factors, whether the complainant has followed prescribed method and correct procedure before using the paint exterior and interior, like complete curing of plaster and cleaning of surface, filling of cracks, holes and dents, whether the complainant has chosen the correct paint, whether application of exterior wall primer and application of top coat were followed or not.  They also added that the commissioner being only an advocate and not a technical expert is unable to assess that complainant has applied primer and not top coat; as per the procedure the complainant should have applied acrylic wall putty and use top coat over it, after following the painting process properly, that APDCP oil primer is a primer used for surface preparation and cannot be used as top coat.  The opposite parties 1& 2 denied that there were black patches as mentioned in the report because the TSO during the visit could not find black patches anywhere on the walls as mentioned in the report.  The commissioner is also unable to assess the causes for the yellow patches found on the walls”. Therefore these opposite parties 1 & 2 object to the commissioner report are not reliable and relevant and hence it may be rejected; also the allegations of the complainant without any expert report from a recognized and notified laboratory under section 13 (1) of the Consumer Protection Act 1986 are vague and baseless. 

                We have perused the affidavit and additional affidavits and documentary evidences filed by the complainant and the opposite parties and the advocate commissioner’s report and understood that the primer purchased from the opposite parties was used by the complainant to paint his house before final painting and instead of bright stainless white it emerged to a smoky pale yellow colour which appeared as very dirty and awkward.  We also observe that after painting with the product purchased from the 3^rd opposite party and manufactured by the 1^st opposite party, the walls and ceiling of the complainant became smoky pale yellow colour; also since the disputed product is oil based it is very difficult to wash and remove it completely to make the wall as before.  As the entire wall due to the painting with the disputed product has become dirty the complainant was forced to change his house warming ceremony from December 2014 to January 2015 which must have caused him much mental agony.  It is also observed that although the complainant lodged an online complaint with the 1^st opposite party no positive response came from the side of the opposite parties and due to the manufacturing, distributing and selling of the substandard and inferior quality product complainant has sustained financial loss of Rs.63,572/- due to purchase of primer paint again plus 80% labour charge.  It is also seen that the opposite parties clearly admitted that the existing black yellow mark is due to substandard quality of their product which is clear from their reply to the complainant’s lawyer notice (vide Ext.A7) “we checked and verified and found that same problem did not appear in other products in the same batch; this was clearly communicated to your client but he was not ready to accept our contentions.  It was then told to your client that he should apply acrylic wall putty and use top coat over it after following the painting process properly.  We then purely as a goodwill gesture offered to your client fresh materials required for painting his site which he denied.”  We observe that this reply can be taken as admission by the opposite parties regarding the substandard quality of the product manufactured by them.  We also observe from Ext.C1 report that Advocate Commissioner was appointed in this case for a local investigation as per Or. 26 Rule of Civil Procedure Code and also under section 13 of the Consumer Protection Act, inspected the complainant’s house and filed a detailed report. We also observe that the said report can be taken as proof for deciding his issue and the advocate commissioner has categorically mentioned that the fading of the painted surface cannot be due to the passage of time.  Also the building of the complainant is situated around more than 500 meters away from the public road and there is no possibility of dust, accumulation on the painted surface”.  Above all, we view that the principle of “Resipsaloquitor” can also be applied in this case because the complainant has proved his case beyond any suspicion and without any ambiguity.  At the same time we also view that the 3^rd opposite party is only a dealer and not in any way associated with the manufacturing of the disputed product which is alleged by the complainant as of inferior quality and substandard.  The complainant has also deposed before this Forum that the dispute in this case is about the oil primer which is manufactured vide 1^st and 2^nd opposite parties only and not by the 3^rd opposite party.

                In this connection complainant’s deposition before this Forum as PW1 should also be noted.  “Hmbn ss{]aÀ hoSn\I¯v am{XamWv ASn¨n«pÅXv.  ]pd¯v Iws¹bnâv I­t¸mÄ ASn¨nÃ.  NpaÀ ¹mÌdn§n\ptijw sshäv hmjv sNbvXp.  ]n¶oSv hmjv sNbvXn«mWv Hmbn ss{]aÀ ASn¨Xv.  hnäv\kv BUvkv þ ¹mÌdnMv Ignªv ]p«n C«v an\p¡nbncp¶p.  ]n¶oSv sshäv hmjv sNbvXp.  ]Xps¡ DW§p¶ ]p«nbmWv C«Xv.  hoSn\I¯v ¹mÌdnMv Ignª FÃm `mK¯pw ]p«nbn«ncp¶p.  te_À tIm¬{SmIvän\v _n X¶ncp¶nÃ.  A§ns\ ]p«n ASn¨v hmjv sNbvXtijamWv Hmbn ss{]aÀ ASn¨Xv.  AXv hoSv apgph\pw AI¯mbn ASn¨ncp¶p.  AXn\ptijw HmÀUn\dn ]uUÀ hmÄ ss{]aÀ D]tbmKn¨v s]bnâv ASn¨p F¶v ]dªm icnbmWv.  At¸mgpw B ]gb ]mSpIÄ ImWm³ km[n¡pambncp¶p.  hmjv sNbvXt¸mgpw ]mSv apgph\mbn t]mbn«nÃ.  Hmbn ss{]adnsâ Un^IvSv sIm­mWv Cu ]mSpIÄ Ct¸mgpw \ne\n¡p¶Xv."

                Taking into consideration all the above we decide to partly allow the complaint. 

                We direct the opposite parties 1 & 2 jointly & severally to pay to the complainant Rs.12,400/- (Rupees twelve thousand four hundred only) towards damages and financial loss caused to him due to deficiency in service and unfair trade practice committed by the opposite parties; we also direct the opposite parties 1 & 2 to pay to the complainant Rs.5,000/- (Rupees five thousand only) jointly & severally by way of compensation for mental agony suffered by the complainant due to unfair trade practice and deficiency in service committed by the opposite parties.  In addition the opposite parties 1 & 2 are also directed jointly and severally to pay to the complainant Rs.5,000/- (Rupees five thousand only) towards the cost of this proceedings.  However since the 3^rd opposite party is only a dealer and not in any way associated with the manufacturing and distributing of the disputed product, they cannot be held liable for the inferior quality of and the substandard disputed paint.  Therefore they are exonerated from any liability in this case. 

The aforesaid amount shall be paid within one month from the date of receipt of this order; failing which the complainant is also entitled to realize 9% interest p.a from the 1^st and 2^nd opposite parties jointly and severally on the total amount due to him from the date of this order till realization.    

Pronounced in the open court on this the 29^th day of June 2019.  

Sd/-                                                                

                                                                                                                                          Shiny.P.R                                                                                 

                                     President

                                               Sd/-

                          V.P.Anantha Narayanan

                                        Member

Appendix

Exhibits marked from the side of complainant

Ext.A1   - Original Retail Invoice No.5329 dated.31.12.2014 issued by 3^rd opposite party to the

                  complainant

Ext.A2   - Original Retail Invoice No. 0616 dated.27.08/2015 issued by 3^rd opposite party to the

                  complainant

Ext.A3 series      - Copy of registered lawyer notice dated.08.06.2015 issued to the 1^st opposite party

                                  along with postal receipt and acknowledgment card

Ext.A4 series      - Copy of registered lawyer notice dated.08.06.2015 issued to the 3^st opposite party

                                  along with postal receipt and acknowledgment card

Ext.A6   - Registered post reply notice dated.14.07.2015 sent by opposite parties authorised signatory to

                  the complainant’s counsel

Ext.A7   - Registered post reply notice dated.23.09.2015 sent by opposite parties authorised signatory to

                  the   complainant’s counsel

MO1      - Primer  

Exhibits marked from the side of Opposite parties (Subject to proof)

Ex.B1     - Photocopy of the power of attorney dated.20.06.2017

Ext.B2   - Batch Certificate dated.30.04.2018

Ext.B3   - Copy of Tin Label (Colour Photo)

Ext.B4   - Reply Notice dated.23.09.2015

Commission Report

Ext.C1   - Advocate Commissioner report dated.21.12.2017

Witness examined on the side of complainant

PW1       - George

Witness examined on the side of opposite parties

Nil

Cost

                Rs. 5,000/-