Judgment & Order  dt. 07.09.2017

            This case owes its origin to a complaint made u/s 12 of the C.P. Act, 1986, by the complainant, praying for issuing a direction for repainting of damage portion of his rooms and building by the OPs and also for payment of compensation and litigation cost against the OPs.

            The summation and summarization of the facts leading to the filing of the instant complaint by the complainant may be reproduced as follows.

            The complainant is a retired Assistant Teacher of a high school and he owns a three storeyed building which is used for residential purpose. After retirement, he decided to refurbish both the interior and exterior of his residential building and extended portion thereof with the help of putty and colour painting. OP-1 is an authorized dealer of Asian Paints. He came up to help the complainant in the fruition of his mission with the help of OP-2, who is their trained ‘Mistry’. Task of renovation of the building of the complainant thus took its flight by hands of OP-2 and under direct supervision of OP-1. It took about 4 months to be completed, i.e. from May, 2016 to Aug. 2016. All materials including paints were purchased by the complainant from the shop of OP-1 and thus, he incurred a cost of Rs.1,57,424/-.

            The OP-2 i.e. Mistry also received Rs.1,09,800/- as labour charges.

            But, all dreams of the complainant got shattered, when one fine morning, about 15-20 days after, he came to discover that all the deep coloured walls of the 2^nd Floor are worn out by water-

streaks. Similarly, some walls on the ground floor also got disfigured here and there by some kind of odd looking patches thereon. The complainant’s anxiety knew no bounds.  He, then and then, rushed to OP 1 & 2 and informed them of the incident. OP-1 also appraised OP-3, the Regional Manager of the company of untoward incident. But, no fruitful step was taken by the OPs; they preferred it best to maintain inertia. The complainant did not even miss to knock at the door of the Assistant Director, CA & FBP, for justice. But, he got no remedy there. Thereafter, when all his attempts to get justice have ended in smoke, he has come up before this Forum with filing of the instant complaint praying for issuing a direction to repair the damaged portion of his rooms and building by removing of old painting or to pay Rs.3,50,000/- as costs incurred by him and also to pay a sum of Rs.50,000/- as compensation for mental pain, agony and harassment and Rs.10,000/- as litigation costs. Hence, arises the case.

            Notices of the case have been served upon the OP Nos. 1 & 3 and despite service of the notice, they have not turned up to contest the case. So, the case is heard ex parte against them. OP-2 has made appearance personally and has also filed the written statement wherein it is contended by him that he being a Mistry simpliciter cannot be held liable for deficiency in service. The positive case made out by him in written statement is that he is a painting Mistry of Asian Paints Company and has been doing such works since a few years back, having got the training imparted by the official of the company. He undertook the painting work of the rooms and the building of the complainant under

guidance of OP-1 i.e. the dealer of the company. During continuation of painting, it seemed to him that the painting of old walls of the building might be affected by damp and therefore, he brought it to the notice of the complainant and OP-1. OP-1 did not attach any importance to his views and remarked that such difficulty would be avoided by an application of damp proof solution. Accordingly, he did it, but he remained unsatisfied with the manner of work. He received Rs.1,10,000/- as labour charges from the complainant. A few days after, the complainant complained before them that the paintings got swelled on some places of the wall and that the water marks were found on the painted walls and that oil like substance was also found oozing down from the walls. Then and then, he along with OP-1 i.e. the dealer inspected the house of the complainant and found that there was truth in the version of the complainant. OP-3 was also informed about this untoward incident; he conducted a spot inspection and agreed to pay Rs.25,000/- as compensation to the complainant, to which the complainant did not agree. His further contention is that no deficiency in service is attributed to him and therefore the case should be dismissed in limini against him.

            Upon the averments of both the parties, followings points are formulated for proper adjudication of the dispute.

Points.

1. Have the Ops committed any act of deficiency in service while undertaking the painting work to the house of the complainant?
2. Is the goods i.e. the painting supplied by OP-1 defective?
3. Is the complainant entitled to get any remedy as prayed for?

Evidence of the Parties:

            The complainant has filed an affidavit-in-chief and some documents to substantiate his case, which are kept in the record. No evidence whatsoever has been led on behalf of the OP-2.

DECISION  WITH  REASONS

            Perused the complaint, written statement filed by OP-2 and the documents filed by the complainant. Heard the submission of the Ld. Lawyer appearing for the complainant. Considered all these.

            It is to be seen whether the OP-1 is liable for any act of deficiency in service in so far as the painting work in the residential house of the complainant is concerned. It goes established by the admission of OP-2, as pointed out in the written statement filed by him that the painting work in the house of the complainant was undertaken by the OP-1. It transpires in his written statement that he i.e. OP-2 acted as painting Mistry, that he worked under the supervision of OP-1 i.e. the dealer of the company. It is also  stated by him in his written statement that he apprehended that a kind of damp might come to surface on the painting of old wall. But, OP-1 assured him, to which he was not satisfied, that no damp would arise if the damp solution was applied. According to him, he undertook the task as was directed by the OP-1. It is also admitted by him in his written statement that he along with OP-1 conducted spot enquiry in the house of the complainant and came to find that some portions of some walls got damaged and disfigured. The complainant has also filed 4 photographs from which it is discernible that some portions of the painting of the walls of the complainant on 2^nd floor are

 disfigured badly by watery-streaks and some other portions thereof on ground floor with distinct patches. In the circumstances, and in view of the materials as discussed above we are of the opinion that the complainant has been able to prove by admission of OP-2 and his own evidence that the new paintings of his walls have been disfigured and damaged at some places with water marks and hazy-spots.

            Now arises the question whether the OPs can be held liable for deficiency in service or defect in goods for damage and disfiguration of the painting on the walls of house of the complainant. A person can be held liable for deficiency in service when it is found that a fault, imperfection, shortcomings or any inadequacy has cropped up in the quality, nature and manner or performance of the service. Coming to the facts of the instant case, it is found that the OP-1 by his assurance to the complainant undertakes a liability and the said liability is to paint rooms of the building of the complainant properly and adequately. But, OP-1 has neglected to perform the task in the right manner. He even neglected the opinion of the painting Mistry OP-2 who told him that the painting on old walls of ground floor might be subjected to damp. Regard being had to these circumstances in particular, we feel constrained to say that OP-1 took up on his shoulder to paint the house of the complainant. But, the task has not been properly undertaken by him. Had it been properly undertaken, there would have not arisen any kind of disfiguration or damage on the newly painted wall of the complainant. Again, the watery-streaks and patches as are seen on the photographs also indicate that the quality of the paints used was not upto the mark and the OP Nos. 1 & 3 could have discharged the onus of proof by expert opinion about good quality of the said product. In view of these tell-tale facts, we do hold that the OP-1 has committed act of deficiency in service as defined u/s 2(1)(g) of CP Act, 1986. OP-3 being the General Manager of the Company of OP-1 can also be held liable for deficient act of OP-1 and also for defective quality of the product. But, the OP-2 is not liable for any deficiency in service and no allegation of any such kind is attributed to him. The case deserves to be dismissed against the OP-2 only. All the points as referred to above are answered accordingly in favour of the complainant. In the result, the case succeeds.

            Hence,          

O R D E R E D

            That the complaint case be and the same is allowed ex- parte against the OP Nos. 1 & 3 with costs and dismissed on contest against the OP-2 without cost. The costs of litigation is quantified at Rs.2,000/-.

            OP Nos. 1 & 3, who are held to be jointly and severally liable, are hereby directed to examine and repair each and every disfigured and damaged portion or odd looking portion of ground and 2^nd floor walls of the house of the complainant wherever they are with Asian Paints of good quality at their own cost including labour cost after removing the old paints and taking best care to maintain utmost symmetry with existing colour of the walls. They i.e. OPs are further directed to pay a sum of Rs.5,000/- to the complainant as compensation for his mental pain, agony and harassment of the complainant together with a sum of Rs.2,000/- as litigation cost as referred to above within 30 days of this order, failing which the compensation amount will bear an interest @ 10% p.a. until full realization thereof.

            Let a plain copy of this order be furnished to the parties forthwith free of cost.