By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Case of the complainant :-
The first complainant is the sister of 2nd complainant. The first complainant and her husband, who is working at Gulf decided to construct a house in their property and he entrusted the work to second complainant. After finishing the construction work, they decided to entrust the wall painting work to a professionally talented expert. After seeing the advertisement of first opposite party they were decided to entrust the wall painting work to first opposite party. The first opposite party is represented that they are the authorised agency of second opposite party and they issued a detailed letter dated 13/06/2016 stating that the work to be, how they will execute it , details of the materials used, undertaking and guarantee. At the time of signing the agreement, there was a representative of second opposite party also present and he also said that Jotun paint is very good quality and having ten years warranty.
2. Thereafter opposite parties issued an agreement dated 13/06/2016 to the complainants stating that company provides 7 years of performance guarantee for Jottashield silk exterior emulsion from manufacturers’ of Jotun and company will provide 10 years performance guarantee for fenomastic silk interior emulsion from the manufacturer etc. Complainants paid the entire money according to the progress of the work done by opposite parties. Second complainant was directed to sign all records kept by the opposite parties. The work was very slow and it took months to complete the painting work. After finishing the work, the first complainant and family started to reside in the house. After few months it was noticed that in some portions, the colour of the paint faded and the same was easily seen by everyone. In some other places bubbles were noticed and the work was not seen done in a proper way. Then the complainant contacted the first opposite party and after so many attempts, they came and inspected the house and the second opposite party representative also checked the paint works. Thereafter the workers of first opposite party came to the house of complainant No1 and had done some works for some more days. But the paint was started to fade, the paint is peeling off from the wall, bubbles are seen in some places, the painting done in the gate is defective, colour changed, walls are not good as it should be.
3. When complainant informed about this to opposite party No.1 and they assured that after consulting with opposite party No.2, they will do the re-work with the quality promised. The house is having an area of 3400 Sqft and the same is built with hard earned money. The first complainant and her five children are residing in that house with in laws. The house is now in bad shape due to inferior quality of paint and in its application. In order to repaint the house a minimum of 7,00,000/- rupees needed and the complainant will have to spent 2,00,000/- rupees to remove the work done by opposite parties. The dream house is now turned into a hell due to the deficiency in service committed by the opposite parties. Opposite parties offered ten years guarantee and within two years the painting done in the house got damaged. Complainants are really aggrieved by the acts of opposite parties. Hence this complaint.
4. Prayer of the complainant is that , they are entitled to get Rs. 10,00,000/- to repaint the house, Rs. 2,00,000/- as compensation for the mental agony and damaged cost and cost of the proceedings from opposite parties.
5. On admission of the complaint notice was issued to the opposite parties and notice served on them and opposite party No.1 appeared before the Commission through their counsel and filed version. After receiving notice opposite party No.2 not appeared before the Commission. Hence opposite party No.2 set exparte.
6. In their version opposite party No.1 denied all the allegations levelled against them by complainant except those which are admitted hereunder. They again stated that complainants are not consumers as per the Consumer Protection Act. They again stated that they have no consumer relationship with both the complainants mentioned in the complaint. As per their version they admitted that they had entered into an agreement with one Musthafa, Nairpadi, Moorkkanad, Malappuram for painting his house. Opposite party No.1 again stated that they offered four years warranty to the above said Musthafa as per some conditions. That is evident from the agreement produced by complainant. As per that agreement “company will undertake all defect liability for products including discolour, mixing combination services and workmanship for period not less than four years on products used and location/area basis”. That offer or warranty is not given to complainant ,if that damage caused due to the reasons like water block , plumbing problem , water leak through cracks, surface raw materials and black and gold colour sand particles used to plaster the walls etc. If it is so the complainant will get the warranty benefits only after the technician of Jotun Company verified and certified the product problem. They again stated that the complainant did not pointed out in the complaint that whether he properly informed the defects to opposite party No.2. If it so whether a technician of opposite party No.2 came to complainant's house for certify the defect .
7. After receiving the notice from the commission , opposite party No1 visited Mr Musthafa’s house and he realised that the foundation of that house seem to be in a pathetic condition and Mr Musthafa put mud in the upper portion of the foundation to lift the foundation up. Moreover there is crack formed in some of the walls of the house due to construction defects and water oozing from that crack to the walls. That water was sucked the wall and due to that, colour of the paint has changed. They again stated that the plastering of the walls are not properly done and the cementing above the wall is also not properly done. Another contention of opposite party is that bubbles formed in the wall are due to the black and gold sand particles in the sand used for plastering the walls. They again stated that they had done the painting before three years of this complaint. The above said problems were found only below 10% of the total area of that house and that is due to the defects in construction of the house. That defects are caused not due to the problems in the paint or the painting work. There is no need of Rs. 10,00,000/- for repainting the house. Hence they are not entitled to give the amount mentioned in the complaint in the complainants.
8. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A4 series. Ext.A1 is the original authorisation given by Muhammed Musthafa to complainants, Ext.A2 series are the certified copies of receipts for payment given by opposite party No.1 to complainants(5 Nos.), Ext.A3 is the certified copy of painting agreement between opposite party No.1 and Muhammed Musthafa, but signed by complainant No.2, Ext.A4 series are the Invitation letter, Nikah photographs and CD. As per IA 71/2020 Adv. Asif Varikodan is appointed as the Advocate commissioner to inspect the house mentioned in the complaint and he filed a commission report on 16/03/2020 and that is marked as Ext. C1. Then he was examined as CW1. Thereafter opposite party No.1 filed affidavit to prove their case, but no documents filed.
9. Heard complainants and opposite party No.1. Perused affidavits, documents and Commission report. The following points arise for consideration:-
- Whether there is any deficiency in service and unfair trade practice on the part of opposite parties.
- If so, Reliefs and cost.
10. Point No.1 :-
Case of the complainants is that after seeing the advertisement of first opposite party , they entrusted the painting work of the house of first complainant to them and complainant and opposite parties entered into an agreement on 13/06/2016 and opposite parties assured 7 years of performance guarantee for Jottashield Silk Exterior Emulsion from Jotun , the paint manufacturers and 10 years performance gurantee for Fenomasitc Silk interior emulsion from Jotun. After few months it was noticed that in some portion the colour of the paint faded and in some other places, bubbles were noticed. Then both opposite parties inspected the house and opposite party No.1 had done some works for some more days. But the paint was started to fade, the paint is peeling off from the wall, bubbles are seen in some places, the painting done in the gate is defective, colour changed, walls are not good as it should be. When complainant informed about this to opposite party No.1 and they assured that after consulting with opposite party No.2, they will do the re-work with the quality promised. But nothing was done by them.
11. But opposite party No.2 not appeared before the Commission, hence they set exparte. Opposite party No.1 stated that as per the agreement they offered four years warranty for the paints to One Musthafa as per conditions. They again stated that warranty is not given to complainant, if that damage is caused due to the reasons like water block, plumbing problem, water leak through cracks, surface raw materials and black and gold colour sand particles used to plaster the walls etc. If complainant is eligible for obtaining warranty, he will get the warranty benefits only after the technician of Jotun Company verified and certified the product problem.
12. As per complainants case on 13/06/2016, they had entered into an agreement with opposite party No.1 and that agreement is marked as Ext. A3. In that document it is clearly stated in the guarantee/ warranty portion that “ Company provides you 7 years of performance guarantee for Jottashield Silk Exterior Emulsion from paint manufacturer and company provides you 10 years performance guarantee for Fenomastic Silk Interior Emulsion from paint manufacturer’’. From that document, we know that company provided the above guarantee and warranty with some conditions. The condition are reasons like water block , plumbing problem, water leak through cracks , surface raw materials , black /gold sand problem will not considered under guarantee. Moreover they stated that guarantee will be issued only after the technician of the company verified and certified the problem. But in this case the manufacturer that means the company was not appeared before the commission. They are the opposite party No.2 in this case. Hence commission is not aware that whether the technician of the company came to complainant’s house and verified the problem or not. Another point is that the situations when company denied the warranty are water block, water leak , plumbing problem etc are not proved by opposite party No.1. Opposite party No.1 just pointed out that there is crack found in all the walls and water is oozing out through that crack. They had not taken any steps to prove that the defects of complainants house are the defects in the construction of complainant’s house. They can appoint an expert to find out the construction problem of the house and the reason for the cracks found in the walls of the house. The advocate commissioner did not report about the defects in the construction of the house, he just reported the defects in paining. But he has reported that moss is seen even in areas where there is no cracks. There was no direction to the Advocate commissioner for reporting the defects in construction of the house. Moreover he is not an expert in the field of house construction. It is the duty of opposite parties to appoint an expert commissioner or civil engineer to report the above problems in the construction of house and cracks found in the walls of the house. Sometimes a civil engineer can report about the cause of water seeping through the wall and how it affects the painting work done in the wall of the house . No steps were taken by opposite party to appoint an expert commissioner to report such defects.
13. In Ext. A3 there mentioned that “ company will undertake all defects liability for products including discolour , mixing combination, services and workmanship for a period not less than four years on products used and location /area basis.” Through that statement opposite parties stated they have provided four years warranty with condition. Complainant entered into an agreement for painting with opposite party No.1 on 13/06/2016. Opposite parties started the works after 13/06/2016. Complainants filed this complaint on 21/08/2019 i.e, within 3 years they filed a complaint before this commission that means they had approached opposite parties within few months of the painting of their house. But opposite parties did not heed the complaint of complainant. So complainants approached this Commission within three years of the agreement. Hence we are on the view that complainants approached this Commission within the warranty period itself..
14. As per the photographs produced by Advocate commissioner, it is understood that some areas of complainant’s house especially gate, walls near kitchen and one upper wall of one of the rooms etc have lost paint and bubbles are visible. In the photographs produced by Commissioner shows painting in the minimum areas of complainant’s house has been affected. Complainant did not produce photographs to show the discolouration and colour fading and bubbles seen in the wall. As per Ext. C1, the commission report filed by Advocate commissioner stated that Ba¬« l£-T¢-¨Ê CÊ£-j¢-it ¨d-i¢Ê¢-¹® lt-´¤-J-q¢-¨k defects B-X® dj¢-©m¡-b¢-µY®. dj¢-©m¡-b-c-i¢v l£-T¢¨Ê d-T¢-º¡-s¤ l-m-·¤¾ master bed room ¨Ê d-T¢-º¡-s® lm-¨· O¤-h-j¢v Q-c-l¡-Y¢-k¢-¨Ê h¤-J-q¢-k¡-i¢ H-¼-j h£-×-©s¡-q« c¢-q-·¢v d¥-¸v d¢-T¢-µ¤ J¢-T-´¤-¼-Y¡-i¢ JÙ¤.l£-T¢-¨Ê CÊ£-j¢-it ¨d-i¢Ê® lt-´¢v hפ defect Jw H¼¤« J¡-X¤-l¡u o¡-b¢-µ¢¿. l£-T¢-¨Ê h¤u l-m« h¤-J-q¢-k¡-i¢ ¨T-so¢-©c¡-T® ©Ot-¼¤ J¢-T-´¤-¼ g¡L-·® ¨Os¢-i j£-Y¢-i¢-v d¡-iv H-¶¢ d¢-T¢µ® J¢-T-´¤-¼-Y¡-i¢ J-Ù¤. F-Y¢t-J-È¢-J-©q¡-T® B-i-Y¢-¨c-J¤-s¢-µ® A-©c§-n¢-µ-©¸¡w l£-T¢-¨Ê O¤-h-j¢c¤« ¨T-s-oæ¢-c¤« crack Jw D-Ù¡-iY¤-¨J¡-Ù® ¨l-¾-·¢-¨Ê A«-m« c¢-k-c¢v-´¤¼-Y¤ J¡j-X« A-l¢T¹-q¢v d¡-iv d¢-T¢-µ¢-j¢-´¤¼-Y® F-¼¤ d-sº¤. F¼¡v crack Jw C¿¡-· g¡-L·¤« AY¤-©d¡-¨k d¡-iv d¢-T¢-µ-Y¡-i¢ ±m-Ú-i¢v-¨¸¶¤. l£-T¢-¨Ê d-T¢-º¡-s¤ l-m-·¤¾ interior O¤-h-j¢v A-T¢-i¢v c¢-¼® H-j¤ h£-×-©s¡-q« D-i-j-·¢v d-T¢-º¡-s¤ l-m« O¤-h-j¢v bubbles J¡-X¤-J-i¤-Ù¡-i¢. A-T¤-´®-q-i¤-¨T d¤-s« g¢-·¢ dj¢-©m¡-b¢-´¤-J-i¤«, dj¢-©m¡-b-c-i¢v O¤-h-j¢v putty C-¶® l-t-´® d¥t-·¢-i¡-l¡-· c¢-k-i¢v J¡-X-¨¸¶¤. dj¢-©m¡-b-c-i¢v J¡t ©d¡t-µ® O¤-h-j¢-¨Ê A-T¢-l-m-¹-q¢v bubbles l-¼® ¨d-i¢Ê® Cq-J¢ ©d¡-i-Y¡-i¢ J-Ù¤.
15. Y¤-Tt-¼® l¢-T¢-¨Ê O¤-פ h-Y¢k¤« , ©L-פ-h¡-X® dj¢-©m¡-b¢-´¤-J-i¤-Ù¡-iY®. dj¢-©m¡-b-c-i¢v h-Y¢-k¢-¨k ¨d-i¢Ê® l-t-´¢-c® e¢-c¢-n¢-¹® C¿ F-¼¤ h-c-oæ¢-k¡-´¤-Ji¤« O¢-k-i¢-T-¹-q¢v ¨d-i¢Ê¢q-J¢ ©d¡-j¤-¼-Y¡-i¢ ±m-Ú-i¢v ¨d-T¤-J-i¤-Ù¡i¢. B-iY¢-¨c-J¤-s¢-µ® F-Y¢t-J-È¢-J-©©q¡-T® A-©c§-n¢-µ-©¸¡w H-j¤ ©J¡-¶® ¨d-i¢Ê® ¨O-i®-Y¢-¶¤-¾¤ F¼¤« Cq-J¢ ©d¡-j¤¼Y® gold sand D-d-©i¡-L¢-µY¤-¨J¡-Ù® Q-k-·¢-¨Ê A«-m« D-¾-Y¤-¨J¡-Ù® B-¨X¼¤« d-s-i¤-J-i¤-Ù¡i¢. Commissioner again reported that ©L-×¢-¨Ê ¨di¢Ê® lt-´® dj¢-©m¡-b¢-´¤-Ji¤« dj¢-©m¡-b-c-i¢v ©L-×¢-¨Ê O¢-k g¡-L-¹-q¢v Cq-J¢ ©d¡-¼-Y¡-i¢ ±m-Ú-i¢v-¨d-T¤-Ji¤« ¨O-i®Y¤. While cross examining the commissioner he deposed that F±Y Gj¢-i Ì-k¨· d¥-¸v f¡-b¢-µ¤ F-¼¤ d-s-i¡u d-×¢¿. s¢-©¸¡t-¶¢-¨Ê-bJ¥-¨T p¡-Q-j¡´¢i ©e¡-©¶¡ ¨J-¡-Ù® d-s-i¡u d-פ«. H-¼-j AT¢ l£-Y¢ D-Ù¡-l¤«. l£-T¢-¨Ê C-Ê£-j¢-i-s¢v h-×® i¡-¨Y¡-j¤ V¢-e-Jé-¤Jq¤« D-Ù¡-i¢-j¤-¼¢¿. crack D-¾ g¡L-·® d¡-iv d¢-T¢µ-Y® F-¨Ê ±m-Ú-i¢v¨¸¶¢-¶¤Ù®.
16. From the above points we are on the opinion that the paint used in complainant’s house which was manufactured by opposite party No.2 and put on the wall by first opposite party, is defective. There is some defects caused to the wall painting work done by opposite party No.1 in complainant’s house. But the affected area is very less compared to the total area of the house. Moreover there is no expert opinion from the side of complainant also to prove that the defect caused to the walls of the house were due to the defects in painting done by opposite party No.1 by using the paint manufactured by opposite party No.2. Complainant has also not submitted photographs showing the affected area. Opposite party is also not submitted documents about the actual problem happened to the house. As per the photographs produced by Advocate commissioner and as per the report submitted by him it is clear that there is some defects in the painting work done by opposite party No.1 by using the paint manufactured by opposite party No.2. But when we compare the total area of the house, it can be seen that the affected area is very less. The defects affected to a very less area as per the photographs produced by commissioner. Commissioner also reported that there is cracks found in some areas of the house of complainant. Moreover opposite party No.1 simply stated that bubbles are formed in the wall due to the usage of gold and black sand for plastering the walls. But opposite parties did not produce any evidence regarding the gold sand and black sand.
17. From the above points we are on the opinion that, some lesser areas of complainant’s house is affected by the defect of paint and the defective painting of opposite parties and which was happened during the warranty period as per Ext. A3 agreement. But the complainants have not been able to prove fully that the bubbles and other problems of the wall of the house were due to the defects of paint and defective painting. But the condition of the house has left the complainant mentally exhausted. It is a clear deficiency in service and unfair trade practice from the side of opposite parties. Due to the deficiency in service on the part of opposite parties, complainant suffered mentally and physically. Hence we allow this complaint holding that opposite parties are deficient in service and there is some unfair trade practice from the side of opposite parties.
18. We allow this complaint as follows:-
- The opposite parties are directed to pay compensation of Rs. 50,000/-(Rupees fifty thousand only) to the complainants on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties also directed to pay Rs.10,000/-(Rupees Ten thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 16th day of November, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Original authorisation given by Muhammed Musthafa to complainants.
Ext.A2 : Series are the certified copies of receipts for payment given by opposite
party No.1 to complainants(5 Nos.).
Ext.A3 : Certified copy of painting agreement between opposite party No.1 and
Muhammed Musthafa, but signed by complainant No.2.
Ext.A4 : Series are the Invitation letter, Nikah photographs and CD.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
CW1 : Advocate commissioner
Ext.C1 : Commission report filed by Advocate Commissioner dated on 16/03/2020.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
