KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 764/2016

JUDGMENT DATED: 18.11.2024

(Against the Order in C.C. 126/2014 of DCDRC, Ernakulam)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Proprietor, M/s Global Colours, Opp: St. George School, Kothamangalam, Varappetty P.O., Ernakulam-686 691 presently known under the goodwill of ‘Thottathil Paints’, represented by its Managing Partner, Sri. Jetlee Johnson.

             (By Adv. George Cherian Karippaparambil)

                                  Vs.

RESPONDENTS:

1. P.V. Yohannan, Padasseril House, Varappetty P.O., Kothamangalam, Ernakulam -686 691.

(By Adv. Tom Joseph)

2. Managing Director, Simco Paints Industries Pvt. Ltd., # 307, Bunglow No. 279, Sector 28, Vashi, Navi Mumbai-400 703.

JUDGMENT

SRI. AJITH KUMAR D.    : JUDICIAL MEMBER

The appellant is the 2^nd opposite party in C.C. No. 126/2014 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (District Commission for short) and the 1^st respondent is the complainant and the 2^nd respondent is the 1^st opposite party.  On 18.08.2015, the District Commission had allowed the complaint and directed the opposite parties to refund Rs. 22,880/- (Rupees Twenty Two Thousand Eight Hundred and Eighty only) being the price of the defective wall putty and also to pay a sum of Rs. 1,97,439/- (Rupees One Lakh Ninety Seven Thousand Four Hundred and Thirty Nine only) being the expenses incurred by the complainant towards the removal and reapplication of the wall putty.  Costs of Rs. 5,000/- (Rupees Five Thousand only) was also ordered by the District Commission.  Being aggrieved by the aforesaid order, this appeal has been filed by the 2^nd opposite party.

2.  The complainant had approached the District Commission alleging deficiency in service with respect to the wall putty purchased from the 2^nd opposite party.  According to the complainant he had purchased 22 bags of wall putty from the 2^nd opposite party on various dates in December 2011.  The wall putty was manufactured by the 1^st opposite party.  The complainant had paid Rs. 22,880/- (Rupees Twenty Two Thousand Eight Hundred and Eighty only) as the purchase price.  He had applied wall putty and primer on the wall by spending a sum of Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand only).  But soon after the application of the primer he could find dust particles coming out when rubbed by hand.  So, the entire painting work became futile.  He brought this fact to the notice of the 2^nd opposite party who visited the site and convinced about the real state of affairs.  Later, the representatives of the 1^st opposite party had also visited the site and they agreed to compensate the loss suffered by the complainant.  But subsequently they had changed their stand.  The complainant had claimed Rs. 4,00,000/- (Rupees Four Lakh only) as the amount required for removing the existing painting and refund of the price of wall putty of Rs. 22,880/- (Rupees Twenty Two Thousand Eight Hundred and Eighty only) and Rs. 1,00,000/- (Rupees One Lakh only) as compensation for the supply of inferior quality wall putty. 

3.  The 1^st opposite party had entered appearance and filed a written version wherein it was contended that the 1^st opposite party has no direct knowledge about the transaction between the complainant and the 2^nd opposite party.  It is also pleaded that the 2^nd opposite party used to sell products manufactured by several parties.  The complainant is not a consumer as he never purchased any goods for his own use.  The manufacturing defect alleged is denied by the 1^st opposite party.  According to the 1^st opposite party, the directions on the polythene sack containing the wall putty had to be strictly followed.  The defect if any caused might be due to the service of the unskilled labourers or on account of the non-compliance of the directions printed on the polythene sack while applying the putty.  The 1^st opposite party would seek for dismissal of the complaint. 

4.  The version filed by the 2^nd opposite party is that the complainant had purchased 22 bags of wall putty in connection with the painting of a newly built house.  The 2^nd opposite party is only a distributor of the 1^st opposite party and the 1^st opposite party alone is liable for the manufacturing defect, if any.  The 2^nd opposite party is not having any relationship with the complainant as a consumer.   The complainant had executed the work through a contractor who is known to be an experienced painter of the locality having capacity and knowledge to select the item of painting and the ingredients to be mixed for the proper application of the putty and the paint.  So, it is incorrect to state that the complainant had utilized the entire putty on the walls as the contractor was fully aware of the quality of the putty when it was applied. 

5.  No oral evidence was adduced by both sides.  On the side of the complainant Exhibit A1 series were marked.  An expert was deputed to inspect the premises who had filed a report which is marked as Exhibit C1.  Basing upon this evidence, the District Commission had allowed the complaint. 

6.  The appellant would assail the order passed by the District Commission on the following grounds:  The District Commission had failed to appreciate the evidence in its correct perspective.  The District Commission ought not have fixed a liability on the dealer unless the manufacturer is not traceable.  The District Commission ought to have set aside the report filed by the expert.  The District Commission went wrong in placing reliance upon the citations referred in the order.

7.  Notice was issued to the respondents.  The 1^st respondent alone had entered appearance. The 2^nd respondent remained absent. 

8.  Heard the counsel for the appellant as well as the 1^st respondent.  The records from the District Commission were called for and perused. 

9.  The purchase of the wall putty from the shop of the appellant is not disputed.  Exhibit A1 series are the bills pertaining to the purchase of the wall putty.  An expert was deputed to inspect the site who had filed a report which is marked as Exhibit C1.  The expert has reported that the wall putty with one coat primer was applied on all walls and ceilings and it is observed that the putty is coming out as loose powder when rubbed with hand and also the putty is flaking out while scraping using nails.  She added that the putty comes out when rubbed with cotton after wetting.  So, from this it is evident that the putty supplied to the complainant was defective.  The expert was also asked to state the reasons for the defects caused to the putty.  She replied that the wall putty appeared to be not set.  She afforded three reasons for the defects. (1) Inferior quality of putty used. (2) Putty used is elapsed its shelf life or not stored as per the recommendation.  Expired putty may not set properly and adhesion strength reduced and (3) Improper application eg. Improper surface preparation or putty preparation can adversely affect the quality of the applied putty on the walls.  She further reported that to find out the reason for defect, it requires testing of the putty which is beyond her expertise. 

10.  According to the learned counsel for the appellant, the complainant was not succeeded in proving any defect with respect to the putty purchased.  The learned counsel would submit that the defect might have been caused on account of the improper application of the putty.  The possibility of an improper application of the putty can be ruled out through the admission contained in the version filed by the appellant.  In paragraph 4 of the written version, the appellant had stated the complainant had executed the work through a contractor who is known to be an experienced painter of the locality and he is having the capacity and knowledge to select the item for painting and the ingredients for the proper application of the putty and paint.  The third possibility on account of the improper application of wall putty has to be given a go-by in view of the admission contained in the written version filed by the appellant.  So, the reason might be inferior quality of the putty used or the putty supplied has elapsed its shelf life or not stored as per the recommendations of the manufacturer.  Even in the absence of any expert opinion, a decision can be arrived at on the basis of the version given by the complainant.  There is no onus of proof on the complainant.  The complainant has only a burden of proof and the same is discharged through the report filed by the expert.  The actual state of affairs were noted by the expert commissioner and the burden on the part of the complainant is to prove that the product sold by the appellant was defective.  When that burden is discharged, the onus of proof is on the appellant and it is up to the appellant to discharge the same.  So, the appellant cannot contend that the complainant has failed to discharge the burden in proving the defect.  For proving the defects of the putty applied, the report of the expert commissioner is sufficient.  The appellant was to prove otherwise and it is up to the appellant to take proper measures and prove that the product was not having any defect.  In this connection the decision of the National Consumer Disputes Redressal Commission (National Commission for short) in J.K. White Cement Works vs. Rajender Kumar & anr. dated 02.09.2020 reported in Indiankanoon.org 7459 6851 is beneficial.  The National Commission took a view that for proving the defects in wall putty no expert report is needed.  Here, the expert had inspected the premises and filed a report which shows that the wall putty used at the premises was defective.  From the admission contained in the written version filed by the appellant, the possibility of engaging of the unskilled labourers is ruled out.  The District Commission has reached a correct conclusion and passed the impugned order.  It may not be possible to reach a conclusion that there was manufacturing defect in view of the expert report that the defect may occur if the shelf life of the putty is elapsed.  As long as the complainant has discharged his burden, it was up to the opposite parties to obtain an expert opinion and prove that the product purchased by the complainant was not defective.  We cannot find any error or illegality in the order passed by the District Commission. The District Commission has ordered only a reasonable amount.  We find no reason to interfere with the order passed by the District Commission.  The appeal lacks merits and is only to be dismissed.

In the result, the appeal is dismissed confirming the order dated 18.08.2015 passed by the District Commission in C.C. No. 126/2014.  The parties shall bear their respective costs.   

The 1^st respondent is permitted to receive the amount deposited by the appellant at the time of filing the appeal to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.     

AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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