31.08.2015

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

The instant appeal, filed by the Appellant/O.P., challenges the judgment and order dated 06.09.2013 passed by the Ld. District Forum, North 24 Parganas in Complaint Case No. 187 of 2013.  The Ld. District Forum, while allowing the complaint in the said impugned judgment and order, directed the Appellant/O.P. to “return the whole amount paid to it for painting the exterior and interior portion of the apartment together with an interest at the rate of 6% p.a. until payment OR to repaint the entire apartment with special attention to the admitted affected areas thereof in such a manner that the colour does not appear mis-matched and the apartment does not exhibit an indecent look within six months from the date of this order, failing which, a punitive damage @ Rs.100/- per day will be levied upon the O.P. till compliance and such amount if levied will be credited to the State Consumer Welfare Fund through this forum”.

In a further direction in the said impugned order the Appellant/O.P. was directed to “pay a sum of Rs.15,000/- as compensation for causing harassment to the Complainant and to pay Rs.5,000/- as litigation cost”.

The facts of the case, as emerged from the available record, are that the Respondent/Complainant, a resident to the flat pertaining to the building at 207, Dum Dum Park (Raycon Park), Kolkata – 55, filed the above-mentioned complaint case in the Ld. District Forum having been authorized by the Raycon Park Residents’ Welfare Association.  The Respondent/Complainant alleged that on the basis of a quotation dated 07.07.2010 received from the Appellant/O.P., the Respondent/Complainant engaged the Appellant/O.P. through the work order dated 06.08.2010 for painting the building of the address mentioned above at a cost of Rs.1,00,708/-.  The Appellant/O.P. got the job completed by engaging one agent namely A. C. Bose & Company.  The work was completed on 15.01.2011.  A total amount of Rs.1,03,698/- was fully and finally settled through a joint inspection by the said agent of the Appellant/O.P. and the representatives of the association and the said amount was fully paid by the Respondent/Complainant to the said agent of the Appellant/O.P.

Unfortunately, the painting work was washed out particularly at roof, tank, staircases and the outside walls of the building within one year due to rain.  The Appellant/O.P. was informed over phone and also in writing with a request to rectify the aforesaid defect by the Respondent/Complainant.  All efforts on the part of the Respondent/Complainant were in vain as no action was taken by the O.P. to rectify the said defect in spite of the fact that the defects were pointed out within the warranty period of five years.  The aggrieved Respondent/Complainant, thereafter, filed the complaint case in the Ld. District Forum which passed the order in the manner mentioned at the outset.  Aggrieved by such order the O.P. approached this Commission through the instant appeal. 

Heard the Ld. Advocates of both the parties.  Ld. Advocate on behalf of the Appellant submitted that Sri Balai Lal Sinha, the Respondent/Complainant, can represent the Residents’ Welfare Association or be one of the Complainants as one of the house owners but, he cannot be a Complainant by himself.  The Ld. Advocate for the Appellant has further submitted that whatever amount was paid, it was paid to A. C. Bose & Company and the Appellant/O.P. did not receive a single penny out of the said amount but, unfortunately, the Appellant/O.P. was being directed to pay back the entire money which is against the natural justice.

The Ld. Advocate for the Appellant/O.P. attracted the notice at para 1.6 at page No. 18 of the complaint petition and told that it had been incorrectly mentioned in the said para that the Appellant/O.P. engaged any agent for doing the painting work.  The Ld. Advocate for the Appellant/O.P. pointed out that there was no privity of contract between the Appellant/O.P. and A. C. Bose & Company.

The Ld. Advocate on behalf of the Respondent/Complainant submitted on the other hand that the Respondent/Complainant, being the authorized representative of Raycon Park Residents’ Welfare Association, had very much the authority to file the complaint case in representative capacity and submitted the copy of the proceedings of the meeting dated 12.06.2012 of the said association authorizing the Respondent/Complainant to take any decision on behalf of the association. 

The Ld. Advocate for the Respondent/Complainant submitted a copy of the work order dated 06.08.2010 issued to the Regional Manager, East, Shalimar Paints Limited, Post Office – Danesh Shaik Lane, Howrah, Pin 711109 and stated that whoever might have done the work, since the work order was issued to the Appellant/O.P. of the above-address, Appellant/O.P. can not disown its responsibility of the deficiencies of services as, A. C. Bose & Company being engaged by the Appellant/O.P., executed the works in question as an agent of the Appellant/O.P.

The Ld. Advocate for the Respondent/Complainant went on to mention that there was warranty for five years.  The defect was detected within a period of one year from the date of completion of the work and the Appellant/O.P. was intimated pointing out the defects for taking immediate corrective steps. 

Perused the papers on records.  It appeared that the Respondent/Complainant was duly authorized by Raycon Park Residents’ Welfare Association in its meeting dated 12.06.2012 to take any decision in respect of colour fading of the Raycon Park Apartment located at 207, Dum Dum Park and thus the Respondent/Complainant has locus standi to file the complaint in representative capacity.

Perused the papers on record in respect of warranty extended by the Appellant/O.P. and also Appellant/O.P’s liability.  It appeared from the papers of the Shalimar Paints Limited that exterior surfaces coated with Shalimar Xtra would remain protected for minimum five years in terms of adhesion, film integrity of the coating, freedom from any objectionable colour fading and powdering off of the paint in normal atmospheric conditions and also against the growth of bacteria and algae subject to certain conditions laid down therein.  Further, the provisions of the liabilities as narrated by the Shalimar Paints Limited indicate that 100% of the replacement cost is applicable in first 12 months after commencement date.

The Ld. Advocate for the Respondent/Complainant substantiated through the documents adduced by him that the work order was issued to the Appellant/O.P.  Therefore, the liabilities of the deficiencies indicated in the complaint by the Respondent/Complainant devolved upon the Appellant/O.P. only and none else. 

It appeared on thorough scrutiny of records that the painting work was completed on 15.01.2011 and the defects of the painting were first pointed out by the Respondent/Complainant on 02.07.2012 (para 1.6 of the complaint petition in CC No. 187 of 2013 of the Ld. District Forum, North 24 Parganas).   This indicated that there was a gap of more than one year i.e. 12 months between the date of completion of work and that of the first complaint petition.  100% of replacement cost appeared to be not reasonable in the above context.

Further, in consideration of the natural wear and tear that the painting work might have undergone with the passage of time and also the prevailing warranty clause of the Appellant/O.P., the Respondent/Complainant was entitled to get a reasonable amount of compensation and litigation cost instead of the full repayment or repaint of the entire apartment as the Ld. District Forum directed in the impugned order.

In consideration of the above facts and circumstances, we allow the appeal in part on contest.  The Appellant/O.P. is directed to pay a compensation of Rs.45,000/- only for the deficiency of services on its part and litigation cost of Rs.5,000/- to the Respondent/Complainant within 30 days from the date of this order, failing which, simple interest @ 9% shall accrue on the whole amount from the date of default till the full payment is made.  The other directions passed by the Ld. District Forum are set aside. The impugned order stands modified to that extent.