Presented by:

Shri Debasish Bandyopadhyay,  President.

 Brief facts of the case:This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that to color the outside wall of his house the complainant visited to the op and proposed to purchase the Narolac Paints and the op after calculating the outside wall area supplied the Narolac paints and the complainant purchased the said paints at a consideration value of Rs. 97,160/- from the op which was fully paid and the op also issued cash memos and warranty card of the said Narolac paints in favour of the complainant and at the time of issuing the warranty card the op stated that he also registered the name and mobile number of the complainant on the site of www.nerolac.com and thereafter the complainant engaged labour for the painting of his outside house wall and bear huge expenses for that and thereafter the painting is completed. Soon after few days painting of the outside wall of the house. In order to know the status of his warranty period he called the customer care of Narolac paints and he found out from the customer care that his name and mobile number has not registered in their website. Thereafter the complainant called the customer care number for know the statutes of registration and came to know that no registration process done in his name and his mobile number and the details the said paints is not a pure Narolac paint and so they are not liable to register the said paints in favour of the complainant. Then the complainant asked different people and suddenly meet the Area Manager of the Narolac paints and the complainant informed all the matter to the said area manager and after watching the container/ box of the said paints said area manager replied that it is not original product. After getting this reply the complainant become surprised and shocked and immediately he visited to the op and asked him why he supplied duplicate product and requested his to refund back the amount and asked him to paint again by original product. After getting no response the complainant sent a letter on 24.9.2019 to the op.

Complainant filed the complaint petition praying direction upon the opposite party to return back the amount of Rs. 97,160/- and to pay a sum of Rs. 5,00,000/- towards compensation and to pay a sum of Rs. 10,000/- towards litigation cost.

Defense Case:-The opposite partycontested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant purchased paint from N.G.S paint but it is correctly stated that the complainant purchased only Nerolac paint. He also purchased paint of other companies for painting windows, grills etc. for which the op issued proper bills and the complainant did not pay Rs. 97,160/-. The total consideration amount was Rs. 1,20,000/- and the op is a retailer, neither he nor the Nerolac company have not entered into any agreement with complainant to paint his house. The quality of final paint output depends on the ratio of mixing water with the raw color, whether proper primer being coated before painting or not, quality of surface etc, Nerolac offers 7 year performance (color retention and film integrity) and 5 years anti-algal warranty, when Nerolac Excel Total & Nerolac Exterior Primer applied together as a topcoat & basecoat respectively as per the instructions mentioned in the application process mentioned in the PDS on nerolac.com and the customer have to register to her App/ Portal and once the registration is done at the Portal/ App, a certificate will be generated and shall be sent to the consumer at the registered email address after being ratified by the KNPL Team which should  be provided in case of any claims in the future. So, the instant case should be rejected with cost.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The opposite party have filed evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly and op has his business at Mankundu. Dist. Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute: 

1. It is admitted fact that the complainant purchased Nerolac paint from the op for the purpose of coloring the outside wall of the house of the complainant.
2. It is also admitted fact that the complainant purchased the said paint at the cost of Rs. 97,160/-.
3. There is no controversy over the issue that the complainant had paid the entire money to the op.
4. There is no dispute over the issue that the op issued cash memo to the complainant.
5. It is admitted fact that the complainant thereafter engaged labour for painting the outside wall of his house.
6. It is also admitted fact that the said painting work of the house of complainant was completed.
7. There is no controversy over the issue that as per case of the complainant the Nerolac paint supplied by op was duplicate and was not genuine.
8. There is no dispute over the issue that the complainant thereafter had made contact with the op claiming the return the money or to take steps for painting the house of the complainant with actual/ genuine Nerolac paint but the op had not made any response.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that the paint supplied by op is duplicate paint of Nerolac and this is an ideal instance of unfair trade practice and deficiency of service but on the other hand the op has adopted the defence alibi that he has supplied the actual paint but due to defective use of the said paint the coloring of the house of complainant was not proper and so there was no deficiency of service or unfair trade practice on the part of the op.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds thatin this case neither the complainant nor the op has prayed for expert opinion in respect of the paint supplied by the op to the complainant. Moreover, the complainant has also not taken any steps for keeping sample of the said paint by the expert for expert opinion. In the absence of any expert opinion, it is not possible for this District Commission to determine that the op supplied duplicate Nerolac paint to the complainant. For the purpose of proving such case the opinion of expert is very important but it is very astonishing to note that the complainant has failed to engage any expert for examining/ testing the said paint which has been supplied by the op. So, the vital evidence is missing in this case. For that reason it is crystal clear that the complainant has failed to prove his case and this District Commission has no other alternative but to dismiss this case.

In the result it is accordingly

ordered

that the complaint case being no. 164 of 2019 be and the same is dismissed on contest.

            Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.