For Complainant         :           Self

For OP No.1                 :           Self

For OP No.2                 :           Sri Sudhir Kumar Padhi, Advocate.

                                                                                                    -x-

1.                     The brief history of the case of the complainant is that he went to the shop of the OP.1 to purchase Cement Paint for external use of his house and the OP.1 displayed a Cement paint bag namely “Rose Cem Cement” with gross weight 25 Kg and the rate is Rs.550/- per bag.  As the complainant did not notice the weight and rate in the bag and the relevant portion is tempered with, he enquired about the fact with the OP.1 who explained that the Company is not mentioning the details but the material is good for external use.  It is submitted that after repeated request, the OP.1 weighed the cement bag which came to 24.900 Kg and when the complainant bargained on the rate, the OP.1 did not agree to reduce the price.  It is further submitted that the complainant purchased the Cement Bag and used on the exterior wall of his building but when water curing is applied, it was noticed that the cement is coming out of the wall exhibiting patches on the wall which became a bad show to the house.  It is also further submitted that the fact was brought to the notice of OP.1 who did not prefer to own the liabilities and threw mud on the manufacturer.  That the complainant submitted that there was no mention of rate, date of manufacturing and expiry, gross and net weight of the product on the bag.  Thus alleging defect in goods and unfair trade practice on the part of the Ops, he filed this case praying the Forum to direct the Ops to refund the cost of the cement bag at Rs.550/- with interest @ 18% p.a. and to pay Rs.55, 000/- towards compensation and cost of the complainant.

2.                     The OP.1 filed counter denying the allegations of the complainant but admitted about the sale of one Rose Cem Cement bag to the complainant on 12.05.2019.  It is contended the OP.1 mentioned the net weight of the product as 24.900 gms for a cost of Rs.550/- in the invoice but the Company sales the product with net weight 25.00 Kg and through transport it might have been less by 100 gms.  The OP.1 further contended that not a single complaint is received regarding quality of the product sold to the complainant and it is the duty of the OP.2 to fix the rate and expiry date of the product.  Thus denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant.

3.                     The OP No.2 also filed counter admitting that he is the manufacturer of the Rose Ceme Decorative water proof cement paint and the cement bag contains printed sticker stitched to the bag on which weight and price is printed and it might have been separated from the bag.  Regarding weight of the cement, the OP.2 contended that there is possibility of lose of cement in transit.  The OP.2 further contended that the condition of wall is mainly responsible for use of paint and patches can never appear in due to cement paint and had the complainant informed regarding patches in the wall after applying cement paint, it would have sent technical person to see the reason of patches if appeared in the wall.  The OP.2 also further contended that the complainant has not filed expert evidence with regard to substandard product.  Thus denying any manufacturing defect in the goods sold to the complainant, the OP.2 prayed to dismiss the case of the complainant.

4.                     The complainant has filed certain documents along with an affidavit dt.20.05.2020 of one painter in support of his case.  Heard from the complainant as well as A/R for the OP.2 in absence of OP No.1 and perused the materials available on record.

5.                     In this case purchase of Rose Cem Cement Paint by the complainant from OP.1 vide Invoice No.1614 dt.12.05.2019 for Rs.550/- is an admitted fact.  The complainant stated that the OP.1 displayed the cement bag and stated that the gross weight of the cement bag is 25 Kg and the rate is Rs.550/- but the complainant found no mention about the weight and rate on the bag and the relevant portion of the bag has been tempered with.  As per his request, the OP.1 weighed the cement bag with the weighing machine which came to 24.900 gms but the OP.1 did not agree to reduce the cost on bargain.

6.                     The OP.1 in his counter stated that any shortage in the weight of cement paint is due to transportation loss and it is the duty of the manufacturer to fix the weight and expiry date of the product but in his entire counter the OP.1 did not utter a single word about the price of the product.

7.                     The OP.2 in his counter stated that the bag purchased by the complainant had printed sticker stitched to the bag on which weight and price is printed and it might have been separated.  The OP.2 further stated that 2% weight loss can be usually treated as transportation loss.  The OP.2 did not say about the manufacturing and expiry date of the product.

8.                     From the above facts, it was ascertained that the cement paint bag bears a sticker describing the weight and rate of the product.  The OP.1 stated that it is the duty of the manufacturer to fix the weight and rate of the product but the OP.2 on the other hand stated that the cement bag had printed sticker stitched to the bag displaying the weight and price and it might have been separated.  The complainant stated that there was no mention about the weight, price and date of manufacturing and expiry of the product in the bag.  If we take the contention of the OP.2 that the sticker might have been separated from the bag purchased by the complainant, then it was the duty of the OP.1 to sell the cement bag which one bears the sticker but the OP.1 did not do so.  From the above facts it became clear that that the OP.1 has removed the sticker with ill intention to misguide the customers.  In this case, the present complainant was restricted to see the weight, rate and manufacturing/expiry date of the product purchased by him.  This action of the OP.1, in our opinion amounts to restrictive and unfair trade practice on its part.  In order to misguide the customers and for his wrongful gain, the OP.1 has adopted this practice.  However, loss of 100 gms per bag can be treated as usual transportation loss and it is not the fault of any of the Ops.

9.                     Further the case of the complainant is that after use of said paint in the external wall, water curing was done and the complainant found that after water curing there appeared patches on the wall which became a bad show.  The OP.1 stated in his counter that since long there was no complaint on the said cement bag.  The OP.2 stated that the complainant has not adduced any expert evidence with regard to the substandard quality of the product.  It is seen from the record that the complainant has filed affidavit dt.20.05.2020 of Sri Prabin Khora of Christianpeta, Jeypore who has been working as a painter since last 15 years.  Sri Khora in his affidavit stated that he was engaged by the complainant to paint the outer wall of his house.  He used the paint and while water curing the paint washed away from the wall and it appeared patches on the said wall.  As per his opinion, the paint might be an old stock.

10.                   From the above facts, it was revealed that a professional painter was engaged by the complainant for that work but due to substandard or old stock material it did not fetch proper quality after use.  If we take the version of the OPs that the material is not substandard, then it can be said that the material might be an old stock which was sold to the complainant.  As there was no sticker existed in the cement bag, the complainant failed to see the manufacturing and expiry date of the product.  Hence it can be said that the OP.1 has sold an old stock cement paint bag to the complainant for which it could not give result up to mark.  Sale of old stock by OP.1 having no expiry date on the cement bag also amounts to unfair trade practice.

11.                   From the above discussions it was ascertained that the OP.1 has tempered with the sticker put by OP.2 thereby restricted the complainant to know all details about the cement bag.  For this inaction of the OP.1, the complainant could not know the weight, rate, manufacturing and expiry date of the product and sustained loss after use.  In view of the facts and circumstances of the case, the OP.1 has adopted unfair and restricted trade practice and for which the complainant sustained pecuniary loss, mental agony and physical harassment.  As such the complainant is entitled to get refund of the cost of the cement bag at Rs.550/- with interest @ 12% p.a. from the date of purchase i.e. 12.05.2019.  Further due to such inaction of the OP.1 the complainant must have suffered some mental agony and has come up with this case incurring some expenditure for which he is entitled for some compensation and cost and considering the sufferings of the complainant, we feel a sum of Rs.3000/- towards compensation and Rs.2000/- towards cost in favour of the complainant will meet the ends of justice.

12.                   Hence ordered that the complaint petition is allowed in part and the OP.1 is directed to refund Rs.550/- towards cost of cement paint bag with interest @ 12% per annum from the date of purchase i.e. 12.05.2019 and to pay Rs.3000/- towards compensation besides Rs.2000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order.  However, there is no case against OP No.2.

(to dict.)