Haryana

Kaithal

248/20

Dalbir Singh - Complainant(s)

Versus

Subhash Paints & Marbals Store - Opp.Party(s)

In Person

06 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.248/2020.

                                                     Date of institution: 17.08.2020.

                                                     Date of decision:06.06.2023.

Dalbir Singh aged 59 years (Aadhar Card No.7131 8097 8909) S/o Sh. Ishwar Singh R/o near Dada Khera, Defency Colony, Ward No.11, Gali No.9, Karnal Road, Kaithal, Tehsil & District Kaithal.

                                                                        …Complainant.

                        Versus

1. Subhash Paints and Marble Store, near Railway Gate, Railway Road, Kaithal through its prop./partner.
2. APL, 1598 behind Haveli Hotel, Ambala-133004 through its partner/proprietor.
3. Asian Paints Limited 6-A, Shanti Nagar, Santa Cruz, East Mumbati-400055 through its M.D.

….OPs.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Complainant in person.   

                Sh. Devender Singh, Advocate for the OP.No.1.

                OP No.2 given-up.

                OP No.3 exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Dalbir Singh-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the OPs.

                In nutshell, the facts of present case are that Smt. Ram Piyari wife of the complainant is the owner of residential house consisting of 205 Sq. Yards, plot No.204, measuring 30 feet x 61.5 feet situated at Defence Colony, Kaithal vide registered sale deed No.51 dt. 30.04.2020.  It is alleged that the complainant had purchased Damp Block 2 K, chemical paint quantity 10x15 Kg. DB2K, Code No.3214 of Asian Paint Company for worth Rs.15,340/- vide invoice No.852 dt. 10.01.2019 and also purchased said chemical paint 2x15 Kg. DB2K HSN Code No.3214 @ Rs.1300/- for Rs.2600/- and 3x3Kg. DB 2K HSN Code:3214 for Rs.999/- vide invoice No.854 dt. 12.01.2019.  Thus, the complainant purchased the said chemical paint total worth Rs.15340/-+Rs.2600/-+Rs.999/-=Rs.18,939/- from the OP No.1.  The complainant before starting plastering on the walls of bricks have applied the said chemical of the OPs-company to the extent of 4 feet each of the walls by employing a painter namely Mahender known to OP No.1 and said painter has taken Rs.10,000/- for the said work from the complainant and thereafter, the complainant has plastered the walls with cement and sand from a mason.  It is further alleged that after few months of plastering the said walls, the moisture appeared on the walls and the complainant contacted the OPs on toll free No.505373530 on 04.01.2020 and the OPs sent a technical person namely Tarun and he admitted the moisture on the plaster and said Tarun has taken the photographs/snaps of the said walls.  Thereafter, the complainant approached the OPs number of times on mobile but the OPs switched off their mobile and failed to redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

2.            Upon notice, the OP No.1 appeared before this Commission, whereas OP No.3 did not appear and opted to proceed against exparte vide order dt. 24.11.2020 of this commission, OP No.2 was given-up by the complainant vide his statement recorded separately on 08.12.2020.  OP No.1 contested the complaint by filing written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the OP No.1 is a dealer of OP No.3 company of long standing high repute; that the relationship between the OP No.1 with OP No.3 is on principal to principal basis; that the OP No.1 cannot be held liable for any independent act and omission, if any, committed by the other opposite parties; that the complainant has filed this baseless complaint alleging manufacturing defects in the goods without having produced any expert opinion/documentary proof in the form of evidence to prove that the subject: defective chemical supplied as alleged or to establish and manufacturing defect in the goods in question; that the compliance of section 13(1)© of the Consumer Protection Act, 1986 has not been made in the present complaint; that there is no deficiency in service on the part of OPs.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

3.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C8 and thereafter, closed the evidence.

4.             On the other hand, the OP No.1 did not tender any evidence despite availing several opportunities, so, the evidence of OP No.1 was closed vide court order dt. 27.05.2022.

5.             We have heard both the parties and perused the record carefully.

6.             The complainant has argued that he had purchased Damp Block 2 K, chemical paint quantity 10x15 Kg. DB2K, Code No.3214 of Asian Paint Company for worth Rs.15,340/- vide invoice No.852 dt. 10.01.2019 and also purchased said chemical paint 2x15 Kg. DB2K HSN Code No.3214 @ Rs.1300/- for Rs.2600/- and 3x3Kg. DB 2K HSN Code:3214 for Rs.999/- vide invoice No.854 dt. 12.01.2019.  Thus, the complainant purchased the said chemical paint total worth Rs.15340/-+Rs.2600/-+Rs.999/-=Rs.18,939/- from the OP No.1.  The complainant before starting plastering on the walls of bricks have applied the said chemical of the OPs-company to the extent of 4 feet each of the walls by employing a painter namely Mahender known to OP No.1 and said painter has taken Rs.10,000/- for the said work from the complainant and thereafter, the complainant has plastered the walls with cement and sand from a mason.  It is further argued that after few months of plastering the said walls, the moisture appeared on the walls and the complainant contacted the OPs on toll free No.505373530 on 04.01.2020 and the OPs sent a technical person namely Tarun and he admitted the moisture on the plaster and said Tarun has taken the photographs/snaps of the said walls.  Thereafter, the complainant approached the OPs number of times on mobile but the OPs switched off their mobile and failed to redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OPs.

7.             On the other hand, ld. counsel for the OP No.1 has argued that the OP No.1 is a dealer of OP No.3 company of long standing high repute and the relationship between the OP No.1 with OP No.3 is on principal to principal basis.  It is further argued that the OP No.1 cannot be held liable for any independent act and omission, if any, committed by the other opposite parties.  It is further argued that the complainant has filed this baseless complaint alleging manufacturing defects in the goods without having produced any expert opinion/documentary proof in the form of evidence to prove that the subject: defective chemical supplied as alleged or to establish and manufacturing defect in the goods in question.  It is further argued that the compliance of section 13(1)© of the Consumer Protection Act, 1986 has not been made in the present complaint.

8.             We have considered the rival contentions of both the parties.  It is clear from the bills Annexure-C1 and Annexure-C2 that the complainant purchased the chemical paint of Asian Paints worth Rs.18,939/- from the OP No.1 on 12.01.2019.  The grievance of the complainant is that after few months of plastering the walls, the moisture appeared on the walls.  On perusal of DAMPBLOCK 2K WARRANTY BROCHURE as per Mark-A, it is clear that there was 3 years water proofing warranty.  In the Warranty Certificate as per Mark-A, it is clearly mentioned that “Asian Paints Limited (referred to as “Company”) offers a 3 years Warranty from date of purchase of the Smart Care Water Proofing System for dampness & efflorescence on interior vertical walls only.  The Water Proofing System consists of usage of Asian Paints Smart Care Damp Block 2K and Asian Paints Smart Care Vitalia as per the quantities and the system of application mentioned in the product information sheet for interiors.”

                The complainant has testified all the contents in the affidavit so set out by him in the complaint.  Whereas, on the other hand, the stand of OP No.1 is that the OP No.1 is a dealer of OP No.3 company of long standing high repute and the relationship between the OP No.1 with OP No.3 is on principal to principal basis and OP No.1 has sold the goods in the sealed parcel as purchased from OP No.3.  The OP No.3 is  proceeded against exparte as they did not appear in the court even one time.  So, the evidence produced by the complainant goes unrebutted and unchallenged against the Op No.3.  So far the liability of OP No.2 is concerned, the OP No.2 was given-up by ld. counsel for the complainant vide his separate statement recorded on 08.12.2020.  Hence, we are of the considered view that there is deficiency in service on the part of OP No.3.     

9.             Thus, as a sequel of above discussion, the present complaint is accepted against OP No.3 with cost and dismissed against OPs No.1 & 2.  The OP No.3 is directed to refund the amount of Rs.18,939/- to the complainant within 45 days from today, failing which, they shall be liable to pay interest @ 7% p.a. from the date of this order till its realization.  The OP No.3 is further directed to pay Rs.5,000/- as compensation on account of physical harassment and mental agony as-well-as Rs.5,000/- as litigation charges to the complainant. 

7.             In default of compliance of this order, proceedings against OP No.3 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:06.06.2023.  

                                                               

                                                                (Neelam Kashyap)

                                                                President.

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.