BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 05/08/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 416/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case leading to this complaint are as follows :

In April 2009, the complainant purchased 40 litres of exterior wall paint and 30 litres of interior wall paint from the 2^nd opposite party, which was manufactured by the 1^st opposite party. He painted his house by applying the above paints. Within a year white patches appeared in the walls and the same gradually spread. At the instance of the 2^nd opposite party, the complainant intimated the matter to the 1^st opposite party. In December 2010, a representative of the 1^st opposite party visited the complainant's premises and went through the complaints of the complainant. He agreed to settle the issue amicably. Since there was no response, the complainant caused a registered letter to the 1^st opposite party on 07-03-2011. In the meantime, the complainant's daughter's marriage had been solemnized on 02-05-2011 and the complainant had to face lot of inconveniences during the period. The complainant again caused another letter to the 1^st opposite party dated 09-05-2011, the same fell on deaf ears. Thus, the complainant is before us seeking direction against the 1^st opposite party to repaint the house of the complainant or to pay a total compensation of Rs. 1,27,950/- which includes the price of the paints, labour, compensation and costs of the proceedings.

2. The version of the 1^st opposite party :-

Based on the complaint received from the complainant, the 1^st opposite party had inspected the premises of the complainant in December 2010. The 1^st opposite party requested the complainant to produce the copy of the purchase bill, the paint tins/drums, the address and phone number of the painter and details of undercoat used, ie. primer and putty. The above informations were never provided by the complainant inspite of requests made by the 1^st opposite party. The lack of which made them fail to keep their assurance. The production of these material facts alone would help them to come to a justifiable solution. The 1^st opposite party had not received any letter dated 07-03-2011 from the complainant. The contentions in the letter dated 09-05-2011 issued by the complainant are absolutely false. The amount as claimed by the complainant is no where near to the actuals. The complainant is not entitled to get any of the reliefs. The complaint is devoid of any merit and liable to be dismissed.

3. The 2^nd opposite party filed a separate version stating that the complainant purchased 40 litres of exterior paint and 30 litres of interior paint from him which was manufactured by the 1^st opposite party.

4. The complainant and his witness were examined as PW's 1 and 2 and Exts. A1 to A4 were marked on his side. The witness for the 1^st opposite party was examined as DW1 and Ext. B1 was marked on their side. Subsequent to the filing of the version, the 2^nd opposite party abstained from the proceedings for his own reasons. Heard the complainant who appeared in person and the learned counsel for the 1^st opposite party.

5. The only point that emanates for consideration is whether the 1^st opposite party is liable to repaint the premises of the complainant or the 1^st opposite party is liable to pay a total compensation of Rs. 1,27,950/- to the complainant?

6. The complainant contended that he painted his residence by using the paint and its accessories purchased from the 2^nd opposite party. According to him, within a year the paint applied on the walls showed signs of defect and the 1^st opposite party did not take any steps to ventilate his grievances, and therefore, he is either entitled to get the house repainted at the expense of the 1^st opposite party or to get a total compensation of Rs. 1,27,950/-.

7. The learned counsel for the 1^st opposite party contended as follows :

1. There is no evidence to prove that the product of the 1^st opposite party has been purchased by the complainant.

2. During the evidence, the complainant admitted that the home stands in the name of his wife and hence he was no locus-standi to file the complaint.

3. The complainant has neither claimed any deficiency of service nor claimed any inferior quality in the product received from the 2^nd opposite party.

4. On receipt of the complaint from the complainant in December 2010, the 1^st opposite party requested the complainant to provide a copy of the purchase bill, batch number and date of manufacture of the paint, the address of the painter, details of the primer and putty in which he failed.

8. The learned counsel for the 1^st opposite party relied on the following decisions rendered by the Hon'ble High Court of Kerala and Orissa :

1. Swamidasan and Ors. Vs. The Executive Engineer and Anr. 1999 (3) KLT 841.

2. Vijayachandran K.K. and Anr. Vs. The Superintendent of Police and Anr. 2008 (3) KLT 307.

3. Nanda Kishore Ray Vs. Secretary, Areikana S.C.S. Ltd. and Ors. AIR 1999 Ori. 46.

9. On receipt of the notice from the Forum, the 2^nd opposite party forwarded his written version by post to this Forum. In the written version, the 2^nd opposite party categorically stated that the complainant purchased 40 litres of Flo Jo (2265) exterior paint and 30 litres of Mademoiselle (2185) interior paint ands its accessories from him which was manufactured by the 1^st opposite party. Though Ext. A1 series is an estimate the description of paints stated in it corroborates with the version of the 2^nd opposite party. Moreover during evidence, the complainant deposed that while purchasing the paints and accessories, the 2^nd opposite party did not issue any purchase bill instead he issued Ext. A1 series. There is no reason to disbelieve the case of the complainant, especially when DW1 the witness for the 1^st opposite party admitted that the 2^nd opposite party is selling their products at Thalayolapparambu.

10. Admittedly on receipt of a telephonic complaint, DW1 visited the premises of the complainant. According to the complainant, he furnished Ext. A1 series and the empty tins of the paint to ascertain the genuineness of the complaint. DW1 maintains that he specifically requested the complainant to forward copy of the purchase bill, the paint tins/drums, address and phone number of the painter and details of the primer and putty. PW2 the witness for the complainant deposed that he was present, when DW1 visited the premises of the complainant in December 2010. He further stated that at that time, the complainant furnished Ext. A1 series and an empty tin for the verification by DW1. There is nothing on record to discard the oral testimony of PW2.

11. It is pertinent to note that the 1^st opposite party failed to respond to Exts. A3 and A4 letters dated 07-03-2011 and 09-05-2011 respectively. DW1 went to say that the 1^st opposite party did not receive Ext. A3 though evidence is on record to show the receipt of Ext. A3. The failure of the 1^st opposite party a well known company of such repute in this field failed to respond to the grievances of a consumer in this case, the complainant itself amounts to deficiency in their service. The 1^st opposite party contended that the complainant has no locus-standi to file this complaint. Since his wife is the owner of the house, the Consumer Protection Act itself speaks for the complainant this contention goes.

12. The decisions cited by the 1^st opposite party are with regard to the admissibility of a document and genuineness of the same and its contents that too before a Civil Court. In the instant case, the maxim 'res-ipsa loquitur' applies. In that view of the matter, the decisions submitted by the 1^st opposite party finds no place in this context.

13. Though not on record, it was admitted by the complainant that he had to repaint the house in connection with his daughter's wedding. So, the question of quantifying he cost of labour does not arise at this point of time. However, the purchase of paints and accessories have been substantiated it goes without saying that the same has been made use of as well having incurred expenses of labour which for reasons said above cannot be quantified. We are of the firm view that ends of justice can equitably met by an order to the 1^st opposite party to refund the price of the paints and its accessories as per Ext. A1 series. In the circumstances, we feel that costs and compensation are not called for.

13. In the result, we partly allow the complaint and direct that the 1^st opposite party shall refund the price of the paint and its accessories to the complainant as per Ext. A1 series.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the amount as per Ext. A1 series shall carry interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 31^st day of July 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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