BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 7^th April 2016        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:   304/2015

Complainant/s:

Manjunath Bhat,

HIG No.44, Nammane, Udayagiri, Sattur, Dharwad-9

        (In Person)

v/s

Respondent/s:

1. Company Mukhastharu, Asian Paints Ltd., Asian Paints Lit., Asian Paints House, 6A, Shanti Nagar, Santacruise (East), Mumbai 400055.

(By Sri.C.R.Menasinakai, Adv.)

2. The Proprietor, Hubli Paints, Wali Building, Koppikar Road, Hubli-28

(In Person)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to set right the defects arosed in the wall where apex paint manufactured by respondent.1 company was applied or otherwise to direct the respondent to pay the cost that may incurred in repainting the said wall, also pay compensation of Rs.1/- towards compensation for have affected the dignity and respect of the complainant in the society due to use of paint produced by the Asian Paint company.

Brief facts of the case are as under:

2.     The case of the complainant is that, three years back the complainant had applied different standard paint produced by the respondent.1 to his newly constructed house. The complainant had applied separate paint prescribed for interior as well as exterior portion of his house. Among the paints the complainant applied manufactured by the respondent.1 specifically prescribed & recommended for exterior walls viz., ‘Apex’ where the said paint applied defects have been appeared and day on defects become more and more. In this regard complainant on 4 months back to the date of filing this complaint approached the seller respondent.2 and the representatives of respondent.1 company and narrated the facts and his grievance. But none of them did not responded instead they gave evasive reply and rejected the complainant’s requests. Despite rejecting to set right the problems the respondents threatened the complainant in the event complainant approach courts for justice they will also register counter complaint against him. In this regard all the correspondence made with the respondents are produced. So complainant filed the instant complaint praying to give justice by perusing all the documents produced or otherwise to personally to visit complainant’s house & to inspect and to deliver justice by allowing the complaint.

3.     In response to the notice issued from this Forum the respondents.1 and 2 appeared and filed the written version in detail denying and disputing the complaint averments. The respondent.1 represents through counsel while respondent.2 in person.

4.     The respondent 1 admits detailed written version narrating in detail the purpose of establishment of respondent company, nature of business, nature of the product, the different stages of careness adopted while processing of production of paint, different stage of inspection and quality checks by the technically qualified persons, the status of the respondent in the field of manufacturing, several awards secured by the respondent company as a mark of good product and good marketing etc. While the respondent denies all the complaint averments in toto and puts the complainant to strict proof of the same. Further the answering respondent reveals method of application of paint, preparation of walls prior to application of paint, standard of Ph of the wall, application method, procedures to be adopted pre painting and post painting, curing of paints especially the exterior paint. Among such other admissions and denials the respondent specifically taken contention that the very complaint is false, abuse of process of law. Further taken complainant has not approached the Forum with clean hands and material facts have been intentionally suppressed and also taken contention that the complaint as brought is barred by limitation as the transaction is of the year 2012. While the complaint is filed on 06.11.2015 is hopelessly barred, no cause of action. The facts averred & alleged against the respondents are vague & are made with baseless without any proper and documentary evidence, without basis of any scientific analysis & expert opinion, without any evidence from notified laboratories, false complaint is made with the sole intention to harass the respondent and to spoil the image of reputed company before the society at large. Further the answering respondent admits approach of the respondent and notice of grievance made to the respondents by complainant. While the respondent averred, immediately after the complaint, by registering the same respondent company visited the spot & take note of nature of the defects as narrated by the complainant and also narrates & revealed what is the defect, how it was happened, why it is happened, what is the cause reason. Further the answering respondent submits, for the problem arosed as noticed by respondent after intimating the complainant by respondent the defects have arosed at the instance of complainant himself as the complainant has not followed norms and specifications as per the instructions of the respondent company & complainant has not followed dos and don’ts as per the guidelines of the respondent company manufacturer instructions. Further contended there is no cause of action against the answering respondent and also denied the deficiency in service alleging that the present complaint is filed with an intention to have unjust enrichment & trying for luck by filing false complaint and prays for dismissal of the complaint u/s.26 of CP Act.

5.     The respondent.2 also admits written version taking contention and defence as in the same line as the respondent.1 taken. Apart from taking contention of limitation point the respondent denied the liability, cause of action contending that the answering respondent is only a seller of the product, marketed & manufactured by the respondent 1 as such the answering respondent is not liable to make good of loss in any way & prays for dismissal of the complaint.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

  Both have admits sworn to evidence affidavit and relied on documents. The respondent 2 except admitting written version did not contest the complaint either by admitting evidence or relying on documents. This Forum u/s.13 (ii) (c) of CP Act appointed court commissioner and gathered expert opinion. Both sides have been heard. Apart from argument complainant filed notes of argument.   Perused the records.

Finding on points is as under.

1. Negatively 
2. Negatively 
3. As per order

R E A S O N S

P O I N T S 1 & 2

7.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  that the complainant had purchased the different varieties of paint manufactured by the respondent.1 through respondent.2 and applied the same to his newly constructed house.

8.     Now the question to be determined is, whether there is defects in the paint purchased by complainant manufactured by respondent 1 and sold by respondent 2, if so, for what relief the complainant is entitled.

9.     Since the facts have been revealed in detail which requires no repetition.

10.   As discussed supra on perusal of Ex.C1 to 5 tax invoice/ cash memo belongs to respondent.2 produced by the complainant with regard to the purchase of paint manufactured by the respondent.1 it is evident that the complainant in the year 2012 in between the months June, august, September had purchased different varieties of paint from the respondent 2 manufactured by the respondent.1. Further it rectify perusal of photos Ex.C5 to C8 and C-16 & 17 showing application of paint to the house wall by the complainant.

11.   The very grievance and approach of the complainant to this Forum making allegation against the respondent that the respondents have sold defective paint especially the paint Apex, which was specially recommended for exterior application the problems have been arosed & is decolourized in earliest & the same was solely due to manufactural defects and prays for reliefs as sought in the prayer column. Further case of the complainant is that the paints which were purchased by the complainant were applied to the walls of newly constructed house building by the complainant in the year 2012 & immediately after starts developing defects and decolourisation, the complainant immediately approached the respondent.2 and the representatives of the respondent 1 revealed and narrated the defects and sought with them to set right the defects but the respondents did not cared for the requests and rejected his prayer made to them. Hence, he approached the Forum for reliefs.

12.   While the defence of the respondent is that immediately after complainant informed with regard to his grievance the respondent company deputed the concerned persons to visit the spot & to inspect and to report the position with cause reason in detail and further contended as per the report gathered by the respondent company the defects which have been sought is not due to manufactural defects in the paint but it occurred at the instance of the complainant as the complainant did not followed the company’s instructions dos and don’ts and the complainant has not followed the instructions & applied the paint in accordance with the procedure hence defects have been arosed at the instance of complainant himself.   

13.   Further the respondent also taken specific contention that the  complaint is hopelessly barred and the Forum has no jurisdiction to adjudicate the same and prays for dismissal of the complaint contending that the complainant without making proper application to condone the delay barely filed the complaint and it is to be ousted.

14.   As contention of limitation point taken by the respondent on perusal of Ex.C1 to C5 reveals the transaction i.e. purchase of the paint in the year 2012. The present complaint is filed on 06.11.2015. The very contention of the complainant is that since the grievance of the complainant being a decolourisation of the applied paint, though the complainant had purchased the paint in the year 2012 and applied in the year 2012 decolourisation is not immediately traced and is traced as days passed. In between time the complainant approached the respondent, in turn the respondent visited and inspected the spot and gathered the report as per Ex.C10 to C14, but they have not complied the requests of the complainant. Hence, the complainant approached this Forum as such there is no delay and to consider his complaint. On perusal of the documents of cash receipts, the grievance of decolourisation & visit of the respondent and gathering of report with regard to grievance of the complainant were considered this Forum cannot gave much importance to technicality by considering only the date of cash receipts i.e. purchase of paint. As contended by the complainant the defects will not sought out in a day on which day paint was applied to the wall. The decolourisation arise as days passes. So only when the complainant after notice of the decolourisation of the costly paint purchased by him was decolourised in the earliest time of its application the complainant become panic and made all these complaint to the respondent repeatedly and not satisfied by the response of the respondent as a last resort approached this Forum. Under those circumstances we cannot give much importance to the limitation point especially in the present complaint taking into note of nature of defects and as such the complaint filed by the complainant is well within the limitation point and this Forum has got jurisdiction. So also as there is no specific day or time to notice the decolourisation the cause of action continues. Hence in the absence of application U/s. Sec.24(A) also in the present complaint on the point of limitation complaint is maintainable, this Forum has got jurisdiction.  

15.   With regard to merits of the case, we already traversed through pleadings, evidence along with personal visit of spot by this Forum coupled with commission/ expert opinion in order to meet merit of the case of the complainant the following points are to be taken into consideration. As already discussed supra there is no dispute with regard to purchase of paint, application of paint and decolourisation of applied paint. Hence following points are the main ingredients to approach merits.

1. Who have applied the paint, whether he is an expert in painting ?
2. As admitted by the complainant it is a newly constructed building. Prior to application of paint whether leppa was applied, whether putty is made, if made how many primary coats were done. For primer  coat which primer paint is applied, from where complainant brought?
3. While applying paint how paint combination was made. What are the ingredients were added to appliable solution of paint ?
4. What are the steps/methods taken prior to apply top coat paint both in exterior as well as interior where apex paint is applied & what types of pre and post curing process were taken ?
5. As per the observation made by this Forum as well as by court commissioner apex paint applied surface is very thin, hair cracks on the surface of wall are visible and even wall surface is visible on the painted surface, for what reason it has appeared and from which date of application of paint it is appearing ?
6. Who painted Royal, Tractor, Ace, and Apex paints manufactured by respondent 1 Asian Paints & what measures the painter has taken while applying the paint?
7. Which make cement was used for plastering of walls to which those paints are applied, whether only single company product cement was used to entire house or different companies product cement was used for plastering different portions of walls/house

16.   The above questions has to be answered. Nature of the questions are looked into it has to be answered by the complainant only. Because it is the complainant who has approached this Forum praying reliefs alleging the paint manufactured by the respondent.1 is defective. While the respondent denying and disputing the complaint averments and grievance of the complaint contending that the purchased paint was not properly applied both at the time of prior to paint and post paint periods the application wall was not properly cleaned and applied primer coats and at the time of applying Apex paint particularly recommended for exterior should have to be carefully applied observing pre and post application conditions of applying paint. So also it is the case of the respondent that immediately after inform about decolourisation the technical experts visited the spot and reported, as per the report the PH of the wall is not suitable to the application of the paint and also prior to application of paint no primer coats, lappa and putty was applied. So only the defects had appeared due to high alkalinity of walls.

17.   When these allegations and contentions were taken the very burden of proving the case is lies on complainant. As rightly pointed out by raising questionnaire supra to answer those questions the complainant except examining himself he did not chosen to adduce additional evidence & also did not chosen to examine the person who has applied the paint. Under those circumstances the answer to the above questions were unanswered and remained unexplained. Under those circumstances as per the personal observation made by this Forum which visited the spot coupled with the report of expert were taken into consideration if it is applied and tallied with a defence taken by the respondent it is evident that the complainant did not carryout pre painting steps viz., application of lappa and pre coating of primer coats and directly applied the paint  with a dilute solution of bare apex paint. So only cracks are exibiting openly under a thin coat of apex paint. So the apex paint started decolourising due to afloresense formation causing discolourising of paint due to lime Blooming. Added to it as contended by the respondent the complainant has not produced any documents to show that he has purchased primer coat pain and leppa either from R2 or from any other shops. Under those circumstances it cannot be believed that the complainant before application of apex paint had applied leppa and primer coats. Non examination of painter by the complainant rebuts the contention of the complainant.

18.   So we cannot take away the observation of the expert as well as the contention taken by the respondent that prior to apply paint leppa and primer coats must be applied. Even otherwise it is a general common sense and in general it is an admitted fact. If leppa and primer coats is not applied the hair cracks raised on the wall will remain intact. Under those circumstances due to evaporation of water content in the bricks as well as in the brick joints remained during the curing process will ooze out through the cracks which give raise to lime blooming and thereby afloresense formatted on the wall which affects the paint coated area automatically decolourise the paint. This fact is further fortified by Ex.CR1 and Ex.CR1(4) (expert opinion). So complainant failed to establish his case of manufactural defects in the paint.

19.   Perusal of Ex.C10 to 15 letter correspondence of the respondent after approach of the complainant reveals the respondents timely & properly attended and find out the reason for decolourisation. This observation is further corroborated by non examination of painter by the complainant and non production of documents pertaining to purchase of leppa and primer paint and application of same by the complainant. Under those circumstances there is no deficiency in service on the part of the respondent. Hence, the complainant is not entitled for any reliefs.

20.   The commissioner Executive Engineer, PWP & IWT Department Division Dharwad as per the direction of this Forum accepting the same timely visited the spot diligently with the notice to all the parties and executed the warrant and submitted the final report intime honorarily is highly appreciated.

21.           In view of the above discussions we have arrived and proceed to held issue.1 and 2 in Negative .

22.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is dismissed. No order as to costs.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on  7^th day of April 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR