IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 15thday of March, 2023.
Filed on 20.10.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A.L, LLB (Member)
CC/No.260/2022
between
Complainant:- Opposite parties:-
Sri.Gireeshkumar 1. The Manager
S/o Damodharan HHYS Infra Mart
Suprima, Eruva P.O. Kayamkulam-690502
Kayamkulam-690572 (Adv.M.R.Salim)
(Adv.Praseeda V Soman) 2. Sri.Ayyappadas
Customer Care Agent
Asian Paints, HHYS Infra Mart
Kayamkulam-690502
(Adv.B.K.Niyas)
3. The Manager
Asian Paints, 6A, Shanthinagar
Santacruz (East), Mumbai-400055
(Adv.Abhilash C Soman)
O R D E R
SMT.P.R SHOLY (MEMBER)
This is a consumer complaint filed under Sec.35 of Consumer Protection Act, 2019.
Material averments briefly discussed are as follows:-
The 3rd opposite party is the Manager of the Asian paints and the 1st opposite party and the 2nd opposite party are the dealer and the customer care agent of the 3rd opposite party respectively. They are doing the painting works of the houses and other building on contract basis. The complainant who is working abroad had constructed a new house in the year 2017 and for the painting work of the house the complainant and the 1st and 2nd opposite parties together executed an agreement on 25.10.2017 on the painting work for amount of Rs.5,60,000/- and subsequently the amount is reduced to Rs.5,50,000/-. They have painted the house as per the agreement and the payment was effected by installments at regular intervals and the total amount of Rs.5,00,000/- is paid to the 1st opposite party.
2. As per the agreement and the assurance given by the opposite parties that they are using the advanced anti alga formula, colour stay technology with 7 years warranty. They promised that all the works will be done by specially company trained labours. If there is any complaint with the painting within seven years it will be rectified by the opposite parties without any cost. They have completed their work except the polishing of the handrails of the staircase. According to them the paint coating will be water resistant and will not be damaged or colour faded for a period of atleast 7 years. The house warming of the house was on 02.02.2018. But few months after the house warming the painting is colour faded and the ‘putti’ is damaged and began to broken into layers and the total wall became untidy. In the rainy season water is leaked through the damaged portion of the painting as a result it caused damage to the valuable electronic home appliances including the home theatre. Hence the complainant suffered a huge financial loss and mental agony due to unfair trade practice and lack of service on the part of opposite parties.
3. The complainant approached the opposite parties and demanded to repaint the damaged portion of the painting. They have agreed to make necessary arrangements to correct the damaged portion of the house. Since the complainant was working abroad he could not follow up the opposite parties directly. Taking advantage of this situation the opposite parties did not repaint damaged portion of the house as they agreed. Hence the complainant was forced to issue a legal notice on 06.07.2022 demanding repaint the damaged portion of the house. Instead of doing this they sent a reply notice with lame excuses. Hence this complaint.
4. Opposite parties 1 and 2 filed version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. The 1stopposite party is an authorised dealer of the 3rd opposite party. The opposite parties 1 and 2 carried out the painting works of complainant’s house as instructed by 3rd opposite party by using top quality products of the 3rd opposite party, and through the trained labourers. As per the agreement entered in to between the complainant and opposite parties the total cost of work under took by this opposite parties was Rs.5,50,000/- from that total cost of work the complainant herein paid Rs.5,00,000/- only to these opposite parties, and an amount of Rs.50,000/- is yet to be paid by the complainant. The complainant preferred this complaint on certain unsustainable reasons as a forethought in anticipation of legal proceedings from the 1st opposite party to realize the said due amount.
5. Owing to a complaint told by the complainant as informed by these opposite parties Complaint Sales Officer of the 3rd opposite party inspected the complainant’s building. On examination it was revealed that certain structural defects are there for the complainant’s house and they were occurred due to the unscientific construction of the building. At the time at which these opposite parties entered into the agreement with the complainant the entire construction work of the building were not completed and was nearing completion. These opposite parties warned the complainant about the consequences which may occur while applying the top quality paints on wet surfaces. But the complainant compelled the opposite parties to complete the work within a short span of time as he had to return to his place of employment urgently. Even then these opposite parties applied the paints by taking all the possible precautions. Upon the complaint from the complainant sales officers of the 3rd opposite party inspected the building on two occasions and moister content of the complainant’s building was ascertained with the help of a device named hydrometer. On two occasions it was found that the moisture content of the complainant’s building is higher than the normal level. The paints which were used by these opposite parties for conducting the painting works of the complainant’s works were water based plastic emulsion. All those aspects were conveyed by these opposite parties to the complainant during the whole course of the work.
6. After the completion of the entire work cracks were formed on the walls of complainant’s house. Undoubtedly said cracks were formed due to the defects in the process of plastering of the walls. Now a days M-sand and P-sand are being used in the construction of buildings. When the said materials are used for plastering works there is every chance for forming cracks in future, in the absence of proper curing. Such cracks have been formed to the complainant’s house also. At the time of applyingpaints it is highly impossible to anticipate when and where such cracks would be found. Here in this case all the cracks formed to the complainant’s building have been formed long after the completion of the painting works. After the formation of the said cracks water during rainy times happened tobe infiltrated into walls and which ultimately caused to budge the paint from the walls. More over required water exhaust are not provided to the complainant’s house and so water happened to be stagnated over the house during rainy times. Said stagnated water subsequently infiltrated into the walls and which also caused the walls to become wet. The paint applied to the complainant’s house happened to be damaged due to the above narrated defects of construction. So such defects have been caused not due to the lack of quality of products supplied by the opposite parties or deficiency of service from these opposite parties.
7. Opposite parties offered guarantee for the work done and for the materials used. But the said guarantee can be availed only when the product used suffers any material defect or there is deficiency in service. Here in this case the complainant is not entitled to get the guarantee offered as the alleged the defects have been caused due to the mistake of the complainant itself. Statement that, in the rainy season water is leaked throughthe damaged portion of the painting as a result it caused damage to the valuable electronic home appliances including the home theatre is false. The complainant never approached the opposite parties and demanded to repaint the damagedportion of the painting in his new house and they have not agreed to make necessary arrangements to correct the damaged portion of the house. The complainant send a legal notice on 06.11.2022 and opposite parties 1 and 2 serviced a reply notice for the same by showing the real facts.
8. The complainant does not have the right to get back Rs.5,00,000/- from these opposite parties. Rs.6,00,000/- is found claimed as the cost for repainting without any basis or criteria. There is no deficiency in service on the part of opposite party No.1 and 2, hence may be pleased to dismiss the complaint with the cost of the opposite parties 1 and 2.
9. 3rd opposite party filed version mainly contenting as follows:-
The relationship of the opposite party No.3 with the dealers is on principal to principal basis. The opposite party No.3 does not provide painting services through its dealer but only through APSPS. The opposite party No.1 is merely a dealer of the opposite party No.3 while the opposite party No.2 is the customer care agent of the opposite party No.1. The standard assurance provided is based on certain terms and conditions. The complainant has used Asian paints apex ultima on the exterior walls which provides as performance warranty of 7 years. It provides warranty on shade retention, film integrity etc. It will perform well for the warranty specified period if all the application and surface parameters are fine as specified in the warranty document. In the instant case however the wall of the house already had water retention and moisture issues which were not discernible at the time of painting and it was for the complainant to ensure that he gets rid of the structural cracks before requesting the opposite parties to apply the damp proof paint without any due diligence. The complainant would not have faced any issues with the paint under normal conditions however, due to the inherent structural defects which were not visible during the physical work and were aggravated over a period of time, led to faded paint colour and peeling of the paint films from the walls. When the executive of the opposite party No.3 conducted the investigation, the presence of moisture and efflorescence above the applicable level was found on the moisture meter for the long lasting and efficient outcome, pre application formalities had to be complied with, which the complainant had failed to do and the same consequently resulted in the alleged grievance of the complainant. The complainant is merely trying to transfer the onus of his fault to the innocent opposite party No.3. It was the complainant’s responsibility alone to ensure that the walls of the house were moisture free and ready to be painted. Moreover, the complainant himself has admitted the fact that in the rainy season, water leakage was observed which can only happen due to structural cracks and not because of paint on the walls. Thus the complainant himself has admitted the structural defects in the walls.
10. The complaint has occurred as a result of surface problem only because of which the complainant’s grievance was closed with no compensation. The complainant has evidently failed to show any cause of action against the opposite party No.3 and therefore the Commission lacks jurisdiction to adjudicate this complaint against 3rd opposite party.
11. On the above pleadings following points were raised for consideration :-
1. Whether there is any deficiency in service from the part of the opposite parties as alleged?
2. Whether the complainant is entitled the reliefs as claimed in the complaint?
3. Reliefs and costs?
12. Evidence in this case consist oral evidence of PW1 to PW3 and Ext.A1, A2, A3series, A4 series and A5 series on the side of the complainant and the oral evidence of RW1 and Ext.B1 on the side of the opposite party. Commission Report marked as Ext.C1. Heard the counsels appearing for the complainant and opposite parties 1 and 2.
13. Point no. 1 and 2:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and got marked Ext.A1, A2, A3 series, A4 series and A5 series. During cross examination by the counsel appearing for opposite parties 1 and 2 Ext.B1 marked .
14. PW2 is the Expert Commissioner in this case. After giving notice to both sides he inspected the house of the complainant in their presence and prepared a report and the same is marked as Ext.C1.
15. PW3 is a painter who filed an affidavit stating that he was conducting the painting work of the complainant as per the agreement entered by 1st opposite party. He also stated that he had done the painting work as directed by the 2nd opposite party. Now the said painting lies losing itscolour with fungi and seen as an ugly look. He pointed out that the same is causing with applying paint on the wall without using water proofing primer and water proofing putty on the newly constructed moistures walls .
16. RW1 is the 2nd opposite party in this case. He filed an affidavit in tune with the version. Ext.B1 marked during cross examination of PW1.
17. PW1’s case is that he had entrusted the painting work of his newly constructed house to the 1st opposite party and 2nd opposite party in which the 2nd opposite party is the Customer Care Agent of Asian Paints. The agreement executed on 25/10/2017 and the agreed amount was Rs. 5,60,000/-. Subsequently the said amount reduced to Rs. 5,50,000/-. Total amount paid to the 1st opposite party for the work at regular intervals Rs. 5,00,000/-.
18. As per the agreement and the assurance given by the opposite parties that they were using the advanced anti alga formula, colour stay technology with 7 years warranty and also promised that all the works will be done by specially trained company labours and if there is any complaint with the painting within 7 years it will be rectified by opposite parties without any cost. Accordingly they have finished the work except the polishing of the hand rails of the staircase.
19. After few months from house warming ceremony dated 2/2/2018 the painting was colour faded and the putty is damaged and began to broken into layers and the total wall became untidy. During rainy season water leaked through the damaged portion of the painting and which resulted damage to the valuable electronic home appliances including home theatre. Though the complainant informed the said matter to the opposite parties, the opposite parties did not cared his words by taking advantage of the situation that the complainant was working abroad and thus he could not follow up the opposite parties directly. Hence the complainant sent a legal notice on 6/7/2022 demanding repaint the damaged portion of the house. They only replied with lame excuses. Hence the complainant filed this complaint seeking an amount of Rs 12 lakhs on different heads with cost of Rs. 25,000/- from opposite parties. Opposite parties 1 and 2 jointly filed version admitting the dealership of 3rd opposite party. They also admitted that they had carried out the painting work of the complainant’s house as instructed by 3rd opposite party by using top quality products of the 3rd opposite party with the trained labourers. Opposite parties 1 and 2 contented that this complaint filed only to overcome the legal proceedings which might have initiated by these opposite parties for realizing an amount of Rs. 50,000/- which the complainant ought to have paid as per the agreement. They also contended that the defects occurred due to the unscientific construction of the building. According to these opposite parties when they entered into the agreement the construction work of the building were not completed and was nearing completion. Eventhough the opposite parties 1 and 2 warned the complainant about the consequences which may occur while applying the top quality paints on wet surfaces, they were constrained to do the work as compelled by the complainant within a short span of time as the complainant had to return to his place of employment urgently. It is opined the opposite parties 1 and 2 that even in the said circumstances they had applied the paints by taking all the possible precautions. After getting the complaint from PW1 the sales officer of the 3rdopposite party inspected the building on two occasions and ascertained the moisture content of the said building with the help of hydrometer and it was found higher than the normal level.
20. Moreover according to these opposite parties after completing the painting work cracks were formed on the walls due to the defective plastering of the building. After formation of the said cracks during rainy season water infiltrated into walls and which ultimately caused to budge the paint from the walls. The opposite parties 1 and 2 further contented that required water exhaust were not provided in the house of the complainant and so water happened to be stagnated over the house during rainy times and the same subsequently infiltrated into the walls which also causing the walls to become wet. According to the opposite parties 1 and 2 the above narrated defects of the construction of building only caused the complaint in painting work which was only due to the mistake on the part of the complainant. Hence they are not liable to compensate the complainant.
21. The 3rd opposite party filed separate version mainly contenting the relationship with opposite parties 1 and 2. According to them 3rd opposite party does not provide painting services through its dealer. It is only through APSPS. The relationship of the 3rd opposite party with dealers is on principal to principal basis. 3rd opposite party admitted the warranty of paint used by the complainant which provides as performance warranty of 7 years. It will perform well for the warranty specified period if all the application and surface parameters are fine as specified in the warranty document. The 3rd opposite party contented that, however the wall of the house already had water retention and moisture issues which were not discernible at the time of painting and it was for the complainant to ensure that he gets rid to the structural cracks before requesting the opposite parties of apply the damp proof paint without any due diligence. It is found when the executive of the 3rd opposite party conducted investigation, the presence of moisture and efflorescence above the applicable level on the moisture meter. For the long lasting and efficient outcome, pre application formalities had to be complied with which the complainant had failed to do and the same consequently resulted in the alleged grievance of the complainant. According to the 3rd opposite party it was the complainant’s responsibility alone to ensure that the walls of the house were moisture fee and ready to be painted. More over the complainant himself admitted the water leakage in rainy season which can only happen due to structural cracks and not because of point on walls.
22. From the pleadings of both sides it reveals that there is no dispute regarding the product and its period of warranty. In this connection it is also to be noted that as the learned counsel appearing for the complainant argued that the 3rd opposite party assured the antialgi and antifungi quality of Asian Paints which we all are also is watching in media even once in a day. So it is ofcourse the guaranteed specification of the said product. Another important fact to be noted is that in Ext.C1 as well as in the deposition of PW2, the Expert commissioner pointed out that the paint applied on the house of the complainant is in good quality. However it was also reported that approximately 100 sqm. on different places in the building the paint damaged. He also pointed out the reason for the same is that moisture on the wall and water storing . He reiterated that painting without water proofing treatment will cause damage for the same. During cross examination by the counsel appearing for 3rd opposite party PW2, the expert commissioner categorically deposed that the damage caused due to application to putty and primer before removing wetness on the wall. He also deposed that there was no capillary rise found on the wall. On account of Ext.C1 we found deficiency in service on the part of opposite parties, more particularly in connection with the opinion of Pw2 that the damage would be avoided if the painter informed the defects found earlier ie, before starting painting work. Ofcourse, we are also in that opinion because the complainant is not an expert to say any opinion for applying paint. If there was any abnormality found on the wall as stated by the opposite parties it should have been informed positively to the complainant for its curing before starting the paint work. Here in this case the executives of 3rd opposite diagnosed the moisture deficiency only after intimating the complaints. If it would have tested with hydrometer at the earlier stage of painting no such damage will be caused on the building of the complainant. No attempt was made by the opposite parties to find out the wall is suitable for paint work, though RW1 stated during cross examination that no moisture problem on the site. Hence it caused purely due to the deficiency on the side of opposite parties. However considering the facts and circumstances of the case. we allow the complaint for curing the defect noted in painting work on the house by the Expert Commissioner.
23. Point no.3:-
In the result complaint stands allowed in part as the following terms.
a) Opposite parties are directed to rectify the defects noted in Ext.C1 on the house of the complainant free of cost within one month of receipt of copy of this order
b) Complainant is entitled Rs. 5000/- as costs of proceedings from the opposite parties jointly and severally
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 15th day of March, 2023.
Sd/-Sholy.P.R (Member)
Sd/-Sri.S.SanthoshKumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Sri.GirishKumar (Complainant)
PW2 - Sri.B.Mohanan (Commissioner)
PW3 - Sri.Radhakrishnan (Witness)
Ext.A1 - Copy of terms and conditions
Ext.A2 - Copy of legal notice
Ext.A3 series - Copy of building
Ext.A4 series - Photographs (13 Nos)
Ext.A5series - Copy of photographs
Ext.C1 - Commission report
Evidence of the opposite parties:
RW1 - Sri.Ayyappadas R (Witness)
Ext.B1 - Copy of photograph
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
