By Sri.Ananthakrishnan. P. S, President:
This is a complaint filed under Section 12 of Consumer Protection Act, 1986.
2. The Complainant’s case in brief is as follows:-
The Complainant started construction of his house in the property of his father situated at Pattavayal. For this purpose, on 08.10.201615, he along with third Opposite Party purchased 15 bags of Vembanad wallputty for Rs.12,969.54/- and on 21.10.2016, he purchased 12 bags of same wall putty for Rs.10,375.68/- from the shop of first Opposite Party. When the Complainant purchased this brand, the first Opposite Party assured that this wall putty is famous in the market for its quality and is much in demand. For this reason alone, the Complainant purchased Vembanad wall putty. Thereafter, the third Opposite Party who is a painter and expert in applying wall putty, applied the wall putty on the wall of the house of the Complainant and received Rs.54,000/- from the Complainant as his coolie. Two days, thereafter, the Complainant saw breaking of the putty into pieces on touch. When asked, the first Opposite Party told that it may be due to manufacturing defect and he assured that he will contact the second Opposite Party. Later, a representative of second Opposite Party from Calicut came to the house of Complainant and noted the defect. One week, thereafter another staff namely Saidu Muhammed came from Kottayam and took sample from the powder and offer compensation to the Complainant depending upon the decision of the board. Since there is no reply from anybody, the Complainant contacted the first opposite party and he expressed his inability. The first Opposite Party sold low quality wall putty to the Complainant and so, cheated him. He obtained Rs.23,345/- from him as the price of the putty. The Complainant incurred an amount of Rs.1,500/- as transporting charge and Rs.54,000/- as the coolie given to third Opposite Party. There is need of applying fresh putty, the cost of which will amount to Rs.1,00,000/-. The intention of the Complainant was to conduct his house warming on or before 25.02.2016 and since it was flopped, the Opposite Parties are liable to give Rs.50,000/- to him as compensation. All these mischiefs were happened due to the deficiency in service on the part of Opposite Parties. Hence this Complainant to get Rs.2,29,595/ as compensation and Rs.10,000/- as litigation expenses.
3. First Opposite Party filed version which in short is as follows:- He admitted that he sold 27 bags of Vembanad wall putty to the Complainant. Thereafter, he received a complaint from the Complainant that there was no proper setting to the putty. On information given by him, a representative of second Opposite Party along with a painter namely Sapathaman came to the house of Complainant. They found that plastering was uneven and therefore, putty was placed with more thickness to make the surface level. From the same sample, the said painter applied putty first and second coat and showed it to the Complainant. No complaint was noticed and the Complainant then satisfied about the product. So the flaking if any may be due to the defect in applying the putty by third Opposite Party. There is no defect or shortcoming to the wall putty sold by this Opposite Party. There were no complaints from any customers with regard to this putty. Along with the product, leaflets showing the procedure have been supplied to know how the surface would be prepared for the application of this putty. The third Opposite Party has acted contrary to this specific instruction. For that this Opposite Party is not liable. He denied that there is manufacturing defect to this putty and defective in quality. If, there is any complaint with regard to the product, it should be proved scientifically. The loss alleged to the Complainant is imaginary. Hence this complaint is liable to be dismissed.
4. Second Opposite Party filed version in short is as follows:- This Opposite Party is a best Kerala Government undertaking engaged in manufacturing of Vembanad premium wall putty. The Complainant is not a consumer and this Opposite Party had no transaction with the Complainant. They admitted that first Opposite Party sold 27 bags of wall putty to the Complainant. Meanwhile, first Opposite Party received a complaint from the Complainant stating that there was no proper setting to the putty. On information from first Opposite Party, a representative of second Opposite Party along with a painter namely Sapathaman came to the house of the Complainant. They found that plastering was uneven and therefore, putty was placed with more thickness to make the surface level. From the same sample, the said painter applied putty first and second coat and showed it to the Complainant. No complaint was noticed and the Complainant then satisfied about the product. So the flaking if any may be due to the defect in applying the putty by third Opposite Party. There is no defect or shortcoming to the wall putty manufactured and sold by this Opposite Party. The product has been scientifically tested before releasing in the market. There were no complaints with regard to this putty. Along with the product, leaflets showing the procedure have been supplied to know how the surface would be prepared for the application of this putty. If, the third Opposite Party has acted contrary to this specific instruction, this Opposite Party is not liable for any fault. They denied that there is manufacturing defect to this putty and it is defective in quality. If, there is any such allegation, it should be proved scientifically. The loss alleged to the Complainant is imaginary. Hence this complaint is liable to be dismissed.
5. Third Opposite Party filed version which in short is as follows:-
He admitted that the Complainant purchased wall putty from the shop of first Opposite Party in his presence. This Opposite Party is an expert painter having 20 years of experience. So, he applied the putty properly. He admitted the defect of the putty and that he accompanied the Complainant to give complaint to first Opposite Party. The staffs of the second Opposite Party came to the house of the Complainant and on verification, found the defect of the putty. Then, he was informed that recently, there is some complaint about this putty. Thus, there is no deficiency in service on the part of this Opposite Party. Hence this complaint is liable to be dismissed.
6. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency of service on the part of
Opposite Parties?.
2. Reliefs and Costs.
7. The evidence in this case consists of oral testimony of PW1, OPW1 to OPW3, Ext.A1, A2, B1 to B3 and Ext.C1 to C3. Both sides heard.
8.Point No.1:- This is a case alleging defect in wall putty sold by the first Opposite Party which was manufactured by the second Opposite Party and applied by third Opposite Party. Though the Complainant made his painter as third Opposite Party alleging deficiency of service, when he has given evidence as PW1, he deposed that there is no deficiency in service on third Opposite Party. He deposed that his work was excellent. So, the Complainant has no allegation at present against the third Opposite Party. So, third Opposite Party will not be made liable for the fault, if any.
9. The case of the Complainant is that he purchased 27 bags of wall putty from the shop of first Opposite Party and applied it on his wall of his newly constructed house by the third Opposite Party. His allegation is that two days thereafter, he saw some flaking from the wall and when contacted the first Opposite Party, he stated that it is a manufacturing defect for which third Opposite Party is responsible. It is an admitted fact that by getting his complaint from the first Opposite Party, the staff of the second Opposite Party, manufacturer came to the house of Complainant and found the flaking. It is also evident that the painter of the second Opposite Party came there and applied the putty twice on the wall of the Complainant and PW1 admitted that there was no such defect. Any how it is a fact that the putty applied on the wall of the Complainant by the third Opposite Party is defective and though the Complainant contacted the first and second Opposite Party, they have tried to solve his grievance. To prove his complaint, Complainant has given evidence as PW1. He deposed in conformity with his case. On behalf of Chairman and Managing Director of second Opposite Party, their Chemist has given evidence as OPW1. They have also examined their painter who tested the quality of the putty on behalf of second Opposite Party as OPW2. The third Opposite Party has given evidence as OPW3. All of them stood on their stand. It is the allegation of the Complainant that since this putty is defective, he got monetary loss such as its price Rs.22,455/-, coolie Rs.54,000/- and transporting charge Rs.1,500/-. He has also sought for the price of fresh putty as Rs.1,00,000/- for replacing the earlier putty and Rs.50,000/- as compensation. But, it is to be noted that here absolutely there is no test result to prove that the so called putty is low quality. The Complainant obtained reports of Advocate Commissioners and attempted to send the sample for analysis to Asst. Executive Engineer, PWD (Building) Sulthan Bathery and NIT Calicut. Ext.C1 and C2 are the report of the Advocate Commissioners. Though, both of them found defects in this putty, evidently, they are not expert in this field and their opinion is without any scientific foundation. One of the Commissions took a sample and the Complainant attempted to send this sample for expert opinion. Ext.C3 is the report of the Assistant Engineer, PWD (Building) SulthanBathery. His report shows that he was unable to find out reason for the defect for want of facilities. It is evident that this sample was sent to NIT, Calicut. They are also expressed their inability to find out the reason for the defect due to non-availability of facilities. It is the specific case of the Complainant that this is a low quality putty. The second Opposite Party vehemently argued that their company is a reputed one and there is no possibility to see this type of defect. It can be seen that their painter applied the putty twice on the wall and admittedly there was no defect. Even though PW1 deposed at the time of cross examination that the painter of the second Opposite Party took putty from the bag kept in his premises and applied, at the time of re-examination, he changed this version and deposed that those putty was brought by the painter himself from the company. So, he has no consistent case on this material aspect. On the other hand, OPW1 affirmed that the putty applied on the wall of Complainant by their painter was taken from the bag kept in the premises of the Complainant. Therefore, even if, there is some defect in the putty used by the Complainant, there is no material evidence to prove that the reason for this is low quality. The first and second Opposite Parties contented that the reason for this defect is the non-application of the putty properly on the wall. On the other hand, Complainant alleged that it is low quality putty. So, there are two versions in this case. But no materials here to prove that it is low quality putty. Hence, the Complainant is miserably failed to establish that this is a low quality putty and thus failed to establish any deficiency in service on the part of Opposite Parties. Hence this point is found against the Complainant.
10. Point No.2: Since Point No.1 is found against the Complainant, he is not entitled to get any relief as prayed for.
In the result, the complaint is dismissed, but without costs.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 31st day of October 2022.
Date of Filing:-11.07.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Santhosh. Agriculture.
Witness for the Opposite Parties:-
OPW1. Lovelymol. V. J. Chemist.
OPW2. Sapthaman. Painting.
OPW3. Reji. Painting.
Exhibits for the complainant:
A1. Retail Invoice. Dt:21.10.2016.
A2. Retail Invoice. Dt:08.10.2016.
C1. Advocate Commission Report. Dt:07.01.2017.
C2. Advocate Commission Report. Dt:21.08.2017.
C3. Expert Commission Report. Dt:17.07.2017.
Exhibits for the Opposite Parties:-
B1. Letter of Authorization. Dt:27.12.2017.
B2. Test Certificate. Dt:16.12.2016.
B3. Leaflet.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
