Presented by: -

                   Shri Debasish Bandyopadhyay, President.

This complaint case has been filed by the complainant against the OPs praying for passing direction upon the OPs for repainting and / or making good of the defects of the painting in respect of the building with further direction upon the OPs to pay Rs. 89,917 as cost of the paints, Rs. 40,000/- as the cost of labour charges and Rs. 2,00,000/- as compensation  for prolonged harassment, mental torture, agony and also litigation cost of Rs. 10,00/-.

Brief fact of this case

Complainant Case : -           The case of the complainant in bird’s eye view is that the complainant has raised two storied building on his purchased land measuring 3  1/3 decimals comprising  in Dag No. 434, Khatian No. 189, lying and situated in  the Mouza Latibpur under P.S. Uluberia, Dist. Howrah  and has been residing  permanently there alongwith her husband and other family members, it is stated that on or about 15.10.2013 the complainant  alongwith her husband went to OP No. 1 who advised  to use the products  of ICI for painting works of the building  and made assurance  about the said products in all respects such as longibility and warranty  etc.  It is also alleged that the OP No. 1 also assured the petitioner to assist in the work of painting in all respects and on being convinced and on good faith the complainant purchased required paints of said ICI products as well as other articles from the said OP on different dates and also got delivery of said articles / paints from the shop of OP No. 1 against payment of Rs. 89,917 by the complainant on different dates and the OP No. 1 also issued tax invoices dt. 31.10.2013.    It is further alleged that it is surprising enough that the said products was purchased and got delivered by the complainant from the shop namely Sarodamoyee Sanitary Mart situated at Sijberia, Uluberia, Howrah and the said tax invoices are reflecting the name of another shop namely “Loknath Enterprise” Uluberia  Kalibari, Uluberia, Howrah has been described  as OP No. 2 of this case.  It is submitted that against the purchase of other articles such as G.I. Pipes, PVC Pipes, the tax invoices reflecting the name of the Sarodamoyee Sanitary Mart although all the invoices were issued by the OP No. 1 in the same process from the shop Sarodamoyee Sanitary Mart.  It is pointed out that as and when the complainant got the invoices for the first time, she enquired about the reason behind it and the said OP disclosed that both businesses are operated by him and also assured that there would be no problem over the same.   According to the case of the complainant she completed the painting works with the said purchased articles by engaging  huge number of labours under supervision of the OP No. 1 and accordingly the complainant had to incur  further expenses of Rs. 40,000/- towards labour charges.  It is further alleged that in the 1^st week of April, 2014 the petitioner / complainant noticed for the first time that the painting  of the building became faded and some parts has been collapsed and deformed / fainted and without any delay the complainant informed the matter to the OPs but unfortunately  no step was taken but on the contrary the OPs did not response in spite of repeated representation made by the complainant and her husband and thereafter a written representation was sent  by the complainant through  her husband but after killing  of many times  the OP verbally expressed his inabilities and refused to do anything on 15.05.2015.  It is also submitted by the complainant side that thereafter the complainant through her Advocate Mr. Debabrata Ghosh sent a notice dt. 20.05.2015 by registered post with A/D to the OP No.1 asking him to take immediate steps over the said matter and in order to avoid the future multiplicity and complexity against the said notice was also sent to the OP No. 2 and the said notice was duly received by OP No. 1 but he noticed as sent to the OP No. 2 was returned with endorsement “address cannot be located”.  According to the case of the complainant side there was no physical  existence of the said shop at the address and the OP No. 1 intentionally and willfully in order to practice  fraud upon the petitioner as well as to other customers used to issue  the invoices  in the name  of OP No. 2 which has been highlighted by the complainant side  that the OP No. 1 has neither  taken any steps as per assurance of warranty of repainting / making good of the defects of painting  in respect of the building of complainant in order to return the amount which has been incurred  by the complainant.  It is also alleged that the material as supplied by OPs are not up to the mark and for that reason the said painting of the said building was faded / collapsed / deformed and due to foul play on the part of the OPs in respect of supply of material, violation of the warranty as assured at the time of purchase the OPs are negligent and has committed unfair trade practice and deficiency of service.  For all these reasons the complainant has filed this case as per prayer highlighted in the complaint petition.

Defense Case:-    The OP Nos. 1 & 2 have been contesting  this case  by filing written version denying each and every averments which have been highlighted  in the complaint petition and the specific  case of the OPs in a nutshell  is that the case of the complainant is not maintainable as there is no cause of action and this case is at barred for mis-joinder  and non-joinder  of Parties and this District Commission  has no jurisdiction  to try this case.  It is pointed out that Sarodamoyee Sanitary Mart deals  in sanitary goods, pipe fittings etc. under the proprietorship of Smt. Debjani Pahari and Loknath Enterprise is the reseller of paints and hardware goods under the proprietorship of Shri Biswanath Dash  and accordingly the name of the OP No. 1 is required to be deleted it is also the defense case that the main problem was occurred  when 20% area  where the paint was applied and the same was  faded / deformed / damaged  due to dampness of the surface and no paint will last long on damp surface without proper surface preparation.  It is also pointed out that the manufacturing company “AKZO Nobel India Limited” conducted enquiry twice and submitted report and as per report submitted by the above noted company the paint of the said building at 20% area has been damaged / deformed / faded due to dampness and for unprepared surface.  It is described by the OPs that there is no fault, negligence, unfair trade practice or deficiency of service on the part of the OPs.  The complainant is solely responsible for deformities / fading and causing damage of the painting at 20 % area.  It is further alleged that against the notice of Ld. Advocate issued by the complainant and also in respect of the notice of the husband of complainant, Ld. Lawyer Shri Malay Kr. Sarkar replied and categorically mentioned that the colour faded out due to dampness of the wall.  For all these reasons the OPs claimed that the complainant is not entitled to get any compensation or relief in this case.  

     Points of consideration

On the basis of the pleadings adopted by the complainant side and OPs in this case, this District Commission for the interest of proper and complete adjudication of this case is going to frame the following points of consideration :-

1. Is this case maintainable in its present form, fact and in the eye of law?
2. Whether this District Commission has territorial and pecuniary jurisdiction to try this case or not?
3. Whether the complainant is a consumer under the OPs or not?
4. Whether there is any cause of action for filing this case or not?
5. Whether this case is barred by limitation or not?
6. Whether the complainant is entitled to get the award directing the OPs to pay the amount of Rs. 89.917/- and whether the complainant is entitled to get compensation, litigation cost, damage etc. or not?
7. To what other relief / reliefs the complainant is entitled to get in this complaint case?

Evidence given by the parties

In order to prove this case the complainant has submitted evidence on affidavit and against the said evidence on affidavit the OPs have filed interrogatories to which the complainant has given reply. On the other hand in order to disprove the case of complainant the OPs also have produced evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories to which the OPs also have given reply.

In addition to the evidence on affidavit filed by the parties both the complainant and OPs also have filed documents in support of their case.

Argument highlighted by parties

In course of argument the complainant and OPs in compliance of the provisions of Consumer Protection Act have filed Brief Notes of Argument.  In addition to filing of Brief Notes of Argument the complainant and OPs also have highlighted verbal argument and pointed out legal provisions.

Decision with reason

The points of considerations adopted in this case are interlinked / or interconnected with one another.  For that reason and also for the interest of convenience of discussion all the points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of arriving at just and proper decision in respect of the above noted points of consideration adopted by this District Commission in this case, there is necessity of making scrutiny of the evidence on affidavit filed by both parties alongwith their interrogatories and reply and there is also necessity of making scrutiny of the documents which have been filed by both sides in this case.

On close examination of the material of this case record as well as evidence on record, this District Commission finds that the complainant has impleaded to retailers / shopkeepers as parties of this case but it is very important to note that the manufacturer of the product namely “AKZO Nobel India Ltd.” has not been impleaded by parties in this case in spite of getting sufficient opportunity and in respect of the fact that the OPs highlighted this point in their written version.  This matter is clearly depicting that this complaint case is bad for non-joinder of parties and so it is crystal clear that this complaint case is not maintainable in the eye of law.

Moreover, in this case the complainant has adopted the plea that due to supply of defecting materials the colouring / painting of the building has been faded, collapsed, deformed but in support of such point of contention the complainant side has not filed any prayer  for expert examination by any Civil Engineer particularly when the OPs has adopted the defense alibi that they have  examined the affected portion by an expert and the said expert has opined  that due  to dampness the colour / painting of the building has been faded / collapsed / deformed .  In order to overcome the report submitted by the OPs the complainant side has neither filed any prayer for expert examination of the said building by engaging Civil Engineer nor prayed for Local Inspection Commission to prove the matter.

This matter is clearly reflecting that the case of the complainant has not been proved by way of producing satisfactory evidence.

A cumulative consideration of the above noted discussion goes to show that this case is not maintainable in the eye of law and the complainant has failed to prove his case beyond any shadow of doubt.  Thus this District Commission has no other alternative but to dismiss this case.

In the result, it is accordingly

ORDERED

That this complaint case be and the same is dismissed on contest.  No order is passed as to cost.

Let a free copy of this judgment be handed over to the Parties or to their Agents or Ld. Lawyers.

Let this Judgment / Final order be uploaded in the official website of this District Commission.

Dictated & corrected by me

  President