Kerala

Idukki

CC/119/2017

Willson - Complainant(s)

Versus

Thottathil Paint Magattukavala - Opp.Party(s)

24 Aug 2023

ORDER

DATE OF FILING : 15.6.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 24^th day of  August,  2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.119/2017

Between

Complainant                                          :     Winson Paul,

                                                                   Varikkattu House,

                                                                   Chilavu P.O., Thodupuzha.

           (By Adv: K.M. Sanu)

And

Opposite Parties                                     : 1. The Proprietor,

                                                                   Thottathil Paints,

                                                                   M Tower, KKR Junction,

                                                                   Mangattu kavala, Thodupuzha P.O.

           (By Adv: M. Animon)

      2. The Manager,

                                                                   HI Build Coating Paths,

                                                                   Pettekkattu Buildings,

                                                                   HMT Road, Kanayannoor,

                                                                   Kalamassery P.O., Kochi – 683 503.

                                                                3. The Managing Director,

Indigo Paints,

                                                                                    HMT Road, HMT Colony,

                                                                   Kalamassery, Aluva.

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

Complainant had purchased paint for painting his house having an area of 2000 sq. ft., from 1^st opposite party, who is the proprietor of M/s. Thottathil paints functioning in Mangalam Kavala, Thodupuzha.  2^nd opposite party is Manager of HI Built Coating Paths, a concern functioning in Kalamassery, Kochi.  Subsequently, upon application by complainant, on the basis of contentions raised by O.P.2 that it had amalgamated with 3^rd O.P., Managing Director of M/s. Indigo Paints, situated in Kalamassery, Aluva was impleaded as 3^rd O.P.  About 70000/-Rupees worth of paint and accessories were purchased by complainant, in between February and March of 2017.  At the time of                                                                                                            (cont….2)

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purchase, complainant was made to believe that the colour of paint will not fade and it is algae / fungus proof.  A warranty of 5 years was also said to be given for the product.  Painting work was entrusted to one Shaji, who was specially trained for painting by 2^nd and 3^rd opposite parties.  Painting  was done as per the directions given by opposite parties.  Apart from spending Rs.70,000/- for paint and accessories, complainant had expended Rs.1 lakh as labour charges.  Within 2 weeks after completion of painting, it had started to fade.  Sports had developed in some parts also.  Fading and spots were spread across the house, wherever the paint was applied.  This was informed to 1^st opposite party.  Thereafter company personnel had come and inspected the building.  They were convinced about fading and developments of spots on the painted surface.  However, nothing was done by opposite parties, though they were contacted repeatedly.  Complainant had purchased the paint believing the representations made that the paint had several qualities and had 5 years warranty.  Painting was done by a person who was specifically trained by opposite parties.  Despite this, paint had faded in several parts and in some parts spots have developed.  This was caused due to inferior quality of paint.  Opposite parties had made misrepresentations about the qualities of paint which it never had.  They had refused to rectify the defects also.  These acts constitute defect in goods and service and also unfair trade practice.  Complainant therefore prays for a direction against opposite parties to reimburse all expenses incurred by him and to be incurred by him for repainting the house.  He seeks a compensation of Rs.2 lakh for deficiency in service and Rs.5000/- towards litigation costs. 

 

2. 3^rd Opposite party has not appeared.  1^st and 2^nd opposite parties have filed separate written versions.  Case of 1^st opposite party, as disclosed from its written version is briefly discussed hereunder :

 

1^st opposite party denies the contentions that complainant had spent Rs.1,70,000/- towards expenses for painting his house.  Further contentions that painting work was done by one Shaji, who has been specifically trained / provided by opposite parties are also denied being false.  Complainant himself has arranged a painter of his own choice.  1^st opposite party further contends that upon receiving information about fading and development/surfacing of spots upon painted area from complainant, 2^nd opposite party was intimated about the same.  Technical experts had then visited the building of complainant and noticed certain construction defects of the building, which were not corrected even after this was brought to his notice.  There is no deficiency in service, defects in goods or unfair trade practice from the side of 1^st opposite party.  Paints supplied to complainant were in the same condition as received from 2^nd opposite party, who is the manufacturer.  1^st opposite party is not a proprietorship concern, but is a firm called Thottathil Paints, comprising of 3 partners.  Since firm has not been impleaded, case is bad for jon-joinder.

                                                                                                          (cont….3)

 

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3. Contentions of 2^nd opposite party as disclosed from its written version are briefly narrated hereunder :

 

Complainant had purchased paint, as per the documents produced by him only for an amount of Rs.63,987/-.  Nothing has been produced by him to show that paint was inferior in quality or there was any defect in its manufacturing.  2^nd opposite party admits that company gives 5 years guarantee for its products, but upon certain conditions which have to be complied by customers.  The paint is formulated to give 5 year anti algae properties only under normal conditions which are :

1. When the walls did not have cracks, as this leads to water seeping in and when water tries to escape, it causes white spots called efflorescence and this will cause film failure;
2. When the surface has constant dampness, because the biocides in the paint film will be ineffective if the wall remains constantly damp leading to algae / fungal growth in these areas.  If building has cracks or issues of dampness, these must by fixed before painting.

 

    2^nd opposite party submits that 5 year guarantee will be available only if these conditions are fulfilled.  Upon receiving information regarding the complaint, from 1^st opposite party, sales officer and manager of 2^nd opposite party along with technical team had visited the site and found some issues in the surface of building where painting was done.  White patches were found on the paint film, formed as a result of efflorescence, since walls had cracks in many areas and water was seen seeping in through the cracks.  This water will try to escape from the wall and in the process brings out salts and minerals in the plaster and deposit those on the paint surface.  Constant dampness was found on sun shades since water collected had became stagnated promoting algae / fungus growth.  Water was also leaking and due to this, wall adjacent to it was constantly wet.  This had  also promoted algae growth.  2^nd opposite party submits that if these issues are corrected, then alone paint will retain its qualities and remain unaffected, without fading or spotting.  Though the defects in construction were pointed out, complainant was not willing to rectify those.  He had instead approached this Forum with this complaint.  Intention is to gain monetary benefits.  It is incorrect to say that a painter specifically trained by 2^nd opposite party had painted the house.  So far, company has not provided any technical training for painting as mentioned in the complaint.  Only painters meets are arranged and those attending the meeting are made aware of company products and its benefits.  2^nd opposite party lastly contended that 2^nd opposite party company  is no longer in existence.  It has amalgamated with ‘M/s. Indigo Paints Pvt. Ltd.’.  On these premises 2^nd opposite party prays for dismissal of complaint with compensatory costs.

 

                                                                                                              (cont….4)

 

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     This complaint was filed on 15.6.2017.  We notice that an application for appointment of expert commissioner was filed by complainant on 30.5.2018, nearly  one year after the filing of complaint.  A panel was also submitted naming only one expert from the side of complainant.  Though this was allowed and commission order was issued to expert, he had not carried out the work.  Subsequently, it is seen from the proceedings that adjournment was sought for filing fresh commission application.  Proceedings of the case thus reveal that on 26.11.2021, when there was partial withdrawal of lock down regulations in the back ground of Covid pandemic, complainant’s counsel had submitted that complainant was not interested in submitting panel as there is much delay and hence paint quality cannot be ascertained.  We notice that the expert appointed earlier had given an explanation for not doing the work owing to pressure of his office work.

 

   4.  Therefore, case was posted for evidence.  On the side of complainant, he himself was examined as PW1.  Exts.P1 and P2 were marked on his side.  Ext.P1 series are 13 number of invoice print outs pertaining to purchase of paint and accessory materials.  Ext.P2 is a wrapper on the container of paint which contains the warranty for the product.  Thereafter sales manager of 2^nd opposite party was examined as RW1.  No documents were admitted from the side of opposite parties.  Evidence was closed and both sides were heard.

 

   Complainant had challenged evidence tendered by RW1 on the premises that he is giving evidence as an employee of a company which is no longer in existence and therefore his evidence cannot be relied upon.  Broadly referring to the allegations in the complaint, able counsel would submit that these are supported by evidence of complainant himself which can be relied upon.   Counsel prays for grant of reliefs as prayed for in the complaint. 

 

   Learned counsel appearing for opposite parties 1 and 2 would submit that 2^nd opposite party is still in party array.  That though the complainant had impleaded the mother company with which 2^nd opposite party company had merged, he has not chosen to delete the 2^nd opposite party from party array.  Besides RW1 was in the team which had inspected the house and has direct knowledge about subject matter.  There is no expert report with regard to quality of the paint and on this ground alone the complaint is to be dismissed.  Learned counsel places reliance upon a decision of hon’ble Supreme Court in the matter of SGS India Ltd. Vs. Dolphin International Ltd. (AIR 2021 SC 4849).  On these premises, able counsel prays for a dismissal of the complaint.

 

     Now the point which arise for consideration are :

1. Whether the goods are defective ?
2. Whether there was any deficiency in service from the side of opposite parties ?
3. Whether complainant is entitled for the reliefs prayed for ?                (cont….5)

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4. Final order and costs ?

 

5.  Point Nos.1 to 3 are considered together :

 

  1^st opposite party has contended that it is not a proprietorship concern, but a firm constituted by 3 partners.  However, 1^st opposite party has not tendered any evidence.  It has not produced partnership deed or a copy thereof.  Hence contentions of non-joinder fail.  As far as 2^nd opposite party is concerned, it had also taken a contention that the case is bad for non-joinder of manufacturer.  This has been answered by impleading the manufacturer.  Hence there is no defect of non-joinder as such. First contention advanced from the side of complainant is regarding non-acceptable nature of evidence tendered by RW1.  His evidence is sought to be thrown overboard only for the reason that 2^nd opposite party has already merged with the 3^rd opposite party company and therefore has no separate existence.  However, complainant has not filed any application to delete 2^nd opposite party from the party array.  2^nd opposite party is still continuing in this complaint as a party.  Complainant has sought for reliefs from all opposite parties.  Apart from this, RW1 has given evidence that he has continued in the employment of 3^rd opposite party and had in fact inspected the residential building of the complainant, which was painted using its product, quality of which is now disputed.  Therefore, we are of the view that the evidence tendered by RW1 cannot be rejected on these premises. 

 

    Evidence tendered by complainant with regard to fading of colour and appearance of spots in various areas of the house which was painted using the disputed quality paint herein is met with contra evidence by RW1.  RW1 has given evidence to the effect that 5 years warranty is not unconditional, but depends upon the proper maintenance of the surface on which the paint is to be applied.  We also notice that there was no subsequent attempt by complainant to furnish a panel of experts for inspecting the quality of paint applied to the house of complaint.  There is no evidence with regard to quality of paint supplied.  Complainant himself has admitted that several factors may affect the paint quality.  Some of these are expertise of painter, manner in which paints are mixed and used, dampness of the surface and keeping  containers open for long periods without using the paint in it.  There is no evidence to show that the building surface was free of dampness or other defects which may affect quality of the paint.  Besides complainant has subsequently pleaded that building was painted by one Shaji, who has been trained by opposite parties.  However, during his cross examination, he has admitted that he had privately arranged the painter on his own.  During further stages of cross examination, complainant has explained that the painter himself has informed him of having received training from the company of opposite parties.  There is no reliable evidence to show that the painter who was employed by complainant had any specific training as such for painting, as contended by complainant.  Though there was an attempt, made belatedly to examine the said person, complainant has not followed it up by securing this person as                                                                                                              (cont….6)

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witness for examination before the Commission, though an opportunity was given.  Evidence of complainant with regard to fading of paint and spots appearing in different portions of building where paint was applied is met with counter evidence by RW1, to the effect that fading and appearance of spots were occasioned with dampness caused due to cracks in the wall and water seepage.  As mentioned earlier, there is no expert evidence to prove that the paint used was of inferior quality.  Decision cited supra is also relevant here.  For these reasons, we find that complainant has not succeeded in proving that paint supplied by opposite party was of inferior quality.  He has also not succeeded in proving any deficiency in service or alleged misrepresentations made with regard to quality of the paint.  Allegations of unfair trade practice also remain to be proved.  Hence we find that complainant is not entitled for the reliefs prayed for.  Point Nos.1 to 3 are answered accordingly.

 

6.  Point No.4 :

 

   In the result, this complaint is dismissed, under the circumstances, without costs.  Parties to take back extra copies, without delay.

 

               Pronounced by this Commission on this the  24^th  day of August, 2023

                                                                                           Sd/-

                                                 SRI. C. SURESHKUMAR, PRESIDENT

                                                                            Sd/-

SMT. ASAMOL P., MEMBER

                  Sd/-

SRI. AMPADY K.S., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Winson Paul

On the side of the Opposite Party :

DW1        -  Sreejith K.S.

Exhibits :

On the side of the Complainant :

Ext.P1 series -  13 number of invoice print outs pertaining to purchase of paint

    and accessory materials. 

Ext.P2          -  Wrapper on the container of paint.

On the side of the Opposite Party :

Nil.                                                                                 Forwarded by Order,

 

 

 

                                                                                  ASSISTANT REGISTRAR