West Bengal

Birbhum

CC/14/99

Uttam Kr Mondal - Complainant(s)

Versus

1) Kesto Roy Roy Hardware - Opp.Party(s)

Sanjit kr Acharya

21 Sep 2022

ORDER

Smt. Sukla Sengupta .President.

            This is an application filed by the complainant Uttam Kumar Mondal, Under Section 12 of Consumer Protection Act, 1986.

            The fact of the case in brief is that the complainant being a resident of Birbhum under the jurisdiction of this Forum/Commission has filed this case alleging that the OP members are also running their business under the jurisdiction of this Forum.

            It is further stated that the complainant purchased PVC pipes from the OP No. 1, manufactured by OP No. 2 for installation of a submersible pump. For that purpose the men of the complainant bored upto 300 i.e. death upto water level.

            It is further stated that the complainant purchased the PVC pipes in different diameter i.e. PVC 160' in length and 4" diameter 40' in length and 3" diameter, PVC filter 100' in length and 3" in diameter.

            The complainant made the aforementioned PVC pipes in different length and diameter and concealed the SMP of 1 hp manufactured by Crompton Greaves.

            That all the PVC pipes except three pipes of 6 meter at length have been crimpled under the ground. The Head mechanic, namely, Najrul Haque of Sian tried to pullout the crimpled pipes, but, could be able to put out only one crimpled pipe. The mechanic was confused to see that inspite of boring upto 300' meter and used the pipes of same length but, it was not filled up. Then, on examination he tried to pullout the pipes already erected but succeeded to pull out only one crimpled pipe. He also failed to pull out the SMP upon the surface.

           

It is alleged by the complainant that the PVC pipes were crimpled due to manufacturing defects and which caused financial damage to the SMP of the complainant which is submerged and it also caused financial damage to the complainant.

            It is further stated by the complaint that he visited the shop of the OP No. 1 and informed the matter, in detail. Also informed that the PVC pipes purchased from him have been crimpled in the boring SMP which is submerged and has not been pulled out. So the complainant claimed to restore the boring and to compensate him. The complainant further stated that he incurred expanses of Rs. 83,246/- for the defective PVC pipes. But the OP did not pay any heed to his word.

Hence, this case is filed by the complainant with prayer to pass an order directing the OP members to pay a sum of Rs. 83,246/- and also give a direction to the OP members to pay Rs. 10,000/- as compensation for harassment, mental pain and agony along with litigation cost of Rs. 5,000/-

            The OP No. 1 as contested the claim application by filing a W/V denying all the material allegations leveled against him.

The case has run exparte against the OP No. 2 vide the order No. 2 dated 11-09-2014.

It is the case of the OP No. 1 Roy Hardware that the complainant has no locus standy and cause of action to file this case. As per OP’s case the case is not maintainable in it’s present form and law.

It is alleged by the OP No. 1 that the complaint has suppressed the material fact and made false allegations against the OP No. 1.

It is the Ops case that on 21/07/2014 the complainant visited the Roy Hardware. OP No 1 shop alone with an intension to see the PVC pipes for using in the 300 ft. depth boring in his residential house at Bolpur. Then the proprietor of Roy Hardware told the complainant either to purchase G.I pipes and heavy filter or to purchase scheduled 80 thickness PVC pipes and heavy filter, suitable for using in the said 300 ft. depth boring and also shown him various types of pipes but, defying the advice of the proprietor of Roy Hardware, the complainant decided to purchase cheap casing/covering pipes, which is known as “Casing Medium” or “Medium”, at that time also the proprietor of Roy Hardware again alert the complainant that such type of PVC pipes would not be suitable for 300 ft. depth boring. It might he crushed due to pressure of soil.

It is further stated by the OP No. 1 that on 24/07/2014 the complainant informed him over telephone that the PVC pipes were crimpled in the bore well due to manufacturing defect and also asked for remedy. Then the OP No. 1 advised the complainant to inform the matter to the OP No. 2 without delay because the OP No. 2 Upendra Plast Co. would replace the crimpled/defective PVC pipes and the crimpled/defective PVC pipes would be returned by the complaint to the OP o. 1 as early as possible.

 

 

 

 

It is alleged by the OP No. 1 that though the complainant assured the OP No. 1 that he would return those crimpled/defective PVC pipes to the OP No. 1, but ultimately did not return the same. For the reason best known to him and without giving any prior notice to him, he initiated this case.

It is also the Ops case that the OP No. 1 is a mere retailer. He duly purchased the pipes from the company and sale it to the customer. But, the OP No. 1 is not manufacture. So, the OP No. 1 is not answerable in respect of crimpled PVC pipes caused due to manufacturing defects which is also caused the damages of the submersible pump of the complainant. Rather the (OP No. 1) was ready to replace the defective PVC pipes on received of the crimpled pipes from the complainant. But the complainant did not return the same. So, there is/was no deficiency of service on the part of the OP No. 1. The OP No. 1 further stated in his written version that no expert report has been filed by the complainant the PVC pipes in question. Rather from the hand written money receipt dated 22/07/2014 it is found that being satisfied about the boring work the complainant paid in full to the mechanic. If that be so these there was no defect in the PVC pipes. Most probably the complainant made the work by an unskilled mechanic so the problem arose and there is/was no fault or deficiency on the part of the OP No. 1. So the petition of complaint is false and he should be dismissed with cost.

In view of the above stated facts and circumstances following issues are framed:

Issues

1. Is the case maintainable in it’s present form and law?
2. Has the complainant/petitioner any cause of action to file this case?
3. Is the complainant/petitioner is a consumer as per CP Act 1986?
4. Is there any deficiency in service on the part of the OP members?
5. Is the complainant entitled to get the compensation as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?

   Decision with reason.

                        All these issues i.e. issues No. 1 to 6 are taken up together for convenience of discussions and to avoid unnecessary repetitions.

                        In order to prove his case the complainant examined himself an P.W. 1 and the also submitted some documents which have been brought into evidence as annexures.

                        On the contrary the OP No. 1 also adduced evidence as OPW 1 in support of it’s case.

                        The OP No. 2 did not contest the case and it was run exparte against OP No. 2.

                        From the facts and circumstances of the case and also evidence on record it appears that both the parties to this case are residents of the District Birbhum and the OP members are also running their business under the jurisdiction of this Forum.

                       

 

 

                        The valuation of the subject matter of this case is within the permissible limit of this Forum.

                        It is the case of the complaint that he purchased the alleged PVC pipes from the OP No.1 on 21/07/2014 and personally visited the shop of the OP No. 1 on 27/07/2014 with complain that all the purchased PVC pipes except three pipes of 6 meter in length have been crimpled and he requested the OP No. 1 to replace the same and allegedly those crimpled pipes have not been replaced. Thereafter the complainant filed the case on 11/08/2014.

                        So, from the above stated fact and circumstances it can be held by me that the complaint has enough cause of action to file this case and he filed it within the limitation period. So, the case in maintainable in it’s present from and law.

                        Admittedly the complainant purchased the alleged PVC pipes of different diameters for different use from the OP No. 1 manufactured by OP No. 2 after compensation of boring work up to 300 ft. depth in order to erect a submersible pump at his resident.

                        It is also admitted fact that the complainant purchased the aforesaid PVC pipes 160' in length and 4" diameter, 40' in length and 3" diameter, use on 21/07/2014 from the OP No. 1.

                        It is also admitted fact that the OP No. 2 Manager Upendra Plast PVC pipe Manufacturers of the alleged PVC pipes did not contest the case even after getting the notice.

                        It is the case of the complainant that the PVC. Pipes which he purchased from the OP No. 1 were defective and all the except three pipes of 6 meter in length have been crimpled under the ground. The head mechanic Nazrul Haque of sian tried to pull out the crimpled pipes but he could be able to pull out only four pipes out of which three mere in good condition and one was crimpled pipe from the bore which caused financial damage to the compliant.

                        It has already discussed above that the complainant have purchased the alleged PVC pipes from the OP No. 1 and the OP No. 2 is the manufacturer of those PVC pipes.

                        So, the complainant is a consumer under the OP members and the OP members are the service providers.

                        It is the further case of the complainant that when he informed by the mechanic that the PVC pipes mentioned above are found crimpled in the boring well then the mechanic tried to pull out the same from boring well and could be able o pull out only four pipes and of which one was crimpled and other three were in good condition. The mechanic also told him that the pipes already in the boring well are in crimpled condition. Then he went to the OP No. 1 on 21/07/2014 and informed him about the matter and as requested him to replace the same otherwise his work to install the SMP at his residence would be hampered but the OP No. 1 did not replace the name so, the case is filed.

                       

 

 

                        The complainant alleged that there was deficiency of service on the part of the OP members and they did no replace the defective PVC pipes even on request which caused harassment, mental pain and agony to the complainant.

                        Let us see whether there is/was any deficiency of service on the part of the OP members or nor.

                        The OP No. 1 being the dealer and seller of the alleged PVC pipes has contested the case and denied the allegations of the complainant levelled against it.

                        Both in the written argument and oral argument Ld. Advocate for the OP No. 1 categorically stated that the OP No. 1 is in no way responsible for the defect if any, because the OP No. 1 is a mere retailer and he purchased the pipes from the company and sell the same to the customers. He also raised question that why the complainant did not examined the defective pipes by expart?

                        It is also the case of the OP No. 1 that the complainant did not adduce any evidence but from the materials on record it appears that the complainant adduce evidence as P.W. 1 and the OP No. 1 also filed the questionnaires against the same.                                   

                        Ld. Advocate for the OP argued that the manufacturer of the defective PVC pipes should be made party in this case.

                        In support of his say he filed a case law which has been referred in CPJ 1995 (3) 163 LAWS (NCD). Wherein it is observed by the Hon’ble NCD that in case of manufacturing defect manufacturer should be made a party.

                        I am also relying upon the same and in the instant case the OP No. 2 is the manufacturer. But he did not contest the case. So, there is no fault on the part of the complainant in this regard.

                        On the other hand the complainant filed the photograph of the crimpled PVC pipes from which it is found that even a layman been say  by seeing there pipes that it is crimpled. When OP No. 1 stated the complainant on hearing the problem that it was manufacturing defect and he suggested the complainant to inform the matter immediately to the OP No. 2 for getting relief. Then in my considered view the expart report is highly required in case of manufacturing defect. In absence of expart report it cannot be said whether the PVC pipes in question where defective or not.

                        Moreover during the course of argument Ld. Advocate for the OP No. 1 repeatedly submitted that the OP No. 1 asked the complainant to bring the defective pipes to his shop and he will replace the same but the complainant did not bring those defective pipes in question to his (OP No. 1) shop. We have got the support of his say from his written version as well as from the written notes of his argument.

                        On the contrary Ld. Advocate for the complainant admitted the fact that he could not be above to bring those crimpled pipes to the OP No. 1 nor he examined those pipes by an expart. Under

 

 

such circumstances how it could be possible for the OP No. 1 to replace those alleged defective PVC pipes without seeing the same??

                        So, without material proof the OP No. 1 rightly denied to replace the alleged crimpled PVC pipes.

                        On the basis of the above made discussions I am of view that the dispute cropped up at the instance of the complainant. It was his duty to examine the crimpled PVC pipes by an expart and to place the alleged crimpled pipe/pipes along with expart report to the OP No. 1 for replacement of those alleged defective pipes by new one.

                        In this respect Ld. Advocate for the complainant has argued that expart report is not required when it is found that there is manufacturing defect. But it cannot be applicable in general in all circumstances and cases. In the instant case expart report is/was a must. Moreover Ld. Advocate for the OP No. 1 has argued that the complainant is not entitled to get the compensation as prayed for because he did not play his part properly. So, there is/was no deficiency of service on the part of the OP No. 1.

                        I am also of same view with Ld. Advocate for the OP No. 1. In my considered view there is/was no deficiency in service on the part of both OP members rather the complainant has been failed to prove his case beyond reasonable doubt and thus he is not entitled to get the relief.

                        Hence, in view of the discussions made above I am of opinion that the complainant could not be able to prove his case beyond reasonable doubt and is not entitled to get the relief as prayed for.

                        The case is properly stamped.

                        All these issues are thus decided accordingly.

                          Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.C. Case No. 99/2014 be and the same is dismissed on contest against OP No. 1 and  exparte against OP No. 2.

Let a copy of this order be given/handed over to the parties to this case free of cost.