CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 11th day of August 2014
PRESENT : SMT. SEENA. H, PRESIDENT
: SMT. SHINY. P.R, MEMBER
: SMT. SUMA. K.P, MEMBER Date of filing:25/06/2013
CC / 108 / 2013
Sunitha, W/o.Palaniswamy,
“Nikhil Nivas”, Devi Nagar, : Complainant
Thathamangalam, Chittur Taluk,
Palakkad- 678 102
(By Adv.P.Gopinath)
Vs
Abbas, Ply Centre,
Panamkalam, Kalmandapam,
Palakkad. : Opposite party
(By Adv.G.Jayachandran)
O R D E R
By Smt. Suma. K.P, Member,
Brief case of the complaint :-
The case of the complainant is that he had purchased plywood and other accessories to the tune of Rs.1,34,575.36/- from the opposite party. The opposite party had given a bill to the tune of Rs.42,671.36/- and for the balance of Rs.91,904/- the opposite party have not given a bill. The complainant had paid Rs.40,000/- by means of a cheque drawn on the complainant’s husband’s account on ICICI Bank, Palakkad which was encashed by opposite party on 11.5.2011. The articles were delivered on 21.5.2011. The plywood was fixed during August, 2011. The opposite party had given a guarantee period of 3 years. The complainant had expended money for fixing the plywood and the plywood became damaged due to fungal attack within few months of fixing. The complainant sent a lawyer notice requesting for return of the sale consideration as well as claiming damages which was declined by the opposite party. The complainant then filed a complaint before the Forum seeking an order so as to direct the opposite party to refund Rs.1,34,575.36/- to the complainant being the value of articles purchased along with such other damages spend for fixing the plywood along with Rs.1,00,000/- as compensation for the mental agony caused to the complainant with cost of this complaint.
Complaint was admitted and notice was issued to opposite party for appearance. Opposite party entered appearance through counsel and filed version stating the following contentions. Opposite party states that goods for more than Rs.2,00,000/- was delivered to the complainant and Rs.1,80,784/- is due from the complainant to the opposite party. He further contented that manufacturer is a necessary party to the proceedings, since he was only a dealer of the plywoods. Hence the complaint is bad for non joinder of necessary party. There is no deficiency of service from the part of opposite party and hence the complaint had to be dismissed.
Complainant filed an application to appoint an expert commission to prove the damages. Mr.Sherif.A.M, Chartered Engineer was appointed as expert commissioner. He had inspected the alleged plywood and filed a detail report. Opposite party filed objection to Commission Report. Both parties filed their respective chief affidavits. Complainant filed application for examination of expert commissioner. Opposite party filed petition for cross examination of complainant. Both the applications were allowed. Complainant was examined as PW1 and Exts.A1-A4 was marked. The expert commissioner was examined as CW1. And his report was marked as Ext.C1. Opposite party was examined as DW1 and Ext.B1-B2 series was marked. Evidence was closed and the matter was heard.
The issues to be considered are
- Where the supplied goods are defective or not?
- If so what are the reliefs?
ISSUES 1 &2
We have perused the documents as well as the expert commissioner’s report produced before the forum. Commissioner has stated that on close inspection of the damaged items the damages were due to fungus and termite attack and subsequent the items being converted to kind of powder material which is a manufacturing defect. He had also stated that the wardrobs and showcase are completely damaged beyond repair. Damage to the structure of the house is also caused due to the damaged plywood. During cross-examination of the expert Commissioner, the commissioner had deposed that the defect in the plywood is not due to the moisture. He had also stated that there was no ISI mark on the plywood. The opposite party had admitted during cross examination that his staff had gone with the Commissioner and had also seen fungal attacks. The opposite party’s case was that the fungal attack was due to presence of moisture and non application of anti termite and wallputty. But the expert Commissioner has opined that the fungal attack was due to manufacturing defect. The opposite party had omitted to mention the name of the manufacturer in the version or in the reply notice. Opposite party admits that he had purchased it from a wholesaler and that “summer green, perfect, jack wood” are the brand names and he does not divulge the name of the company which owns the above mentioned brand names. From the purchase bill issued by the opposite party the name of the manufacturer or the wholesaler from whom he purchased the articles cannot be traced out. The expert had deposed that the plywood examined by him did not have ISI marks. If the opposite party had grievance against the manufacturer company he would have impleaded the manufacturer as he claims indemnity from products purchased from the manufacturer. No evidence was brought out from the part of opposite party to contradict the evidence adduced by the expert commissioner. However there is no dispute regarding the damages caused to the purchased articles. The opposite party had not denied that the supplied goods is free from any defect. According to the commissioner that the defect occurred due to the manufacturing error. The Commissioner had estimated an amount of Rs.1,25,000/- being the monitory liability for repairing the damaged plywood.
In the above view of the matter we are of the opinion that the complainant had proved her case beyond reasonable doubt. Hence the complaint is allowed. However there is dispute regarding the consideration aspects and only an amount of Rs.40,000/- is admitted by the opposite party. Consideration aspect is pending before competent civil court. Hence we are not in a position to refund the purchase value as claimed in the complaint. The commissioner has assessed an amount of Rs.1,25,000/- for repairing the damaged plywood. Hence the complaint is partly allowed and we direct the opposite party to pay an amount of Rs.1,25,000/- as damages for the cost of repair of the damaged articles, along with Rs.10,000/- as compensation for the mental agony caused to the complainant by the supply of faulty materials and Rs.5,000/- as cost. Aforesaid amount shall be paid within 1 month from the date of receipt of this order failing which complainant is entitled for 9% interest per annum for the whole amount from the date of order till realisation.
Pronounced in the open court on this the 11th day of August 2014
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
A P P E N D I X
Exhibits marked on the side of the complainant
Ext.A1 - Original bill issued by the opposite party to the complainant dt.21/04/2011
Ext.A2 - Bank statement of the complainant’s husband issued by ICICI Bank, Palakkad.
Ext.A3 – Copy of the lawyer notice sent by the complainant to the opposite party with postal receipt and acknowledgement card.
Ext.A4 – Original reply notice sent by the opposite party to the complainant’s counsel.
Exhibits marked on the side of the opposite party
Ext. B1 – Copy of complaint filed by opposite party before Munciff Court, Palakkad in O.S.No.339/2013.
Ext. B2 Series – True Copy of Bills of opposite party (11 Nos)
Witness examined on the side of complainant
PW1 – Sunitha
Cross examination of Commissioner
CW1- A.M.Sheriff
Commission Report
C1- A.M.Sheriff
Witness examined on the side of opposite party
DW1- Abbas.A
Cost allowed
Rs.5,000/-
