BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.633 of 2014
Date of institution: 03.11.2014
Date of Decision: 08.06.2015
Sewa Singh son of Gopal Singh resident of House No.2631, Sector 79, SAS Nagar, Mohali.
……..Complainant
Versus
1. Art-N-Glass Inc. SCO No.703, Ist Floor, NAC Manimajra, Chandigarh through its Manager Shri Vikas Mahajan.
2. Durga Glass and Plywood, Mohali Village Kumbra, Sector 68, SAS Nagar, Mohali through Shri Amit Aggarwal.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Complainant in person.
Shri Rajshekhar, counsel for OP No.1.
OP No.2 in person.
(Mrs. Madhu P. Singh, President)
ORDER
The brief facts of the present complaint are that the complainant filed this complaint pleading that on 20.04.2013, the OP No.1 and 2 contacted the complainant at the site of House No. 2631, Sector 79, Mohali and offered to supply unbreakable toughened glass of first grade duly guaranteed to last long life for the windows, ventilators and bathrooms. After negotiations, regarding the rates of toughened glass, the complainant agreed to purchase unbreakable toughened glass from the OPs. Complainant made payment of an amount of Rs.1,15,000/- to the OPs after completion of entire job of fitting. That on 31.07.2014, a loud voice of shattering and busting of glass was heard and the complainant found that glass of front window of the house had busted out and shattered into small pieces. The complainant informed OP No.2 about it who visited the site on 01.08.2014 and examined the broken pieces of glass but he did not offer any reason for the shattering and busting of glass. However, he arranged replacement of the shattered glass with other toughened glass of 12mm on fresh payment. Then again on 06.08.2014 and 02.09.2014 other glasses shattered and busted into pieces similarly. OP No.2 informed the complainant that it may happen due to manufacturing defect in the entire lot of toughened glass supplied to the complainant. He, however, got replaced the shattered toughened glass with a new 12mm toughened glass and got it fitted on payment of additional amount to the OP No.2. The complainant issued registered notice to both the OPs on 13.09.2014 pointing out about the unfair trade practice and deficiency of service committed by them. Further on 18.10.2014 another glass shattered and busted out similarly. The complainant supplied photos of broken glass to OP No.2. The complainant paid Rs. 1,15,000/- for glass and fitting of it and additional amount of Rs.41,879/- for replacement of shattered and broken glass with that of the replaced 12 mm glass. Lastly the complainant prayed for acceptance of this complaint alongwith costs and sought directions from this Forum to the OPs to return the amount of Rs.1,15,000/- charged by them with interest of 12% per annum and also to pay additional amount of Rs.41,879/- which was paid to them for replacement of the disputed glass. He further sought directions to the OPs to pay the damage for the harassment, financial loss and mental agony suffered by complainant amounting to Rs.1.00 lac and also to pay Rs.25,000/- as costs of notice besides the costs of the proceedings before the Forum.
2. After the service of notice, OP No.1 filed reply to the complaint taking preliminary objections that there is no ‘privity of contract’ between OP No.1 and the complainant. There is no direct nexus of supply by OP No.1 to the complainant. OP No.1 consigned the material to OP No.2 and not to the complainant. OP No.1 never gave ‘guarantee and warrantee’ to the complainant as alleged by him in the complaint. OP No.1’s any ‘guarantee and warrantee’ given to OP No.2 cannot be transferred to the complainant. OP No.1 received the disputed four pieces of glasses from Saint Gobain India Ltd., who is manufacturer of the disputed glass, is a necessary party which is not impleaded as party in the present complaint. Complainant having encountered with three broken glasses on dated 31.07.2014 and 06.08.2014, still ventured into the replacement of the 4th glass shattered on 02.09.2014 after making payment of Rs.10,000/- to OP No.2. Hence, it reveals a faith in the service and affirms the ‘privity of contract’ between the complainant and OP No.2. On merits also OP No.1 denied all the allegations made against him by the complainant. Lastly OP No.1 prayed for dismissal of the complaint with costs.
3. OP No.2 also filed his reply to the complaint. On merits, OP No.2 stated that OP No.1 is the manufacturer and supplier of the disputed toughened glass supplied to the complainant. The rate of cost and quality of the said glass supplied to the complainant was settled by OP No.1 with the complainant. Only OP No.1 who is manufacturer and supplied is responsible for the cost and quality of the toughened glass supplied to the complainant through OP No.2. The total amount received from the complainant was transferred to the account of OP No.1. OP No.2 also admitted contents of para No.6 to 8 and 10 of the complaint. OP No.2 stated that OP No.1 promised to visit House No.2631, Sector 79, SAS Nagar (Mohali) on 20.10.2014 to investigate the reasons for the automatic breakage of toughened glass supplied by OP No.1 but OP No.1 failed to turn up as promised by him inspite of repeated requests made to him. OP No.2 arranged the replacement of broken glasses on payment of additional cost of replacement. Lastly OP No.2 stated that only OP No.1 who has supplied the toughened glass to the complainant is responsible and liable to refund the cost of glass besides loss and damages suffered by the complainant.
4. Evidence of the complainant consists of his affidavits Ex.CW-1/1 and CW-1/2; affidavit of Gauri Shankar, Painting Contractor Ex.CW-1/3; affidavit of Narinder Singh, building contractor Ex.CW-1/4 and copies of documents Ex.C-1 to C-9
5. Evidence o OP No.1 consists of affidavits of R.C. Khanna, its DGM Finance & Admn. Ex.OP-1/1 and Ex.OP-1/2; affidavit of Anand Singh Negi, DGM Operation Ex.OP-1/3 and copies of documents Ex.OP-1/4 to OP-1/11.
6. Evidence of OP No.2 consists of affidavits of Amit Aggarwal Ex.OP-2/1 and Ex.OP-2/2.
7. We have heard complainant and OP No.2 in person and learned counsel for OP No.1 and gone through the written arguments filed by them.
8. It is admitted fact that the complainant has purchased toughened glass from OP No.2 against invoice dated 09.05.2013 Ex.C-2 and dated 22.05.2013 Ex.C-3. The toughened glass being manufactured by OP No.1 having been sold by OP No.2 to the complainant against the said invoices. The payment for purchase of the toughened glass has been made by the complainant directly to OP No.2 on two occasions, one on 21.04.2013 as advance payment of Rs.50,000/- and on 16.05.2013 Rs.50,000/- against the order placed by the complainant with OP No.2. OP No.2 has accepted the receipt of these two payments as is evident from statement of account maintained with Allahabad Bank. The OP No.2 has made further payment to OP No.1 for purchase of goods from OP No.1 on behalf of the complainant. OP No.1 has also acknowledged the receipt of payments of Rs.56,602/- on 09.05.2013 and Rs.27,025/- on 22.05.2013 as per statement of account produced by OP No.1 Ex.OP-1/4. Thus, it is ample clear that OP No.1 being the manufacturer has sold the articles to OP No.2 who has further sold the same to the complainant against due payment. Admittedly the complainant has paid Rs.1.00 lac to OP No.2 whereas OP No.2 has paid Rs.93,627/- to OP No.1. The grievance of the complainant is that after fixation of toughened glass by OP No.2 the glass has broken down and started chipping off on 31.07.2014 and the complainant immediately informed OP No.2. Instead of conducting inspection and taking cognizance of the complaint of the complainant and taking up the matter with OP No.1, OP No.2 replaced the shattered glasses with other toughened glass of 12mm on fresh payment. Another glass of back window was shattered on 06.08.2014. Again OP No.2 instead of taking up the matter with OP No.1 sold another set of glass on fresh payment to the complainant. On third occasion on 02.09.2014 another glass fitted in the window of master bed room got busted and again OP No.2 rather than taking up the matter with OP No.1 decided to sale replaced glass by charging additional amount for the fresh glass from the complainant. In all the three occasions i.e. from 31.07.2014 to 02.09.2014 the complainant has to shell out additional sum of Rs.31,879/- plus Rs.10,000/- vide Exs.C-4 and C-5 respectively due to the defective toughened glasses sold to him on earlier occasions by the OP Nos.1 and 2. The complainant has admittedly sent the legal notice to both the OPs and both the OPs have acknowledged the receipt of the same and still both the OPs have failed to proper and effective after sale service to the complainant. The loss to the complainant did not stop here only, even on 18.10.2014 and 02.11.2014 two more glasses chipped off and busted and the complainant informed about the same to the OPs causing him total loss of Rs.1,15,000/- besides mental agony etc.
9. It is admitted by OP No.1 in Para 10 of its reply that it has received the complaint from the complainat on the mobile number of its official but decided to keep quiet because there is no privity to contract. Such a plea of OP No.1 is of no help to him as admittedly the OP No.1 is being the manufacturer i.e. having applied the process of toughening of glass, the base glass of being Saint Gobin Brand as admitted by the OPs, the base glass as well as the application of processing of toughening has been undertaken by OP No.1 and the toughened glass i.e. the final product has been sold by OP No.1 being the manufacturer to OP No.2 for further supply and fixation of the same as per measurements and requirements of the complainant. Meaning thereby the OP No.1 has received due consideration from the complainant through OP No.2. Therefore, OP No.1 being privity to the contract is legally bound to provide after sale service to the complainant. In the present case OPs have miserably failed throughout. So much even during the course of proceedings when ample opportunities were granted to OP No.1 to inspect and give its technical report being the manufacturer it has failed to do so.
10. So far as OP No.2 is concerned, admittedly he has received the consideration from the complainant for purchase and supply of goods being manufactured by OP No.1. The OP No.2 has admitted having received the final delivery from OP No.1 has done the fixation job of toughened glasses at appropriate places and the complainant has no grievance regarding the quality of fixation/skill and craftsmanship of skill and fixation of toughened glass by OP No.2. OP No.2 has further admitted having received the complaint regarding shattering and busting of toughened glasses from the complainant and without getting any expert opinion about the damaged property and without any report to the manufacturer regarding the damage suffered by the complainant, OP No.1 from its own volition has come to the conclusion that the glass supplied by OP No.1 is defective, inferior and sub standard as it contained impurities such as nickel suplhas etc. as has been mentioned by OP No.2 in its written arguments. OP No.2 has not even disclosed his qualification entitling him to give such remarks/observations regarding the quality of toughened glass. Thus both OP Nos.1 and 2 have failed to prove that they have sold defect free article to the complainant.
11. On the other hand the act of OP No.2 selling fresh glasses against the broken glasses and that too after charging additional amount of fresh articles is per se proves the case of the complainant that earlier sold articles by OP Nos. 1 and 2 were defective which needed replacement which has been done by OP No.2 by charging extra amount from the complainant. Thus, the acts and conducts of the OPs in the absence of any cogent evidence/expert evidence to show that the article sold to the complainant are defect free, is an act of deficiency in service and unfair trade practice which is further strengthen due to lack of proper and after sale service to the complainant by the OPs. Thus, the acts of omission and commission on the part of the OPs are deficiency in service and unfair trade practice on the part of the OPs for which the complaint deserves to be allowed and the complainant deserves to be compensated.
12. In fact it was the bounden duty of both the manufacturer OP No.1 and the dealer OP No.2 to attend to the defects pointed out by the complainant and to make the product defect free which in the present complaint both the OPs have failed. Since they have not done either, therefore, they should refund the total cost of the toughened glass as per Ex.C-2 and C-3 plus Rs.15,000/- separately on 17.06.2014 vide cheque.
13. In view of above discussion, the complaint is allowed with the following directions to the OPs to:
(a) refund Rs.1,15,000/- (Rs. One lac fifteen thousand only) alongwith interest @ 9% per annum from the dates of respective payments till actual refund.
(b) pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) on account of mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 08, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
