KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL NO.592/2005 JUDGMENT DATED: 27.2.2010 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1.Velliyamattom Rubber Products :APPELLANTS Society Reg.No.1-48/87 Represented by its President, Mathew S/o Joseph, Chakkamkulathu Kalappurayil, Velliyamattom.P.O., Thdupuzha. 2. Rubber Point, Market Road, Thodupuzha represented by its Managing Partner Shaji Joseph S/o Iype Vargheese, Kochukudiyil House, East Kalloor.P.O., Thodupuzha. (By Adv.K.Stephenson) 1. Dominic Joseph, : RESPONDENTS Mandapathil House, Keezhthadiyoor Kara, Lalam Village Meenachil Taluk. 2. Industrial ‘H’ Packers No.259/1 P.K.M.Lane, Athipet Village Ambattur, Chennai 600058. (By Adv.Jomon J Maliekal) JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER By the order dated 18.4.05 in OP.82/04 the CDRF, Idukki has directed the opposite parties to pay a sum of Rs.1,47000/- with cost of Rs.3000/- within 30 days from the date of receipt of the copy of the order failing which the amount would carry interest at 12% per annum from the date of default till the date of payment. It is aggrieved by the said directions that the present appeal is filed by the 1st and 2nd opposite parties. 2. The complainant approached the Forum with the grievances that he is a rubber cultivator having 1250 tapping rubber trees and that on 13.4.04 he has purchased 25Kg of indseal paste and applied the same in his rubber trees and that after few days the barks of the trees were damaged due to the adhesive that was used. Alleging manufacturing defect in the paste and consequential damage occurred to his rubber trees, the complaint was filed praying for compensation to the tune of Rs.8,00,000/- with costs. 3.Opposite parties filed separate versions. The 1st opposite party submitted that the damage was caused not due to the defect of the adhesive but because of the defect on the part of the workers who applied the adhesive and contending that the quantum of compensation claimed is on the higher side, they prayed for the dismissal of the complaint. 4. 2nd opposite party has also filed version contending that the adhesive was manufactured by the 3rd opposite party and that they are not responsible for any damage if any caused to the rubber trees. It was further contended that the 2nd opposite party had sent a representative from the rubber Board to visit the rubber trees and found that only very little damage was caused to the barks of some of the trees. The 2nd opposite party further submitted that the claim was on the higher side and they were not liable to pay any amount. 5. The 3rd opposite party contended that compensation claimed in the complaint is not correct and that the complainant is not a consumer within the meaning of Consumer Protection Act. They also prayed for the dismissal of the complaint. 6. The evidence consisted of the oral testimony of the complaint as PW1 and the commissioner as PW2. The photocopy of the cash bill dated 13.4.2004 was marked as Ext.P1. The opposite parties examined 2 witnesses as DW1 and DW2.On the side of the opposite parties Exts.R1 to R4 were marked. The Commissioner’s report was marked as Ext.C1 and C2. 7. The learned counsel for the appellants vehemently argued before us that the order of the Forum below in directing the opposite parties to pay the amount jointly and severally is per se illegal and unsustainable on the ground that complainant had alleged only manufacturing defect and in a case of manufacturing defect the dealers cannot be held liable for the loss suffered by the complainant due to the manufacturing defect of the product. It is also his case that the appellants were only the retail and whole sale dealers and the product was manufactured by the 3rd opposite party and if at all any amount was to be paid it could be by the 3rd opposite party only. Inviting our attention to the Commissioners report marked Ext.C1 he advanced the contention that if the complainant had removed the adhesive in time and imposed the treatment as advised by the Rubber Board, so much damage would not have happened to the trees of the complainant. The learned counsel has attributed negligence on the side of the complainant/1st respondent also in not taking timely action as it was suggested that the defective adhesive ought to have been removed immediately. The learned counsel has relied on the decision dated 14.5.09 of the Hon’ble National Commission in RP.851/04 wherein it is held that in a case of manufacturing defect, the dealer cannot be held liable for the loss suffered by the complainant. Thus advancing the contention that the order is unsustainable as against the appellants he prayed for allowing the appeal thereby exonerating the 1st and 2nd opposite parties/appellants from the payment of the compensation awarded by the Forum below. 8. The short question to be considered in this case is where the appellants can be held liable for the loss suffered by the complainant. It is the admitted fact that complainant has alleged manufacturing defect of the indseal paste manufactured by the 3rd opposite party. Nobody has a case that 3rd opposite party is not the manufacturer of the defective paste whereby the complainant has suffered the alleged loss. The Commissioner has also stated that due to the application of the paste the complainant has suffered total loss of some trees, partial loss of some trees and negligible loss of some other trees. The learned counsel for the appellants has argued before us that the paste was received in sealed containers. The manufacturer alone can be held liable for the manufacturing defect and the dealer or the retailer cannot be fastened with any liability. The decision of the Hon’ble National Commission in the R.P referred above is unequivocally clear that in a case of manufacturing defect only the manufacturer can be held liable. The Hon’ble Supreme Court in Hindustan Motors V.Sivakumar and another(2000) 10 SC cases 654 has made it clear that for the manufacturing defects in the vehicle the dealer can not be held liable and the liability must be borne by the manufacturer. Considering the ratio in the above said decisions, we find force in the argument of the learned counsel for the appellants that the appellants must be exonerated from the liability of payment of compensation awarded by the Forum below. In the result the appeal is allowed and order of the Forum below in directing the opposite parties to pay the amount jointly and severally by the opposite parties is set aside as against the appellants/1st and 2nd opposite parties. The complainant/1st respondent is at liberty to proceed against the 3rd opposite party for the realization of the amount if he so desires. However in the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs. SRI.S.CHANDRAMOHAN NAIR : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
