Date of Filing:23/04/2011

        Date of Order:16/06/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  16^th DAY OF JUNE 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 778 OF 2011

Abhijeet Jain,

# 26-B, 10^th Cross,

Peipline Road, Vijayanagar,

Bangalore-560 023.                                                            ….  Complainant.

V/s

ELITE CRETE FLOORING SOLUTIONS

INDIA PRIVATE LIMITED,

Rep. by: Chief Executive: Sridhar T.R.,

# 215, 24^th Cross, 3^rd Main road,

6^th Block Jayanagar,

BANGALORE-560 082.                                                      …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.3,20,085.94 paise, are necessary:-

          The father of the complainant was constructing a house at No.26-B, 10^th Cross, Pipeline Road, Vijayanager, Bangalore, to which the complainant is both financially and emotionally supporting.  In the light of the advertisements of the opposite party, the complainant met Mr. T.R. Sridhar of the opposite party in the month of June-2009 enquired about their product of innovative flooring solutions, the opposite party described the complainant in the matter.  The opposite party agreed that they will lay the flooring at the site of the complainant by their labourers, and the complainant was asked to prepare a particular kind of base floor which was an additional cost to him.  The complainant made the purchase of the materials for his site on 03.02.2010 amounting to Rs.1,70,085.94 paise for which he paid through cheque on the same day which was cleared on 11.02.2010.  Both the parties entered in to the contractor-ship agreement on 09.02.2010.  The representative of the opposite party after the sale of the product changed their colour completely and ignored the complainant and never bothered to install the flooring on the complainant’s site.  After many requests the opposite party sent some labourers claimed to be skilled labourers accompanied by the representatives on the 18^th/19^th of June 2010.  The complainant had fixed the house warming ceremony and the pre-wedding ceremonies of his brother which were fixed on 21.06.2010 at the same premises and lot of guests had already arrived and it caused great inconvenience and embarrassment to the complainant and his family members, the laying of the floor was highly substandard and also incomplete.  The complainant accepted the same for the time being but held the labour payment to be made only after completion of the entire work.  After completion of the functions the complainant and his father requested the opposite party several times.  But they neither bothered to complete the work nor rectify the laid portion.  The father of the complainant met opposite party in their office on October-2010 and begged in front of the company representatives but his request was rejected and he was challenged.  On 16.02.2011 the complainant noticed that the floor started chipping off right in the middle of the living room of the house.  Hence a notice was issued to the opposite party on 17.02.2011, but nothing happened.  Hence the complainant is seeking refund of the amount paid to the materials and the compensation.

2.       In brief the version of the opposite party are:-

          The complainant is not a consumer.  The e-mail sent by the complainant is:-

“I came across your website and found your products really interesting.  I’m a partner of Abbey Architecture Studio and in charge of Business Development.  My other partners who are Architects were also very impressed with your products.  We, though a newly established firm, have got a healthy order book and currently undertaking projects like Apartments, Farm Houses, Independent Residential Houses and also Interiors.

Hence, I though why not include the distributorship of your products in our business portfolio.Pls. furnish me with the details of your products and also the formalities along with the terms of acquiring the Distributorship.

Thank & Regards,

Abhijet Jain

Abbey Architecture Studio

Bangalore & Delhi.”

The complainant had requested the opposite party to send the team to advice the labourers on the finer points to give finesse to the work.  Later there were no labourers to do the work and the team of the opposite party was forced to do the work and the workers finished 2 rooms then they were told to discontinue the work.  No labour charges were also paid by the complainant.  The complainant wanted to save cost of laying the flooring.  The data sheet and catalogues clearly stated that it needed 2 gallons of E100 PT1 for covering an area of 250 sq ft.  But the complainant had reportedly used only 1 gallon for the same area.  The complainant’s father was requested by the staff of the opposite party that work can be completed only after payment of installation costs for which the complainant started emotional blackmail to do the work free of cost.  The chipping off the floor was not due to the substandard material but it was due to complainant’s own method of laying floor without proper application of procedure laid down by the company in their brochure.  The opposite party has made correspondence with the complainant and explained in detail about the product and its applications.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the parties have filed their respective affidavits and documents.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complaint is maintainable?
2. Whether the complainant is a consumer?
3. Whether there is deficiency in service?
4. What Order?

5.       Our findings are:-

Point (A) to (D)        :           As per the final Order

                                      for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the pleadings in conjunction with the documents it is an admitted fact that the property bearing No.26-B, 10^th Cross, Pipeline Road, Vijayanagar, Bangalore, belongs to Sri.Sohanlal Deepchand Jain and his wife Smt. Indira Bai Sohanlal Jain and kathas stands in their name.  They wanted to construct a building consisting of a ground floor, first floor, second floor and terrace.  The said area was 178.66 square meters and the net area of the building is 294.47 square meters as per the plan produced.  Further according to the plan the complainant is only an architect with respect to the said premises, the complainant is not the owner, nor he has anything to do with the building.  Except he being the architect and son of the owners, he cannot say that he is the owner of the said building and he has financed.  Even assuming that he has given emotional support and financial support to his father or mother as the case may be he cannot be a consumer.  The owner of the building, his parents might have gone on for some flooring of their house for which it is the owner i.e., the mother and father of the complainant who are necessary parties to proceed, but they are not the parties.  Hence the complaint as brought is not maintainable. 

7.       Further the e-mail sent by the complainant reads thus:-

“I came across your website and found your products really interesting.  I’m a partner of Abbey Architecture Studio and in charge of Business Development.  My other partners who are Architects were also very impressed with your products.  We, though a newly established firm, have got a healthy order book and currently undertaking projects like Apartments, Farm Houses, Independent Residential Houses and also Interiors.

Hence, I though why not include the distributorship of your products in our business portfolio.Pls. furnish me with the details of your products and also the formalities along with the terms of acquiring the Distributorship.

Thank & Regards,

Abhijet Jain

Abbey Architecture Studio

Bangalore & Delhi.”

That means he wanted this flooring material for distributorship of his company for which an agreement plan was entered in to between the complainant’s company and the opposite party.  Hence for an experience he has taken the materials worth Rs.1,70,085.94 paise and paid the money on 11.02.2010 the date on which the cheque has been encashed.  The agreement between the parties was entered in to on 09.02.2010.  Hence the materials were purchased for the commercial purpose and not for personal consumption.  Hence the complainant is not a consumer as rightly contended.

8.       In 2011 CTJ 387 the Hon’ble National Commission has relied thus:-

The intention of Parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘Consumer’ is to impose a restriction that the special remedy before the Consumer Forums can be invoked only by ordinary consumers buying goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.

In 2011 CTJ 121 the Apex Court has ruled thus:-

If the goods are purchased for the commercial purpose of earning more profits then there can be no dispute that even the services offered along with them have to be for the same purpose.

That means to say if the materials are purchased for commercial purpose then the purchaser will not come within the ambit and scope of the consumer and the Consumer Forum has no jurisdiction to entertain the dispute between such purchasers and traders.  Here the complainant has purchased the materials from the opposite party for his commercial purpose for distributorship, but however some portion of the materials he has used it in his house as an experience.  Hence it does not mean that he is the consumer.

9.     Here the building is the property of the parents of the complainant his is only an architect.  The parents are not made parties to the proceedings.  If the parents had purchased the materials for laying the floor in their house it is for them to approach this forum, but they have not come before this forum.

10.    The complainant has stated that these flooring materials should have been laid by the opposite party in their house, but they have sent their men on 18-19/06/2010.  The opposite parties have denied it.  The opposite party has clearly stated the complainant being an architect he wanted to lay the flooring by himself using his labourers, but he wanted the expert advice as such they sent their men, but to their surprise they found the complainant had no labour there, hence they were forced to lay the flooring only for two rooms which is intact, later the complainant laid the flooring to other portion for which they are not responsible.  Here the flooring laid in the room are not damaged.  The flooring laid in the hall which was laid by the complainant is damaged.  That means without the proper knowledge, skill and aptitude the complainant had laid the flooring.  Then how can he blame the opposite party?

11.    Further the opposite party clearly stated that the complainant is a miser in the since he wanted to save the cost of laying flooring he should have used two gallons of E100 PT1 for covering the area, but he has used only one gallon hence there is defect and even for the two rooms for which they laid the flooring the complainant has not paid the charges.  There is nothing to disbelieve the same.  The records clearly proves that the complainant being an architect in-experienced and the architect wanted to save the money and he did flooring by himself in the hall for which the opposite party cannot be found fault.  Merely a portion of the flooring in the hall which he has laid had come out, it does not mean that there is defect in the materials.  The complainant has not got the material, the flooring which he had laid checked by any expert to show that it is a defective material when that has not been done how can the complainant claim that the materials supplied by the opposite party is defective.

12.     When he himself is due certain amount to the opposite party without paying it, he has come to this Forum to claim, as rightly contended.  He has come to the Forum with not clean hands.  There is no deficiency in service.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Dismissed.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 16^th Day of June 2011)

MEMBER                                           MEMBER                          PRESIDENT