D.O.F. 27.10.2004

                                                                                   D.O.O. 12.04.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:          Sri. K. Gopalan                    :         President

                       Smt. K.P. Preethakumari     :        Member

                                Smt. M.D. Jessy                   :         Member

Dated this the 12^th day of April, 2011

C.C.No.262/2004

Fr.  Joy Thuruthel,

S/o. Varghese,

Vicar,                                                                   :         Complainant

San Jos Church,

Kelakam, Kannur- 670674

(Rep. by Adv. C.K. Rathnakaran)   

1.  Everest Industries Limited,

     Regd Office : The ACC Ltd.,

     Research and Consultancy Directorate,

     CRS complex,

     LBS Marg, Thane (West) – 400 604

     Maharashtra.

2.  The Vice President, Marketing,

     Everest Industries Ltd.,

     Podanur, Coimbatore – 641 023,                     :         Opposite Parties

     Tamil Nadu.

(Rep. by Adv. M.K. Sumod)

3.  Paulson,

     Agent (South Zone Office)

     Everest Industries Ltd.,

     Podanur, Coimbatore – 641 023,

     Tamil Nadu.

4.  Pee Cee Traders,

     Dealers of AC Sheet,

     Peravoor, Kannur.

(Rep. by Adv. K. Jayasankar)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to replace the defective AC sheets with new one or to pay ` 75,964, the price of the AC sheets and to pay ` 49,800 for the expenses for laying the sheets together with an amount of ` 1,00,000 as compensation and cost of this litigation. The case of the complainant in brief is as follows :  complainant who is started construction of a new Church at his Paris at Kelakam purchased AC sheets and its accessories for the roofing of Church building on 01.01.2004 by paying ` 75,964 through 3^rd opposite party Dr. Paulson who was the agent of 2^nd opposite party.  The sheets supplied to complainant through the dealer of the 2^nd opposite party ie the 4^th opposite party.  The complainant had done the roofing in the last week of May, 2004 but when the monsoon started in June the sheets started leaking.  Throughout the rainy season all the sheets of roofing on the building where wet completely and started oozing out water.  The matter was immediately informed to regional agent.  The leakage of water was due to the Manufacturing defect of the sheet.  Though leakage of the sheets were repeatedly informed the opposite parties have not taken any steps even to inspect the sheets or to rectify the defects.  This complainant sent written complaint to 2^nd opposite party.  2^nd opposite party sent their men to inspect the defects in the month of July, 2004.  After inspection they were convinced about the representation made by the complainant.  They assured replacement but there was no communication thereafter.  No further information was received by the complainant from many of the opposite parties regarding the matter.  Complainants thereafter sent legal notice to opposite parties calling them to make good of grievances of the complainant by paying ` 75,964 and ` 1,00,000 as compensation.  2^nd opposite party sent reply containing false allegations.  2^nd opposite party admitted in his reply that there was leaking to the sheets laid on the roof of the Church.  But there was no further action on the part of opposite parties.  The opposite parties are liable to replace the AC sheets and to pay compensation.  Hence this complaint.

          Pursuant to the notice 1^st and 4^th opposite parties entered appearance and filed version denying the main allegations of complainant.  1^st and 4^th opposite parties remained absent and subsequently declared exparte.  2^nd and 3^rd opposite parties denied the allegations of the complainant and contended as follows :  Complainant had purchased AC sheets worth of ` 75,964 from these opposite parties.   Sheets started leaking in June, sheets of the roofing were wet and oozing out water, that the leakage of water is due to manufacturing defect are totally false.  These sheets were best available in the market and are valued world wide for their durability and reliability.  The standards of sheets were confirmed after intensive test and only after confirming to ISI standards are sold out.  The test taken for each batch of sheets is load bearing capacity, water absorption impermeability, acid resistance, Frost errecting test etc.  There is no manufacturing defect.  On the inspection of 3^rd opposite party it was found drains of moisture on lower surface under heavy and continuous pouring which is permissible as per ISI standard.  The roofing should be laid as per specifications.  The roofs are not properly laid by the complainant.  If any leakage has occurred it can be due to their improper laying the averment in respect of all expenses are untrue.  There is no deficiency on the part of this opposite parties.  Hence to dismiss this complaint.

          4^th opposite party filed version separately.  4^th opposite party is the dealer of Everest AC sheets.  This opposite party had supplied some AC sheets to the complainant as per the direction of 3^rd opposite party.  The amount was paid to the 3^rd opposite party by the complainant.  There is no direct sale with the complainant.  This opposite party is an unnecessary party.  The transaction was directly with other opposite parties.  The complainant can approach other opposite parties for the redressal of his grievances. 

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency on the part of the opposite parties?

2.     Whether the complainant is entitled for the relief as prayed in the complaint?

3.     Relief and cost.

The evidence consists of the oral testimony of PW1, DW1 and documentary evidence Ext.A1 to A9 and B1 to B6.

Issues No.1 to 3

          Admittedly complainant had purchased from 3^rd opposite party AC sheets and accessories manufactured by 1^st opposite party.  3^rd opposite party is the agent of 2^nd opposite party.  The case of the complainant is that he has done the roofing in the last week of May, 2004 but when monsoon started the sheets begins to leak.  Leakage was due to manufacturing defects of the sheet.  They informed opposite parties No.2, 3 and 4 but they didn’t take care to rectifying the defect by replacing the sheets.  When written complaint was sent to 2^nd opposite party their men inspected the sheets in the month of July, 2004.  They convinced the defects and assured to replace the sheets but there was no action on the part of opposite parties.  Subsequent oral representation also did not yielded any result.  The case of the opposite party on the other hand is that the sheets supplied was the best available in the market and are value world wide for their durability and reliability. 3^rd opposite party said to be found on his visit that in very heavy and continuous rain there are trace of moisture on the lower surface which is admissible as per ISI standard.  The case of 2^nd and 3^rd opposite parties is that on perusal it is seen that the sheets are not properly laid.  If any leakage has occurred it can be due to improper laying of AC sheets.

          3^rd opposite party in his chief affidavit stated that personally he had gone to complainant’s case and inspected the sheets in July, 2004. He stated further as that it was found that under the heavy and continuous rainfall, there are traces of moisture on the lower surface which is permissible as per ISI standard.  Hence according to 3^rd opposite party there was no defect at all.  2^nd opposite party also stated in his affidavit that there was no defect to the sheets but only slight and minor traces of moisture which are permissible.  The above statement of 2^nd and 3^rd opposite party makes clear that at the time of their inspection during the rainy season they could not found leak but only moisture.  It shows that there is no mistake in laying also.  If there is any fault in laying it is not moisture but leak itself could have been witnessed.  The opposite party has taken the contention that if leakage has occurred it can be due to improper laying of AC sheets.  When 3^rd opposite party found the permissible moisture under heavy rain they did not witnessed leakage due to improper laying.  What is to be assured out of this explanation is that the contention of opposite party that leakage is due to improper laying is not a sustainable finding based on reasons.

          On perusal of the commission report Ext.C1 submitted by Assistant Engineer, PWD shows that Sri. K. Krishnan, Advocate of the 2^nd and 3^rd opposite parties and Sri. Sreejith, Mr. Shahulan representative of Everest Company in favour of 2^nd and 3^rd opposite parties are present at the time of inspection.  Commissioner has specifically written that the opposite parties present there reported that there were construction defects but no such defects could pointed out by them.  The same commission has written the bottom portion of 26 no’s of AC sheets are seen white colour coating and black shades due to wetting.

          PW1 in his proof evidence stated that “Pq¬am-k-¯n ag XpS-§n-b-Xn\p tijT joäv tNmcp-hm³ XpS-§n.  ag-¡m-eT apgp-h³ joäv \\-ª-Xn-\p-ti-jT shf-fT AI-t¯¡p hcn-I-bmWv sNbvX-Xv.”  There is no need to disbelieve this witness.  Leakage is not ruled out by the opposite parties.  Formation of fungus is also reported by Commissioner.  Opposite parties have only the case that this leakage may cause due to the improper laying.  Though improper laying is the specific case of opposite parties they failed to show these defects to the commissioner on the spot.  Opposite parties got golden opportunity to prove their contention. Mere showing of these defects to the Commissioner on the spot would have been sufficient enough to prove the contentions of opposite parties.  But opposite party could not to do this.  Commissioner in his report specifically written that no such defects could be pointed out by opposite parties who was present there at the time of inspection.  If there was really such defects existing or in other words if the contentions of laying defect was true, these defects should have been shown to Commissioner and get it recorded it through the Commission.   Under such circumstances failure of opposite parties in pointing out the defects specifically to the Commissioner definitely create suspecion in the contention of opposite party.  In the usual course it is difficult to believe the contention of opposite party that the leakage is due to laying defects.  It cannot be believed as true.  But it can be assumed only that opposite party merely raised this contention to escape from the liability.

          Moreover opposite party has not taken any serious attempt to prove their contentions as though it will be automatically proved upon merely raising contentions on their pleadings.  Opposite parties have the burden to prove their pleadings.  They got a very best opportunity when they present at the spot when the commissioner was inspecting the property.  It is difficult to understand what is prevented them from showing the defects of laying to the Commissioner.  Can it be believed that a contesting opposite party will keep silence if an iota of truth is there in their contention.  Opposite parties 2 and 3 filed objection to Commission Report.  But they have no case that the Commissioner did not reported anything that they have pointed on the spot.  They have no case that the Commissioner did not pointed the laying defect that could be seen at the time of inspection.  Then what is the laying defect, it is really meant by opposite parties if it could not be shown to Commissioner.  Opposite party has not taken any steps to prove the laying defect. Raising contention and denying the allegations of complaint alone will not safely safeguard opposite parties.  The legal obligation to prove the pleadings on their side shall be discharged, without which they cannot escape from the clutches of liability.  The main contention upon which opposite party build up their case is that the leakage of AC sheets is not because of any defect of AC sheets but because of the imperfect laying of the sheets.  Opposite parties neither attempt to prove the laying was defective nor realize the opportunity as at the time of Commissioner’s inspection by showing the defects to the Commissioner so as to make it part of the report.  Commission specifically written in his report that though opposite party has case that laying is defective they did not pointed out any defects on the spot.  Hence it is not possible to accept that contention of opposite parties has truth in it. 

          Pw1 was elaborately cross examined.  It is brought out in cross examination that the complainant was booked for the best quality product of Everest Company.  PW1 deposed in cross examination that “moisture km[-yX CÃm¯ DÂ]-¶-¯n-\mWv _p¡v sNbvX-Xv.” It is also brought out that “CompanybpsS {]Xn-\n-[n-IÄ defect ]cm-Xn-s¸-«-Xn\p tijT 3 amkT Ign-ªmWv ]cn-tim-[\ \S-¯n-b-Xv.”  Opposite party could have taken initiative to inspect the subject matter immediately after getting information since the inspection during the season is more easy and convenient to find out the real nature of defects.  These facts better known to opposite parties other than anybody.  But they have taken only little care which means their service is deficient.  They have not given preference to the better satisfaction of the consumer.  They have not taken initiative to make ascertain as earlier as possible whether sheets are defective or not, which can only be assumed that they are aware of the defective condition, and the real state of affairs that the consumer suffered.  The available evidence with the support of Commissioner’s report it can be concluded that the AC sheets are having manufacturing defects. 

          In the light of the above discussion we are under the impression that as a result of failure of opposite parties to prove that the laying fault is the reason for the leak,   it can very well be assumed that there is manufacturing defect to the AC sheets.  There are only 2 possibilities for the defect either manufacturing defect or the laying.  The report of the commissioner and the evidence on record together with the mode of dealings of opposite parties in the usual course leads to the conclusion that the leak has been caused due to the manufacturing defect of the AC sheets.  Thus we find that the opposite party is liable to replace the defective AC sheets with new one or to pay ` 75,000.  Opposite party is also liable to pay compensation for an amount of ` 30,000 including the laying expenses.  The complainant is also entitled for ` 1,000 as cost of this litigation.  Hence issues No.1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, complaint is allowed directing the opposite party to replace defective AC sheets purchased by the complainant with new one or to pay ` 75,000 (Rupees Seventy Five Thousand only) to complainant.  Opposite party is further directed to pay ` 30,000 (Rupees Thirty Thousand only) as compensation including the laying charge together with an amount of ` 1,000 (Rupees One Thousand only) as cost of this litigation.  The order shall be executed within one month from the date of receiving this order.  The complainant is at liberty to execute the order as per the provisions of Consumer Protection Act after the expiry of one month.

          Dated this the 12^th day of April, 2011.

                          Sd/-                     Sd/-                    Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.  Cash bill of PeeCee Traders.

A2.  Invoice dated 19.12.2003.

A2(a)  Invoice dated 19.12.2003.

A3.  Goods consignment note dated 19.12.2003.      

A4.  Letter dated 19.12.2003.  

A5.  Lawyer notice dated 24.09.2004.

A6.  Letter dated 01.10.2004.

A7.  Letter dated 13.10.2004.

A8.(1)  Minutes of Palli Committee meeting dated 17.10.2004.

A8.(2)  Minutes of Palli Committee meeting dated 19.02.2005.

A8.(3)  Minutes of Palli Committee meeting dated 18.19.2005.

A9. (C1) Commission Report.

Exhibits for the opposite parties

B1. Authorisation letter

B2. BIS renewal letter.

B3. Leaflet instructions.

B4. Advertisement sheet.

B5. Copy of Specification for Asbestis Cement sheets.

B6.  Information notice of Everest Industries Ltd.

Exhibits for the Court

C1.  Inspection report.

C2.  Commission report.

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  Mahesh M.

                                                                        /forwarded by order/

                                                                     SENIOR SUPERINTENDENT