STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 19.12.2018
Date of final hearing: 04.12.2023
Date of pronouncement: 25.01.2024
First Appeal No.1376 of 2018
IN THE MATTER OF :-
Mohit Singla S/o Sh. Mohan Lal Singla, Prop. Vrindavan Garden, Opp. Vishnu Rice Mill, Kurukshetra Road, Kaithal. ....Appellant
Versus
Ferrous Crete India P. Ltd., Corporate Office: 10B/2, Fruit Garden, NH-5, Faridabad, India through its Directors. …..Respondent
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Deepak Verma, counsel for the appellant.
Sh. Nonish Kumar, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Challenge in this Appeal No.1376 of 2018 filed by appellant-complainant has been invited to legality of order dated 16.11.2018 passed by District Consumer Disputes Redressal Forum-Kaithal (In short “District Consumer Commission”) in complaint case No.261 of 2017, vide which appellant’s complaint has been dismissed.
2. Complainant alleged that: on 17.04.2013, he purchased 30 Buckets of Epoxy (5.5 Kg. per Bucket) from OP vide bill/invoice No.45 for Rs.63,000/- for water resistance and filling joints between floor tiles with life guarantee. He constructed his Banquet Hall and used said Epoxy for flooring construction. Flooring was constructed by OP’s ‘mason (Mistri) and labour’ in same year i.e. year-2013. Just after three years; he was shocked to see that tiles started rising glowered from ground level and started losing grip due to water started collecting beneath the tiles. He called ‘mason’ who after inspecting spot/site said that: there is nothing wrong with labour work done and its Epoxy, which failed to resist water for what it is applied for, due to which, water collected beneath the tiles and damaged the tiles floor. He consulted 2/3 other experts/dealers of marble and tile and all gave same reply that it occurs due to inferior quality of Epoxy. He got inspected the site on 10.12.2016 from building expert-retired SDO from PWD Department-Haryana, who gave report dated 14.12.2016, mentioning that damage is certainly on account of poor quality of Epoxy. On 15.12.2016, he again reported the matter on telephone to OP and on 16.12.2016 at about 01:10 PM, OP told him that: a person would come at spot for inspection, but no one came. On 18.12.2016; OP flatly refused to come at spot. He got repaired the flooring of building because of bookings and spend huge amount on material. By alleging deficiency in service of OP, he filed complaint: to refund him sale price of Epoxy i.e. Rs.63,000/- with interest @12% p.a. from date of purchase till realisation; to pay him Rs.50,000/- as compensation for physical and mental pain, agony and harassment and to pay him Rs.80,000/- for repair cost.
3. OP raised contest. In defence so entered; it is pleaded that: complaint is not maintainable; complainant has no locus standi and cause of action; forum has no jurisdiction. Complainant has suppressed true and material facts. It is pleaded that OP sold 30 buckets of Epoxy to complainant but never gave lifetime guarantee to him; epoxy prepared by OP is of very high and good quality and prepared as per proper norms and under specified condition. OP deals in only manufacturing and sales of Epoxy and does not provide any other services like ‘mason’ or ‘labour’ etc. for fixing the same. Complainant has nowhere mentioned that Epoxy started removing/losing its place, rather it is poor quality of material (cement mixture or compaction of earth etc.) used by complainant for affixing tiles because, if quality of Epoxy would be inferior, then whole surface would have left its place, rather than losing grip at one particular point, as Epoxy is used only to fill gap between two tiles which is maximum 2/2.5 M.M. and not used for affixing of tiles. It is denied that retired SDO, who allegedly inspected the site has given a fair report or disclose the real reason behind losing of tiles from its surface as he was hired and paid by complainant to procure a vague and false report to be used against OP. Said SDO is retired SDO from PWD (Irrigation Branch) and not a Civil Engineer. By denying other pleas; dismissal of complaint has been prayed.
4. Parties to this lis led their respective evidence; oral as well documentary before learned District Consumer Commission-Kaithal.
5. By critically analyzing the same, learned District Consumer Commission-Kaithal vide order dated 16.11.2018 has dismissed complainant’s complaint; thereby giving rise to filing of this appeal.
6. Learned counsel for parties has been heard at length. Record of complaint has also been perused with their able assistance.
7. Learned counsel for appellant, in his attempt to accept this appeal, has urged that impugned order 16.11.2018 suffers from illegalities, both on legal and factual front. It is urged that report dated 14.12.2016 of Mangat Ram Sharma- retired SDO, Irrigation Department has proved that inferior quality of Epoxy has been supplied by OP and there is no evidence led by OP to rebut this report. It is also urged that learned District Consumer Commission has committed an illegality by not relying the report dated 14.12.2016 of retired SDO in a proper legal perspective. It is urged that: it does not lie within the domain of complainant to obtain sample of Epoxy for the purpose of its laboratory test regarding its poor quality. In this regard, learned counsel relied upon judgment of Hon’ble Apex Court in case titled as M/s Maharashtra Hybrid Seeds Co. Ltd. Vs. Alavalapati Chandra Reddy and Ors. decided on 18.08.1998. He has also relied upon judgment dated 28.09.2018 of Hon’ble National Consumer Disputes Redressal Commission, rendered in bunch of revision petitions No. 279-290 of 2018 titled as National Horticulture Research & Development Foundation Vs. Dnyaneshwar Bhausaheb Jadav. As per contention, both these judgments pertain to quality of seeds, and if ratio laid down in these judgments is relied upon, then complainant herein would not be expected to store some quantity of Epoxy for future testing. It is the manufacturer (OP herein) who have to do this needful.
8. Per contra, learned counsel for respondent/OP has urged that alleged report of Sh. Mangat Ram Sharma- retired SDO, Irrigation Department will not sub-serve any cause of complainant because he is not a Civil Engineer. Epoxy supplied to complainant was of good and high quality. Had, Epoxy been of a poor quality, then entire floor surface over which the gaps between tiles were affixed through Epoxy, could had been done away and a particular portion of surface of floor as it is so in present case. It is urged that alleged damage suffered by complainant on floor, is because of poor quality of material i.e. cement mixture or compaction of earth etc. used for affixing tiles. Epoxy is being used only for filing gap between two tiles and not used for affixing the tiles. On these submissions; learned counsel has urged that no interference in the order dated 16.11.2018 of learned District Consumer Commission-Kaithal is warranted.
9. This Commission has subjectively analyzed above rival submissions put before it.
10. Constructive reliance placed by counsel for appellant on report dated 14.12.2016 authored by Sh. Mangat Ram Sharma-retired SDO, PWD Irrigation Department will not form any formidable and acceptable base. Reasons in this regard are obvious. Firstly, Sh. Mangat Ram Sharma is not a Civil Engineer. Secondly, even integral part of report dated 14.12.2016, minutely discussed by learned District Consumer Commission-Kaithal has glaring features inherent in it. As per this report; water beneath the tiles had its source and origin from ‘water vapours’ developed inside the tiles, which created pressure and vacuum leading to lifting of tiles from earth. This report also indicates that tiles have lost their binding strength of Cement. Needless to say in common terminology that: Cement is always used under the base of tiles for purpose of their affixing on floor. May be, retired SDO in report dated 14.12.2016 has opined that water which leaked into the floor is due to poor quality of Epoxy, but curiously enough, said retired officer has failed to substantiate and explain, as to how Epoxy had come in picture for the purpose of creating pressure/vacuum of water vapours. This is mainly for reason as deciphered from written statement of OP that Epoxy is used only for filing gaps between two tiles which is maximum of 2/2.5 mm. It (Epoxy) is not at all used for the purpose of affixing of tiles on base of earth, for which, cement is used. The report dated 14.12.2016 authored by Retd. SDO, even if read at its face value, is further indicative of fact that affected portion of floor is approximately of area 20 x 12 feet. Admittedly, as per stance in compliant, Epoxy had been used in entire floor of banquet hall of complainant. Had, there been defect in the quality of Epoxy, as alleged, then much larger area of banquet hall of complainant could have been affected and not only the particular portion of banquet hall of the area of 20 x 12 feet. This being the reason, there is no illegality committed by learned District Consumer Commission by relying upon the report dated 14.12.2016 of retired SDO, to non-suit the complainant.
11. Reliance placed by learned counsel for appellant on cited judgments, would not provide any impetus to his cause in view of distinguishable nature of facts of cited judgments, viz-a-viz, facts of present case. If complainant has alleged poor quality of Epoxy in his complaint, then it is he alone, who has to prove the same, as burden of proof lay upon him to prove his positive case. There cannot be any negative burden upon OP to prove quality of its Epoxy, so supplied to complainant, by it. Complainant has miserably failed to discharge his burden. Nothing stopped complainant to avail the services of some high standard laboratory for purpose of getting quality check of Epoxy, by sending sample to it, the moment, he allegedly noticed that Epoxy, purchased by him on 17.04.2013 from OP, and used between the tiles in banquet hall, and tiles had began to ‘lift up’ by losing their grip, on particular portion of banquet hall measuring 20 x 12 feet (as per report of retired SDO) and that too, three years after purchase of Epoxy and its use allegedly between the tiles. He has also to establish about ‘life time guarantee’ of Epoxy given to him by OP. However, there is no evidence available on record on above aspects, at the behest of complainant. Hence, the allegations that Epoxy supplied by OP was of poor quality remained wild. With such like wild allegations, complainant has been rightly non-suited. The matter does not end. From report dated 14.12.2016 of retired SDO, it is deciphered that: tiles have lost their binding strength of cement and lifted their base of floor. Therefore, it is poor quality of cement which had been instrumental for lifting of tiles from earth and not the Epoxy which had only being used between the tiles.
12. On the face of above subjective and critical analysis of all relevant facets of this case; this Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Kaithal through its order dated 16.11.2018 and to interfere in same. Resultantly, impugned order dated 16.11.2018 is maintained, affirmed and upheld. Present appeal of complainant, being devoid of any substance is dismissed.
13. Any other application(s) if pending, too stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 25th January, 2024
Naresh Katyal
Judicial Member
Addl. Bench-II
