DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 251/2006
1. Shri Surinder Diwan
S/o Shri Manohar Lal Diwan
C-419, Defence Colony,
New Delhi
2. Mrs. Usha Diwan
W/o Sh. Surinder Diwan
C-419, Defence Colony,
New Delhi
3. Sh. Sudhir Diwan,
S/o Sh. Manohar Lal Diwan,
C-419, Defence Colony,
New Delhi.
4. Mrs. Sumita Diwan
W/o Sh. Sudhir Diwan,
C-419, Defence Colony,
New Delhi.
5. Sud Constructions Pvt. Ltd.
23/4, East Patel Nagar,
New Delhi - 110008 -Complainants
Vs
1. M/s Jindal Industries Ltd.
15/1, Asaf Ali Road
IInd Floor, New Delhi – 110 002
[having its Registered Office at
Delhi Road Hisar, Haryana]
2. M/s Mittal Sanitary Store
1533, Gurudwara Road
Kotla Mubarak Pur
New Delhi - 110003 -Opposite Parties
Date of Institution: 03.04.2006
Date of Order: 19.03.2016
Coram:
N.K. Goel, President
Naina Bakshi, Member
O R D E R
The case of the complainants, in succinct, is that the complainant No. 1 to 4 who were joint owners of property No. C-419, Defence Colony, New Delhi through complainant No. 5 formed for the purpose of carrying out construction in the said plot. Company demolished the super structure and thereafter got the plans sanctioned and commenced the construction in the month of March 2000. The construction was carried out till March 2002. After survey and based upon the required specifications, sanitary pipes of ‘B’ class were short listed for final selections manufactured by OP-1; that ‘B” class is not based on the specifications as ‘B’ class otherwise represents best of the material in its class and found having best for use in residential buildings. The Complainant-5 purchased sanitary pipes from OP-2, one of the authorized dealers of OP-1 and OP-1 & 2 claimed life of their pipes as minimum period of 100 years on which representation the complainant procured the above pipes for use. However, later on it was found that the pipes proved to be defective as detailed in Para 10 of the complaint due to the manufacturing defect in the pipes supplied by the OPs. It is stated that OP-1 & 2 are responsible for the expenditure already incurred in removal of water leakage. Therefore, claiming deficiency in service on the part of the OPs, the complainants have claimed an amount of Rs. 32,33,811/- as detailed in Para 12 of the complaint besides Rs.28,800/- along with interest @ 18% p.a. from the date of expenditure till realization and Rs.25 lacs as meager compensation for trauma, harassment and mental agony alongwith inconvenience of shifting for undertaking extensive repair work for removal of cause.
Complaint was filed before the State Commission and registered as Complaint No. C-08/2006. Vide order dated 3.4.2006, the State Commission sent the matter to this Forum by observing that the compensation will not exceed Rs. 20 Lacs.
In its written statement, OP-1 has inter-alia stated that OP-2 is not an authorized dealer of OP-1 as per the list of the dealers of OP-1 attached with the reply. The averments made in the complaint have been denied.
In its reply, the OP-2 has inter-alia stated that as per the records of OP-2, OP-2 has not sold the alleged goods to the complainants nor the complainants have filed any documentary proof such as invoice to support their contention; that even otherwise if the goods manufactured by OP-1 are found defective, the dispute raised is between the complainants and OP-1 and OP-2 has no role to play. OP-2 has further pleaded that the goods manufactured by OP-1 are purchased by OP-2 from its authorized dealers M/s Prabhu Dayal Om Prakash, Hauz Quazi, Delhi and are sold to customers on nominal profit and that the goods at the time of alleged sell were also used to be purchased by OP-2 from M/s Prabhu Dayal Om Prakash, Hauz Quazi, Delhi. Other averments made in the complaint have been denied. It is prayed that the complaint be dismissed.
Complainants have filed rejoinder.
Complainant-1 has filed his own affidavit on behalf of the complainants. On the other hand, affidavit of Sh. Prahlad Rai Bansal, Manager has been filed on behalf of OP-1.
Written arguments have been filed on behalf of the parties. We have heard the counsel for complainants and the counsel for OP-2 and have also perused the file very carefully.
From a perusal of the complaint, it transpires that the complainants did not file any invoice/purchase memo for the purchase of pipes from OP-2 along with the complaint because no annexure has been filed as copies of invoices.
The case of OP-2 inter-alia is that the complainants have not filed any documentary proof to show that the alleged goods were purchased by them from OP-2. The version of OP-1 is that OP-2 is not their authorized dealer. Copy of the dealers list has been filed as Ex. OP-1/2 along with the OP-1’s witness affidavit though the same has not been marked exhibit number in the document. The list consists of names of 5 dealers which does not include the name of OP-2. The case of OP-2 is that OP-2 used to purchase the goods of OP-1 from M/s Prabhu Dayal Om Prakash, Hauz Quazi, Delhi and sell them in the market at nominal margin. The name of the said dealer has been mentioned at serial No. 3 of list of dealers. Therefore, it stands proved on the record that OP-2 was in fact not an authorized dealer of OP-1 at the relevant time and the dates and the goods, if any, sold by OP-2 to the complainants representing the same to be the goods of OP-1 could not bind the OP-1 and the OP-1 cannot be held liable and responsible for delivery of any such defective goods by OP-2 to the complainants. Therefore, we hold that OP-1 cannot be held liable for deficiency in service or unfair trade practice on its part.
The complainant-1 has not relied on the copies of invoices/purchase memos for the goods stated to have been purchased by the complainants from OP-2 representing the goods of OP-1 because the documents Ex. CW-1 to Ex. CW-20 do not consist of copies of any such bills/invoices.
It is for the first time that the complainants mentioned about the said invoices in their written synopsis. In the written synopsis, the complainants have pleaded that the invoices for the purchases made from time to time from OP-2 between 5.5.2001 to 24.4.2001 (sic) total 103 are placed on the record after page No.252. Therefore, the OP-2 could not get any opportunity to rebut the genuineness of these invoices. Even otherwise, the complainants have not filed the original invoices/bills at any stage of the proceedings before this Forum. We have very carefully gone through the copies of the invoices placed on the record after page No. 252. Nowhere in the said cash memos/invoices it has been mentioned that the pipes sold by OP-2 to the complainant were manufactured by OP-1 company. Therefore, at the most it can be said to be a case of cheating on the part of OP-2. It was also the duty of the complainants to verify whether the descriptions of goods purchased by them from OP-2 were correctly mentioned in the invoices/cash memos. Therefore, we hold that the complainants have failed to prove a case of deficiency in service or unfair trade practice on the part of OP-2. The complainants can file a civil suit for recovery of damages against OP-2 if they are advised to do so subject to the provisions of relevant laws.
In view of the above discussion, we do not find any merit in the complaint. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL) MEMBER PRESIDENT
Announced on 19.03.16.
Case No. 251/06
19.3.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL)
MEMBER PRESIDENT
