IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 30^th  day of October, 2021

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member

Sri. K.M. Anto, Member

C C No. 173/2020 (filed on 28/10/2020)

Petitioner                                          :         Suresh Raj,

                                                                   S/o. Ramendran Pillai,

                                                                   Mannuparambil,

                                                                   Eravilneloor ,

                                                                   Puthuppally P.O.

                                                                   Kottayam – 686 011.

                                                                             Vs.                            

Opposite Party                                 :         Laurance,

                                                                   Proprietor,

                                                                   S-Toughen Glass,

                                                                   Mattoor, Kalady,

                                                                   Ernakulam – 683574.

                                                                   (Adv. Jaison Paliyil)

                                                          O  R  D  E  R

Smt.  Bindhu R,  Member

The complaint is filed under Section 35 of the Consumer Protection Act, 2019.

The complainant is a contractor doing various works including glass works. The complainant placed an order for 8 toughened glasses of which 4 were to be printed with image and other 4 were normal toughened glasses along with other articles to the opposite party who is a dealer of toughened glasses, for a project of a customer at Thiruvalla.  The order was placed with specific direction along with drawings with regard to picture to be printed and all measurements including the measurement for the holes for the model ‘Dorma XLC 3001’door handle which he had previously ordered for an earlier project to be fitted on the said toughened glasses since the toughened glass once manufactured cannot be altered by cutting or adding holes as it would break. The opposite party after receiving the measurements, pictures and payment of Rs.31,290/- had manufactured the same and delivered it to the project site at Thiruvalla.

Unfortunately the 3 of the 4 printed glasses were not the pictures requested by the complainant and one of them was printed with an upside down picture. The paintings were of low quality. The complainant complained this to the opposite party and they assured to compensate for the cost incurring for rectifying the same and the complainant had to rectify the defects by giving the glasses to another shop.

Subsequently when the complainant was fitting the toughened glasses, he noticed that the opposite party instead of putting holes for XLC 3001 model, had put holes for XLC 3002 in which the hole to hole distance is 300mm which is much longer than the hole to hole distance of XLC3001 which is 151cm.As the opposite party did not replace the same, the complainant had to purchase all the glasses from another shop to complete the work and so the work was delayed. Due to the inordinate delay in completing the work, the customer withheld the payment. The said glasses were manufactured for the particular work and hence it could not be used for another work. Thus the complainant had to suffer huge financial loss.

In spite of repeated demands from the complainant, the opposite party did not replace the glass or refund the amount. When the complainant brought the matter before A.D.R centre, Kottayam, the opposite party was adamant that they would not refund the amount. Due to the unfair trade practice of the opposite party the complainant had to suffer great financial loss and mental agony which is to be compensated.

Upon notice the opposite party appeared and filed version.

The opposite party contended that the complainant has purchased the goods for commercial purpose and hence he is not a consumer. The complaint is barred by limitation. The alleged caused of action is on 26/10/2018 and the complaint is filed on 28/10/2020. Moreover this commission has no territorial jurisdiction to entertain the complaint as neither the cause of action nor the residence of the complainant  is at Kottayam. The matter is to be referred to arbitrator as per the agreement. Transportation is not the risk of the opposite party. The complainant did not opt for any insurance coverage for any loss that may cause during transit/transportation. The complainant has paid only the price for the products alone and it was for showroom price which includes only the loading charge from the showroom alone. The transportation was done at the risk of the complainant. The complainant had actually purchased 12 clear toughened glasses with 10mm having various measurements on 26/10/2018. No specific direction was given by the complainant at the time of order placing. The allegation that the opposite party after receiving the measurements, pictures and payment of Rs.31,290/- had manufactured the same and delivered it to the project site at Thiruvalla is incorrect. The said amount of 31,290/- includes the price of the aforesaid 12 toughened glasses along with such additional charges for holes, cutout, shape cutting, sand blast frosting and flat polish only as per the requirements. The complainant directly visited the opposite party on 26/10/2018 and has acknowledged and verified the products and works made thereon and also satisfied with the same. He himself has taken delivery and arranged its transportation.

The complaint is barred by non-joinder of necessary party as the carrier is not made a party to the complaint. The alleged images and pictures might be done by the complainant at his own choice not by the opposite party and the opposite party has no such printing works. The allegations of the defects were not brought to the notice of the opposite party. The opposite party had never compensated any loss to the complainant. The complainant had failed to produce the alleged damaged doors to the Taluk Legal Service authority, Kottayam upon a complaint given by him.  If any damages had occurred due to works of the opposite party, the complainant should have brought to the notice of this opposite party within 3 days from the date of despatch. The allegation that complainant had taken the said toughened glasses to another shop to rectify and the opposite party had agreed to give the cost of it is not true. The opposite party had not been requested to replace the products as alleged. The allegation that holes were put mistakenly by the opposite party is also false. If any wrong measurements had been given by the complainant, the opposite party is not liable for any such wrongs or faults committed by the complainant as alleged.

          On evidence part, the complainant has produced Ext.A1 to A5 and has deposed as Pw1.  Opposite party has produced Ext.B1 and B2.

          On a detailed perusal of the above pleadings and evidence, we frame the following issued.

1. Whether the complainant has succeeded in establishing the deficiency in service and unfair trade practice?
2. If so, what are the reliefs he is entitled to?

For the sake of convenience, we would like to consider issue no.1 and 2 together.

Issue No.1 and 2

1. On a detailed examination of the pleadings and evidence, we find that the complainant is alleging manufacturing defect to the 3 toughened glasses purchased from the opposite party vide Ext.A4 bill.
2. The first point to be considered is whether the complainant is a consumer as the opposite party  as alleged that he had purchased the products for commercial purpose.  But it is evident from the pleadings and documents that the complainant had purchased the said toughened glasses for his livelihood.  The opposite party has not succeeded in proving that the complainant has purchased the product for commercial purpose.  So in the absence of cogent contrary evidence we find that the complainant is a consumer.
3. The next issue raised by the opposite party is that the Commission has no territorial jurisdiction as no cause of action has arisen at Kottayam.  The Consumer Protection Act, 2019 envisages vide Section 34 (2) (d) the complainant can file a complaint before the District Commission of the district where he resides or works.  This complaint is filed after the enactment of the Act, 2019 and hence he can very well file the complaint before this Commission.  So no question of jurisdiction arises and the complaint is maintainable.
4. The next point is whether the complaint is barred by limitation.  The cause of action arose on 26-10-2018 and the complaint was filed on 28-10-2020.  The delay is only of 2 days which is contended by the Commission at the time of admission itself.
5. The complainant’s main contention is that the product purchased by him from the opposite party vide Ext.A4 were having manufacturing defects and so he had to repurchase the same toughened glasses from another shop causing financial loss.  He has produced Ext.A1 to A5.  A1 is some measurements with no address of insured person or receiver.  This is not admissible in evidence.  Ext.A4 issued admittedly by the opposite party.
6. In B1 and B2 bills generated as per the order placed based on Ext.A4 invoice.  The complainant has deposed that he has claimed the amount as per Ext.A4 bill.  But at the same time he has deposed that the defects were only to the doors, not to the plain glasses.  A4 is regarding only the plain glasses.  He has no complaints regarding A4.  No bill has been produced showing the purchase of defective door pieces from the opposite party.
7. The complainant has raised an allegation that he has entrusted the opposite party to draw designs on the glasses but all the designs were of low quality and defective.  At the same time he has pleaded that the amount for printing was returned by the opposite party when he pointed out the defects to them.  But this is not in his affidavit.
8. Again the complainant alleges that he had to take the glasses to another shop for curing the defects which incurred great financial loss to him.  At the same time he himself has pleaded that the toughened glasses cannot be cured from the defect but only to be replaced.  He has produced Ext.A5, a bill issued by one Green Tuff dated 16-11-2018 and alleged that he had to purchase toughened glasses again to use in the worksite at Thiruvalla, But the Ext.A5 is not seen issued to the complainant.  He had deposed that he has no house in Pathanamthitta or Thiruvalla.  A5 is issued to a Thiruvalla address. 
9. The complainant’s main allegation is that the opposite party was not ready to replace the defective glass and he had filed a complaint before the Adalath.  Thereafter the opposite party was ready to replace the glasses if the defective glasses were produced.  But the said glasses were already fixed in the customer house.

Rm³ ChnsS tIkv sImSp-¡p-¶-Xn\v ap³]v AZm-e-¯n tIkv sImSp-¯n-cp-¶p.Damaged doors ADR \p ap¼msI lmP-cm-¡n-bm ]cn-lm-c-ap-­m-¡m-sa¶v Mediator And-bn-¨n-cpt¶m? (Q) CÃ.  Company ¡mÀ replace sN¿m-sa¶p ]d-ªp.  ]t£ Rm³ customer ¡v t\ct¯ fix sNbvXn-cp-¶p.  BZyw replace  sN¿m³ Bh-iy-s¸-«t¸mÄ \ÂIn-bn-cp-¶n-Ã.

10. So from the above discussion, it is evident that the complainant could not establish a clear case before us.  He is not constant in his pleadings and deposition.  On a detailed and mindful examination of the pleadings and evidence we understand that the complainant has not approached this Commission with clean hands.

Hence in the light of above discussion, we dismiss the complaint.

     Pronounced in the Open Commission on this the 30^th day of October, 2021

Smt.  Bindhu R,  Member               Sd/-

Sri. Manulal V.S. President             Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Witness from the side of complainant

Pw1 – Suresh Raj

Exhibits marked from the side of complainant

A1 – Copy of drawings submitted by the complainant to the opposite party

A2 – Copy of catalogue in the online website

A3 – Copy of E-mail

A4 – Copy of invoice dtd.26-10-18 issued by opposite party

A5 – Copy of invoice dtd.20-11-18

Exhibits marked from the side of opposite party

B1 –  Copy of proforma invoice dtd.03-10-2018 issued by S-Toughen Glass

B2 - Copy of proforma invoice dtd.08-10-2018 issued by S-Toughen Glass

By Order

                                                                               Senior Superintendent