KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 586/2005 JUDGMENT DATED: 30-11-2009 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT M/s Eternit Everest Ltd. (Now known as : APPELLANT Everest Industries Ltd.), Podanur, Coimbatore, Tamilnadu, Represented by its South Zone Vice President (Marketing) A.J. Rao. (By Adv. Sri. Thomas Rajan) Vs - M.C. Mathai, Convener,
St. Thomas Orthodox Church Auditorium : RESPONDENTS Construction Committee, Niranam North. - M/s Electro Diesel (P) Ltd,
Jetty Road, Alappuzha. (R1 rep. by Adv. Sri. Kulathoor S.V. Premakumaran Nair) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellant is the first opposite party/manufacturer of asbestos sheets in OP 170/01 in the file of CDRF, Pathanamthitta. The appellant is under orders to pay a sum of Rs. 96,417/- with interest at 12% from the date of complaint till the date of the order and thereafter at 6% and also to pay a sum of Rs. 7,500/- as compensation and Rs. 2,000/- as costs. 2. It is the case of the complainants/St. Thomas Orthodox Church Auditorium Construction Committee, Niranam that they purchased 240 Nos. of Everest CTS/3M sheets, 34 pairs of TS-2 Ridges, TS-12 Cowl Type Ventilators - 6 Nos. for the purpose of roofing of the auditorium, for a sum of Rs. 83,998/-. The commodity was delivered at the premises of the complainant. In April 1999 the sheets were laid over the roof structure of the Auditorium. In the rainy season in June 1999 itself the inner part of the sheets were found damp and the other sheets were found developing cracks. In response to the intimation two representatives of the opposite parties inspected the asbestos sheets and they promised to conduct a box type test (water impermeability test) but they later resiled from the promise. The asbestos sheets supplied are having manufacturing defects. The complainants filed OP 134/2000 and the same was disposed of on the basis of the undertaking by the opposite parties that they will rectify the defects and report the matter to the Forum on 30-01-2001. The above undertaking was not complied with. It was provided in the order itself that the complainant can approach the Forum in case of non-compliance. The complainants have claimed a sum of Rs. 1,05,998/- with interest at 18% and also Rs. 25,600/- as compensation for mental agony etc. 3. The amount of Rs. 1,05,998/- is claimed inclusive of Rs. 83,998/-, the cost of the asbestos sheets and other items; Rs. 20,000/- labour/installation charges and Rs. 2,000/- towards postage/photostat and other incidental expenses. 4. The first opposite party has filed version denying the allegations as such. It is contended that the sheets manufactured are as per the standards of Bureau of Indian Standards and having ISI marks. It is contended that the damage caused is only on account of mishandling of the sheets. It is further contended that in pursuance of the order in OP 134/00 they have rectified the defects by applying impermeability coating. They were under the impression that the same will be reported before the Forum by the complainant. It is the contention that receipt was sought at the time of applying impermeability coating but the complainants refused to issue the receipt. The opposite party had replaced 11 sheets on 14-08-2001. The strict instructions with respect to the installation of sheets has contained in the leaf let printed in Malayalam and English were not complied by the complainants. It is also contended that the amounts claimed are exorbitant. 5. The evidence adduced consisted of the testimony of PWs 1 and 2, DWs 1 and 2, CW1, Exts. P1 to P16, R1, R1(a), R2 and C1. 6. We find that the Forum has considered the evidence in a very detailed manner. A Commission has appointed. The Commissioner who is a retired Assistant Executive Engineer of the PWD has filed Ext.C1 report. He has also testified as CW1. The Commissioner on inspection has reported that 224 Nos. of asbestos sheets were found damaged during the rainy season; 16 Nos. of sheets were found broken vertically. It is also mentioned that the defects of the asbestos sheets can be visible without any expert evidence during the rainy season. The Commissioner has testified asserting his findings. The appellant has contended that the Commissioner is not a person who has got expertise in the matter as he has admitted that he cannot say about the test method ie, IS 5913/1989 and IS 459/1992 when put in the cross examination. It is the contention of the appellant that the sample of the sheets ought to have been subjected to laboratory testing. PWs 1 and 2, the office bearers of the complainant institution has testified in support of the averments in the complaint. DW1 is the Sales Officer of the dealer and DW2, the Production Executive of the manufacturer. We find that the evidence of DWs 1 and 2 that it was on account of the poor workmanship and damages caused in transit that resulted in the defects alleged. It is the case of the complainant supported by the version of PWs 1 and 2 that the sheets were supplied at the premises of the complainant. We find that it is admitted in the earlier OP filed ie, OP 134/00 that the opposite parties/appellant had undertaken to rectify the entire defects. Hence there is no scope for the contention that the damages were caused on account of mishandling and improper transit. Although impermeability coating was allegedly done the same has not resulted in rectifying the defects. As noted above, the Commissioner has noted dampness with respect to 224 Nos. of sheets and 16 sheets were found broken vertically. The total sheets purchased are 240 in numbers. Evidently, all the sheets supplied are of poor quality. There is no reason to disbelieve the testimony of CW1, the Commissioner. We find that the poor workmanship alleged would not result in such extensive damages. Hence we find that there is no reason to deviate from the findings of the Forum in this regard. 7. The Forum has meticulously calculated the cost of the damaged sheets deducting the value of 11 sheets replaced by the company. Towards removing the sheets and relaying the sheets a sum of Rs. 15,000/- has been awarded. We find that the same is only reasonable. The cost of 229 sheets ie, after deducting 11 sheets from the total 240 sheets is Rs. 74,539/- which is on the basis of the price of the sheets as evident from the documents produced. Rs. 1000/- is allowed for clerical expenses. Hence altogether Rs. 96,417/-. A sum of Rs. 7,500/-- has also been allowed towards compensation. We find that the above item appears overlapping in nature as interest at 12% has been awarded on the amount of Rs. 96,417/-. Hence the order awarding Rs. 7,500/- towards compensation is set aside. The rest of the order including the provision for cost of Rs. 2,000/- is sustained. In the result, the appeal is allowed in part as above. The office is directed to forward the LCR to the Forum. JUSTICE K.R. UDAYABHANU: PRESIDENT Sr. | 
