By Jayasree Kallat, Member:<br /> <br /> The case of the complainant is that he approached opposite party-1 for purchasing a plastic tarpaulin but opposite party-1 said that ‘sumo black coper tarpaulin’ is the best available one and they will provide one year warranty for it. Opposite party-1 also agreed to replace the tarpaulin if any defect occurred within one year. Believing the words of opposite party-1 the complainant purchased three sumo black coper tarpaulins on 13-2-03 as per bill No.345. Opposite party had written one year guarantee on the bill. The complainant had used the tarpaulin as a cover for the peeled arecanut by tying the tarpaulin on the terrace of the house of the complainant. The tarpaulin was to protect arecanut, which was kept on the terrace of the house of the complainant from mist and rain. When the rate of the arecanut became high complainant decided to sell the arecanut. But to the surprise of the complainant he found that the arecanut were decayed due to rain and mist. When he examined the tarpaulin he found that it was like a sieve and there were many holes in the tarpaulin. Because of this the complainant could not sell arecanut for an increased price and he sustained a loss of Rs.37500/-. The complainant approached opposite party-1 for reimbursing the loss and for a refund of the amount of tarpaulin. Opposite party-1 inspected the tarpaulin and said that they will do the needful but they failed to do so. When the complainant sent a lawyer notice to opposite party-1, opposite party-1 sent a reply stating that if at all any liability occurs the <br /> manufacturer only is liable. Opposite party-1 had promised to contact the manufacturer but nothing materialised. The complainant states that the tarpaulin is defective due to manufacturing defect and both opposite party-1 and 2 are liable to compensate. Hence this complaint.<br /> <br /> Opposite party-1 filed a written version denying the allegations in the complaint. The complaint is not maintainable. Complainant is not a consumer as he has purchased the plastic tarpaulin for the purpose of arecanut business. Opposite patry-1 denies the facts that the complainant had approached opposite party-1 to purchase silpolin brand of tarpaulin opposite party –1 recommended sumo black coper brand saying that it was the best available one. Opposite paty-1 also denies that they had agreed for replacement guarantee. The first opposite party with a business policy, and to keep better customer relationship used to effect repairs of torned tarpaulin as and when they are brought to the opposite party’s shop without charging. Opposite patty-1 also denies that the tarpaulin purchased by the complainant became sieve like within a short period. Holes also will not occur within such a short period. If the tarpaulin is used in careless, negligent and improper way or holes are made deliberately such things will happen to the tarpaulin. Opposite party-1 denies the facts that there is manufacturing defect alleged by the complainant and opposite party-1 is not liable to pay any amount as compensation. If at all the Forum comes to the conclusion that there was manufacturing defect for the goods sold by opposite party-1 responsibility for paying compensation is only on the second opposite party who is the manufacturer. The allegation in the complaint that he had lost of Rs.37500/- due to the defect of the tarpaulin is absolutely false and therefore denied. Opposite party-1 prays for the dismissal of the complaint.<br /> <br /> Notice was sent to opposite party-2 they did not appear. Notice was repeatedly sent to opposite party-2 and acknowledgement received from opposite party-2 but they did not appear in court and they did not file any version.<br /> <br /> The points to be considered (1) whether the complainant is a consumer? Whether the complainant is entitled to get any relief from the opposite parties?<br /> <br /> PW1 was examined and Ext.A1 to A3 were marked on complainant’s side. A report was filed by the expert who was examined as CW1 and the report was marked as Ext.C1. No evidence adduced on opposite parties’ side.<br /> <br /> Point No.1:-<br /> <br /> In the version of opposite party-1 they have raised the issue that the complainant is not a consumer as he had bought the tarpaulin to protect arecanuts, which were to be sold in the market. In our opinion any person can grow arecanut and as we are not using arecanut daily we can sell the commodities, which is grown in our compound. Opposite party-1 has not been able to prove that the complainant is trading in arecanut. Whatever the quantity of arecanut a single person has in his house he had to protect from rain and see that it is not decayed and people usually sell such commodities when the prices are high in the market. Hence we have no hesitation to say that opposite party-1 has not <br /> <br /> <br /> proved that the complainant has bought the tarpaulin for commercial purpose. In our opinion the complainant is a consumer.<br /> <br /> <br /> Point No.2:-<br /> <br /> <br /> The case of the complainant is that he had bought a tarpaulin to cover and protect arecanut, which is kept in the terrace of his house. When the complainant sought to sell the arecanuts when the rates of thesame became high he found that the tarpaulin was having several holes and it became like a sieve. As a result the arecanuts were not protected but they were decayed due to mist and rain. According to the complainant opposite party-1 had given one year guarantee. Ext.A1 is the bill produced by the complainant, which he got from the opposite party-1 while purchasing the tarpaulin. Ext.A1 has clearly mentioned one year guarantee. Ext.C1 the report filed by the Expert has clearly mentioned that the ageing characteristics of the material are not satisfactory. Ext.C1 clearly states that manufacturing defect is seen in the tarpaulin bought by the complainant from opposite party-1. Both Ext.A1 and Ext.C1 will go to show that opposite party-1 has sold the defective tarpaulin to the complainant. Opposite party-2 is the manufacturer of the tarpaulin. Hence we are of the opinion that the complainant is entitled to get relief. Point No.2 is proved<br /> .<br /> <br /> In the result petition is allowed and opposite parties -1 and 2 are jointly and severally liable to refund the amount of tarpaulin and also to pay compensation and cost to the complainant. Opposite parties-1 and 2 are directed to refund the amount of Rs.3030/- along with a compensation of Rs.2000/- for mental agony and hardship suffered by the complainant. Opposite parties are also directed to pay a cost of Rs.1500/-.<br /> Pronounced in the open court this the 6th day of November 2008.<br /> <br /> <br /> Sd/- Sd/- Sd/- <br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> Documents exhibited for the complainant.<br /> <br /> A1. Cash Bill dt. 13-2-2003.<br /> A2. Photocopy of Lawyer notice dt. 20-6-2003.<br /> A3. Photocopy of reply notice dt.5-7-03.<br /> Documents exhibited for the opposite party.<br /> <br /> Nil<br /> Witness examined for the complainant.<br /> <br /> PW1. M. Padmanabhan (Complainant)<br /> <br /> <br /> <br /> Witness examined for the opposite party<br /> .<br /> None.<br /> <br /> C1. Technical Report dt. 3-11-05 of Dr. G. Unnikrishnan, Asst. Professor in Chemistry<br /> National Institute of Technology, Calicut.<br /> CW1. G. Unnikrishnan, Assistant Professor in Chemistry,<br /> National Institute of Technology, Calicut.<br /> <br /> Sd/- President<br /> <br /> // True copy //<br /> <br /> (Forwarded/By order)<br /> <br /> SENIOR SUPERINTENDENT.<br />