Complaint filed on: 14-01-2016
Disposed on: 26-08-2016
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.09/2016
DATED THIS THE 26th DAY OF AUGUST 2016
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT,
SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
S.B.Latha
W/o. Manjunath.H.N.
Aged 48 years,
Proprietor, SDM Petroleum,
Dealer in Indian Oil
Corporation, IB Circle,
Tumakuru-Mysuru Road,
Huliyurdurga, Kunigal Taluk,
Tumakuru district
V/s
Opposite party:-
Managing Director,
Designer Pavings and Tiles Pvt.
Ltd, No.36, KIADB Industrial
Area, Lingapura, Sira Road,
Tumakuru
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This is a complaint filed by the complainant against the Opposite party, under Section 12 of the Consumer Protection Act and the complainant prays to direct the OP to remove the entire damaged tiles and to lay good quality tiles or in the alternative direct the OP to refund the amount of Rs.6,13,000=00 with interest @ 18% p.a. apart from Rs.5,00,000=00 towards general damages for mental shock and agony suffered by him, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant submitted that, she is the Proprietor of the Petrol Bunk and doing her business on Tumakuru-Mysuru Road at Huliyurdurga, Kunigal Taluk. The complainant intends to lay concrete paving tiles in front of her petrol bunk. Accordingly, the complainant has placed an order with the OP for supply of classic natural grey 80 mm (DM) concrete paving tiles on 15-11-2014. Considering the order placed by the complainant, the OP has supplied the above materials in the following 12 consignments:
1. On 18-2-2015 3520 blocks under invoice no.674 Rs.57,042/-
2. On 18-2-2015 2560 blocks under invoice no.675 Rs.41,482/-
3. On 19-2-2014 2560 blocks under invoice no.679 Rs.41,482/-
4. On 19-2-2014 3520 blocks under invoice no.680 Rs.57,042/-
5. On 22-2-2015 3520 blocks under invoice no.687 Rs.57,042/-6. On 22-2-2015 2560 blocks under invoice no.688 Rs.41,482/-7. On 23-2-2015 2560 blocks under invoice no.689 Rs.41,482/-8. On 23-2-2015 3200 blocks under invoice no.690 Rs.51,848/-9. On 24-2-2015 3200 blocks under invoice no.693 Rs.51,848/-10.On 24-2-2015 2240 blocks under invoice no.694 Rs.36,294/-11.On 25-2-2015 3057 blocks under invoice no.695 Rs.49,550/-12.On08-3-2015 1805 blocks under invoice no.719 Rs.27,495/- Total Rs.5,26,500/-
The complainant further submitted that, the OP has agreed to lay the said tiles at the rate of Rs.7/- per sq. ft. and in this regard, the OP has collected laying charges of Rs.66,500=00 and further the OP has also collected transportation charges of Rs.20,000=00 from the complainant.
The complainant further submitted that, the OP has undertaken to lay the said tiles in front of the Petrol Bunk and completed the laying work in the month of March 2015. After finishing the laying work, the OP has permitted the complainant to use the same from the 1st week of April 2015.
The complainant further submitted that, the petrol bunk was started by the complainant recently, there is no heavy vehicles playing over the said tiles flooring. Only two wheelers and four wheelers were playing on the said flooring. The complainant further alleged that, within 3 to 4 months after the tiles were laid, the entire tiles laid by the OP were completely damaged i.e. broken and wear worn out. Thus the materials supplied by the OP are of substandard materials and were not durable. Hence the complainant has written letters to the OP on 7-8-2015 and 29-9-2013 requesting to remove all the tiles and to lay good quality tiles. On receipt of the said letters, the OP has issued evasive reply stating that, the complainant has allowed heavy earth movers, i.e. Tipper Lorries, Hitachi, JCB vehicles etc., hence the OP is not responsible for such damage.
The complainant further submitted that, after getting instruction from the OP, the complainant has used the said floor from 1st week of April. Due to supply of substandard tiles, the entire tiles have completely damaged and worn out. Hence the complainant has got issued legal notice to the OP on 1-11-2015 calling upon to remove the entire tiles and to replace the good quality tiles. The said notice was served on the OP, but the OP has issued evasive reply on 26-11-2015. Hence, the present complaint is filed.
3. After service of the notice, the OP has appeared through counsel and filed version contending interalia as under:
The OP submitted that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.
The OP further submitted that, the complaint filed by the complainant is not in accordance with law as the complaint involves substantial question of law. The complaint filed against the Managing Director of OP in the individual capacity which is not maintainable in the eye of law.
The OP further submitted that, the material procured by the complainant is for commercial premises and for commercial purposes. The tiles procured is for laying in the commercial premises of the petrol bunk. Service sought to be availed by the complainant is for commercial purposes for commercial premises. The complainant is engaged in commercial activity and in connection with the commercial purpose and as such the complainant is not a consumer. The complainant is not covered by the explanation appended to Section 2 (1) (d) (i) of the CP Act.
The OP further submitted that, it is not the Managing Director who is doing business but it is Private Limited Company and as per the settled law no liability can be fixed on a Managing Director in his personal capacity.
The OP further admitted that, the OP has supplied the materials to the complainant for the use of petrol bunk wherein business is commercial in nature run by the complainant, but the OP denied that, the OP has supplied the defective materials to the complainant and had agreed to lay the said tiles supplied by the OP at Rs.7=00 per sq. ft.
The OP further denied that, the OP has collected transportation charges and had undertaken to lay the said tiles in front of the petrol bank of the complainant. Further the tiles purchased by the complainant is for the petrol bunk and heavy vehicles have been allowed to ply down by the complainant and it is due to the negligence, omission and commission of the complainant herself. The complainant herself is responsible for damages caused to the tiles. It is the bounden duty of the complainant to take care and even if the complainant found that the tiles laid down are wearing out immediate action should be initiated by complainant only. The complainant has waited for more than six months to make unlawful allegations against the reputed OP Company. The complainant has resorted to making all these unlawful allegations against the materials supplied by the OP after more than six months.
The OP further submitted that, the materials supplied by the OP is of international standards manufactured with advanced technical expertise and machinery from Germany.
The OP further submitted that, the complainant has accepted the products from the OP only after due inspection from the complainant and only after satisfied with the quality of the product. Now after using the product for more than six months the complainant has started the allegations against the OP, and the OP had got the place inspected by their engineers and has also obtained report from the concerned engineers. Further there is no objection at the time of supplying the materials to the complainant and the same has been laid down by the complainant.
The OP further submitted that there is no relationship of consumer and consignee as claimed by the complainant and there is no deficiency of service on the part of the OP. Further the averments of complaint is hereby specifically denied by the OP without prejudicing the right and interest of the OP. The OP prays to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents along with the complaint and produced nine positive photos which were marked as Ex-C1 to C41. The OP has not produced any documents to prove the case. We have heard the arguments of both parties and perused the documents.
5. Based on the above materials, the following points will arise for our consideration.
- Whether the complaint filed by the complainant is maintainable or not?
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
6. Our findings on the above points are;
Point No.1: In the affirmative
Point No.2 In the affirmative
Point No.3: As per the final order below.
REASONS
7. The OP has raised preliminary objection is that, the complainant is not a consumer within the definition of 2 (1) (d) (i) of the CP Act. Admittedly the complainant has purchased the said tiles/bricks for her petrol bunk as commercial purpose. Thus it is an un-doubtfully clear that, the money generated from the petrol bunk is to eke her livelihood. The complainant has clearly substantiated the same in the complaint itself. Hence, the averments made by the OP that, the complainant is running the petrol bunk for commercial purpose for that reason she is not a consumer, cannot be accepted. Further in view of the Section 2 (1) (d) (i) of CP Act as defined in explaining “Consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or”. Explanation – For the purposes of this clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”. Therefore, the averments made by the OP is that, the complainant is not a consumer does not hold any water. Hence the contention of OP cannot be accepted by this Forum.
8. Further the contention of complainant is that, the complainant has purchased the tiles from the OP company for worth of Rs.5,26,500=00, and the OP has supplied the tiles/bricks in 12 consignments. The complainant has further submitted that, the OP has collected the transportation charges of Rs.20,000=00 and tile laying charges of Rs.66,500=00. The OP has laid the said tiles in front of the petrol bunk and completed the laying work, within 3 to 4 months. After laying the tiles work, the entire tiles laid by the OP were completely damaged i.e. broken and had become worn out. Thus the materials supplied by the OP are substandard materials and were not durable. So the complainant has approached the OP and given letters dated 7-8-2015 and 29-9-2013 requesting them to inspect the above said tiles and take proper action. To substantiate this facts, the complainant has produced documents/Ex-C29 for this the OP has given reply letter dated 31-8-2015 stating that, they are ready to replace the damaged tiles/blocks and requested the complainant to make necessary transport arrangement to get the block from the factory at Tumakuru. In support of this, the complainant has produced the letter/Ex-C30. Thereby the complainant again wrote a letter to OP stating that, it should be replaced the entire damaged tiles at their own cost or refund the entire amount of the tiles/blocks and the blocks has not satisfied laid by the OP and also requested the OP to give laying charges and transportation charges which they have collected from the complainant. In this regard, again the OP has written a letter dated 30-10-2015 stating that, they have decided to replace the damaged blocks/tiles at their own cost and requested to arrange the collection of blocks/tiles from their factory in Tumakuru. Hence aggrieved by this, the complainant has filed the present complaint before this Forum for deficiency of service done by the OP. On the contrary, the OP has denied the averments made by the complainant stating that, the OP has transported the above said material to the complainant and laid the tiles in front of the petrol bunk. The OP further submitted that, the damage has occurred because of heavy vehicle plyed on the tiles/bricks.
9. On perusal of the complaint, evidence and documents produced by both parties, the complainant has produced positive photographs of the tiles/bricks laid in front of the petrol bunk, it is seen that, the tiles are only worn out and not broken or damaged. The upper layer of the tiles has been worn out, due to plying of the heavy loaded vehicles, which come to the petrol bunk on regular basis. Therefore, we cannot come to conclusion that, the tiles/blocks supplied by the OP is substandard quality tiles supplied by the OP. Further the complainant has not produced any cogent documents that, the OP had laid the tiles for which appropriate charges for the purpose of laying the tiles. In the absence of producing the documents, it cannot be held that, the OP himself laid the tiles and transported the above said tiles.
10. During the course of proceedings, the OP has submitted that, they could make good damage tiles at their own cost for the damaged tiles, as per the letter dated 31-8-2015/Ex-C30, wherein they are ready to replace the damaged blocks at their own cost. Hence it is just and proper to direct the OP to replace the entire damaged tiles/block at their own cost and accordingly we answer the point Nos.1 and 2 in the affirmative.
11. Point No.3. In the result, for the foregoing reasons, we proceed to pass the following.
ORDER
- The complaint is allowed in part.
- The OP is directed to replace the entire damaged tiles/Blocks i.e. Classic Natural Grey 80 mm (DM) at their own cost, failing which, the OP shall refund Rs.5,26,500=00 (as per 12 consignment delivery challan cum invoice) to the complainant.
- The OP is further directed to pay Rs.5,000=00 to the complainant towards cost of this litigation.
- This order is to be complied by the OP within 30 days from the date of this order.
- Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 26th day of August 2016).
MEMBER MEMBER PRESIDENT
The complainant and OP shall conduct a joint survey and come to a conclusion before replacing the damaged tiles. After such conclusion is arrived by both parties, the work shall be executed by the OP within one month from the date of receipt of this order.
