BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.44/2009 Order dated this the 14th day of October 2009 COMPLAINANT/S Sri.B.K.Manjunath S/o B.T.Jayakumar, R/at No.2960, 100 Feet Road, 4th Cross, Nehrunagar, Mandya. (By Sri.B.S.Arya., Advocate) -Vs- OPPOSITE PARTY/S 1. Sri.Channappa, Carpenter & Proprietor, Manjunatha Wood Works, M.C.Road, Kallahalli, R/at C/o Yashoda W/o Chandrashekar, 1st Cross, V.V.Nagar, Kallahalli. 2. The Proprietor, Classic Timbers, Timber Merchants & Suppliers, No.397/4-1, 19th West Cross, MGO Complex, Ashok Road, Mysore. (By Sri.G.S.Mahadevaswamy., Advocate for 1st O.P. & Sri.B.R.Jagadeesh., Advocate for 2nd O.P.) Date of complaint 28.04.2009 Date of service of notice to Opposite parties 19.05.2009 Date of order 14.10.2009 Total Period 4 Months 25 Days Result The complaint is partly allowed, directing the 1st Opposite party to refund Rs.78,489/- with interest at 9% p.a. from the date of complaint and further 1st & 2nd Opposite parties are directed to pay equally Rs.26,200/- with interest at 9% p.a. from the date of complaint and further 1st Opposite party is directed to pay compensation of Rs.10,000/- to the Complainant with cost of Rs.2,000/-. This order shall be complied within six weeks. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming Rs.2,10,000/- being amount received from the Complainant and Rs.1,00,000/- towards the expenses and Rs.2,00,000/- as compensation. 2. The case of the Complainant in brief is that the Complainant to construct a residential house availed the service of 1st Opposite party a Carpenter who agreed to provide the service of supply of teak wood and also carpentry work as 1st Opposite party is doing carpentry work having a shop under the name mentioned in the cause title. The Complainant trusted 1st Opposite party and had given the responsibility of carpentry work along with supply of teak wood and the 1st Opposite party had assured to supply good quality teak wood and when asked the Complainant has given 3 cheques dated 22.11.2008 for Rs.1,00,000/-, cheque dated 02.12.2008 for Rs.10,000/- and cheque dated 16.12.2008 for Rs.1,00,000/-. After receiving the cheques and encashing the cheque amount, 1st Opposite party brought the doors and window frames to his site in the 2nd week of January 2009. Since, the frames were of teak wood all the frames were pasted with cowdung and as such, the Complainant could not notice the quality of the teak wood frames. The doors and window frames are fixed in between the walls. After fixing the frames, the Complainant started curing of walls with water. After 4-5 days the cowdung which was pasted on the frames merged with water and vanished and Complainant found that the teak wood used for doors and windows frames to be made out of tender wood, white in colour which is not fit for use and it is of defective material as full of wholes and cracks are observed on the frames day by day. The 1st Opposite party being carpenter has not provided his service as agreed and cheated by using defective wood material and hence, there is clear deficiency in service. After observing the defect with the wood as above, the Complainant contacted 1st Opposite party on 15.02.2009 and explained the fact and asked him to replace the defective wooden frames with good material or to pay back the amount of Rs.2,10,000/- received by him. The 1st Opposite party is not prepared either to replace the defective wood with good material or to pay back the amount. In spite of repeated contact and personal requests, the 1st Opposite party is not coming forward and has not at all come to the site after fixing the frames. The 1st Opposite party has furnished the purchase receipt dated 22.11.2008 for Rs.1,31,511/- issued by 2nd Opposite party saying that he has purchased the teak wood from 2nd Opposite party. Therefore, 2nd Opposite party is made a party. Because of willful and malafide act of 1st Opposite party, the Complainant is put into much hardship and mental agony and also there is delay in construction work. Hence, he has filed a complaint against the Opposite parties. 3. The notices were served on the Opposite parties. 1st Opposite party has filed version denying the allegations made against him, but admitted that he was entrusted with carpentry work only. According to the case of the 1st Opposite party, the Complainant approached to do carpentry work and requested the 1st Opposite party for purchase of teak wood and window frames from 2nd Opposite party for him at Mysore and 1st Opposite party accompanied with the Complainant and visited the shop of 2nd Opposite party exclusively and purchased cut size log and 1st Opposite party has given the particulars and measurement of the wooden frames and 1st Opposite party has appointed 8 labourers to do 15 doors and 16 windows and at the time of fixing the frames cowdung was pasted and it will be polished after words. The Complainant is negligent incuring water to walls, he has not taken precaution to protect windows and doors from water and to expose for sunrise. Some fractures might have noticed for which 1st Opposite party is not responsible. The 1st Opposite party had engaged 8 labours to prepare the doors and windows and to fixing to the house and Complainant has paid Rs.10,000/- as labour charges and agreed to pay the balance amount to the 1st Opposite party after fixing the door and windows. The 1st Opposite party has received only Rs.10,000/- for labour charges and asked the Complainant to pay the balance amount of labour charges and when the Complainant postponed the same, 1st Opposite party insisted to pay the balance amount of Rs.25,000/-. To avoid payment of balance amount of Rs.25,000/-, the Complainant has set up this theory. The 1st Opposite party has not supplied teak wood. There is no defective service from the 1st Opposite party. The 2nd Opposite party has supplied the frame and window and received the amount after cutting the log at the shop of 2nd Opposite party. Hence, the 2nd Opposite party is liable to pay the amount, if any to the Complainant and 1st Opposite party is not liable. Therefore, the complaint is liable to be dismissed with costs. 4. The 2nd Opposite party has filed a version, contending that there are no allegations against the 2nd Opposite party. The bill dated 22.11.2008 was issued to 1st Opposite party who is the Proprietor of M/s Manjunatha Wood Works. The 1st Opposite party had represented himself as one Manju and 2nd Opposite party is neither aware of the name Channappa nor B.K.Manjunath the Complainant. The 2nd Opposite party carries on business at Mysore and transaction took place at Mysore and therefore, the cause of action against the 2nd Opposite party has arisen at Mysore and hence, the complaint is not maintainable. Neither the purchase was made for and on behalf of the Complainant nor the Complainant has signed the aforementioned bill. The Complaint for replacement and recovery of damages were not made known to 2nd Opposite party at any point of time. The 2nd Opposite party has nothing to do about the transaction between 1st Opposite party and Complainant. As the payment made by Manju alleged to be 1st Opposite party as against the bill exceeds the amount alleged to have been paid by the Complainant towards the purchase, it cannot be concluded that the said purchase was made exclusively for the complaint alone. It cannot be ascertained that the 1st Opposite party has utilized the same quality teak wood that was purchased by him from 2nd Opposite party and later said to be delivered to the Complainant. Before fixing the doors and window frames, the Complainant is supposed to have seen and approved the timber and had the option to refuse / reject or demand for replacement of the same if it was found defective. The complaint is not maintainable against the 2nd Opposite party and this Forum has no jurisdiction to try the complaint against the 2nd Opposite party and complaint is liable to be dismissed with costs. 5. During trial, a Commissioner was appointed and Commissioner Report is filed. The Complainant has filed affidavit and produced the documents Ex.C.1 to C.4. The 1st & 2nd Opposite parties are examined and produced the documents Ex.R.1 to R.3. 6. We have heard the learned counsel for the Complainant. 1st & 2nd Opposite parties have filed written arguments. 7. We have perused the records. 8. Now the points that arise for our considerations are:- 1. Whether the Complainant proves that 1st Opposite party was entrusted with purchase of teak wood and he has paid Rs.2,10,000/- totally by means of cheques? 2. Whether the teak wood used for window and door frames fixed to the house building under construction by the Complainant, is not of good quality and defective? 3. Whether the complaint is not maintainable against the 2nd Opposite party in view of the defence taken by 2nd Opposite party? 4. Whether the 1st & 2nd Opposite parties are liable to refund the cost of wood? 5. Whether the 1st Opposite party is liable to refund the cheques amount? 6. Whether the Complainant is entitled to the amount sought for? 9. Our findings and reasons are as here under:- 10. POINT NO.1:- The undisputed facts borne out from the materials on record are that the Complainant is constructing a house in the first floor for residential purpose in property bearing No.D5/833/2960 and engaged the service of 1st Opposite party who is a Carpenter. According to the Complainant when the Complainant approached, 1st Opposite party expressed his willingness to provide his service of supply of teak wood and also carpentry work in the construction of the house since he is doing carpentry work in the shop under the name Manjunath Wood Works, M.C.Road, Kallahally and the Complainant trusted the 1st Opposite party and entrusted carpentry work along with the supply of teak wood and 1st Opposite party assured the Complainant to supply the good quality wood, but the defence of the 1st Opposite party is that he has agreed only for carpentry work and he has not at all agreed to supply teak wood. It is undisputed that under Ex.C.1 bill issued by 2nd Opposite party cut size of teak wood of different sizes are purchased and total cost including the tax is Rs.1,31,511/- as per the fill Ex.C.1. The bill is in the name of Manju, Mandya and it is dated 22.11.2008 issued by 2nd Opposite party. It is admitted that cheque dated 22.11.2008 for Rs.1,00,000/-, cheque dated 02.12.2008 for Rs.10,000/- and cheque dated 16.12.2008 for Rs.1,00,000/- were issued and the amount was drawn by 1st Opposite party. According to the 1st Opposite party, the Complainant issued the self-cheque and got drawn the amount and purchased the teak wood at Mysore in the shop of 2nd Opposite party and at the time, the 1st Opposite party accompanied the Complainant and has given the measurement of the wooden frames, but according to the 2nd Opposite party, 1st Opposite party has purchased the wood and he has not seen the Complainant at all and there is no transaction between him and the Complainant. 11. Let us examine the evidence, records and the circumstance to consider, whether the Complainant purchased the teak wood from 2nd Opposite party or the 1st Opposite party purchased the teak wood for the Complainant under the bill Ex.C.1. The 1st Opposite party admitting the drawing the amount under three cheques issued by the Complainant, totally for Rs.2,10,000/-. The 1st Opposite party pleaded that the Complainant has issued the self-cheques to 1st Opposite party to bring the money from the Bank and he has not issued any cheque in favour of 1st Opposite party and hence, he has not received any cheque in his favour and drawn the cheque amount and as per the direction of the Complainant, he has drawn and bring Rs.2,10,000/- and handed over the cash to the Complainant. But according to the Complainant case, he has issued three cheques in favour of the 1st Opposite party and he has drawn the amount to purchase the teak wood. The Complainant has produced the account extract issued by Bank of Baroda as per Ex.C.2 and this reveals that from the account of the Complainant on 22.11.2008Rs.1,00,000/- was paid to Channappa (1st Opposite party) and Rs.10,000/- on 02.12.2008 and Rs.1,00,000/- on 16.12.2008 under three cheques. So, if actually, the Complainant had issued self-cheques, the entry in the account should be self not the name of Channappa. Only if the cheque is issued in favour of Channappa, the name would be entered in the accounts of the Bank when the cheque is presented and amount is drawn. Further, in the affidavit 1st Opposite party stated that in order to escape tax, the Complainant issued three cheques for Rs.2,10,000/- and got encashed through him, but it is not the version of the 1st Opposite party at all and it is not suggested to Complainant at all. According to the Complainant, the Complainant is a Income Tax Assessee and therefore, there is no question of escaping income tax and he has availed loan. So, the drawal of the amount under three cheques in the name of 1st Opposite party clearly established that the Complainant has issued three cheques totally for Rs.2,10,000/- and 1st Opposite party has drawn the amount and the theory of the 1st Opposite party that in order to escape income tax, the Complainant issued three cheques and got encashed through the 1st Opposite party cannot be accepted at all. 12. Further, 2nd Opposite party himself has admitted that the 1st Opposite party is known to him from last 4 to 5 years and used to purchase the wood from his shop. 1st Opposite party is running the shop under the name Manjunatha Wood Works, M.C.Road, Kallahally and after the complaint, he has removed the board. The evidence of the Complainant also reveals that the 1st Opposite party prepared the door and window frames in his shop and then brought near the building for fixing. So it cannot be said that to escape the liability. 2nd Opposite party has pleaded that 1st Opposite party purchased the wood. Merely because Ex.C.1 does not contain the signature of customer who purchased the wood, according to the 2nd Opposite party, since 1st Opposite party was known to him, he did not take the signature and further deposed that he does not know that 1st Opposite party is called Channappa. According to the case of the 1st Opposite party, the Complainant selected the wood and got cut the timber and then the sizes were selected as per the measurement given by 1st Opposite party. But, the evidence and the documents of 2nd Opposite party discloses that he is not having Sawmill to cut the timber, but he get supply of cut sizes from other states as per Ex.R.1 to R.3 and he sells only cut sizes of wood. In this circumstance, the evidence of 1st Opposite party that the Complainant selected the timber and got sawn the wood and according to the measurement of 1st Opposite party, the cut sizes were selected cannot be believed at all. It is pertinent to note that the 1st Opposite party has not whispered what is the rate of charges for doing carpentry work. But simply taken a defence, the Complainant was due of Rs.35,000/- towards labour charges and he had paid only Rs.10,000/- and when the 1st Opposite party demanded balance of Rs.25,000/-, the Complainant has filed this false complaint. This defence cannot be accepted at all for the reasons that he has not whispered the rate of charges for doing carpentry work and the evidence of Complainant clearly proves that for complete work of door and windows, the rate was fixed at Rs.48/- per Sq. ft. It is known to everybody who construct the house to fix the rate per square feet and they will not fix the charge rate for doing only frames and it is unheard. Even though, the Complainant has not maintained the account for handing over the amount of Rs.25,000/- towards labour charges to the 1st Opposite party, his evidence that he has paid Rs.25,000/- totally. Whenever the 1st Opposite party demanding, has to be accepted and it is common. When there are so many Sawmills at Mandya and Mysore, if actually the Complainant was interested to select the teak wood according to his taste, he could have selected the teak wood at the Sawmill instead of going to cut size selling shop. The evidence of the Complainant discloses that he has no experience of selecting teak wood and hence, he has entrusted the said job to 1st Opposite party cannot be said to be artificial. Usually a owner constructing a house will depend upon the carpenter for selection of the wood, because they are having the knowledge and according to the 1st Opposite party, he is also carrying on wood work in big houses also since 10 years and the case of the Complainant and 2nd Opposite party that the carpenters purchase the wood for house construction of others and get commission cannot be doubted at all. There is no reason to disbelieve the evidence of the Complainant and 2nd Opposite party that 1st Opposite party is carrying on wood works having a shop under the name Manjunatha Wood Works, M.C.Road, Kallahally and 1st Opposite party used to purchase the wood for his work in the shop of 2nd Opposite party cannot be disbelieved at all. Therefore, under these circumstances, it is established by the Complainant that apart from carpentry work 1st Opposite party entrusted for purchase of teak wood for the building under construction. In view of our discussion above, we hold that the Complainant has issued three cheques totally for Rs.2,10,000/- and 1st Opposite party was encashed the same and the evidence of the 1st Opposite party that the Complainant got encashed the cheque through 1st Opposite party is liable to be rejected and therefore, we hold that the 1st Opposite party has received totally Rs.2,10,000/- through three cheques from the Complainant for purchase of the teak wood and hence we answer point no.1 in the affirmative. 13. POINT NO.2:- According to the Complainant, the door and window frames prepared by the 1st Opposite party were brought for fixing in January 2009 and as cowdung was pasted on the frames he could not notice the quality of the wood and after curing the walls with water, after 4 to 5 days he noticed the wood was of tender age and white and defective and the wood was full of holes and cracks being developed day by day. According to his evidence, after fixing the frames to the walls, he showed the same to carpenter Prasanna and Dasachari examined and said that the wood is of low quality and they did not give report in writing. The 1st Opposite party has pleaded that the wood used for window and door frames is of good quality wood. But he has gone to the extent of saying that since the Complainant did not take precaution to protect the sunrise and rain and also at the time of curing the walls with water some small cracks and holes have developed and at the time of polish to the wood, the cracks and holes would be filled up. If actually, the wood used for frames is not of tender age and it was sufficiently aged wood with quality, there is no question of developing cracks and holes or becoming white in case of teak wood because of sunrays or water and it is known to the carpenter that soon after fixing the frames pasted with the cowdung mud, windows sajjaas and door sajjas would be put up with cement and hence, there is no question of water or sunrays effect on the frames, no one covers the frames with any other material. 14. Further, on the application of the Complainant, a Commissioner was appointed to inspect the window frames fixed by the 1st Opposite party in the building of the Complainant and after inspection, he has submitted report and it is marked as Ex.C.4. Of course, the 1st & 2nd Opposite parties have filed objections to the Commissioner report contending that he is not an expert and further 1st Opposite party filed an application to appoint one Ananthapadmanabha, Scientist, Institute of Wood Science and technology (Indian Council of Forestry Research and Education), T.O.Block, Sampige Road, Malleswaram, Bangalore, to assess the age and quality nature of the wood used and this Forum rejected the application, because already a Commissioner was appointed in the presence of both sides and he has submitted report. Under the provisions of Section 13 of the C.P. Act, the Forum is not empowered to reject the Commissioner report on the basis of the objections filed by the Opposite parties and the Forum has to decide the value of the Commissioner report under Section 14 of the C.P.Act, while giving finding on the complaint instituted. In fact, when the Complainant filed an application to appoint C.W.2 B.P.Murthy, a Retired Forester as a Commissioner, they did not oppose by filing any objection and did not suggest proper expert to examine the wood used and at that time they simply kept quiet and since the Commissioner report was adverse to the Opposite parties, they filed objections contending that the Commissioner is not an expert. Of course, a Forester is not an expert or a technician, but he is having experience of so many years in the wood field having work for number of years. The decision of AIR 1999 Supreme Court 3318 cited by 2nd Opposite party with regard to the appointment of expert is not applicable to the facts of the case. In fact, the Honble Supreme Court has observed that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. Even though, C.W.2 the Forester who is appointed as a Commissioner is not an expert, but he has acquired experience and knowledge about the quality of the wood by working as a forester for so many years as they use to observe the wood everyday. Even though, 1st Opposite party has relied upon the Forest Code of Karnataka Government and Section 119 of the Code says that a Forest Utilisation Officer will give expert opinion after a thorough examination in cases referred to him to examine any samples of wood in any legal proceedings, but it is not the rule. C.W.2 a Forester has given reasons on what basis he opined the wood frames fixed to the building is of tender age and white and in fact he has deposed that he has undergone forest training and the age of the teak wood is more than 100 years and the age of the wood would be determined on the basis of circle layers of the wood and according to him, the wood found in the frames are of tender age and made of teak poles tree and his evidence that in case of sizes got from the tree poles of tender age they will not be white and there will be any oil content has to be accepted and there will not be number circles to assess the age of the wood. Bearing in mind the evidence of Commissioner, if we see the photos of the wood frames fixed to the building under construction by the Complainant, in Ex.C.3, we find the cracks and holes in some items and some sizes are of white colour. Though, 2nd Opposite party has deposed that for the timber cut piece of teak wood, the rate is ranges from Rs.600/- to Rs.10,000/- per CFT, but in Ex.C.1, 2nd Opposite party has not mentioned the rate of wood per CFT, but simply mentioned the quantity of wood totally and the total cost of the wood with Vat, though he has deposed that he has sold teak wood at the rate of Rs.2,400/- to 1st Opposite party. Under these circumstances, it is established by the Complainant that the wood cut sizes of teak fixed to the building of the Complainant is not of proper age and not of good quality and they are defective up to 40%. Therefore, we answer the point accordingly. 15. POINT NO.3:- The 2nd Opposite party has taken some contention that the transaction took place at Mysore and the complaint against him is not maintainable before this Forum cannot be accepted, because a complaint can be filed before the District Forum where one of the Opposite parties are residing or carries on business when there are more Opposite parties. Though, it is contended that the Complainant is not a Consumer of 2nd Opposite party and the complaint is not maintainable against him, but admittedly 1st Opposite party has purchased the teak wood from 2nd Opposite party and the bill issued by 2nd Opposite party is handed over to the Complainant and therefore, the wood was purchased by the 1st Opposite party on behalf of the Complainant and therefore, the Complainant becomes a Consumer of the 2nd Opposite party and hence, we answer the point accordingly. 16. POINTS NO.4 & 5:- The Complainant has sought for refund of Rs.2,10,000/- from 1st & 2nd Opposite parties and also Rs.1,00,000/- as the expenses for removal and fixing of the wood frames and also Rs.2,00,000/- as compensation for mental agony, harassment, delay in construction of work. In view of out finding on points no.1 & 2 it is established that the 1st Opposite party has received totally Rs.2,10,000/- under three cheques from the Complainant and as per Ex.C.1 he has purchased the wood for Rs.1,31,511/-. Therefore, the 1st Opposite party is liable to refund Rs.78,489/- to the Complainant being the balance amount of the cheque amount. Further, fixing the defective wood at 40%, the 1st & 2nd Opposite parties are jointly liable to refund Rs.52,400/- as it is proved that the wood supplied by 1st & 2nd Opposite parties is defective to an extent of 40% and at this juncture, it is not proper to remove the frames fixed to the walls and ordered to refund the entire amount. The 1st & 2nd Opposite parties are also liable to pay interest on this amount from the date of this complaint. The Complainant has sought for compensation for mental agony and delay in construction of the house on account of deficiency in service by 1st & 2nd Opposite parties proved by evidence. The 1st Opposite party is liable to pay compensation to the Complainant for purchasing defective wood and causing delay in construction of the house which increases the cost of construction apart from the mental agony to the Complainant. Under these circumstances, it is reasonable to award compensation of Rs.10,000/- to the Complainant payable by 1st Opposite party. 17. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the 1st Opposite party to refund Rs.78,489/- with interest at 9% p.a. from the date of complaint and further 1st & 2nd Opposite parties are directed to pay equally Rs.26,200/- with interest at 9% p.a. from the date of complaint and further 1st Opposite party is directed to pay compensation of Rs.10,000/- to the Complainant with cost of Rs.2,000/-. This order shall be complied within six weeks. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 14th day of October 2009). (PRESIDENT) (MEMBER) (MEMBER)
