Punjab

Faridkot

CC/15/42

Dhian Singh - Complainant(s)

Versus

Manohar Fiber - Opp.Party(s)

Lalit Maini

14 Oct 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        42

Date of Institution :  10.03.2015

Date of Decision :     14.10.2015

 

Dhian Singh s/o Puran Chand, r/o House No. 13, Kirat Nagar, Old Cantt Road, Faridkot, District Faridkot.                                                   .....Complainant

Versus

1. Manohar Fiber Marketing India Narinder Theater, Moga Road, Kotkapura, District Faridkot.

2. Paradise Associates No. 1345, Shakti Main Road, Ganapati, MRG, Opposite Hero Honda Showroom, Coimbatore (Tamil Naidu)-641006 through its MD.(Vide order dated 19.05.2015, OP-2 is deleted)

                                                                       ......Ops

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Lalit Maini,  Ld Counsel for Complainant,

    Sh Atul Gupta, Ld Counsel for OP,

    

   (Ajit Aggarwal , President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OP for deficiency in service and for seeking directions to OP to replace the defective flush doors or to refund Rs 50,900/- and for also directing OP to pay Rs 1,00,000/- as compensation for mental agony and harassment besides litigation expenses.

   2                                          Briefly stated, the case of the complainant is that complainant is a government contractor, who took contract for construction of building in Brijindra College, Faridkot vide agreement dt 13.11.2013 and he approached OP-1 for purchasing flush doors. On assurance of OP-1 that flush doors manufactured by OP-2 are of best quality, complainant got booked 39 flush doors and gave Rs 50,900/-  i.e Rs 50,000/- for doors and Rs 900/-for locks in cash. OP-1 also gave warrantee for two years for said flush doors against any defect. OP-1 delivered the flush doors to complainant on 27.03.2014 and sent a bill, but instead of issuing bill for Rs 50,000/-, OP-1 issued bill for Rs 16,472/- and when complainant enquired about lesser amount in bill, OP-1 replied that it is done to save tax and surges and again assured that in case of any defect, the doors would be replaced. Thereafter, Complainant fitted the doors in Govt Brijindra College, Faridkot but after a few days from the fitting of doors, said doors became deteriorated and after enquiry, it was found that flush doors are of poor quality and are not water proof as assured by OPs. Complainant made complaint regarding this fact to OP-1 and on assurance of replacement of said doors from OP-1 through manufacturer, complainant returned the doors to OP-1 on his own expenses for carriage, but OP-1 issued slip dt 9.09.2014 for only 4 doors. After that complainant approached OP-1 many times for replacement of defective doors, but OPs did not replace the said doors and payment of Rs 17 lac of complainant is stopped by Government and now, remaining doors have been replaced by complainant at his own expenses. Complainant made many requests to OPs for replacement of defective flush doors, but all in vain. Complainant also served legal notice dt 21.10.2014 to  OP-1with request to replace the defective doors, but that also bore no fruit. All this amounts to deficiency in service and trade mal practice and has caused much inconvenience, harassment and mental agony to complainant and due to this complainant has prayed for seeking direction to OPs to pay Rs 1,00,000/- as compensation for mental agony and harassment alongwith cost of litigation besides the main relief. Hence, the complaint.

   3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 13.03.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                    On receipt of the notice, OP-1 filed reply taking preliminary objections that complaint is not maintainable under the provisions of Consumer Protection Act as the articles worth Rs 16,742/- were purchased by complainant for commercial purpose and therefore, complaint is liable to be dismissed. Moreover, complainant has not approached this Forum with clean hands and has misstated the material facts. Complainant purchased 30 pieces of flush doors against which bill was issued to complainant. It is totally denied that goods worth Rs 50,000/-were purchased by complainant. Complainant has levelled false allegations as complainant never approached OP-1 for booking of 39 doors, rather he purchased 30 pieces of doors for which bill was duly issued to him. It is further averred that no warrantee for two years was ever given by OP-1 to complainant and allegations regarding lesser amount of bill to save tax is completely false. Moreover, goods were purchased by complainant for commercial use. On merits OP-1 reiterated on same pleadings and submitted that there is no deficiency in service on the part of answering OP and all the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering OP. Complainant did not provide correct address of OP-2 and therefore, due to want of address by complainant, case against OP-2 was dismissed and vide order dt 19.05.2015, OP-2 was deleted from the array of OPs.

   5                                                Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to Ex C-8 and then, closed the evidence.

   6                                          In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Harpreet Singh Ex OP-1 and then, closed the evidence.

   7                                          The Ld Counsel for complainant contended that complainant is a Government Contractor under Public Works Department for constructing buildings and repair works. The copy of license is Ex C-2. Complainant took contract for construction of building in Government Brijindra College, Faridkot vide agreement dt 13.11.2013. Copy of the same is Ex C-3. For this work, complainant was in need of some flush doors for fitting in building and he approached OP-1 for the same. OP-1 assured him that flush doors manufactured by OP-2 are of best quality and are water proof and also gave two years warranty. On it, complainant took 39 flush doors manufactured by OP-2 and paid Rs 50,900/- i.e Rs 50,000/- for doors and Rs 900/-for locks to OP-1. OP-1 delivered doors on 27.05.2014 alongwith bill only for the amount of Rs 16,742/- instead of Rs 50,000/- on the excuse that it is only for the purpose of saving tax etc and further gave assurance that if there is any defect in the door, then, there would be replacement of doors. Copy of the bill is Ex C-4. Complainant fitted the said doors in Government Brijindra College, Faridkot but after some days, the doors became deteriorated and it is found that doors were of poor quality and not water proof. Complainant approached OP-1 and complained about the poor quality of doors. On it, OP-1 told him to bring the doors and assured that he will replace the doors. On it, complainant returned 4 flush doors to OP-1 on his own expenses. OP-1 assured that he would replace the doors after contacting OP-2 but OP-1 did not replace these doors. Complainant visited OP-1 many times, but OP-1 kept putting off the matter on one pretext or the other and due to this a heavy payment of complainant has been stopped by the Government. Due to it, complainant replaced the remaining doors at his own expenses. Complainant also made complaint to Sales Tax Department regarding issuance of bill for lesser amount. Complainant also served a legal notice to OP-1. Copy of notice is Ex C-6, but OP-1 did not replace the doors and also did not give any reply to the notice. All these acts of OPs amount to deficiency in service and trade mal practice on the part of OPs. Complainant has prayed for directing OPs to replace the defective doors or to refund the amount received for doors and also prayed for compensation and litigation expenses.

   8                                   In reply to the arguments of complainant, ld counsel for OP-1 argued that the present complaint is not maintainable before this Forum as the complainant purchased the doors for commercial purpose and not for his own use and therefore, he does not fall under the definition of consumer as per Section 2 (d) (1) of Consumer Protection Act. Complainant has not approached this Forum with clean hands and has misstated the true facts as complainant himself admits in his complaint that he is a Government Contractor and he took contract for the construction of building of Government Brijindra College, Faridkot and for this purpose, he purchased the doors, which were to be fitted by him in the building of Government Brijindra College, Faridkot, which amounts to resale and as per Consumer Protection Act a person who purchases any item for the purpose of commercial use or resale is not the consumer and cannot take remedy under the Consumer Protection Act. So, the present complaint is not maintainable before this Forum and deserves to be dismissed on this score. However, they admit that complainant purchased flush doors from them but they deny that complainant purchased 39 pieces of doors, rather complainant purchased 30 pieces of flush doors from OP-1 and OP-1 duly issued bill regarding it. It is denied that complainant paid Rs 50,900/- as alleged by him. The complainant paid Rs 16,742/-to them for 30 flush doors and bill for the same was duly issued to him. They never gave any warranty for two years for the doors. Complainant did not purchase the doors of water proof quality. OP-1 supplied the doors to complainant of good quality.  It is wrong that complainant returned 4 doors to OP-1 for replacement. OP-1 never issued any receipt regarding return of these doors. OPs never supplied any deteriorated flush doors to complainant. There is no deficiency in service or trade mal practice on the part of OPs. Moreover, the complainant purchased these doors for commercial purpose and for resale and therefore, he cannot agitate this matter  before Forum and prayed for dismissal of the present complaint.

   9                                  We have heard the ld counsel for parties and have very carefully gone through the record and evidence produced by the parties on record.

   10                               The case of the complainant is that he is a Government contractor and took a contract to construct building of Government Brijindra College, Faridkot and for this purpose, he purchased flush doors from OP-1, which was not of good quality and after few days, these became deteriorated and he returned some doors to OP-1 for replacement, but OP-1 did not replace said doors and also not returned the amount of these doors. Defence of the OP-1 is that the complainant is not the consumer under Consumer Protection Act as he purchased these doors for commercial purpose and for resale and in these circumstances, complaint is not maintainable and is liable to be dismissed.

   11                                 As per Section 2 (d) (1) of Consumer Protection Act, the definition of consumer is that the 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 obtains such goods for resale or for any commercial purpose. In the present case, it is admitted by the complainant himself that he is a Government contractor and tookcontract for construction of building of Government Brijindra College, Faridkot by Public Works Department (PWD) and he needed the flush doors in dispute for fitting in the building i.e for commercial purpose and also for resale to Department. So, in these circumstances, as per Section 2 (d) (1) of Consumer Protection Act, the complainant does not fall under the definition of consumer and therefore, the present complaint is not maintainable before this Forum and hence, the same is hereby dismissed. However, complainant is free to file this case afresh before appropriate Forum/Civil Court on same cause of action. In peculiar circumstances of the case, there is no order as to costs. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated:  14.10.2015

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)