DATE OF FILING : 8.1.2009.

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26^th day of April, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.8/2009

Between

Complainant : 1. P.J. Joseph,

Pattarumadom Beauty Land,

Jyothi Super Bazar,

Thodupuzha,

Idukki District.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. Mathew,

Proprietor – Mundackal Enterprises,

Jyothi Super Bazar,

Thodupuzha,

Idukki District.

(By Adv: Alex M. Scaria & M.M. Lissy)

2. R. Jayalal,

Best Ply & veneers,

Pathamuttam P.O.,

Kottayam.

(By Adv:Babichen V. George)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRSIDENT)

The complainant is the proprietor of Pattarumadam Beauty Land, in Jyothi Super Bazar, Thodupuzha. The said shop is conducting by the complainant for his livelihood and the main business is ladies items, fancy items etc.. In the year 2002 June, the complainant started to renovate his shop and so he purchased plywood for the same from the opposite party shop for an amount Rs.1,89,448/-. At the time of purchase of plywood, the opposite party assured 10 years of replacement guarantee and also for the quality. The complainant spent Rs.1,70,587/- as the cost of the carpenter, paid Rs.2,40,000/- for the purchase of finishing materials, spent Rs.1,17,000/- for painting and Rs.50,000/- for the purchase of rub-wood. After few months of the completion of the work, plywood at the shop damaged in various places. The furnishing were totally damaged due to the attack of termite and insects, now the furnishing is completely damaged. It is because the opposite party supplied the low quality materials to the complainant. When the first time the defect noticed on the plywood, the complainant reported the matter to the opposite party. But the opposite party denied to do the same. So a complaint was filed before the President of Merchant Association, Thodupuzha, on 31.3.2008. Several compromisory talks were conducted by the authorities of the Merchant Association, but the opposite party was not ready to compensate the loss which caused to the complainant. The loss was caused only because of the low quality of the plywood supplied by the opposite party. So the complainant is entitled to get the loss sustained to him from the opposite parties to the tune of Rs.7,69,037/- and also for compensation.

2. The 1^st opposite party filed a written version stating that the complainant is having a chain of business at Thodupuzha town, in the name and style “Pattarumadam Beauty Land”. So the complainant is not a consumer as per the definition of consumer under Consumer Protection Act. No materials were purchased from the opposite party by the complainant for the renovation of the shop. No guarantee was offered by the opposite party for the supply of any material. It is not true that the complainant spent Rs.1,70,587/- as labour charge and Rs.24,000/- for materials, Rs.1,17,000/- for painting and Rs.50,000/- for the purchase of rub-wood. The complainant purchased the materials in his own skill and judgement. Never the opposite party compelled the complainant to buy anything. The opposite party never offered 10 years guarantee for the plywood and the defect caused to the plywood is not because of the low quality of the plywood. The complainant ought to have keep the plywood without affecting cold and insects by spraying chemicals on the materials. The material used with the plywood would also have the same quality. At the time of purchase, the opposite party directed the complainant to use Marine plywood in order to care the plywood from wet weather. But the complainant purchased low cost plywood and told that he would care the same by spraying chemicals. No compromisory talk, mediatory talk was done with the complainant and the opposite party. The name and address of the manufacturer of the plywood was given to the complainant at the time of purchase. It is written in each piece of the plywood that ’Best Ply & veners, Pathamuttam P.O., Kottayam, directing by Mr.Jayalal. If any defect caused to the plywood because of the manufacturing the manufacturer is liable for the same. So the 1^st opposite party is not liable. The opposite party is supplying quality goods at every time, but the complainant purchased the same with his own skill and judgement. If any defect is caused to the plywood that is because of the carelessness of the complainant. The complaint is filed only because of the personal enmitly against the opposite party.

3. The 2^nd opposite party is impleaded as additional 2^nd opposite party as per the petition of the complainant.
 

4. As per the written version of the 2^nd opposite party, the complainant is not having any consumer relationship with the 2^nd opposite party. So the petition is not maintainable as per the law. The 2^nd opposite party is conducting the business of the manufacture of plywood from the last 30 years. There is no complaint received against the quality of the plywood of the opposite party. The entire plywood purchased by the complainant are not manufactured by the opposite party or supplied by the 2^nd opposite party. In the plywood manufactured by this opposite party, the name of the manufacturer ’Best Ply & veneers’ is also written. In the bill filed by the complainant, it is written that ’Smart’, ’Caravone’, who are the name of the companies written in the plywood and manufacturers of that were not included as the opposite party. The 1^st opposite party is selling plywood of several manufacturers. The 2^nd opposite party is not responsible for the sale of the 1^st opposite party. There are litigations pending against 1^st and 2^nd opposite parties. So the 1^st opposite party deliberately issued the address of the 2nd opposite party. No documents produced by the 1^st opposite party to show that the 1^st opposite party has sold out the materials supplied by the 2^nd opposite party. The loss assessed by the complainant is very hike and not correct. 2^nd opposite party sold good quality plywood. If any delivery has done to the 1^st opposite party, there are documents for the same. So the petition is liable to be dismissed.

5. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

6 .The evidence consists of the oral testimony of PWs1 to 4 and Ext. P1 P4 marked on the side of the complainant and oral testimony of DWs1 & 2 marked on the side of the opposite parties. The Commission report is marked as Exts.C1 & C2.

7.The POINT :- The petition is filed for getting compensation from the opposite party for the damages caused to the furnishing of the complainant’s shop because of the defect in the plywood supplied by the 1^st opposite party and manufactured by the 2^nd opposite party. The complainant was examined as PW1. The copy of the estimate for the purchase of the materials for furnishing the shop is marked as Ext.P1 (series). Copy of the bill issued by the 1^st opposite party for the purchase of the plywood is marked as Ext.P2. After few months of the completion, the plywood used for the same were damaged by the affection of the insects. So the matter was duly informed to the opposite party, but they were not ready to compensate the complainant. A petition was filed before the President, Merchant Association, Thodupuzha. Copy of the same is marked as Ext.P3. Another complaint is given to the Secretary, Consumer Vigilance Forum, Idukki. Copy of the notice issued by them to the opposite party is marked as Ext.P4. The commission report is marked as Ext.C1 (series) with photographs. The opposite party assured replacement guarantee of 10 years and also promised that the plywood would last for 15 years. The cost of the plywood is Rs.34/square feet. In Ext.P2 bill, it is written in item column that ’smart’ and ’caraone’. The matter was also reported in Ext.C2 commission report. As per the cross examination by the learned counsel of the 2^nd opposite party, the complainant admitted that no relief has sought against the 2^nd opposite party in the petition because the complainant has not the address of the 2^nd opposite party. The address of the 2^nd opposite party is received from the 1^st opposite party when they filed written version. PW2 is the commissioner who examined the disputed shop with the assistance of an expert. An estimate also created, as per the estimate, Rs.8,21,361/- is needed for replacing the furnishing of the complainant’s shop. 44 numbers of photographs were also produced. The plywood were damaged due to the attack of white ant. The opposite party’s shop is very near to the complainant’s shop. The expert was with the commissioner who was not appointed by the Forum. The damages were noticed in 15 places on the furnishing. Almost all of the cupboards were affected by termites.
 

PW3 who is the expert who assisted the commissioner is a Diploma holder in Interior Designing and have experience of 10 years. As per PW3 it needed reconstruction of the furnishing with fresh plywood. The amount was calculated as per the estimate given by the complainant. 5% increased rate is calculated for painting. The estimate is prepared in order to reconstruct the same furnishing in the same design. If the plywoods are not treated with chemical properly, there is a chance for affecting by white ants. The cupboards are not good to use further. There is no damages caused to the ceiling. But it is supported by the cupboards. Plywood used were low quality. In Ext.C1 photographs of the plywoods, the name is shown as ’smart’. As per the cross examination of the learned counsel of the 1^st opposite party, PW3 deposed that the cause for attack of termites is because of the defect in chemical treatment when the plywood are manufactured. If it is properly treated with chemical, insects will not attack the plywood. If the plywood costs Rs.34/square feet, it is quality plywood. PW4 is the President of Merchant Association, Thodupuzha unit. The complainant filed a petition before the PW4 about damages of the plywood. The matter was discussed by them, by calling the both parties at ’Vyaparabhavan’. The manufacturer of the plywood was also there. In the 2^nd discussion the manufacturer offered Rs.45,000/- and 1^st opposite party offered Rs.60,000/-. But the discussion was not in a success.

DW1 is a Diploma holder in Civil Engineering who furnished the shop of the complainant. The shop has been built up by “vettukallu”. So it will cause the chance of wetness. So the DW1 recommended ’Marine’ plywood for the furnishing. But the complainant purchased ’commercial’ plywood for the furnishing and purchased only few quantity of ’Marine’ plywood. There is no guarantee for a commercial plywood. The price of the ’marine’ plywood is double than that of ’commercial’ plywood. The complainant purchased low cost plywood and it is designed by DW1. DW1 visited the shop of the complainant after the complaint. 2^nd opposite party was also at the shop of the complainant at the time of visiting of DW1. ’Smart’ plywood was used for the furnishing which was manufactured by the 2^nd opposite party. The cupboard, counter, ceiling, electrification were done, the flooring was done with granite and it costs Rs.1 lakh. The wiring costs Rs.50,000/-. For the construction of ceiling Rs.45,000/- were spent. The cupboards were damaged and the total cost of cupboard comes around Rs.5,50,000/-. No defect is caused to the electrification, flooring, ceiling etc.. The shop can be reconstructed with the same ceiling and flooring. It was told by the complainant that the cost of the furnishing was Rs.5,50,000/-. The ceiling was built up from the concrete suspension. Not by the support of the cupboards. It is hanged from the concreted roof. The materials were purchased from the shop of the opposite party.
 

As per PW2 who is an expert assisted the commissioner filed Ext.C2 report and as per Ext.C2 report, there are 22 number of cabins are furnished in the complainant’s shop. The cost of one cabin comes to an amount Rs.37,848/-. The cost of plywood is Rs.34/square feet. The plywood comes around 99 square feet. The cost of the painting is Rs.64/square feet and total Rs.17,284/- is the cost of the painting. The carpentry work of the rubber wood costs Rs.1,680/-. The service and supervisory charges comes to 35% of the total cost. The cost of the central counter is 1,66,789/- and total expense for cash counter comes to Rs.10,617/-. The display counter costs Rs.1,17,860/-, the mirror work was costs Rs.7,562/- and bill counter costs Rs.12,582/-. So a total amount of Rs.8,21,361/- calculated as the cost for the reconstruction of the complainant’s shop. PW3 deposed that the amount was calculated as per the estimate given by the complainant itself. 5% is calculated excess for painting. He also deposed that there is no complaint to the ceiling. But it is supported on the cupboard. Soft wood plywood will not affect any damage for 5 to 10 years and costs Rs.34/square feet. DW1 who furnished the shop deposed that he recommended ’marine’ plywood but the complainant purchased ’commercial’ plywood for the furnishing. Mr. Jayalal who was present in the shop when DW1 approached there. The cost for the ceiling is Rs.45,000/- and cost for wiring is Rs.50,000/-. The total cost for the furnishing for the cupboard is Rs.5,50,000/-. No damage is caused to the electrification,flooring and ceiling. The ceiling is suspended from the concrete.

As per the Ext.P2 bill produced by the complainant, the total cost for the purchase is Rs.1,89,448/-, dated 8.1.2008. It is supplied from the 1^st opposite party. The labour cost for the furnishing is Rs.1,70,587/-. And the expense for the finishing materials is Rs.2,40,000/-, painting charge is Rs.1,17,000/- and cost of rub-wood is Rs.50,000/-. The opposite party filed written version and contended that the plywood caused damages due to defect in the chemical treatment. 2^nd opposite party was examined as DW2. DW2 deposed that there should produce evidence by the complainant to show that ’smart’ plywood was manufactured by DW2. There is no evidence produced by the complainant to show that 2^nd opposite party supplied it to the 1^st opposite party. DW2 is not the manufacturer of the plywood used by the complainant. On cross examination DW2 deposed that ’smart’, ’caraone’ are not manufactured by him. It is only ’Best Ply and veneers’ are manufactured by him and also supplied. And he is a member of Manufacturer (Plywood) Association. He did not know who is the manufacturer of ’caraone’ and ’smart’ plywood. The nameof the company is written as per the request of the purchaser. He went to the office of the Merchant Association in order to discuss a matter, not the dispute in plywood. 2^nd opposite party owe some money to 1^st opposite party, in order to discuss that matter he went over there.
 

So as per the evidence of PW1, DW1 and the commission report the furnishing of the shop has damaged. The damages are caused to the plywood used for the same. These matters are admitted by all of them. The complainant purchased the plywood from 1^st opposite party as per Ext.P2. The complainant informed the matter to the 1^st opposite party that the plywood has been damaged within 3 months. But the 1^st opposite party never tried to compensate the same, which is gross deficiency from the part of the opposite party. According to 1^st opposite party, 2^nd opposite party who manufactured the disputed plywood and they are liable for the same. So what compensation can be granted?
 

As per the commission report, the estimate for furnishing is calculated as Rs.8,21,361/-. The amount written by the complainant in this complaint for the loss caused to him is Rs.7,39,000/-. As per Ext.P4, the amount written by the complainant in the complaint given to the Consumers’ Vigilance Forum, is Rs.6,53,500/-. In the Ext.P3 complaint given to the PW4, it is written that it need Rs.3,40,640/- for the reconstruction of the defect caused and needs 45 days for it. DW1 is the engineer who furnished the complainant’s shop deposed that the cost for the reconstruction of the complainant’s showroom is Rs.5,50,000/-. And Rs.44,000/- was spent for ceiling and Rs.50,000/- was spent for electrification. There was no defect caused to the ceiling. The entire reconstruction can be done without disbursing the electrification, ceiling and flooring.

So we think that there are different opinions given by different persons in the reconstruction of the complainant’s shop. But the DW1 is the person who furnished the shop and he is competent person who tell about the same. As per DW1, Rs.5,50,000/- is the cost of the furnishing, in that Rs.45,000/- was spent for ceiling. And no defect is caused to ceiling. And Rs.50,000/- paid for electrification. There is no defect caused to the electrification and that is not challenged by anybody. So Rs.4,55,000/- can be calculated as the price for reconstructing the furnishing of the complainant’s showroom. But the complainant who started his business by spending a huge amount, but the furnishing were damaged within 3 months of the inauguration of the shop, as per Ext.C2, C1 report and evidences shows the same. So it caused severe mental agony to the complainant and Rs.20,000/- can be fixed for the same. Ext.P2 bill shows that the complainant purchased plywood from the 1^st opposite party and that is admitted by the 1^st opposite party. PW4 is the President of the Merchant Association, Thodupuzha deposed that a complaint was given by the complainant to them about the damage of the plywood. So PW4 issued notices to both the parties and the matter was investigated by three of the old Presidents of the Merchant Association and a discussion was conducted on 2.2.2008. The manufacturer of the plywood company 2^nd opposite party and 1^st opposite party were also present at that time. Rs.45,000/- was offered by the 2^nd opposite party and Rs.60,000/- was offered by the 1^st opposite party. But the complainant was not ready to accept the same. And the discussion was not a success. The 2^nd opposite party admitted that he was also there at Merchant Association office, but he went over there to discuss about the money which was owed by 1^st opposite party to him. But the PW4 deposed that both the matters were discussed there and we think that there is no reason to disbelieve the version of PW4. Ext.P3, copy of the complaint given by the complainant also produced. DW2 deposed that if any party request for getting the seal and name of the company, will fix the same on the plywood. So it means that any of the pieces of the plywood, the name and seal of the company are not maintained. DW1 also deposed that 2^nd opposite party was at the disputed building at the time of visit of DW1. It is also admitted by DW2 that he had supplied plywood to the 1^st opposite party. Some money is due from 1^st opposite party for the supply of the plywood. But he denied that the plywood supplied to the complainant was not manufactured by him, his brand name is not written. He is a member of plywood Manufacture Association. If the plywood in the name of ’caraone’ is not manufactured by him, he may be aware that who is manufacturing the same brand of plywood. That is not revealed by the DW2 even in the cross examination. The 2^nd opposite party is disputing the version of PW4, the Merchant Association President, the 2^nd opposite party can examine witnesses from the Merchant Association itself, where a compromise talk was done, to reveal his truthness. In written version, 1^st opposite party also admitted that 2^nd opposite party is the manufacturer of the disputed plywood. It makes us the conclusion that the manufacturer of the disputed plywood is 2^nd opposite party . Hence 2^nd opposite party is also liable for the loss caused to the complainant. So we think that the 1^st opposite party and 2^nd opposite party are responsible for the same because 1^st opposite party supplied low quality plywood to the complainant which is a gross deficiency from the part of the opposite parties.

DW1 who is an engineer who furnished the shop of the complainant and he deposed on behalf of the 1^st opposite party and the 1^st opposite party never came before the Forum for providing any evidence. So we think that there is some collision has been taken place between 1^st opposite party and DW1 who furnished the complainant’s showroom. We think that it may be because of the advice of DW1, the complainant purchased this type plywood from the opposite party. But there is no evidence produced by the complainant for the same.
 

Hence the petition allowed. The 1^st opposite party and 2^nd opposite party are directed to pay Rs.4,75,000/- with 9% interest from the date of this petition to the complainant as compensation for the loss caused to the showroom because of the defect of the plywood and Rs.2,000/- as cost of this petition within one month from receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.
 

Pronounced in the Open Forum on this the 26^th day of April, 2010.

Sd/-

SRI. LAIJU RAMAKRISHANAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - P.J. Joseph.

PW2 - Saju Bhaskaran.

PW3 - Jose John.

PW4 - Jose Vazhuthanappalli.

On the side of the Opposite party :

DW1 - Varghese C.P.

DW2 - R. Jayalal.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - Copy of the estimate for the purchase of the materials.

Ext.P2(series) - Copies of the bills dated 8.1.2008 & 12.1.2008, issued by the opposite party.

Ext.P3 - Copy of the complaint filed by the complainant to the President of Merchants Association, Thodupuzha, dated 31.1.2008.

Ext.P4 - Copy of the notice issued by the Secretary, Consumer’s Vigilance Forum, Idukki, dated 7.11.2008.

Ext.C1 - Commission report with photographs (44 numbers with negatives).

Ext.C2 - Calculation statements for the work prepared by the commissioner expert.