THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 35/2005
Monday, the 30th day of January, 2012.
Petitioner : Madhukumaran Nair P.,
Parimanathu House,
Koovam, Thalayazham,
Ullala P.O., Vaikom.
Vs.
Opposite parties : 1) M/s. Grand Wires and
Conductors (P) Ltd.,
reptd. by its Managing Director,
Pullolickal, Kothala.
2) M/s. Kay Cee Electricals,
reptd by its Proprietor,
Opp. St. Thomas High School,
Pala, Pin – 686575.
3) Maliyakal Brothers,
Electrical Dealers
reptd. by its Proprietor,
Ettumanoor.
4) Bureau of Indian Standards,
Thiruvananthapuram
Branch Office,
reptd. by its Director,
Palayam, Thiruvananthapuram.
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 21..2..2005 is as follows.
Petitioner purchased electrical cables from the second opposite party, manufactured by the first opposite party, for the purpose of utilizing the same at his residential house. According to the petitioner the electric cables manufactured by the first opposite party and distributed; sold through the opposite party 2 and 3 were found defective in nature. Electric cables were not maintaining ISI standard, even
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though first opposite party claims that electric cables manufactured by them are having ISI standard. Petitioner issued a lawyers notice to first and second opposite party to inform the petitioner about the quality of the material and demanded them to explain the disparities and requested to them to supply copies of certification claimed by the petitioner. First and second opposite party replied that they maintained the specifications of bureau of Indian Standard and product was manufactured under licence from BIS. Along with the reply opposite party attached two copies of attachments to license dtd: 10..6..2003 and 8..6..2004. According to the petitioner act of the opposite party in supplying inferior quality electric cable is a fault, imperfection and shortcoming in the quality, quantity and standard of cable manufactured. So, petitioner prays for a direction to the opposite party one and three to replace the cable roll supplied to the petitioner with new cable roll adhering to the standard prescribed by BIS or else refund of the price paid by petitioner with 18% interest. Petitioner prays for a direction to the opposite party to discontinue the unfair trade practice and claims compensation of Rs. 50,000/-. Further petitioner prays for a
direction to first opposite party to deposit 5 % of the amount of the entire sales turn over of the brand G-Flex cable for the year 2004 and cost of the proceedings.
1st and 4th opposite party entered appearance and filed version. Others are ex-parte. According to first opposite party petitioner is not a bonafide consumer and the purchase itself is for malicious litigation. According to the first opposite party petitioner is not residing in the address given in the complaint. Petition is filed with connivance of one Kesavankutty. Whose service with the opposite party was terminated for mal practices. Petitioner is one of the sureties of Kesavankutty in a
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criminal case filed by opposite party against the petitioner. According to first opposite party they obtained proper licence and products are sold in conformity with BIS specification. They contented that only those cables which succeed 14 test were kept for sale. All the products are subject to examination by appropriate laboratory and are established free from defects. According to the opposite party material object produced were not products purchased by petitioner and manufactured by the first opposite party. Opposite party contented that there is no unfair trade practice or deficiency in service. So, they pray for dismissal of the petition with their costs.
4th opposite party filed version stating that first opposite party is a licensee of 4th opposite party to specification IS 694:1990. They contented that the said certification is for class II insulated cables. Copper strands should meet conductor resistance as specified. 4th opposite party prays for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is any unfair trade practice committed by opposite party.
ii) Whether relief sought for by the petitioner as per section 14 f ( 14(hb) is to be allowed
iii) Relief and cost.
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A6 documents on the side of the petitioner and Ext. B1 to B9 documents on the side of the opposite parties. MO 1 to 3 and Court exhibits X1 and X2.
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Point No. 1
Crux of the case of the petitioner is that on 12..8..2004 petitioner purchased a roll of electric cable manufactured by first opposite party from its dealer, second opposite party at Pala for the purpose of utilizing it at his residential house. As sample 5 mtrs. of cable was also purchased. It was represented by second opposite party that the cable conforms BIS specification and was fire resistant. Petitioner on physical verification found that the size of each strands of cable was below 0.26 MM and exposed to room temperature, the cable strands showed blackening and is an indication of law quality copper. Finding the above defects petitioner issued Ext. A3 lawyers notice on 20..9..2004. First and second opposite party issued reply claiming that the cable conforms to BIS specification and they admitted the purchase of the products. In Ext. A4 reply opposite party taken a stand that petitioner is moving in connivance of one Kesavankutty, who was in enimical terms with first and second opposite party. Since the original products was disputed petitioner purchased another roll of cable on 11..10..2004 from 3rd opposite party. Physical verification of the said sample also showed that the said material was not meeting BIS specification. Petitioner produced the purchase bill and same were marked as Ext. A1 and A2. MO1 and MO2 ie. cable purchased on 12..8..2004 with carton and cable purchased on 10..10..2004 with carton and MO3 sample cable were produced before the Fora at the time of the filing of the complaint. Opposite party 2 and 3 admitted the dealership of the first opposite party. MO1 and MO2 were sent to the bureau of Indian standard and C1 and C2 report were received from the B I S laboratory. In the version of 4th opposite party it is stated that the cable is declared as class II products and it is IS:694 specification and in X1 report it was stated that the MO1 and MO2 were declared as
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class II products as it was found to be class V products. On the product box of MO1 it was stated that nominal conductivity area was 1.0 Sq. mm. But in the X1 report it was stated that it was found to be 0. 77 Sq. mm. The diameter of the cable stand is only 0.26 mm . While it was claimed to be 0.3 mm. Further more X1 report. It was stated that the copper used for the manufacture of the cable was not conforming to the prescribed resistance level and it fails to withstand stand dc voltage and show any I.R reading. So, from X1 and X2 report it can be conclusively proved that the cables contained in MO1 and MO2 are not conforming to bureau of Indian Standard specification.
According to the first opposite party MO1 and MO2 are materially altered. Petitioner is not a bonafide purchaser and complaint is filed in collusion with one Kesavankutty. While considering the question of material alteration manner of production of MO1 and MO2 are to be scrutinized. The cable cartons were produced before the fora by covering with a transparent plastic sheet with proper seal containing signature of the petitioner and his counsel. Petitioner also filed an application to keep the MOs in safe custody same was allowed and the articles were kept in safe custody. While the opposite party raised the contention of material alteration petitioner filed IA 400/2005 claiming the relief of a direction to the first opposite party to file affidavit to state what extractly is the material alteration they alleges. If so on what manner and extent. On the date of filing of the petition itself fora directed the opposite party to file affidavit as prayed for. No affidavit filed as directed by the opposite party specifying the alleged material alteration. IA 461/05 is filed for sending MO1 and MO2 to the appropriate laboratory for analysis. The
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request of the petitioner in IA-461/05 is to open the cartons in presence of counsels of both parties and to subject the article for a physical verification, including to verify whether factory fixed staples were intact or tampered and whether the product boxes were materially altered. IA-461/05 allowed fora directed parties to be present for opening the cartons and collecting samples. While opening, opposite party has not raised any case with regard to material alteration. So, in our view the case of the opposite party with regard to material alteration is not sustainable. Further more it can be seen that, as per the specification of the bureau of Indian standard cable products name and manufactures name are to be affixed mechanical. On the MO, brand name and the product name were super imposed. Further more such a work is impossible to be undertaken by a layman without help of a manufacturing facility and skilled labourers.
Other allegation is that petition is filed in collusion with one Kesavankutty who was in enimical terms with first opposite party. Petitioner denied the averment in the version that petition is filed by complaint in collusion with Kesavankutty and the criminal complaint filed by the first opposite party against the Kesavankutty. Petitioner was one of the surety of Kesavankutty. No evidence were adduced by the first opposite party to substantiate the said allegations. The case of the first opposite party that petitioner is not a resident of Thalayazham is disproved by production of the copy of ration card as Ext. A5 and identity card as Ext. A6. As per section 2 (r) “unfair trade practice” means trade practice which for the purpose of promoting the sale use or supply of any goods or for the provisions of any service, adopts any unfair methods or unfair or deceptive practice including (1) practice of making any statement whether orally or in writing or by visible representation (i)
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falsely represents that the goods are of a particular standard quality, quantity, grade, composition, style or model.
From the evidence adduced in this case it can be seen that first opposite party represented over their carton that the cables by name “G-Flex FR cables” are conforming to IS: 694 specification of the BIS, it was specified that the same is of class II make and there is 14 strands of copper of 0.3 MM thickness, it was asserted that the nominal conductivity area is 1.0 sq. mm from C1 and C2 report it has come out in evidence at all the representations about the products were false and in correct. Therefore we come to the conclusion that first opposite party adopted unfair method or unfair or deceptive practice or false representation to promote sale of the said brand cable. So, point No. 1 is found accordingly.
Point No,. 2
According to the petitioner after the proceedings conducted under section 13 of the Consumer Protection Act. If the Fora find that the products suffer from any defects an order is to be passed to discontinue the unfair trade practice or the restrictive trade practice or not to repeat the same. Further the petitioner prays for a direction to the opposite party to produce the details of the audited accounts of the year 2002 to 2004 and the first opposite party is directed to deposit 5% of audited account amount before the fora.
From the evidence in this case it can be seen that MO1 cable purchased on 12..8..2004 and MO2 cable purchased on 11..10..2004 are not conforming to standards. Definitely large number of consumers, suffered loss or injury who are not identifiable conveniently. The period over such illegal sale occurred as far as
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evidence in this case concerned can be presume to be in the year 2004. Therefore in our view first opposite party is liable to be penalized as per section 13 (hb) of Consumer Protection Act 1986 for 5% of the total sale value. Further more since it was proved beyond doubt that material objects are not conforming to standard first opposite party is directed to withdraw the hazardous goods from the market as per section 14 (g) of Consumer Protection Act 1986. Point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No. 1 and 2, petition is allowed. In the result 1st opposite party is ordered to (a) Refund the price of the purchased cable with 12% interest from date of purchase till realization. (b) 1st opposite party is directed to discontinue the unfair trade practice as per section 14 (f) of Consumer Protection Act 1986. (c) First opposite party is directed to pay an amount of Rs. 25,000/- as punitive damages to the petitioner. (d) First opposite party is directed to produce the audited accounts of the year 2004 (January to December) before the fora, after satisfying the actual audited account. Opposite party shall deposit 5% of the entire sale turn over for the year 2004 in the legal benefit fund maintained by this fora. Order shall be complied with within one month of the receipt of copy of this order. After compliance of the order opposite party can take back the disputed cables from the Fora.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 30th day of January, 2012.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
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APPENDIX
Documents for the Petitioner:
Ext. A1: Bill Dtd: 12..8..2004 of Key Cee Electricals Pala.
Ext. A2: Bill Dtd: 11..10..2004 of Maliyakal Brothers, Ettumanoor.
Ext. A3: Lawyer;s notice dtd: 20..9..2004
Ext. A4: Reply notice dtd: 29..9..2004 with copy of documents.
Ext. A5: Ration card relevant page attested copy
Ext. A6: Voters identity card attested copy.
Documents for the opposite parties
Ext. B1: Copy of the complaint in C.M.P 4001/04
Ext. B2: Copy of duplicate license of Bureau of Indian Standards
Ext. B3: I.S.P 9001 certificate
Ext. B4: Endorsement for renewal of license dtd: 22..4..2004
Ext. B5: Internal Assessment register 2 numbers
Ext. B6: Tariff Advisory committee decision
Ext. B7: Circular issued by the Bureau of Indian Standards Dtd: 23..12..2004.
Ext. B8: Test report from M/s. Kadalkia Plastics & Chemical manufacture.
Ext. B9: Test report and packing list of sterlite industries (India) Ltd.
MO 1: Cable purchased on 12..8..2004 with carton
MO 2: Cable purchased on 11..10..2004 with carton
MO 3: Sample cable purchased balance available.
Court exhibits:
Ext. X1: Test report Dtd: 26..9..2005 having number E-5043 issued from the
BIS with respect to the sample taken from MO1.
Ext. X2: Test report dtd: 26..9..2005 having number E – 5044 issued from the
BIS with respect to the sample taken from MO2.
By Order,
Senior Superintendent.
