Date of Filing: 07/05/2011
Date of Order: 18/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 18th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 873 OF 2011
M/s. Fire Safe Concepts,
Represented by its Proprietor,
Mrs. Prajwal Rajshekar,
Situated at “Sri”, 20/1,
Doddappaiah Layout,
Nagashetty halli,
RMV 2nd Stage, Bangalore-560 094.
(Rep. by Advocate Sri.K.H.Somasekhara) Complainant.
-V/s-
(1) M/s. Mahendra Associates,
No.2, 17th “A” Cross, 8th Main Road,
Malleshwaram, Bangalore-55,
Rep. by its Managing Director
Mr. Mahindra.
(Rep. by Advocate Sri.V.Srinivas)
(2) M/s. Promat International
Asia Pacific (A.P) Limited,
Cabin Bc-9 & Bc-10,
# 66/1, 2nd Floor, Oculus work Spaces,
(Above Pizza Hut) Coles Road,
Frazer Town, Bangalore-05.
Rep. by its Regional Manager
Sri. Ram Raj Desai.
(Rep. by Advocate Venkatesh P.Dalwai) Opposite parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay a sum of Rs.10,00,000/-, are necessary:-
The opposite party No.1 is the authorized distributors of Promotect-40, 9mm thick boards manufactured by the head office of the opposite party No.2 at Malaysia. The complainant approached the opposite party No.1 and purchased the promotect-40, 9mm thick boards to do the partition wall in a multi-storey commercial mall known as urban oasis mall belonging to M/s. Samrutha habitat Infrastructure Private Limited, Hubli. The complainant purchased 126 sheets of promatect-40 9mm Boards at Rs.896/- per board on 11.08.2010 paying total amount of Rs.1,28,137/- and also purchased 250 promotect-40, 9mm boards at Rs.992/- per board on 02.12.2010 for a total sum of Rs.2,81,480/- from the opposite party No.1. After the purchase the complainant installed the same and did the partition wall in the said mall by incurring expenditure regarding purchase of accessories associated items from M/s. Dhanvi Enterprises from 13.08.2010 and 02.12.2010 for Rs.1,90,168/- and also by paying labour charges of Rs.1,00,000/-. Thus the complainant had invested more than Rs.6,00,000/-. Three months thereafter completion of the project work M/s. Samhrutha Habitat Infrastructure Private Limited (in short ‘company’) had issued a notice to the complainant on 25.02.2011 stating that the said boards cracked and wrapped in irregular direction and also frames are bent causing the defamation in the alignment of the walls and asked the complainant to take away the boards because of the substandard materials supplied by the opposite party No.1. Accordingly the complainant approached the opposite parties to set-right the issue. The manufacturer had sent Mr.N.Charanraj who made investigation and submitted the report. Accordingly the cause is aging of the materials. As per the direction of the company the complainant has removed the boards from the place of fixing and has spent Rs.85,000/- towards labour charges and another sum of Rs.87,552/- towards miscellaneous expenses. Hence the complainant has issued notice to the opposite party No.1 on 18.03.2011 calling upon to pay Rs.10,00,000/- to which it has sent an untenable reply denying all the averments and stated that the failure of the boards are not due to the problem of the board but it is due to the wrong installation. The said reply is contrary to the report. On 06.01.2011 Mr. Charanraj and Mr. Henry Vijayakumar visited the site and reinstalled the partition by replacing new boards which also cracked within three days after the installation on the same area. Hence the complaint.
2(a). In brief the version of the opposite party No.1 are:-
The purchasing of the boards its installation at the company by the complainant are all admitted. The purchase of the other materials from M/s. Dhanvi Enterprises or paying labour charges are not known to this opposite party. The notice issued by the company to the complainant on 25.02.2011 is not known to the opposite party. The investment of Rs.6,00,000/- by the complainant is not known to this opposite party. The total installation was done by the complainant without expertise advice, he cannot take advantage of his own wrong. At the time of installation nobody had inspected from the opposite party side. He has suppressed the material facts. The technical people of the second opposite party have inspected the spot and given the report stating that the failure is due to the wrong installation and the installation also had taken place in the rainy season and ambient temperature was around 30 degrees and bowed when the temperature had decreased to 15 degrees. The complainant without obtaining the technical details from the concerned had done the wrong installation by using his labours and hence this opposite party is not liable. Expenses mentioned by the complainant at Para-11 is exorbitant and it is also not certified by any of the accountant. There is no report from FSRG. The complainant is not a consumer. All the allegations to the contrary are denied.
2(b). In brief the version of the opposite party No.2 are:-
The complainant is not a consumer in view of the decisions in AIR 1999 SC Page 3356 and 1996(1) CPJ Page 161 (NC). This is a commercial transaction. Purchase of the materials from the first opposite party or installation are not known to this opposite party. This opposite party has not inspected the materials or the installation. As per Annexure-F produced by the complainant it is clear that the fixing was not done properly by the complainant as per Annexure-G & H produced by the complainant itself. It is clear that the building levels are in irregular shape and uneven and fixing of the partition was not carried out in accordance with specifications given as in this project. The responsibility of fixing was not with the opposite party No.2. The complainant never approached for replacement of the goods supplied except for identifying the reasons of the problem as per the investigation report. The work was done by the complainant in rainy season and the photographs indicate that these boards were stored in open place resulting in possible carbonation process. The development of cracks in irregular shape is explained in the reports. The company has attributed installation problem to complaint to terminate the contract. There is no lapse on the part of the opposite party No.2. The allegation of aging process from the date of manufacture is no basis since even aged goods also confirmed the required specifications. There was no patent defects in the goods, hence as per General conditions of Contract, the complainant or the opposite party No.1 ought to have reverted back to company within 3 days of supply. All the allegations to the contrary are denied.
3. To substantiate their respective cases the complainant and the opposite party No.2 have filed their affidavits. Opposite party has filed the memo stating that the version and documents be read as their evidence. Hence arguments were heard.
4. The points that arise for our consideration are:-
- Whether the complainant is a consumer?
- Whether there is deficiency in service?
- What order?
5. Our findings on the above points are:-
Point (A):In the Negative
Point (B):In the Negative
Point (C) : As per the final order
For the following:-
REASONS
POINT (A) to (C):-
6. In this case the complainant had filed the complaint only against the opposite party No.1. The notice to the opposite party No.1 was served and it was absent. Hence the complainant had filed his affidavit on 04.06.2011, he was heard. At that time the complainant took time for further arguments and the case was posted to 09.06.2011. On 09.06.2011 the complainant made an application to implead second opposite party as a party to the proceedings. On which the notice was issued and on 06.07.2011 the second opposite party though served remained absent. Hence the application was allowed. He was impleaded as party to the proceedings, but the complainant has not sought any relief against the second opposite party nor made any specific allegation against the second opposite party in the complaint. Hence the IA was allowed the second opposite party was impleaded as a party and notices were issued to the second opposite party and the second opposite party appeared through the counsel filed version and the first opposite party also engaged the service of an advocate and filed their version. Only for the sake of convenience in the complaint we have referred to as second opposite party but no specific averments are made against the second opposite party. In the body of the complaint it is clearly stated the manufacturer is at Malaysia, but that Malaysia head office has not been made as a party to the proceedings, be that as it may.
7. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the head office of the second opposite party is the manufacturer of promotect-40, 9 mm thick boards and the opposite party no.1 is the authorized distributor of the said boards. It is also an admitted fact that the complainant purchased 126 sheets of the said boards on 11.08.2010 at Rs.896/- per board and purchased another 250 board on 02.12.2010 for Rs.992/- per board. That means to say the complainant purchased 126 boards on 11.08.2010 and about four months thereafter she purchased 250 boards from the opposite party No.1.
8. Further it is an admitted fact that the complainant purchased the said materials for the purpose of installation and doing the partition wall in the multi-storey commercial mall known as urban oasis mall belongs to company. The complainant has purchased the material for the purpose of reselling it to the company and doing the other works of the company; hence it is a commercial transaction. In a case between Birla Technologies Limited –V/s- Neutral Glass And Allied Industries Limited in 2011 CTJ 121 the Apex Court has ruled thus:-
“If the goods are purchased for the commercial purpose of earning more profits then there can be no dispute that even the services offered along with them have to be for the same purpose.”
Further in a case between Techno Mukund Constructions –V/s- Mercedes Benz India Limited & Another reported in 2011 CTJ 387 (CP)(NCDRC) the National Commission has ruled thus:-
“The intention of Parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘Consumer’ is to impose a restriction that the special remedy before the Consumer forums can be invoked only by ordinary consumers buying goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.”
That is to say if the consumer protection act is available only to the regular ordinary consumer who purchase the material or take service for their personal consumption and not for the commercial transaction and not for the commercial activities. In this case the complainant has purchased the materials from the opposite party No.1 for the purpose of reselling it and doing installation work of the company of the mall which is a business organization and it is a business transaction. Hence the complainant can never be termed as a consumer she is a trader by herself. This is not a personal transaction it is a commercial transaction.
9. It was contended at the time of the arguments that for eaking-out her livelihood the complainant had purchased these boards from the opposite party No.1 this is only an untenable contention, without any material either in the complaint or in her affidavit by the complainant as rightly contended by the counsels of the opposite parties. No way in the complaint or in the affidavit the complainant has stated that these purchases are made by her for her leaving or eaking-out her livelihood; there is no such allegation much less statement made by the complainant either in the complaint of in the affidavit. Even after the opposite parties have filed their affidavits filed their versions contending that the complainant is not a consumer even thereafter the complainant has not chosen to file any affidavit or reply to the version contending that she is a consumer and the purchases made by her is for personal consumption or for eaking out her livelihood; there is not such allegation. Hence it is needless to say the complainant is not a consumer.
10. Here the installation of the boards at the mall of the company by the complainant through her own labourers is admitted. The complainant had purchased 126 boards on 11.08.2010 and 250 boards on 02.12.2010 the complainant never stated where she had stored these materials? or when she has installed these materials? On what date? The allegations is as bald as it could be. The only grievance of the complainant is that these boards have developed cracks in the Mall of the company as such the company has written a letter on 25.02.2011 asking her to take back the materials. That means four to six months after purchase of the materials these cracks have been developed. For which she should have been responsible for herself. The complainant had never produced the opinion of any expert in this regard. No expert has gone to the spot or taken materials for inspection, inspected the boards or analyzed the boards and stated that there is manufacturing defects in the boards. There is no such independent expert opinion is there.
11. The complainant has simply produced the report given by the second opposite party in this case stating that cracks have been developed because of the aging of the boards. It is not so. It is an undisputed fact that the said report is accepted by the opposite parties also. In the said report at Para-3 reads thus:-
The steel framework was said not to be properly leveled;
The wall PROMATECT-40 boards were laid in a vertical orientation for the lower portion while the top portions were in a horizontal orientation;
Due to the unevenness of floor level, the boards were installed floating above the floor slab, with gaps ranged from 0 to 60 mm between lower edge of the boards and the floor slab. At a later date this gap was filled with a plaster compound;
Fixing of screws showed signs of over tightening as screw heads were sunk into the board surface in some areas;
That is to say the steel frame work was not properly leveled; the boards were laid in a vertical orientation for the lower portion while the top portions were in the horizontal orientation; due to the unevenness of the floor level the boards installed were floating above the floor slab, with gaps between the lower edge of the boards and the floor slab. These gaps are filled with a plaster over tightening of screw heads and this is a cause for the boards developing cracks. That means to say there is no manufacturing defects.
12. Further it is seen in the said report below figure No.3 at page No.6 ink page No.21 thus:-
Promat explained that it could be caused by loading problem, where axial loading (from floor slab above) is transferred directly onto the drywall structure which could have caused the damage and deflection.
At page No.12, ink page 27 it has been noticed thus:-
“Note Figure 14. Packing boards are supposed to be disposed off, they are not meant for use in the construction.’
At page Nos. 16 and 17 that is ink page No.31 and 32 it has been clearly stated that inconsistent stud spacing improper fixing of screw.
Further at Page 18 that is ink page 33 it has been noted thus:-
Note: Due to the fact that screw was not removed from last disassembly, the replacement new board thus cracked due to the stress induced by nearby fixing.
At page 19 ink page 34 it has been stated thus:-
Figure 27: Improper screw fixing found on cracked board located immediate behind board A.
At page 20 ink page 35 it has been stated thus:-
Figure 29: Insufficient fixing to bottom track
At page 22 ink page 37 it has been stated thus:-
Figure 33: Screws missing steel stud
At page 23 ink page 38 it has been stated thus:-
Figure 35: Board bow naturally outward immediately after
removal.
Figure 36: Screws missing steel stud.
At page 24 ink page 39 it has been stated thus:-
Figure 37: Improper bending of bracing channel
Figure 38: Mock-up wall at semi-exposed project site.
At page 26 ink page 41 at paragraph 5 it has been stated thus:-
“Based on site observation, it has been noticed that the claimed defect occurred only on mock-up partition so far, which is approximately 3 months after completion at this time of investigation. Subsequent partition installed is said to have completed for more than two months and is yet to discover any major defect, apart from the joint cracking issue.
This leads us to believe that expansion movement of steel studs must have been somehow restricted causing such buckling which could have introduced unnecessary stresses to the board material. This is further confirmed when few pieces of defective boards were removed and screws were found fixing at the intersect point of studs and top/bottom tracks.
Careful inspection into a piece of board with horizontal crack (see Figure 26) leads to the discovery of improper fixing of board. It was said that defective board at this area was removed and replaced with new PROMATECT®-40. However during the dismantling of damaged board screws at studs were not entirely removed. A screw was found at the back of replaced PROMATECT®-40 board which resulted the crack line under pressure of fixing.
Having noticed some amount of screws were not actually fixed into steel studs, it is therefore reason enough to say that cracks at butt joints, even though reinforcing fibre mesh was used, could have been caused by the improper fixing of screws within the system. When screws are not firmly secured into studs, board material tends to vibrate under ambient pressure (i.e. temperature change, wind pressure, traffic pressure, etc.) and thus breaking the finishing jointing compound without warning.
Similar happened on top and bottom tracks where boards were not fixed as required. This is due to the fact boards were installed ‘floating’ above floor surface since it is not level. As such it could have leads to unexpected damage due to unstable structure.
Based on the overall information obtained, in our opinion, we would like to conclude that the defect on partition installed was due to improper handling and workmanship. This type of defective matter could not have been avoided should installation was done properly and paying full attention to fixing details recommended by Promat.”
At page 27 ink page 42 at paragraph 6 it has been stated thus:-
- “While fixing the steel framing, intersection between stud and top track should not be restrained by fixing screws which would have prevent movement of steel under expansion.
- Supervisor should supervise closely the installation of board to steel frame, particularly when fixing with screws;
- To avoid screw from missing the steel stud, Promat would suggest to replace current 48 x 35 x 0.55 mm steel studs with 50 x 50 x 0.55 mm type, as this would provide more surface area for fixing screws thus reducing the chances of missing studs;
- Alternatively, Promat would suggest making use of waste board cutting into minimum 75mm wide strips and tagged to steel studs prior to cover with full wall boards. Doing so would provide wider contact surface as well as enhancing the stability of the wall structure;
- Where required, we would suggest that neutral floor level should be established to ensure bottom track installed is always at same height. This can be done simply by filling with cement screed to the low level areas;
- Promat highly recommended that proper support should be provided behind horizontal board joints. This can be achieved by means of cover strips or steel channels which the level between two adjacent boards then could be maintained at sync.”
At page 28 ink page 43 it has been stated thus:-
“Test was completed and report (FSRGMT-2011/002) was issued by 25th January 2011, in which the client – Samhrutha Habitat Infrastructure Private Limited was given a copy for record. Test result confirmed that properties of PROMATECH®-40 in terms of density, moisture content, flexural strength and modulus of elasticity were within Promat specification.”
That is to say because of the improper installation of the boards by the complainant without technical knowledge without expert advice doing the work on her own labourers on the uneven surface without screws is a cause for developing the cracks. For which the opposite parties cannot be blamed.
13. Anyway all these require in depth cross-examination, in depth scrutiny of the documents that is the prerogative of the Civil Courts and not of the Consumers Forum.
14. The complainant has claimed aging of the material is the cause and produced the copy of the FSRG report. This has been denied by the opposite party. That FSRG report is marked as Annexure-H. The author of the said report Mr. Mohd Hafeez Azawan has not filed any affidavit in this regard for substantiating the said report. In any event at para-6.5 has stated thus:-
“From the summary of physical tests, both samples showed homogeneous result for all testing.
The physical properties strength of the samples showed values at the acceptance level and the boards have good durability to loading.
In this scenario, the physical testing results do not provide explanatory reasons on the occurrence of the crack. The Laboratory will continue to analyse the samples using X-ray diffraction (XRD) method. The analysis will focus on the effect of aging in relation to increasing of carbonation process which leads to reducing of physical strength properties of the boards. From the reference number, the boards were produced on 30th November 2009 and probably had experienced in-situ carbonation process for more than one year.”
It does not prove that aging is the cause for developing cracks.
15. Further it is seen from the letter of the company that the company has attributed installation problem to complainant to terminate the contract and not to any manufacturing defects of the boards. The complainant had purchased the boards, after lapse of four or six months she has installed it, that too during rainy season where the temperature is very low. Where she has kept the materials in the open space! Exposed to rain water and sun! and it is her own wrong hence she cannot put blame on the opposite party as rightly contended.
17. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
3. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
4. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 18th Day of August 2011)
MEMBER PRESIDENT
