Haryana

Ambala

CC/140/2012

RAI SINGH SAINI - Complainant(s)

Versus

M/S NIRMAL TRADING COMPANY - Opp.Party(s)

R.K.SINGH

30 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

              Complaint Case No.    : 140 of 2012

 Date of Institution       : 01.05.2012

              Date of Decision         : 30.12.2016

Rai Singh Saini  son of Late Sh. Mam Raj Saini R/o H.No.40, Shanti Nagar, Ambala

City.                                                                                               

                                                                                                                                                   ……Complainant. 

Versus

 

1.         M/s Nirmal Trading Company, Manav Vihar Market, Ambala City through its Proprietor Mandeep Kaur.

2.         Galaxy Ply Wood Industries (India), Khajuri Road, Yamuna Nagar through its Proprietor/Managing Director.

                                                                                    ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. R.K. Singh, Adv. counsel for complainant.

                        Sh. B.S. Garg, Adv. counsel for Op No.1.

                        Op No.2 exparte.

ORDER.

                        In nutshell, brief facts of the complaint are that complainant purchased water proof ply (imperial ply) Qty. 4 from OP No.1 on 12.01.2011 and on 13.01.2011 manufactured by OP No.2 having guarantee for 15 years from the date of purchase as per guarantee card given by the Op no.1.  It has been submitted that  during the rainy season, due to fall of water, the ply was damaged and become useless.  So, complainant approached the Op No.1 to change the ply which was under guarantee period but he lingered on the matter on one pretext or the other and this way 8-9 months period lapsed but the Op No.1 not changed the ply.  Lastly on 16.04.2012, Op No.1 flatly refused to replace these ply.  Hence, the present complaint alleging deficiency in service on the part of OP and sought for relief as per prayer clause.

2.                     Upon notice, Op No.1 appeared through counsel  and tendered reply raising preliminary objection qua maintainability of complaint, suppression of material facts, deficiency in service. On merits, it has been submitted that complainant be put to strict proof regarding purchase of the water proof ply from the answering OP. It has been denied that they have given any guarantee for a period of 15 years from the date of purchase, however, it has been submitted that  company only give guarantee for a period of 15 years from the date of manufacturing against attach of termite, borer or any other micro organism substance. It has been denied that  answering OP has ever given  any guarantee  of its damaged by hot water.   It has been submitted that in the month of March 2012, complainant came to the shop of OP and wanted to purchase some sunmica sheets but the complainant was not ready to pay the proper price of the sunmica and  was paying the less amount so the answering OP refused to sell the sunmica at less rate and the complainant while leaving the shop threatened  that he will teach a lesson to the OP.  Hence, the complainant has prayed  for  dismissal of complaint with costs.  

                        OP No.2 did not bother to appear despite notice and was proceeded against exparte vide order dated 06.08.2013.

3.                     To prove his version, counsel for complainant tendered  affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 &  C-2 and closed his evidence.  On the other hand, counsel for Op no.1 tendered affidavit Annexure RX and closed their evidence.

4.                     We have heard learned counsel for the parties and gone through the record very carefully.  Counsel for OP No.1 has vehemently argued that the compliant is not maintainable under the provisions of section 2(1)(d) of the Consumer Protection Act as  the complainant has nowhere mentioned in his complaint that  how much consideration has been paid to the Ops for purchase of the alleged ply nor any document has been placed on record qua the purchase of the alleged ply.  Counsel for OP has also drawn our attention towards section 26 of the C.P. Act which says that in case of frivolous and vexatious complaint, it should be dismissed with costs.

                        On the other hand, counsel for complainant has argued that the complainant has purchased  the ply from Op No.1 who has given guarantee card (Annexure C-1) alongwith a slip (Annexure C-2) which mention ‘Boiling water proof guarantee 100% phenol ply’  and both the documents have been signed by  OP No.1.

5.                     We have gone through Section 2(1)(d) of the Consumer Protection Act which is reproduced as under:-

                                                (d) “Consumer” means any person who-

(i) 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 view of the above, it is first and foremost conditions to become a consumer that there should have consideration for purchase of goods which paid or promised or partly paid and partly promise or under any system of deferred payment but in the present case, the complainant has alleged that he has purchased the ply from OP No.1 but he could not show the invoice by which  he has purchased the said ply whereas the  complainant has only placed on record copy of guarantee card and a slip without mentioning quantity  and rate of the alleged ply  which has been denied by the OP No.1. This version of the complainant is not believable that how a dealer can issue a guarantee card for the period of 15 years without issuing a bill /invoice qua the purchase of alleged ply. We have also perused the alleged guarantee card Annexure C-1, there are two different dates mentioned in it but in this document, column of invoice is blank. Similarly, the slip Annexure C-2 allegedly issued by OP No.1 without date showing guarantee 100% Phenol Ply and the same has been denied by Op No.1, hence, we observed  that  the abovesaid documents  are procured documents only to get the compensation from the Forum  and to misuse & abuse of the proceedings under Consumer Protection Act, this should not be taken lightly. Therefore, we do not deem it a proper case where the complainant can be treated as  “Consumer”.  The present compliant had been filed by complainant in the year 2012 and since then the complainant has availed several opportunities to prove his case but miserably failed to prove the same.  In the present case, we are of the considered view that the Op has been unnecessarily dragged in the unwarranted litigation by the complainant and has also wasted the time of the Forum as well as the time of opposite party who had to spend expenses upon the litigation including counsel fee etc. There is provision in Section 26 of the C.P. Act  for dismissal of frivolous and vexatious complaint with further provision to award cost  to the party upto Rs.10,000/-.  As such, this is fittest of fit case where complaint can be dismissed with costs. Accordingly, the complaint is dismissed with costs of Rs.5000/- to be paid to the OP No.1 who has contested the case throughout, within thirty days from the receipt of the copy of the order, failing which OP No.1 can initiate proceedings u/s 27 of the C.P. Act against the complainant.  Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

ANNOUNCED ON :30.12.2016.                                                    Sd/-

                                                                                                 (D.N. ARORA)

                                                                                                   PRESIDENT  

                                                                                                        Sd/-

                                                                              (PUSHPENDER KUMAR)

                                                                                                       MEMBER