Case No. 29/2017  

IN THE MATTER OF

1. Dr. Sunil Kumar Gupta
2. Dr. Seema Gupta

All R/o Yashomati Hospital Ramghat Road, Aligarh                                       

                                           V/s

1. M/s Shyam Sunder Lal Harswarup Opp. Sports Stadium, Ramghat Road, Aligarh
2. M/s Greenply \kolkata Corporate Office 5^th 6^th floor Madugul Lounge 23 Chetta Road, Opp. Chetta Central Park Kolkata

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs-

1. The Op be directed to pay Rs. 564019 the value of material for making almirah cupboards etc.
2. The Op be directed to pay Rs.34550 as cost of accessories, Rs.377650 as labor charges and Rs.20000 cost of designing.
3. The op be directed to pay rs.100000 for mental agony and physical harassment.
4.  The op be directed to pay Rs. 15000 as cost of litigation.

2.  Complainants have  stated that they had purchased green ply block board and ply board, micka and other timber items for Rs. 564019 from Op no.1 an authorized dealer of the OP no.2 for making almirah cupboards and other house holds items and furnitures etc. Complainants were assured by the OP no.1 that the block board and green ply of the green ply brand are guaranteed and fully protected against fungus, borer and termite attack. The almirah and the cupboard etc made up of said material and doing so good amout of money, labor and time were invested but within six month the entire furniture came to crumbling down as it got destroyed by termite attack. Complaint was lodged with Ops and their representative inspected the damaged product inspected with termite. Complainant sent a legal notice to the OP. Ops have indulged in unfair trade practice by falsely representing that the block board and ply board were of particular standard and quality of which they were not. Complainant had suffered and cause action arose for filing the complainant.
3. Op no.1 submitted in WS that complaint is not maintainable. OP no.1 and any one employed under it had ever assured the complainant about green BWP block board and green BWP ply board as guaranteed and fully protected against borer, termite and fungus attack. OP had never misrepresented any feature or specification or warranty to any customer. Op no.1 had never indulged in unfair trade practice and the complainants suffered no loss. Complainants had purchased the goods for commercial purpose and as such they are not consumers.
4. Op no.2 stated in WS that complaint is not maintainable inasmuch as the goods manufactured by op no.2  purchased by the complainant in the name of hospital and were used for commercial purpose therefore complainants are not consumers. OP no.2 did not misrepresent the quality and warranty to the consumer. Op no 2 received a complaint from op no.1 that the goods sold to the complainant were allegedly defective and representative of OP no.2 inspected the goods. It was found that the goods were in no manner defective or of inferior quality but the furniture made out of the goods become termite affected. Op No.2 in order to find out the reason behind the termite infestation caused enquiries as to the manner of uses of goods and storages conditions at the complainant site and it was found that the complainant had kept the goods at a place already infected by termites and this led to the termite attack on block board and ply board. It was due to the factors beyond the control of Op no.2. This cannot be termed as a defect in the goods itself or even as a defect in wood. Termites built their colony in moist soil and moisture contributes further to growth of termite colony and they penetrate even through RCC block and make their next also on other surfaces                                               
5. Complainant has filed his affidavit and papers in support of his pleadings. Ops have also filed affidavit in support of their pleadings.
6. We have perused the material available on record and heard the parties counsel.
7. The first question of consideration before us is whether the complainant is entitled to any relief?
8. It is clear from the record that the amount incurred in purchasing the green ply and block board , accessories, designing and labor charges are proved on the basis of material on record. Complainants have stated that they run a nursing home and the timber items were used for making almirah, cupboard and other furniture and it is evident that the timber items were purchased for making furniture to use in hospital.It can not be termed as a commercial purpose and thus complainants are consumers. The furniture  got destroyed by the termite attack within six month of making and installation of the furniture whereas the OP no.1 had guaranteed at the time of sale that the timber items were fully protected against fungus, borer and termite attack. The assurance given by the OP no.1 stood falsified within six months. Op no.2 has stated that such goods were never claimed to be termite resistant or termite proof and the complainant had kept the goods in moisture whereby the goods infected by termite and this led to termite attack. It is thus clear that the goods sold to the complainants got infected by termite attack. The OP no.1 had given assurance of termite proof which is corroborated by the corporate profile of green ply industries Ltd. filed by the complainant in which full protection against fungus, borer and termite attack is mentioned. Thus it is established that the Ops adopted unfair trade practice in selling the goods to the complainants which were defective and thereby complainants had suffered damages by the acts of commissions or omission and negligence of OP resulting in deficiency in service. Thus the ops are jointly and severally liable to pay damages to the complainants.         
9. The question formulated above is decided in favor of the complainants.
10. We hereby direct the Ops to pay jointly and severally to the complainants the value of goods Rs.564019, cost of accessories Rs.34550, labor charge Rs.377650 and cost of designing Rs.20000 and litigation expenses Rs.10000.
11. Op shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
12. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
13. File be consigned to record room along with a copy of this judgment.