DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
DATED THIS THE 5th DAY OF DECEMBER, 2024.
PRESENT : SRI. VINAY MENON .V., PRESIDENT.
: SRI. KRISHNANKUTTY N.K, MEMBER.
DATE OF FILING: 15.09.2023.
CC/234/2023
Muhammed Manu, - Complainant
S/o.Mammy Haji, Kunnath House,
Vaniyamkulam, Ottapalam,
Kerala-679 522.
(By Adv.M/s.Ragesh N & Aswin.K)
Vs
1. M/s.Chittilappilly Trading Corporation -Opposite Parties
Door No.TM, 11/946, Opp.Casino Hotel Complex,
T.B.Road Kokkalai, Thrichur, Kerala-680 021.
(By Adv.Shaji Kodankandath)
2. Technonicol India Pvt. Ltd, 102, Joy Villa,
Plot No.58, Jawahar Nagar Road No.4,
Goregaon (W), Mumbai-400 104.
(By Adv.Manoj Ambatt)
3. Muhammedali O.K, S/o.Kunhalan Oduvangattil House,
Mangode PO, Adakkaputhur-679 503.
(Ex-parte)
4. Muhammed Jashid, S/o.Abdul Asees, Kottekkattil House,
Pombra, Kootilakkadavu-678 595.
(Abated)
ORDER
BY SRI.KRISHNANKUTTY N.K, MEMBER.
1. Pleadings of the complainant in brief:-
The complainant purchased 104 bundles of “Country Texas Shingles”, 1 bundle and 30 pieces of Texas Ridges and half roll ‘Techno Ultra paste’ 2 mm, manufactured by the second opposite party from the 1st opposite party on 17.04.2019 for Rs.2,27,918/- for the purpose of constructing his restaurant building. This purchase was made as per the suggestion of 3rd and 4th opposite parties working as per the direction of the 1st opposite party. The installation was done by the 3rd and 4th opposite parties. The opposite parties had promised that the shingles were of fine quality and having a warranty of 50 years offered by the manufacturer.
Immediately after installation, the shingles started peeling off resulting in severe leakage of roof ultimately causing damage to the building itself. According to the complainant, this defect is caused either due to the poor quality of the shingles or by defective installation. When reported to the 1st opposite party they offered to rectify the defect after lock down due to Covid Pandemic. When the opposite party failed to cure the defect so promised, the complainant sent registered notice on 25.06.2023. The 1st opposite party replied to the notice disowning the responsibility for rectification and contending that the damage is due to improper installation by the complainant. Hence, this complaint is filed seeking direction to opposite parties to replace the defective product or pay Rs.5,00,000/- for replacing the same along with a compensation of Rs.3,00,000/- for the hardship and mental agony suffered by the complainant apart from cost of litigation.
2. Notices were issued to the opposite parties. The 1st opposite party in spite of receiving the notice on 03.10.2023 did not file version within statutory period and hence, were set ex-parte. The 2nd opposite party filed version. Notice to the 3rd opposite party was returned with endorsement “Not claimed”. Hence, the name was called in open court and set ex-parte. Case against 4th opposite party was abated as the complainant failed to take necessary steps to ensure issuance of notice him.
3. Based on the pleadings of the complainant and the 2nd opposite party the following issues were framed;
a) Whether the defect was due to the non-followal of instructions and negligence on the part of the complainant?
b) Whether there is any deficiency in service on the part of the opposite parties?
c) Whether the complainant is entitled to the reliefs claimed?
d) Any other reliefs.
4. The complainant filed IA.No.553/2023 on 25.09.2023 for appointing an Expert Commission to assess the factual position of the complainant’s pleadings. It was allowed on 26.09.2024 and Sri.K.A.Varghese was appointed as Expert Commissioner and complainant was directed to take necessary steps. As the Expert Commissioner failed to file the Commission report till 27.03.2024, this Commission ordered to issue show cause notice to EC and the complainant was directed to take steps. But the complainant took steps belatedly. As the complainant failed to comply with the direction and undertaking made in the court, the Commission report was “dispensed with” with the direction that any adverse inference available can be taken against the complainant. The Commissioner’s report subsequently filed on 19.07.2024 was rejected. On 27.08.2024, the complainant filed IA.No.464/24 seeking orders to mark the C/R which was dismissed on 23.09.2024.
5. Documentary evidence adduced comprised of proof affidavit and documents marked from the side of the complainant (Exts.A1 to A8). Ext.A1 is the GST invoice issued by the 1st opposite party for Rs.1,09,723.00, Ext.A2 is the Udyan Registration Certificate of the complainant’s restaurant, Ext.A3 is the copy of lease deed executed for the hotel site, Ext.A4 is GST invoice dated 17.04.2019 for Rs.1,18,166/- issued by the 1st opposite party, Ext.A5 is the brochure of the product, Ext.A6 is the copy of the legal notice sent to the 1st opposite party along with Postal AD card, Ext.A7 is copy of legal notice sent to the 2nd opposite party along with the postal tracking record and Ext.A8 is reply sent by the 1st opposite party’s counsel to the legal notice issued by the complainant.
6. The 2nd opposite party did not file proof affidavit or mark any documents as evidence.
7. As per Section 38(6) of Consumer Protection Act, 2019, every complainant is to be heard and decided on the basis of the proof affidavit filed and documentary evidence placed on record. As there are no proof affidavit or documentary evidence for the side of the opposite parties what this Commission can do is to examine whether the complainant has succeeded in proving a prima facie case against the opposite parties based on the proof affidavit and documents filed/marked from his side.
8. From a close scrutiny of the proof affidavit filed and the documents marked by the complainant the following conclusion can be drawn;
1) The complainant bought shingles along with accessories manufactured by the 2nd opposite party from the 1st opposite party for a payment of Rs.1,09,723.00+Rs.1,18,166.00= 2,27,889/- (As per Ext.A1 and Ext.A4 for construction of his restaurant building).
2) The installation of the Shingles was completed in the month of April, 2019 and as soon as they were laid the shingles started peeling off which in turn resulted in severe leakage of roof which ultimately caused damage to the basic structure of the building. When the issue was taken up with the 1st opposite party they promised to replace the shingles after covid lock down.
3) Due to the damage caused to the building, the complainant could not start his business as scheduled causing heavy financial loss.
4) The 1st or 2nd opposite party did not come forward to replace the shingles as promised even after the covid lock down in spite of the legal notice issued to the 1st and 2nd opposite parties. The 1st opposite party replied to the notice disowning their responsibility and putting the blame on faulty installation by the complainant. The 2nd opposite party did not bother to reply to the legal notice.
9. In the absence of any counter pleadings from the side of the opposite parties in their defence, we are of the considered opinion that the complainant has succeeded in proving a prima facie case against the 2nd opposite party, the manufacturer of the product. The immediate damage to the shingles manufactured by the 2nd opposite party tell upon the poor quality of the material supplied to the complainant, ultimately, resulting in the damage to the entire construction and causing heavy financial loss.
10. Resultantly, the complaint is allowed ordering the following reliefs;
1. The 1st and the 2nd opposite parties jointly and severally are directed to refund the original cost of shingles along with interest @ 10% pa from 17.04.2019 till the date of payment.
2. The 1st and the 2nd opposite party are also directed to pay Rs.2,00,000/- (Two lakhs) as compensation for deficiency in service, financial loss and mental agony caused to the complainant.
3. The 1st and the 2nd opposite party are further directed to pay Rs.20,000/- as cost of litigation.
The above amounts are to be paid within 45 days of receipt of this order, failing which the opposite parties are liable to pay Rs.500/-as solatium per month or part thereof from the date of the order till the date of final payment.
Pronounced in open court on this the 5th day of November, 2024.
Sd/-
VINAY MENON .V, PRESIDENT.
Sd/-
KRISHNANKUTTY N.K, MEMBER.
APPENDIX
Documents marked from the side of the complainant:
Ext.A1: Copy of GST invoice issued by the 1st opposite party dated 17.04.2019.
Ext.A2: Copy of Udyam Registration Certificate of the complainant’s Rastaurant dated 06.04.2023.
Ext.A3: Copy of lease deed executed for the hotel site.
Ext.A4: Copy of GST invoice dated 17.04.2019 for Rs.1,18,166/- issued by the 1st opposite party.
Ext.A5: Copy of brochure of the product.
Ext.A6: Copy of the legal notice sent to the 1st opposite party dated 23.06.2023 along post AD card.
Ext.A7: Legal notice sent to the 2nd opposite party dated 23.06.2023 along with postal tracking record
Ext.A8: Reply sent by the 1st opposite party to the legal notice issued by the complainant.
Document marked from the side of Opposite party: Nil
Document marked from the side of Court: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court witness: Nil
Cost : 20,000/-
Manuscript prepared by me, transcribed by the Confidential Assistant and verified by me.
Dated this the 5th day of December, 2024. Sd/-
KRISHNANKUTTY N.K, MEMBER.
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
