JUSTICE V.K.JAIN (ORAL)

The complainant/respondent purchased plywood from the petitioner for the purpose of using the same in making furniture meant, for being used in a photo studio, which the complainant  is running in a place namely Tilak Path, Talab Chowk, Khargone, Madhya Pradesh. The plywood purchased by the complainant allegedly had stamp of a brand name Dynora and also had ISI mark on it. The case of the complainant is that since the plywood sold to him  was of inferior quality the furniture which he got made using that plywood developed defects, the plywood having started peeling off. The complainant, therefore, approached the concerned District Forum by way of a consumer complaint seeking refund of the price which he had paid for the plywood, along with compensation.

2.      The complaint was resisted by the petitioner which maintained that the plywood sold by them to the complainant was of good quality and in fact the complainant was yet to pay the balance amount of Rs.28549/-.

3.      The District Forum having allowed the consumer complaint the petitioner approached the concerned State Commission by way of an appeal. Vide impugned order dated 22.02.2013 the State Commission dismissed the Appeal filed by the petitioner. Being still dissatisfied the petitioner is before this Commission.

4.      A perusal of the consumer complaint would show that it was specifically alleged in the complaint that the plywood sold to the complainant had the mark of Dynora on it besides having Impressions of ISI mark. This would mean that the petitioner represented to the complainant that the plywood being sold to him was of the making  Dynora, and had been manufactured as per ISI standards. This is also the case of the complainant in the consumer complaint itself that the ISI stamp on the plywood was fake meaning thereby that the manufacturer of the plywood did not have ISI registration for the said plywood. In its written version the petitioner did not specifically refute the allegation that the plywood sold to the complainant had mark of Dynora as well as ISI mark on it. If the plywood sold by the petitioner to the complainant had genuine ISI mark on it the petitioner ought to have proved the same by examining the manufacturer of the plywood and should also prove the ISI registration granted to the manufacturer for the aforesaid plywood. That having not been done, the inevitable inference is that the plywood sold by the petitioner to the complainant did not have a genuine ISI mark on it and, therefore, did not confirm to the prescribed standard. If a product with a fake ISI mark is sold to a consumer that by itself would be an act of selling defective goods to the consumer, besides being use of unfair means. In fact, such an act may also constitute cheating the consumer.

5.      The Ld. counsel for the petitioner submits that they are the authorised dealer of Dynora plywood. That, however, would make no difference since they led no evidence to prove that the plywood manufactured under the brand name Dynora had a valid ISI mark on it. Therefore, the case of the defect in the goods sold to the complainant is clearly made out.

6.      The next submission of the Ld. Counsel is that the plywood was purchased by the complainant for commercial purpose. The plywood was used for making furniture which the complainant was to use in his photo studio, the complainant being a photographer by profession. It is not known what was the size of the studio and what was the scale of the business of photography which the complainant was carrying in the said studio. It is also not known whether the complainant had engaged any employee and if so, what was the number of the employees engaged by him. The finding on the question as to whether the complainant was a consumer within the meaning of the Consumer Protection Act or not would depend primarily upon the scale of the business/profession which the complainant was carrying in the studio in which the furniture was to be used. Since no evidence on the said issue was led by either party it becomes imperative to remit the matter back to the District Forum to decide the complaint afresh after recording a clear-cut finding on this issue. For this purpose the District Forum shall give an opportunity to the parties to lead such evidence as they may deem appropriate on this limited issue.

7.      If the District Forum after giving opportunity to the parties to lead evidence on this limited issue comes to the conclusion that the complainant was a ‘consumer’ within the meaning of the Consumer Protection Act, he would be entitled to the compensation awarded by the State Commission along with interest at the rate of 9% p.a. from the date of the order of the State Commission. If the District Forum comes to the conclusion that the complainant was not a ‘consumer’ within the meaning of the Consumer Protection Act, the consumer complaint will be liable to be dismissed with liberty to the complainant to avail such remedy other than a consumer complaint as may be open to him in law. The parties shall appear before the District Forum on 21.09.2020. The District Forum shall decide the consumer complaint afresh within three months of the parties appearing before it. The revision petition stands disposed of.