DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.229 of 2017
Date of institution: 22.03.2017 Date of decision : 12.06.2019
Anandamayima Cooperative Group Housing Society Ltd., Plot No.7, Sector 24, Panchkula through its authorised signatory Shri Som Datt Goyal son of Late Shri Hans Raj Goyal, resident of House No.504, Sector 38-A, Chandigarh.
…….Complainant
Versus
Paul Cement Stockists, Paul Bazzar, SCO 41, 43 and 46, Phase-IX, SAS Nagar (Mohali).
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri A.K.Maleri, counsel for complainant.
OP Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, through duly authorised representative Shri Som Datt Goyal has filed this complaint by claiming that complainant through its representative approached OP for purchase of two plastic water tanks of 5000 liters each for installation at Panchkula because earlier installed water tanks had leaked resulting in failure of water supply to the residents of the society. OP suggested plastic tanks of various makes with different layers. Rough estimate in writing was supplied. After discussion and negotiations, complainant opted for two Black Stone Four layers water tank with 20 years warranty by agreeing to pay Rs.69,000/- inclusive of all taxes. Water tanks were supplied by OP to complainant at Panchkula vide bill No.002687 on 08.01.2017 in evening after lot of persuasion. Payment was made through cheque bearing No.306928 dated 07.01.2017 drawn at State Bank of Patiala, Sector 38, Chandigarh. Water tanks were installed at the roof top of 6th floor of the society on the same night. However, carbon copy of bill was describing as if two tanks white, three layers carrying warranty of one year supplied. This supply was made against promise of supply of 4 layers water tanks of Black Stone make with warranty of 20 years. On pointing out the discrepancies, OP corrected warranty to 10 years by making amends in the original bill. As the plastic tanks were installed at the roof top of 6th floor by plumber on the same day, so description in the make of the tanks could not be checked at the time of installation during night. However, on morning of 09.01.2019 when complainant checked the quality, make and description of the tanks supplied by OP, then he was surprised to notice that supplied water tanks were of 3 layers Hindustan Company instead of 4 layers Black Stone Company. There was only a plastic pasted sticker of Hindustan make on the supplied water tanks. It is claimed that OP adopted unfair trade practice and that is why after serving legal notice dated 17.01.2017, this complaint filed for seeking either refund of paid amount of Rs.69,000/- or replacement of water tanks with 4 layers of Black Stone make with warranty of 20 years. Even amount of Rs.26,000/- spent for lowering, lifting and installation charges claimed with compensation for mental agony and harassment of Rs.15,000/-, but litigation expenses of Rs.11,000/- Interest @ 18% per annum also claimed.
2. OP is ex-parte in this case.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-7 and then closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. It is vehemently contended by counsel for complainant that the supplied water tanks were of different make and description than that of the agreed to be purchased and as such OP committed unfair trade practice. Copy of minutes of meeting of Executive Committee of complainant society produced on record as Ex.C-1 and Ex.C-2 for showing that Shri Som Dutt Goyal, through whom the present complaint filed, has been authorised to start legal proceedings in this Forum in respect of grievance of non supply of water tanks of Black Stone Company with warranty of 20 years. So certainly, complaint has been filed through duly authorised representative.
6. It is the case of complainant that OP suggested plastic tanks of various makes with different layers through written rough estimate, copy of which is produced on record as Ex.C-3. In Ex.c-3 mention of Sintex, Hindustan, Diplast and Black Stone makes of 5000 liters tanks each made for disclosing different prices of 8 items. In this estimate Ex.c-3 itself it has been mentioned that Hindustan water tank having 3 layers will be having price of Rs.27,500/-, but Black Stone 4 layers water tank will have price of Rs.32,500/- or of Rs.43,500/-. VAT on the mentioned prices to be charged extra as per estimate Ex.C-3, but in invoice Ex.c-4 it is mentioned as if VAT is either @ 6.05% or @ 14.30%, but neither in Ex.C-4 and nor in the invoice Ex.C-5 mention made as to at what rate VAT actually is charged. However, price of white tank of 3 layers of Hindustan company mentioned as Rs.34,500/- per piece. Payment of Rs.69,000/- made through cheque No.306928 drawn at State Bank of Patiala, Mohali is a fact borne from contents of Ex.C-4 and Ex.C-5. From the contents of Ex.C-3 it cannot be made out as to whether actually order of water tanks of 4 layers of Black Stone make was placed by complainant with OP or not because price of
Rs.32,500/- and of Rs.43,500/- of these water tanks does not match with the paid price of Rs.34,500/- per water tank through invoice Ex.C-4 or Ex.C-5. So the documents produced on record do not establish that order for purchase of black stone water tanks of 4 layers with 20 years of warranty actually was placed.
7. Complainant claims to have served legal notice Ex.c-6 on OP, but in reply thereto placed on record Ex.C-7, it is claimed as if the allegations regarding supply of 5000 liters water tank of Black Stone make are false. Moreover, through this reply Ex.C-7 it is claimed that the order placed was for purchase of Skitex Make water tanks of Hindustan Company and the same tanks were supplied. In this reply Ex.C-7 it is specifically mentioned that no company manufacturing water tanks of 5000 liters capacity in India gives guarantee/warranty for 20 years of these tanks. So dispute raised through reply Ex.c-7 not only qua brand of the water tank ordered to be purchased, but even regarding duration of guarantee. Such disputed questions can be adjudged after allowing parties to produce evidence and by allowing them to examine and cross examine witnesses. As and when complicated disputed factual questions are involved, then the matter cannot be adjudicated in summary proceedings of consumer complaints as per law laid down by Hon’ble Supreme Court of India in case Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel, 2006 (IV) Civil Court Cases 203 and as such in view of this legal position remedy available with complainant is either to approach civil court or other competent forum where such disputed questions can be adjudicated.
8. Though complainant has taken plea in the complaint that water tanks were supplied on evening of 08.01.2017 and installation of the same took place on roof top of 6th floor of the society on the same night by engaging a plumber, but name of that plumber is not at all disclosed. Rather in un-exhibited receipt issued by Mr. Shankar Kumar, Specialist in plumbing work it is mentioned as if he installed two water tanks after lifting the same from the ground floor during night on 09.01.2017 on payment of Rs.20,000/- to him on 11.01.2017. So contents of this writing of Shankar Kumar dated 09.01.2017 falsify claim of complainant as if installation of water tanks in question took place during night of 08.01.2017. So there is suppression of material facts in this respect and as such also the consumer complaint not maintainable, more so when it is well settled that he who seeks equity must do equity by speaking truth. Name of person who on checking water tanks on next date found water tanks to be not of ordered brand or specification is not at all mentioned and as such there is suppression of material facts in that respect also. Affidavit of Shankar Kumar Plumber even has not been tendered in evidence and nor his name disclosed anywhere in the complaint or in the submitted affidavit of complainant and as such suppression of material facts in this respect also is there, so that truth may not come out. A person suppressing material facts not entitled to claim relief in consumer complaints and as such complaint deserves to be dismissed.
9. As a sequel of above discussion, complaint dismissed ex-parte with observations that complainant may avail remedy before appropriate court/forum. Certified copy of the order be supplied to the complainant free of cost as per rules. File be indexed and consigned to record room.
Announced
June 12, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
