IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 21st day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 07/2012 (Filed on 02.01.2012)
Between:
S. Gopimohan,
Cherukara House,
Malamekara Muri,
Peringinad Village,
Adoor Taluk. … Complainant.
And:
Proprietor,
Kerala Textiles & Stationeries,
Near Private Bus Stand,
Adoor. … Opposite party.
ORDER
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The complainant’s case in brief is as follows: The opposite party is conducting a shop in the name and style ‘Kerala Textiles and Foot Wears and Stationeries’ near Private Bus Stand, Adoor. On 15.10.2011, complainant purchased a silpaulin from opposite party’s shop by giving ` 1,300. Opposite party made to believe the complainant that the silpaulin is having 24x21 feet length and 150 gsm thickness. Believing this, complainant purchased the same. The complainant purchased the silpaulin for the purpose of making a tend on the side of his house to protect his vehicle from rain and sunlight. But during the first rain itself, it was found that water is leaking through the silpaulin and the silpaulin becomes useless. The complainant further alleged that the opposite party did not issued the bill at the time of purchase. After the silpaulin becomes defective, the complainant approached the opposite party and obtained the bill. Then only the complainant found that the thickness of the purchased silpaulin is only 90 gsm instead of the promised 150 gsm. The allegation of the complainant is that the silpaulin is from old stock. The complainant alleged that the opposite party misrepresented the complainant and compelled to purchase it and thereby caused mental agony and financial loss and other inconveniences to the complainant. Therefore, the complainant filed this complaint for getting the price of the silpaulin along with compensation and cost.
3. The opposite party entered appearance and filed version with the following contentions. He admitted that he had sold a silpaulin to the complainant. He further contended that his firm is having good reputation and goodwill since 1935. The complainant filed this complaint in order to tarnish the goodwill of his reputed firm. The complainant approached the shop of the opposite party on 15.09.2011 and selected a silpaulin having 90 gsm thickness with 24x18 length and width. The said silpaulin is made by the brand name of silpaulin and the complainant after satisfying its quality, length, width, thickness etc. purchased the same and paid the bill amount. The complainant comes to the shop of opposite party several time after the purchase of the same, but he never made any complaint with regard to the silpaulin. But the end of November, the complainant approached the opposite party and made a complaint that the silpaulin is leaking and tored. The opposite party requested to bring the silpaulin and assured that he shall replace the same. The complainant brought the same to the opposite party and he found that the damages caused were only due to the mishandling and misuse. So the opposite party denies the demand of the complainant. The opposite party further contended that there is no deficiency of service or unfair trade practice. So he prays for the dismissal of the complaint and also made a counter claim to allow ` 7,000 as compensation to him for the mental agony sustained by him and also the cost of the proceedings.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral testimony of PW1 and DW1 and Ext. A1 and Exts. B1 to B5. After closure of evidence, both sides were heard.
6. The Point: The complainant filed this complaint for getting back `1,300, the price amount of silpaulin, with cost and compensation. The complainant’s allegation is that the opposite party sold an old stock silpaulin to him which was damaged at the first rain itself. At the time of purchase, the opposite party misrepresented him that the silpaulin having 24x21 feet length and 150 gsm thickness. But its actual thickness is only 90 gsm. His further allegation is that opposite party was not issued the bill at the time of purchase. Hence the opposite party is liable to the complainant.
7. In order to prove the complainant’s case, complainant adduced oral evidence as PW1 and the document produced by him is marked as Ext. A1. Ext. A1 is the photocopy of the purchase bill dated 15.09.2011 for ` 1,300 issued by the opposite party to the complainant.
8. On the other hand, the contention of the opposite party is that the complainant approached the shop of the opposite party on 15.09.2011 and selected a silpaulin after satisfying the quality and size. The damage of the silpaulin is not because of its oldness. The complainant brought the same to the opposite party and he found that the damage caused was due to the mishandling and misuse. So opposite party is not liable to pay any compensation or the purchase amount.
9. In order to prove the contention of the opposite party, the opposite party filed a proof affidavit in lieu of his chief examination along with 5 documents. On the basis of the proof affidavit, opposite party was examined as DW1 and the documents produced by the opposite party were marked as Exts. B1 to B5. Ext. B1 is the photocopy of the cash bill dated 15.09.2011 in respect of the disputed silpaulin. Ext. B2 is the parcel service bill dated 18.07.2011 issued by ATC Parcel Service, Ernakulam to the opposite party. Ext. B3 is the tax invoice dated 16.07.2011 in the name of the opposite party. Ext. B4 is the photocopy of the advertisement of Silpaulin published by Supreme Industries Ltd., Mumbai. Ext. B5 is another advertisement of Silpaulin by Supreme Industries Ltd., Mumbai.
10. On the basis of the contentions and arguments of the parties, we have perused the available evidence and found that there is no dispute between the parties with regard to the sale and purchase of the silpaulin. The dispute is with the quality and the alleged manufacturing defect of the silpaulin. The complainant’s allegation is that the product is supplied by the opposite party from his old stock and it had manufacturing defect also. According to the opposite party, it is sold from the new stock and it had no manufacturing defect as alleged by the complainant.
11. In this case, before starting the trial of the complaint, the complainant brought the silpaulin before this Forum as per the direction of the Forum in connection with the suggestion of this Forum for compromising the matter between the parties. At the time of compromise, the complainant shown the alleged certain damages of the silpaulin and alleged that they are manufacturing defects. But the compromise talk was failed due to the adamant stand of the parties. So this Forum directed the parties to adduce their evidence.
12. But the complainant adduced only oral evidence for proving his allegations. Since the allegation is manufacturing defect, oral evidence is not sufficient for proving the allegation of manufacturing defect of a product. At the same time, the contention of the opposite party is that the defect shown by the complainant occurred due to the mishandling of the silpaulin by the complainant. In such a situation, the complainant had a duty to prove his case with cogent evidence. But he failed to do so. Thus, in our view, the complainant had failed to prove his case. Hence we find no reason for allowing this complaint.
13. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 21st day of May, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Gopi Mohan.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the cash bill dated 15.09.2011 for Rs. 1,300
issued by the opposite party to the complainant.
Witness examined on the side of the opposite party:
DW1 : P.V. Johnson.
Exhibits marked on the side of the opposite party:
B1 : Photocopy of the cash bill dated 15.09.2011 in respect of
the disputed silpaulin.
B2 : Parcel service bill dated 18.07.2011 issued by ATC Parcel
Service, Ernakulam to the opposite party.
B3 : Tax invoice dated 16.07.2011 in the name of the opposite
party.
B4 : Photocopy of the advertisement of Silpaulin published by
Supreme Industries Ltd., Mumbai.
B5 : Photocopy of the advertisement of Silpaulin by Supreme
Industries Ltd., Mumbai.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) S. Gopimohan, Cherukara House,
Malamekara Muri, Peringinad Village,
Adoor Taluk.
(2) Proprietor, Kerala Textiles & Stationeries,
Near Private Bus Stand, Adoor. (3) The Stock File.
