SRI.K. VIJAYAKUMARAN, PRESIDENT..<br /> <br /> The complainant has filed this complaint for getting an amount of Rs.14,800/- with 12% interest per annum and for compensation and cost.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> The complainant had purchased 12 mm 8x4 feet marine plywoods five in numbers worth Rs.4800/- from the shop of the opp.party for making a shelf during the periods June and July, 2004 The opp.party is a dealer in Hardware Items, Plywoods and Glass running the shop under the name and style “Mini Glass Emporium’. The opp.party gave an impression and assurance to the complainant that, the plywoods supplied by him are marine plywoods which is a guaranteed product in its quality, durability and the same is manufactured with borer proof Technology. The complainant purchased the same with full confidence about its durability and quality. The complainant used the materials supplied by this opp.party for making a shelf measuring about 9 feet length, 7 feet height and 2 feet width, having inside partitions with doors and other accessories. All the inside partitions of the shelf was made out of the plywoods supplied by the opp.party. The work of the shelf was completed for a total cost of Rs.14,800/- including the material cost and labour charges . Quite unfortunately, within four months from the date of purchase the plywoods used for the inside partitions of the shelf showed the complaint of borer attack and the same has been aggravated day by day and finally it was not in a position to use for any purpose due to the granule like wooden powder emerging out in plenty from the plywoods used for partition as a result of the borer attack. Complainant personally met the opp.party and told about very the poor condition of the plywoods supplied by the opp.party and further requested the opp.party to replace the inferior quality of the plywood supplied by him with quality products at the risk and expenses of the opp.party. But the opp.party did not settle the genuine grievance of the complaint and not even cared to accept the suggestions made by the mediators for a reasonable settlement in this matter . The opp.party infact supplied substandard quality plywoods after giving a false impression that it is a quality products of marine plywoods, after realizing the cost of genuine quality marine plywoods prevailing at that time. The act of the opp.party amounts to unfair trade practice. Hence the complaint.<br /> <br /> The opp.party filed version contending, interalia, the complaint is not maintainable either in law or on facts. The opp.party conducted the business of hardware and glass in the name and style M/s. Mini Glass <br /> Emporium, Mayyanadu. Thereafter, he had disposed of the said Mini Glass Emporium to one Bini residing at Maya Vilasom, Pattathanam, Kollam during the year 2000. The said Bini changed the name of shop as M/s. Bhavya hardwares and started the business after obtaining necessary permission and licenses from the local bodies. Later during August 2004 the opp.party taken back the ownership of the shop room with all the stocks from said Bini and by considering the well acceptance of the shop, he not changed the name and now also running the shop in the same name and style M/s Bhavya hardwares.. The opp.party changed the licence of the shop room in his name obtained sales tax registration and he is conducting the business based on cash bills. From 2004 to 2006 the opp.party has not engaged in the sale of plywoods. The averments in the first para of the complaint that the opp.party is the proprietor of Mini Glass Emporium is against fact and hence denied. The opp.party is the proprietor of Bhavya Hardwares, engaged in the business of Hardware items and glass alone and this opp.party has not engaged in the business of plywoods during the alleged period. So the averment that the complainant purchased plywood worth Rs.4,800/- from the opp.party during June and July 2004 is against facts and prays for the dismissal of the complaint.<br /> Points that would arise for consideration are:<br /> 1. Whether there is any deficiency in service from the side of the opp.party<br /> 2. Reliefs and cost.<br /> For the complainant PWs.1 to 3 are examined and marked Exts. P1 to P6. <br /> For the opp.party DW.1 is examined and marked Exts. D1 to D4<br /> <br /> <br /> Points 1 and 2<br /> The case of the complaint is that he has purchased certain plywoods measuring 12mm 8 x 4 feet size for making a shelf in his house in June and July 2004 as the opp.party make him believe that the Plywood is of the high quality and the same is manufactured with borer proof technology . The complainant used the plywood for making the shelfs pending about Rs. 5,000/- other than the cost of material and accessories . The shelf was completed for a total cost of Rs.4,800/- within 4 months from the date of purchase the inside partitions of the shelf showed complaints of borer attack. Immediately the complainant informed the opp.party and requested to verify the condition of plywood supplied by him. The opp.party visited the house of the complainant and personally verifird and convinced about the quality of the plywood supplied by him and informed that he would take up the matter with the manufacturer of the plywood. However, he did not make any attempt. Even after mediation to settle the grievance of the complaint he did not settle the same. The complainant has produced Ext.P1 and P2 series bills issued by the opp.party for having received the price of the plywood and according to him. Ext.P1 and p2 series were written and initialled by the opp.party himself.<br /> <br /> The contention of the opp.party is that he is not a dealer of plywood and he never sold plywood from his shop to the complainant as alleged. It is his further case that had the complainant purchased plywood from his shop he would have issued cash bills to the complainant he would have been in <br /> position to produce the cash bill issued by him and from the non- production of the bills itself it can be gathered that the contention of the complainant is not true. It is true that complainant has not produced any printed cash bill issued from the shop of the opp.party. The definite contention of PW.1 is that Ext.P1 and P2 series are issued to him by the opp.party himself and that the same is written in the handwriting of the opp.party who has also initialed the bills. When such a contention is raised the burden is on the opp.party to establish by cogent material that Ext.P1 and P2 series are not in his hand writing and that the initials are not that of his. From the conduct of opp.party in not adducing any expert evidence to establish that Ext. P1 and P2 series are not in his handwriting an adverse inference can be drawn. It is also to be pointed out that the contention regarding issuance of printed receipts is also not believable. Ext. D1 shop inspection report produced by the opp.party himself shows that the number of the last receipt issued is 487 and the same was issued on 26.3.2005. Ext. D1 is dated 29,3.2005. In between there are 2 working days and the opp.party has no case that the shop remained closed on the above days. By any stretch of imagination it can be presumed that during 27th and 28th no sale has taken place in his shop. In our view Ext. D1 lent support to the contention of PW.1 that the opp.party is not in the habit of issuing printed receipts when articles are sold with a view to evade sale tax.<br /> <br /> The definite contention of the opp.party is that he is not dealing with plywood in his shop. P6 is the visiting card of the opp.party which is admitted by him. In P6 it is clearly stated “Glass, plywood, mica, paints hardware’s etc.” If he was not actually dealing with plywood one is at a loss to understand as to why plywood is also included in his visiting card. Therefore, it can safely be presumed that the opp.party was dealing<br /> plywood also in his shop. Ext. P6, would cut at the root of contention of opp.party that he is not dealing with plywood in his shop.<br /> <br /> Another contention of the opp.party is that he was not conducting the shop at the time when the complainant is alleged to have purchase plywood from the shop. According to him he has conducted the shop Mini Glass Emporium till 2000 and since the business was poor due to his in experience transferred the business to one Binu who conducted the business and he has taken back the business only in August 2004. That contention is also not true. In Ext. D1 produced by the opp.party there is an endorsement made by the opp.party himself regarding the commencement of the business. It shows that the business was started with effect from 2.3.2004. From Ext.D1 it is obvious that on the date of purchased of plywood by the complainant from the shop of the opp.party he was doing business there DW.2 is a practicing lawyer of this bar who is acted as mediator for settling the dispute between the complainant and the opp.party. PW.2 has categorically stated in accordance with the case put forward by the complainant. It has come out in evidence that PW.2 is known to both the complainant and the opp.party and PW.2 is hailing from the same place of the complainant and opp.party. Though PW.2 was cross-examined at length nothing has been brought out to discredit his testimony. Ext.X1 is the commission report filed by the commissioner appointed by this forum after inspecting the shelf constructed in the house of the complainant using plywood purchased from the opp.party. The commissioner has reported that the shelf is being eaten up by borer and he has assessed the damages at Rs.10,000/- excluding the value of the plywood.<br /> <br /> Another contention of the opp.party is that the complaint is not maintainable as the manufacturer is not made a party. It is argued by the learned counsel for the complainant that even in Ext.P3 the complainant has informed about the defective quality of the plywood but the opp.party has not disclosed the where abouts of the dealer and therefore the manufacturer could not be impleaded. There is force in that contention. In ordinary course if the dealer acts just as an agent of the manufacturer he could lnot be held liable for the manufacturing defect and the liability would be that of the manufacturer. But in case where the independent dealership without there being any agency of the manufacturer then the dealer cannot escape from liability in respect of even manufacturing defect and reliance can be drawn from the decision reported in II [2008] CPJ 174 [NC]. Therefore we are of the view that it cannot be said that the complaint is not maintainable. For all that has been discussed above we hold that the complainant has proved the case. Point found accordingly.<br /> <br /> In the result the complaint is allowed directing the opp.party to pay to the complainant a sum of Rs.14,800/- with interest at the rate of 9% per annum from the date of complaint till realization and Rs.5,000/- towards <br /> compensation and cost. The order is to be complied with within one month from the date of this order.<br /> <br /> Dated this the 30th day of June, 2008<br /> <br /> <br /> I n e d e x<br /> List of witnesses for the complainant<br /> PW.1. – Prakash<br /> PW.2. – T.A. Suresh<br /> PW.3. – Adv. Unnikrishnan<br /> List of documents for the complainant<br /> P1. – Bills<br /> P2. – Bills.<br /> P3. – Advocate notice<br /> P4. – Postal receipt<br /> P5. – Acknowledgement card<br /> P6. – Visiting card<br /> <br /> List of witnesses for the opp.party<br /> DW.1. – D. Sivadasan<br /> List of documents for the opp.party<br /> D1. – Shop inspection report<br /> D2. – License No. A4.260/03<br /> D3. – License No. A4-108/2002<br /> D4. – No. A5- 18/2004-05<br /> C1. – Commissioner Report<br />