Sri Kamal De, President
In short, case of the Complainant, is that he asked the OP for supplying best quality of steel for window Grill, staircase and railing of top floor namely, ‘Zindal’s Gage 16 & quality 304 stainless steel’ in presence of engineer, Mr. Pratap Panda and the OP agreed and promised that it would supply the same in the month of January, 2015. After completion of grill works, OP fixed the grill and the Complainant paid Rs. 63,219/- in cash as per cash memo dated 10-03-2015 and after completion of stainless steel work, the OP handed over the cash memo on 20-03-2015. After verification, the OP demanded Rs. 1,69,062/- as material cost of stainless steel and Rs. 28,400/- as labour charges, i.e., in all Rs. 1,97,462/-, out of which the Complainant has already paid Rs. 1,80,000/-. However, as per the demand of the OP, the Complainant issued a cheque of Rs. 30,000/- in good faith and the OP agreed to adjust the residual amount to finish rest of the job in respect of other two verandas. Subsequently, it was found that material of stainless steel got rust causing damage to the said material whose standard is deteriorating day by day. On query, it has been detected that the OP has not supplied the ‘Shyam brand’ hard ware as demanded, but he used 50% of other inferior quality hard ware though cash memo goes to show that he used ‘Shyam brand’. The Complainant also got the samples of stainless steel verified through Indicative Consultant India, Haldia and they tested the same and it is clear that he did not supply the best quality as promised and the OP deceived the Complainant by supplying inferior quality of stainless steel. Hence, this case.
Case of the OP, on the other hand, is that during the course of manufacturing of the grills and railing, the engineer of the Complainant supervised the same and at that time, neither the engineer nor the complainant raised any objection regarding the quality of materials. In fact, while the men of OP was fixing the same, no objection was raised from any corner. OP has supplied stainless steel and accessories worth Rs. 1,69,062/- and grill worth Rs. 63,219/-, i.e., total Rs. 2,32,281/-. Out of the total amount, the Complainant has paid only Rs. 1,80,000/-. Accordingly, OP is entitled to get Rs. 52,281/- from the Complainant. After completion of work, OP requested the Complainant to pay the balance amount, but the Complainant expressed his inability to pay the same due to paucity of fund and urged the OP to raise two bills – one for the steel railing and another for grill to enable him secure loan. Accordingly, on good faith, the OP issued two cash memos/bills amounting to Rs. 63,219/- and Rs. 1,69,062/- on 10-03-2015 and 20-03-2015, respectively. After few days, the Complainant issued a cheque for an amount of Rs. 30,000/-, but the same got returned as payment was stopped by the drawer. It is alleged that to avoid payment of balance amount, the Complainant has come up with a concocted story of inferior material. Complainant has obtained a test report from Indicative Consultant India without prior intimation to the OP. As such, the OP has prayed for dismissal of the present case.
Points for determination
- Whether the OP has committed deficiency of service?
- Whether the Complainant is entitled to the relief as sought for?
Decision with reasons
The allegation of the Complainant is that the OP was supposed to supply best quality of steel for window grill (steel) and staircase and railing of top floor under the brand, Jindal’s Gage 16 & quality 304 stainless steel in presence of engineer, Mr. Pratap Panda. OP agreed to supply the goods of the said description which will be free from any defect. But, unfortunately, it is found that OP has not supplied the same brand grill, Jindal’s Gage 16 & quality 304 stainless steel and the OP used 50% of other inferior quality hardware. After 15 days, it was found that the material of stainless steel got rust and the condition of stainless steel is becoming deteriorated day by day. The Complainant has verified the same of stainless steel through Indicative Consultant India, Haldia and the said laboratory tested the same and from the report, it is evident that the OP did not supply the quality as promised. OP, thus, cheated the Complainant by supplying less quality of stainless steel.
It is worthy to point out at the very outset that no written agreement or contract in between the parties is forthcoming before us that the OP would supply Jindal’s Gage 16 & quality 304 stainless steel or grill made of Shyam steel patti. We, however, find that cash memo issued by the OP showing Grill – steel pipe 16 gage, quality 304 stainless steel and ‘patti’ made of Shyam steel. So, it can be presumed that the OP agreed to supply the same, i.e., gage 16 quality 304 stainless steel and patti made of Shyam steel. We, however, do not find any mention of Jindals gage in the said cash memos. It is true that samples of such steel and patti have not been collected by the order of this Forum. As we know, any defect in goods which cannot be determined without proper analysis or testing of the goods, the District Forum shall obtain a sample of the goods from the Complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory can make analysis or testing, whichever may be necessary with a view to find out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum. The Complainant has not done it through this Forum, but the Complainant suo motu arranged the same of alleged stainless steel through one Indicative Consultant India, Haldia prior to filing of this case. Ld. Lawyer for the OP argued that the sample of stainless steel is not the sample supplied by the OP Company. Moreover, such sample was also not collected or seized in presence of OP. Anyway, be that as it may, the report of Indicative Consultant India goes to show that the received sample of SS Pipe does not conform to the requirement as per SA 312 Type 304 in respect of the said test. It is also evident from the report of the Indicative Consultant India that the sample is not drawn by M/s Indicative Consultant India. Sample was supplied and identified by customer as SS pipe. It becomes increasingly difficult on the part of this Forum to come to a definite finding about the defect of the goods in this regard or whose version is true? However, the report goes in favour of the complainant and we can say that the OP committed deficiency of service as per such report.
The other part of controversy is whether the Complainant has paid off only Rs. 1,69,062/- to the OP or not. It is also argued from the side of the OP that the Complainant has seized raw materials lying at the premises of the complainant worth of Rs. 60,000/- and it would get Rs. 52,281/- from the Complainant.
It is also evident from the materials on record that the Complainant issued post-dated cheque amounting to Rs. 30,000/- and the Complainant subsequently issued stop payment direction to the concerned bank. In the midst of such claim and counter claim, we find two cash memos – one of Rs. 1,69,062/- and the other of Rs. 63,219/- on record, issued by the OP to the Complainant. From the two receipts it appears that the Complainant has paid an amount of Rs. 2,32,281/- to the OP. OP has, however, stated that he did not receive Rs. 63,219/-, but issued the cash memos on the request of the Complainant. We are afraid, such argument cannot sustain because man may lie, but document does not. The two cash memos issued by the OP go to show that the Complainant paid off Rs. 2,32,281/- in total to the OP. We think that both parties have contributed to and are responsible for the present controversy. On the other hand, parties have no written contract or agreement as to the description of goods to be supplied. The Complainant, on the other hand, has not followed procedures as envisaged u/s 13 C, D, E, F. G of the Consumer Protection Act.
We think that defective products will not serve the purpose of the complainant. At this juncture, we think that the OP should return to the Complainant the amount received by the OP amounting to Rs. 2,32,281/- after deducting 20% of the same as labour charges as non-standard basis and the Complainant is directed to return back all the goods, fixtures etc. so supplied including unused raw materials to the OP in presence of ld. lawyers of respective parties on preparation of an inventory.
Hence,
ORDERED
that C. C. No. 21/2016 be and the same is allowed on contest in part against the OP. OP is directed to return to the Complainant, within 40 days hence, the amount received by the OP amounting to Rs. 2,32,281/- after deducting 20% of the same as labour charges as non-standard basis and the Complainant is directed to return back all the goods, fixtures including unused raw materials etc. within 40 days hence to the OP in presence of ld. lawyers of respective parties preparing an inventory alongwith an amount of Rs.5,000/- as litigation cost. i.d. complainant will be at liberty to put this order into execution and in such case the OP shall be liable to pay interest @ 6% per annum to the complainant upon the deducted amount till full and final settlement, provided the complainant also abides by with this order of return of goods, fixtures and unused materials to the OP. In the fact and circumstances of the case we make no order as to compensation.
