IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 09th day of November, 2021.
Filed on 24-09-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.245/2018
between
Complainant:- Opposite parties:-
Sri.Shyneesh.S 1. Sri.M.Anil
Managing Partner Manager, Riolam, 47/780A
Multiplex Interiors Chalikkavattom P.O.
S.L Puram P.O. Vennala, Cochin- 682028
Cherthala
(Adv. Jayan.C.Das) 2. Sri.Shafeek P.S
Marketing Executive
Riolam, 47/780A
Chalikkavattom P.O.
Vennala, Cochin- 682028
(Adv.Sri.Alias M.Cherian for opps.)
3. M/s Noble Laminates (P) Ltd.
Regd. Office at 104, Hiloni
Business Centre, B/H Emerald
Restaurant Galaxy Cinema
Road
Naroda, Ahemedabad- 382330
Present office address:-
Block No.45/52-53,
Chandrala- NH-8,
Gandhinagar, Gujrat.
(Adv.Sri.Prasanth.V&Sri.Aravind S.S)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is conducting a partnership firm by name Multiplus Interiors. Complainant is the managing partner and his wife Neethumol is the partner. They are manufacturing and selling furnitures such as modular kitchen, almirahs, cots and cub boards etc. using plywood, mica, lamination veneers etc and selling it to houses and offices.
2. About 6 months back one Shafeek P.S (OP2) who is the marketing executive of Riolam visited his office and introduced his product Riolam Mica. It was informed that it is having best quality and guarantee. He also contacted him over phone. On 14.05.18, 21.05.18 and 12.07.18 complainant purchased mica from them. Complainant manufactured furnitures using the mica and supplied to his customer. Since the customer made complaint about the mica he visited his house and found bubbles due to moisture content. The matter was informed to Shefeek (OP2) and he along with 1st opposite party visited the site and informed that it was the manufacturing defect of the mica and the product is not suitable for the climate of Kerala. They assured that after contacting with head office compensation will be provided.
3. As per the request of 2nd opposite party he prepared an estimate of Rs.1,80,342/- and send it through whatsapp in the format requested by them. Thereafter on 17-09-18 1st opposite party telephoned him and informed that the head office is not ready to pay compensation. Complainant sustained heavy loss and had lost several orders. Hence the complaint is filed for realizing an amount of Rs.2,34,400/- and Rs.2,00,000/- as compensation for lowering reputation.
4. 1st and 2nd opposite parties filed a version mainly contenting as follows:-
Complainant is not a consumer and defined under Sec.2 (1) (d) of the Consumer Protection Act, 1986. Complainant is conducting business by forming a partnership firm. The goods purchased by the complainant from the opposite parties were for commercial purpose for conducting the business and for resale. Hence the complaint is not maintainable before this Commission.
5. It is true that complainant purchased mica material from the 1st opposite party. The allegation that mica used by complainant for making the furniture/fittings of his customer Mr.Antony was subsequently damaged is false. The mica material supplied by the 1st opposite party to the complainant was of superior quality and there are no instances of any damage after its use. The allegation that bubbles and moisture appeared on the face of the mica after making the furniture and fittings is false. Mica supplied by the 1st opposite party is a hard substance and so there is no question of absorbing water from humidity. Mica is fixed upon plywood material using gum.
6. The material plywood by its nature is exposed to atmospheric conditions and they would easily absorb water. The furnitures were manufactured during heavy monsoon season. There was no defect in the mica supplied by this opposite parties. Complainant has not taken any expert / scientific opinion as to the cause of damage.
7. 1st opposite party is only a dealer of the manufacturer. If there is any manufacturing defect the manufacturer is liable and so manufacturer is a necessary party. The allegation that the complainant sustained a loss Rs.2.5 lakhs is false. Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.
8. Later 3rd additional opposite party was impleaded and they filed a version mainly contenting as follows:-
The complaint is filed with false and frivolous contentions. This opposite party is an unnecessary party and no relief is sought against the opposite party. Even after impleading the 3rd opposite party no amendment is made in the complaint or in the relief portion. There are no allegations against this opposite party and there is no quality deficiency for the product. The laminates can be damaged by defective handling, storing, transporting. Since there is no allegation against this opposite party the complaint may be dismissed with compensatory cost.
9. On the above pleadings following points were raised for consideration are:-
1. Whether the complainant will come under the definition of consumer?
2. Whether the purchase of goods by the complainant from the opposite parties is for resale or any commercial purpose?
3. Whether there is any deficiency of service from the part of the opposite parties as alleged by the complainant?
4. Whether the complainant is entitled to realize an amount of Rs.2,34,400/- from the opposite parties as prayed for?
5. Whether the complainant is entitled to realize an amount of Rs.2,00,000/- as compensation as prayed for?
6. Reliefs and cost?
10. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A6 and MO1 from the side of the complainant and the oral evidence of RW1 and Ext.B1 from the side of the opposite parties.
11. Point Nos.1 to 5:-
For the sake of convenience these points are considered together.
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Exts.A1 to A3, A4 series, A5 and MO1.
PW2 filed an affidavit stating that he is familiar with the complainant and opposite parties. He had purchased kitchen cupboards from M/s Multiplex interiors owned by the complainant. The furnitures were supplied during May, June 2018. Though initially it showed good quality later bubbles were formed in the mica and the furniture became useless. He informed the matter to the complainant and on 18-07-18 sent a complaint. The complaint is marked Ext.A6. Opposite parties 1 and 2 visited his house and after inspecting the furniture agreed to exchange the same. However since the promise was not complied, complainant himself changed the furniture at his own expenses.
12. The case advanced by PW1, the complainant is that he is the managing partner of M/s Multiplex Interiors who is manufacturing and supplying furniture, modular kitchen cupboard etc. and doing interior works. He purchases mica and plywood and thereafter doing the carpentry work and manufactures the finished product. As per Ext.A1 bill dated 12/5/2018 he purchased mica from M/s Riolam for Rs. 31,393/-, as per Ext.A2 bill on 21/5/2018 purchased Mica for Rs. 2,849/- and as per Ext.A3 bill on 12/7/2018 purchased mica for Rs.21,134/-. 1st opposite party is the manager of M/s Riolam and the 2nd opposite party is the marketing executive. Initially there were only two opposite parties and as per the contentions raised in the version of opposite parties 1 and 2. 3rd opposite party who is the manufacturer was also made a party. According to PW1 he manufactured certain Kitchen cupboards using the mica purchased Ext.A1 to A3 bill and supplied to PW2 , Mr. Antony on 24/5/2018, 30/6/2018, 2/7/2018, 14/7/2018 and 16/7/2018. However after a certain period there was bubble formation in the mica and certain bulging were found. On 4/9/2018 as per Ext.A5 letter the matter was informed to opposite parties 1 and 2. However though the opposite parties admitted that there was some manufacturing defect in the mica and agreed to replace the same they were not ready to pay the amount spent for manufacturing the furniture and compensation. Hence the complaint was filed. Complainant got examined as PW1 and Ext.A1 to A5 and MO1 were marked. One witness was examined as PW2 and Ext.A6 were marked. 2nd and 3rd opposite parties filed version mainly contenting that complainant purchased the articles for commercial purpose for conducting business and hence this Commission has no jurisdiction to entertain the complaint. It was also contended that during 2018 there was heavy mansoon in Kerala and due to it there was moisture formation. Mica is a hard substance and there is no question of it absorbing water. Hence they contented for dismissal of the complaint. 3rd opposite party filed a version contenting that they are unnecessary party in the complaint and there is no transaction between them and the complainant. No relief is sought in the complaint against them and they also prayed for dismissal of the complaint. 1st opposite party got examined as RW1 and Ext.B1 was marked.
13. The 1st contention raised in the version is that complainant will not come under the definition of consumer. Sec. 2 (d) (1) defines consumer as follows:-
“Consumer” means any person who – (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; [Explanation—For the purpose of this clause, “ Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment;]
14. Here admittedly PW1 is the managing partner of M/s Multiplex Interiors. In the complaint as well as in the chief affidavit he admitted that he is purchasing plywood and mica and doing interior work in offices and houses. He is manufacturing modular kitchens, kitchen cupboards etc. and selling it to various persons. Ext.A1 to A3 shows that PW1 purchased mica from opposite parties 1 and 2. Though not marked in evidence along with the complaint PW1 has produced certain bills by which he supplied Modular Kitchen Bottom cabinet, Modular Kitchen wall cabinet, Crockery Shelf Cabinet etc. to PW2 Antony. PW2 stated that he has purchased articles from PW1. Initially though it was good later certain defects were noticed and it was replaced by PW1. PW2 has produced Ext.A6 letter dtd. 18/7/2018 from which it is seen that there was certain bubble formation in the mica. So it is crystal clear that PW1 purchased articles from the opposite parties and it was for resale and for commercial purpose. As per the explanation commercial purpose does not include if it is exclusively for the purpose of earning his lively hood by means of self employment. In the complaint no where it is mentioned that he is doing business for the purpose of earning his lively hood. However in the chief affidavit filed on 14/9/2021 PW1 has taken a contention that he is conducting business for his lively hood. So it can be seen that an important contention which was not taken in the complaint is taken while filing the chief affidavit so as to include him under the definition of customer. As held by the Hon’ble Supreme Court in Moran Mar Basselios Catholicos Vs. T.P.Avira & Others. [1958 KLT 721 (SC) ].
Civil P.C.1908, O.VI. R.7- Pleadings - Parties cannot go outside the pleadings and set up a new case.
“On the pleadings as they stand and on the issues as they have been framed it is not possible to permit the plaintiff to go outside the pleadings and set up a new case.”
15. It was held by the Hon’ble High Court in Elizabeth Vs. Saramma ( 1984 KLT 606).
“Civil P.C, 1908, Order VI Rule 2, Order VIII Rules 2, 3 and 4 and Order XIV, Rule 1 – Object and requirements of pleadings and issues – Formal requirement when can be relaxed – No evidence can be looked into upon a plea never put forward.”
16. As stated earlier when the complaint was filed complainant has no case that he is doing business for his lively hood. In said circumstances version was filed by opposite parties 1 and 2 contenting that complainant purchased articles for commercial purpose for conducting business and for resale. Later all of a sudden when the chief affidavit was filed complainant had taken a contention that he is doing business for his lively hood. As held by the Hon’ble Supreme Court and the Hon’ble High Court such a contention cannot be taken in the chief affidavit since there is no foundation in the pleadings.
17. If the purpose is for commercial purpose or for resale one will not come under the definition of consumer. The law in this regard is well settled by various judicial pronouncements. It was held by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G Industrial Institute (1995 KHC 845) that
“ if the goods are purchased for commercial purpose one will not come under the definition of consumer.”
The same view was reiterated by the Hon’ble Supreme Court in Kalpavruksha Charitable Trust Vs. Toshniwal Brothers(Bombay) Pvt. Ltd. and another. So applying the principles laid down by the Hon’ble Supreme Court and in the light of the above discussion it is pellucid that PW1 will not come under the definition of consumer since he purchased the goods for resale and commercial purpose. The contention which was taken in the chief affidavit that he doing business for eking his lively hood cannot be taken into account since it was conspicuously absent in the complaint and it was taken on the basis of an afterthought.
18. Now the case of PW1 is that he purchased mica as per Ext.A1 to A3 bill from the 1st and 2nd opposite parties and manufactured furniture and supplied to PW2, Antony. After certain time bubbles formations were found in the mica and the furniture’s became useless. PW2 made a complaint and on the basis of that he had to replace the furniture incurring expenses. Hence he is claiming compensation from the opposite parties. PW2 gave evidence in support of the complainant. He produced Ext.A6 letter which is a complaint given to PW1 on 18/7/2018. It is noticed that Ext.A6 is the original complaint which is seen given to PW1 by PW2 on 18/7/2018. If that is so the complaint should be in the hands of PW1. But here it is noticed that it was produced by PW2. It is not known how the complaint came back to PW2. Along with the complaint PW1 has produced the copy of Ext.A6. RW1, 1st opposite party admitted the transaction but according to him mica is a hard material and PW1 himself selected the same. It was manufactured by the 3rd opposite party and he is only a dealer. If the plywood in which mica is affixed is having moisture there is possibility of mica being damaged. He has produced Ext.B1 an undertaking of 3rd opposite party that if any damage is seen mica can be replaced. But Ext.B1is dated 24/10/2019 whereas the purchase of mica by PW1 is during 2018. PW1 has produced and marked plywood in which mica is seen affixed. RW1 denied that it was the mica supplied by him.
The complaint is regarding the quality of mica supplied by RW1 to PW1. No evidence is available except the interested testimony of PW1 regarding the quality of product. PW1 has not taken any steps to examine the mica and get an expert report. Though PW2 stated that the furniture’s were replaced by PW1 no evidence is available except his interested testimony. As stated earlier Ext.A6 complaint alleged to have given to PW1 on 18/7/2018 by PW2 is seen produced and marked by PW2 himself. As held by the Hon’ble Supreme Court in SGS India Ltd. Vs. Dolphin International Ltd. in Civil Appeal No.5759 of 2009 dtd.6/10/2021. It is the duty of the complainant to produce the best evidence before the Commission to prove his case. As discussed earlier no acceptable evidence is available except the interest testimony of PW1 and 2. PW1 has not taken out a commission to examine the product and get a report regarding its quality. In said circumstances we are of the view that the complainant is not being a consumer as defined U/s 2(d) (i) of the Consumer Protection Act, 1986 and so that there is no reliable evidence regarding the quality of product PW1 is not entitled for any relief and so these points are found against him.
19. Point No. 6:-
In the result complaint is dismissed. Parties are directed to bear their respective cost. MO1 will be returned to PW1 after appeal period.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 09th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Shynesh.S (Complainant)
PW2 - Antony.P.J(witness)
Ext.A1 - Bill dtd. 12/5/2018
Ext.A2 - Bill dtd. 21/5/2018
Ext.A3 - Bill dtd. 12/7/2018
Ext.A4 - Bill dtd.3/9/2018
Ext.A5 - Letter dtd.4/9/2018
Ext.A6 - Letter dtd. 18/7/2018
Evidence of the opposite parties:-
RW1 - Anil((opposite party)
Ext.B1 - Report dtd.24/10/2019
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
