Haryana

StateCommission

A/816/2018

J.K.WHITE CEMENT - Complainant(s)

Versus

SURAJMAL MALIK AND ANOTHER - Opp.Party(s)

AJAY SINGLA

08 Aug 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.816 of 2018

                                                 Date of Institution: 29.06.2018

                                                        Date of Final Hearing: 08.08.2022

          Date of Pronouncement: 31.10.2022

 

J K White Cement, (A manufacturing unit of J.K.Cement Limited) Padam Tower, 19, DDA  community Centre, Okhla, Phase 1, New Delhi through his authorized representative  Shri Sanjiv Saraf.

…..Appellant

Versus

1. Surajmal Malik, S/o Shri Bharat Singh R/o H.No.571/31, Ashok Vihar, Sonepat.

 

2. M/s Vasista Hardware Store, Mehlana Road, Sonepat.

…..Respondents

CORAM:    Mr.S.P.Sood, Judicial  Member

                    Mr. Suresh Chander Kaushik, Member

                   

Present:-    Mr.Ajay Singla, Advocate for the appellant.

                   None for the respondents.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.816 of 2018 has been filed against the order dated 31.05.2018 of the District Consumer Disputes Redressal Commission, Sonepat (In short “District Commission”) in complaint case No.150 of 2018, which was allowed qua opposite party No.2.

2.       The brief facts of the case are that complainant purchased paint material from the OPs on 28.11.2017 vide the bill dated 24.02.2018, which included following items:-

          “i.       Two Bucket Primax J.K.

          ii.       5 bags wall putty British.

          iii.      10 Liter Apex Asia

          iv.      2 Liter Crack X Plaste

          v.       ½ White Paint

          vi.      1 KG Red Colour

          vii.     200 gram colour Brown

          viii     1 Liter Tarpan

          ix       4 Ltr. Apex

          x.       1 Ltr. URP

          xi.      50 gram yellow colour

          The entire cost of purchased the items was worth Rs.8725/-.  The contract of plaster and paint was given to the contractor for Rs.6500/-.  After completion of the work, complainant noticed that the paint and plaster were not upto the mark and started to peel from wall due to the defective material purchased from OP No.1. Upon complaint to OP No.1 about defective material, they offered of Rs.2000/- to him for defect whereas he had spent Rs.15,000/- on the material.  Finding the offer to be inadequate refused to accept Rs.2000/-.  On 15.12.2017, the expert of the respondent visited the house of the complainant alongwith contractor, who admitted that material was defective. He requested the OPs for compensation, but, to no avail. Thus there was deficiency in service on the part of the OPs.  

3.      OP No.1 filed reply.  Preliminary objections about  maintainability of complaint, locus standi, accruing cause of action etc. were also raised and requested to dismiss the complaint. OP No.1 admitted the complainant having purchased the material on credit basis.  OP No.1 demanded his debts but the complainant avoided the same.  It was denied that material supplied by the OP No.1 was defective. The OP No.1 alleged himself to be a retailer. The answering OP used to purchase the material in sealed condition from manufacturer and supply the same. There was no report of any technical expert produced by the complainant to support his allegations. The matter was complained to OP No.2.  Upon complaint, Sh.Manoj Shrivastava, Technical officer of the respondent No.2 inspected the site on 25.12.2017 and found that there was defect in the surface of wall itself as the wall was infected with fungus. OP No.1 denied of having offered a sum of Rs.2000/- to the complainant   It was also denied that complainant spent Rs.15,000/- on the material. Infact the complainant has no concern with the said premises in which the said material was allegedly used rather the said house was owned by one Smt. Roshni R/o near Mai Chand Dairy Wali Gali,Sonipat whereas the complainant was resident of Ashok Vihar, Sonepat. The complainant has no locus standi to file the present complaint. Thus there was no deficiency in service on the part of the O.P. No.1.  OP No.2 was proceeded against ex parte on 24.04.2018.

4.      After hearing counsel for the parties, the learned District Commission, Sonepat has allowed the complaint qua  respondent No.2 vide order dated 31.05.2018. Relevant para is reproduced below:-

“Since the complainant is able to prove the deficiency in service on the part of the respondentNo.2, we have no hesitation in accepting the present complaint. Accordingly, we hereby direct the respondent no.2 to refund the amount of Rs.8725/- to the complainant within a period of 60 days from the date of passing of  this order, failing which, the above said amount shall fetch interest at the rate of 09% per annum from the date of passing of this order till its realization.

With these observations, findings and directions, the present complaint stands allowed qua respondent no.2.”

5.      Feeling aggrieved therefrom, O.P.No.2-appellant has preferred this appeal.

6.      This argument has been advanced by Sh.Ajay Singla, the learned counsel for the appellant. With his kind assistance the entire records including whatever the evidence has been led on behalf of  parties had also been properly perused and examined.

7.      Learned counsel for the appellant argued that  learned District commission failed to follow the mandatory provisions laid down in Section 13 of the Consumer Protection Act, hence the order  be set aside while allowing the appeal.  The CTS official was deployed immediately namely Manoj Shrivastava and Sh. Shamsher Singh in order to address the issue raised by respondent No.1. the CTS official visited the spot and observed that  there was a problem in the wall of the complainant as  the wall was in very bad condition  and chlorides was coming out continuously from the wall which in local parlance is called as “Shora”. The primax was done on the wall without taking care that before applying the material on the wall the wall has to be cleared completely but in the present case no such precaution has been taken by the respondent No.1/complainant, as  such, there was a fault on the part of the complainant himself as well as the contractor who has not taken care before applying the material on the wall. The learned District Commission wrongly allowed the complaint and prayed for setting aside the impugned order while allowing the appeal and dismissal of the complaint.

8.      It is not disputed that the material was purchased by the OP No.1-seller, manufactured by OP No.2-appellant.    The report of CTS dated 25.12.2017  submitted  in his report that “after observation I found that the wall is very old and suffering from efflorescence.  So I suggested him about this problem that when a wall is getting effloresance then how can putty and other finishing material stick on it. This is the total problem of DAM-proofing. And he used primaxx on wall putty while we recommended that primaxx is a base coat.”  Perusal of the record shows that as per Annexure C1, the complainant purchased primax JK  alongwith other items from the authorized dealer, manufactured by OP No.1. Perusal of the photographs placed on record by the complainant-respondent No.1 clearly shows that there was some manufacturing defect in the material.   Learned District Commission rightly observed that there was manufacturing defect in the material and the OP no.2-present appellant was held responsible for the defective material.   Learned District Commission has rightly allowed the complaint against the present appellant.

9.      Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence,  the appeal  stands dismissed.

10.    The statutory amount of Rs.4375/- deposited at the time of filing the appeal be refunded to the complainant-respondent No.1-Suraj Malik against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

11.              Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

13.              File be consigned to record room along with a copy of this order.

31st  October, 2022            Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member                            

 

S.K

(Pvt. Secy.)