Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
24th day of February 2023
CC 570/19 filed on 18/10/19
Complainant : Enassu Payappilly, Residing at Payyappilly House,
Avittappily, Mattathoor P.O.,
Thrissur – 680 684.
(By Advs. K.T. Bosco, Preejo Pauly & Darly John P,
Thrissur)
Opposite Parties : 1) The Manager, Anchor Plywood,
42/896/D, 2nd Floor,
FIDA Tower, Padmanabhan Road,
Ernakulam – 682 018.
2) The Proprietor, United Glass Emporioum,
Irinjalakuda, Thrissur – 680 121.
(OP 1 & 2 Ex-parte)
O R D E R
By Sri. C.T. Sabu, President :
The facts of the case are as follows:
The complainant purchased marine plywood sheets from the second Opposite Party (2nd OP), manufactured by the first Opposite Party (1st OP), for interior decoration and cupboard construction for his newly built house. The complainant has paid Rs 1,00,000 (Rupees One Lakh Only) as purchase cost. When buying the plywood sheets, the seller claimed they were made of top-notch wood and manufactured with modern technology. The seller also guaranteed that the plywood is pest-resistant and can withstand any weather condition. In the advertisement of the 1st OP, they also assured 100 years guarantee for the same. Being fascinated by the advertisement of the 1st OP and assurances about the quality by the 2nd OP, the complainant purchased the plywood. But after the construction and installation of the cupboard, the complainant noticed that the plywood sheets had started damaging rapidly. The complainant notified the 2nd OP of the situation promptly. However, they failed to respond. Since the damage continued to worsen daily, the complainant contacted the 1st OP directly and asked them to do the necessary things to avoid further damage. Consequent to the repeated requests made by the complainant, an expert from the 1st OP company visited the complainant's house on 21/03/18. During the examination, the complainant presented compelling evidence that convinced the Expert. He assured the complainant that the issue would be brought to 1st OP's attention and promised they would replace the plywood immediately. The complainant incurred more than Rs. 50,000/- (Rupees Fifty thousand only) for the construction and installation of the cupboards for labour charges. The complainant sent a reminder to the 1st OP vide email on March 27, 2018, using his son's email address. He also attached photographs of the damaged areas of the cupboard, as there was no response from the 1st OP before this communication. Unfortunately, there was no response from the 1st OP. As a result, the complainant contacted the 1st OP by phone to inquire about any progress on the matter. The complainant received an email from the 1st OP on 04/10/2018, claiming that the cupboard damages were caused by a borer seen in the particular area, for which they are not responsible. They stated that there was no manufacturing defect in the supplied plywood. At the same time, the 1st OP agreed to fix the damaged part of the cupboard, but they were not ready to offer any guarantee against future damages to the plywood sheets. If the damage was caused due to some unknown insects, as reported by the 1st OP, it is very likely that the remaining sheets of plywood would also become damaged in the near future. Hence the complainant insisted on a thorough check-up and study on each part of the plywood, for which the 1st OP was not ready. Being dissatisfied, the complainant sent a legal notice to the opposite parties. But the 1st OP alone replied to the notice with untenable contentions, as their averments earlier. The 2nd OP, the product seller, didn't help the complainant or never responded to the notice. The complainant was heavily humiliated by the attitude of the Opposite Parties. The callous attitude of the opposite parties towards the complainant is nothing but a sheer deficiency in their service and constitutes unfair trade practice. Hence this complaint. The complainant claimed Rs.1,00,000/- (Rupees One lakh only) as refund of the purchase cost, Rs.50,000/- (Rupees Fifty thousand only) as labour charges and Rs. 25,000/- (Rupees Twenty five thousand only) as compensation for the mental agony sustained and other consequential expenses.
2) The Commission issued notice to the opposite parties. The Opposite Parties failed to enter appearance nor filed their version before the Commission, despite receiving the Commission's notice. Accordingly, proceedings against the opposite parties were set Ex-Parte, and the case was posted for the complainant's evidence.
3) When the case came for evidence, the complainant filed two proof affidavits, one in which he affirmed and explained all the averments in tune with the complaint and an additional proof affidavit in tune with the documents including the additional documents produced, claiming Rs. 1,46,242/- as purchase cost. From the complainant's side, he has produced documents marked as Exts. A1 to A7. Ext. A1 series consists of ten documents with Invoice No.1842, 2393, 5393, 13659, 1196, 3729, 8470, 19952, 1196, 19162 dt. 01/05/14, 09/05/14, 24/06/14, 06/11/14, 24/04/15, 05/06/15, 24/08/15, 31/03/16, 24/04/15 & 16/03/16 respectively. Ext. A2 is the copy of the email dtd. 27/03/18 send from the email ID of the complainant's son meshtechter@gmail.com. Ext. A3 is the copy of the email dtd. 10/04/18 sent from the email ID ipmkochi@gmail.com of 1st OP. Ext. A4 is the Lawyer Notice to the opposite parties. Ext A5 is the reply to the Lawyer notice dtd. 23/12/18. Ext. A6 is the 100 years guarantee sticker. Ext A7 is the sticker of the company brochure
4) The Commission reviewed the affidavit filed and perused the documents produced in detail. Ext. A1 series explicitly evidences the purchase price paid by the complainant to the 2nd OP. The 1st and 2nd OP have guaranteed pest-resistant raw materials, which is why the complainant initially purchased them. The guarantee sticker in Ext. A6 and the company brochure in Ext. A7 support the above-said claim. By Ext. A5, in reply to Ext. A4, the 1st OP acknowledged that the damage to certain parts of the plywood was due to unknown pests, even though they denied any claims of manufacturing defects.
5) The Opposite Parties had not cared to enter an appearance or file the written version before the Commission despite receiving the Commission's notice to that effect. In the absence of evidence to the contrary, the Commission considers that there is a contractual obligation on the part of the manufacturer and the authorised dealer to rectify the defects in the plywood or replace the plywood within a reasonable time. Mere sending of a reply notice is not enough to avoid it. The purpose of issuing a guarantee by the manufacturer or the authorised dealer is to safeguard the customer's interest.
6) However, the complainant has failed to prove the actual damage and also the labour charges incurred for the installation and construction work. Even though the IA 347/19 to appoint an Expert was allowed by the Commission, the complainant failed take steps for execution. Thereby the complainant ignored to make the Expert Report available before the Commission, for its consideration. The complainant attributed no cogent evidence to prove the nature of damage caused to the plywood. The photographs said to be sent to OP1 have not been produced before the Commission. No witness was examined, and no other pieces of evidence were adduced to prove the quantum of damage. Hence the Commission is not in a position to ascertain the extent and nature of damage and also the quantum of labour charges expended. The complainant ought to have taken steps in IA 347/19, as ordered and made the findings of the expert available before the Commission, with regard to the manufacturing defect. The onus to prove manufacturing defect lies on the complainant. In the absence of any expert evidence, it cannot be held that there was manufacturing defect in the goods, concerned. The Hon’ble National Commission expressed the same view by its order dtd. 04/08/09 in Classic Automobiles Vs Lila Nand Mishra & others (MANU/CF/0086/2009).
7) The ground of manufacturing defect in the goods, thus having not been proved, the complainant failed to establish his claim for total refund of the purchase cost that he paid. Moreover, the complainant has no pleading to the effect that the entire plywood he used, has been damaged. Anyhow, from the available records, it is clear that the complainant suffered a lot of inconvenience and misery due to the damages that some part of the plywood underwent. The misdeeds of the Opposite Parties have inflicted financial loss, mental agony and hardship on the complainant. The opposite parties necessarily have to compensate the complainant, to that extent.
In the result, the complaint is allowed in part, and the opposite parties are jointly and severally directed to pay the complainant a sum of Rs. 50,000/- (Rupees Fifty thousand only) as cost and compensation for this complaint.
The opposite parties shall comply with the above direction within one month of receiving the copy of this order, failing which, the said sum of Rs.50,000/- (Rupees Fifty thousand only) shall additionally carry 9% interest p.a. also, from the date of this order till realisation.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 24th day of February 2023.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. A1 series consists of ten documents with Invoice No.1842, 2393, 5393,
13659, 1196, 3729, 8470, 19952, 1196, 19162 dt. 01/05/14,
09/05/14, 24/06/14, 06/11/14, 24/04/15, 05/06/15, 24/08/15,
31/03/16, 24/04/15 & 16/03/16 respectively.
Ext. A2 copy of the email dtd. 27/03/18 send from the email ID of the
complainant's son ipmkochi@gmail.com of 1st OP.
Ext. A4 Lawyer Notice to the opposite parties.
Ext A5 reply to the Lawyer notice dtd. 23/12/18.
Ext. A6 100 years guarantee sticker.
Ext A7 sticker of the company brochure
Id/- President
