KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION  VAZHUTHACADU    THIRUVANANTHAPURAM

  APPEAL  NO: 343/2004

                    JUDGMENT DATED:12-08-2010

PRESENT

JUSTICE SHRI.K.R. UDAYABHANU     : PRESIDENT

SRI.M.K. ABDULLA SONA                      : MEMBER

N.C.Chacko,

Njallimakkal House,

Nellikkutty.P.O,                                          : APPELLANT

(Via)Chemperi-670 632.

(By Adv:Sri.Sarath.A)

          Vs.

1.      Manager/Dealer,

St.Joseph’s Cement House,

Chemperi.P.O-670 632.

                                                          : RESPONDENTS

2.      Ashique Enterprises,

Door No.23/1778,

Panniyankara,

Calicut-673 003.

(R2 by Adv:Sri.P.Reghunath)

                                       JUDGMENT

SHRI.M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Kannur in the file of OP.227/02 dated:9/1/2004.  The appellant is the complainant and the respondents are the opposite parties in the above OP.

2. As per the complaint he purchased 18 Asbestos sheet for an amount of Rs.5760/- on15.4.2001.  He paid Rs.72/- also for unloading the asbestos sheets.  The 2^nd opposite party is the wholesale distributor of asbestos sheets in Kerala.  The 1^st opposite party guaranteed at the time of purchasing.  But when the monsoon started in June; leakage was seen in the roof.  The complainant approached the opposite party and asked for standard quality of asbestos sheets.  Then the opposite party told that the distributor come and verify that the matter will be settled.  Even after repeated phone calls, the 2^nd opposite party never come to the house during monsoon in 2002 the leakage was increased.  After repeated requests the 1^st opposite party came to the house and satisfied about the leakage, but the matter was not settled.  Due to the leaking during monsoon the plywood cot was damaged.  The damage was caused due to the substandard quality of asbestos sheets.  Hence the complaint for getting compensation.

3. The 1^st opposite party filed written version and 2^nd opposite party is set exparte.  The 1^st opposite party contended that the asbestos sheets were supplied on the assurance of 2^nd opposite party.  The 2^nd opposite party is the wholesale dealer.  The 1^st opposite party satisfied about the leakage during monsoon.  Since asbestos supplied by the 2^nd opposite party was substandard quality, it was not possible to taken back for sale.  The entire responsibility for the quality of the sheet is only on the part of the 2^nd opposite party.  The evidence consisted of the affidavit of the complainant and Ext.A1.  1^st opposite party also produced a license to show that he is doing cement business.  After considering the entire evidence the Forum below taken a view that the 2^nd opposite party is responsible for the sub standard of the asbestos sheets supplied by him and the 1^st opposite party sold it.  But the Forum below noted that the complainant have a case that the leakage was happened during monsoon in his house because the asbestos sheets were standard quality.  In order to prove whether the asbestos sheets are sub-standard quality for whether any defect in the roofing in the house etc absolutely there is no evidence.  There is no evidence to show about the quality of the sheet and the reason for the leaking in the house of the complainant.  According to the complainant in the complaint because of leakage in the house his plywood cot was damaged and there is slipping in the floor etc.  It may be proved that his plywood cot was damaged and the floor was also slipping.  But that is not a ground for deciding whether the asbestos sheets purchased by him are sub-standard quality.  The Forum below taken a view that except of an expert opinion regarding this defect the Forum is not in a position to pass any compensation.  The Forum below dismissed the complaint in the absence of evidence.  Thus, the complainant approached this Commission through this appeal.  The prayer for setting aside the impugned order passed by the Forum below and to pass compensation and other reliefs is prayed in the complaint. 

4. On this day this appeal came before this Commission for final hearing, heard both sides and perused the case records from the case bundle.  The Forum below found that the 1^st opposite party strongly contended in their version that the asbestos sheet was sold by him and he prays unloading wages accepted by them.  They have a strong case that the asbestos sheets manufactured and supplied by the 2^nd opposite party but the 2^nd opposite party received notice from the Forum below and kept mum.  The 2^nd opposite party is absent and set exparte.  There was no attempt taken by the 2^nd opposite party to get over the exparte order passed by the Forum below.  It is nothing but an admission from his part.  Forum below found that the complainant’s case is true that during monsoon the leakage was happened in his house because the asbestos sheets were substandard quality.  We do not know during the summer season how the leakage was happened; leakage was normally happened only in the rainy season so this allegation is true.  Secondly the complainant suffered so many damage due to this leakage.  The Forum below taken a view that the complainant did not take any steps to appoint an expert commissioner to prove the defect of the asbestos sheets.  But the Forum below forget one important object of the Consumer Protection Act, it is a socially benefited legislation passed for the protection of the right of the consumers.  In the similar cases no person can take an expert commissioner to examine the quality of the asbestos sheets which totally worth of Rs.5832/-.  The commission batha and other expenses will come it more than this amount.  It is highly impracticable; we do not know why the Forum below kept their eye towards a poor consumer like the appellant.  The Forum below kept silence about the absence of the 2^nd opposite party who is the real culprit in this case.  Even though the 1^st opposite party strongly contended that the defect was caused from the part of the 2^nd opposite party.  There was a attempt for the settlement and it is very clear that the asbestos sheets manufactured and supplied by the 2^nd opposite party is defective and substandard due to this reason the complainant suffered loss, mental agony etc.  We are seeing that the order passed by the Forum is not in accordance with the provisions of law and evidence and spirit of the Consumer Protection Act.  The Forum is part from a Civil Court, need not taken hyper technicality and to answer the compound question of law and evidence.

In the result this appeal is allowed and setting aside the order passed by the Forum below.  We directed the 2^nd opposite party to pay Rs.5832/- as the price of the asbestos sheets and cost of Rs.1000/- as compensation for the mental agony and other expenses suffered by the complainant within two weeks after the receipt of the copy of this judgment to the appellant/complainant.  If the 2^nd opposite party is not obey the order of this commission the 2^nd OP is also directed to pay an interest at the rate of 15% from the date of the complaint for the entire amount to the complainant and the Forum below is directed proceed against the 2^nd opposite party under Sec.27 of the Consumer Protection Act 2002.  Both parties are directed to suffer their own respective costs.  These points of the appeal are answered accordingly.

M.K. ABDULLA SONA : MEMBER

JUSTICE K.R. UDAYABHANU: PRESIDENT

VL.