Complaint filed on: 30.10.2014
Complaint Disposed on:10.10.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.129/2014
DATED THIS THE 10th DAY OF OCTOBER 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
Sri Sathish D.S.,
S/o Late D.R.Some Gowda,
Aged about 38 years,
Honnala, Mallandur Post,
Chikmagalur.
(By Sri/Smt. H.N.Mahesh., Advocate)
V/s
OPPONENT/S:
1. The Proprietor,
Moonmist Glass & Plywoods,
Opp. to Chetana Nursing Home,
Mallandur Road, Chikmagalur-577101.
2. Managing Director,
Everest Industries Limited,
Vasanthi Complex, 2nd floor,
Mangammanapalya main road,
Bommanahalli, Bangalore-5600068.
(Op 1 By Sri.H.P.Vishwanatha, advocate)
(Op 2 By Sri.T.K.Phaniraj, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op 1 and 2 alleging unfair trade practice in supplying the floor materials instead of roofing materials. Hence, prays for direction against Op 1 and 2 to pay Rs.6,40,440/- along with compensation of Rs.1,00,000/- for unfair trade practice.
2. The brief facts of the complaint is that:
The complainant is a coffee planter and residing at Honnala, Mallandur post, Chikmagalur. The complainant with a intention to purchase the roofing materials to newly constructed house had contacted Op 1 in the month of February 2014, the Op 1 being the dealer for plywood and glass at Chikmagalur, had in turn contacted the senior marketing officer of the Op 2 company and provided information to the complainant by obtaining brochure from Op 2 on 24.02.2014, the Op 2 is the manufacturing unit of roofing, walls, ceilings and cladding materials. After contact of the marketing officer of the Op 2 he visited the complainant house and convinced the complainant with respect to the roofing materials of his company. After receiving information from Op 2 complainant has placed order for 400 roofing boards measuring 4ftx8ft with 18mm thickness through Op 1. After placing an order the Op 1 had delivered 200 boards each in two different dates to the estate of the complainant in a truck, there afterwards Op 1 had issued two separate bills for each 200 roofing boards supplied to the complainant, i.e., on 10.03.2014 vide bill no.1243 for sum of Rs.2,70,220/- and another bill dated:01.04.2014 vide bill no.1249 for a sum of Rs.2,70,220/- in total the complainant had paid Rs.5,40,440/- to the Op 1 towards the cost of the roofing boards supplied by Ops to his new house, before completion of the roofing work the said boards which are installed started to get breaking out and the said boards are also not resisting the rain fall and again started to get melt and collapsed. The complainant having no option have covered the whole boards with a plastic cover and immediately complained the same to both Op 1 and 2. In turn Op 2 had sent their Assistant Manager (Technical) to the estate of the complainant to inspect the spot, the said person inspected the roofing boards and noticed that the boards supplied by Ops are not the roofing boards, but said boards are flooring boards, it is only at the time of inspection the complainant came to know that the Op 2 had supplied flooring boards instead of roofing boards.
The complainant specifically ordered for roofing boards with Op 1 and 2 and the said Op 1 and 2 have also provided brochure with respect to the roofing boards only, but instead of roofing boards Op 1 and 2 have supplied flooring boards which resulted in collapse of the boards. The complainant due to collapse of the boards had suffered inconvenience and hardship. The complainant nearly had paid Rs.1,00,000/- towards installation of the boards supplied by Op 1 and 2. Apart from that the complainant had paid huge amount of Rs.5,40,440/- towards purchase of the said wrong boards. Hence, Op 1 and 2 rendered unfair trade practice in sending the wrong materials to the complainant.
After noticing the said wrong materials complainant informed and demanded both the Op 1 and 2 for supply of the correct roofing materials by taking the wrong materials supplied by them, but Op 1 and 2 have instead of replacing the said roofing materials have dragged the matter and so far Op 1 and 2 have not supplied the roofing materials to the complainant. Hence, complainant issued a legal notice dated 16.08.2014 and called upon them to replace the said wrong materials with roofing materials, even inspite of receipt of the legal notice also Op 1 and 2 neither replaced the wrong materials nor replied. Hence, Op 1 and 2 rendered unfair trade practice and prays for direction against Op 1 and 2 to refund an amount of Rs.5,40,440/- along with Rs.1,00,000/- which was spent towards installation of the roofing materials and compensation of Rs.1,00,000/- for unfair trade practice in the interest of justice and equity.
3. After service of notice Op 1 and 2 appeared through their counsel and filed version.
4. Op 1 in his version has contended that, the complainant had contacted this Op in the month of February 2014 and they have given information to the complainant by furnishing a brochure of the Op 2. Accordingly, after canvas by marketing officer of the Op 2 complainant had placed an order for roofing materials with Op 2. Op 2 in turn had delivered the goods directly from the factory of the Op 2 to the complainant estate, accordingly, the bill was raised by this Op. After receipt of the said materials complainant also installed the same to his new house and latter complained about the quality of the materials with this Op, upon the said complaint the Op 2 had send technical expert to the estate of the complainant and after inspection they have confirmed that the materials supplied were flooring materials and not of roofing materials.
The Op 1 further contended that, this Op has only made arrangements to contact the Op 2 through senior marketing officer, the complainant had discussed about the requirements of the roofing materials with the marketing officer of Op 2 and complainant himself placed an order for roofing materials.
Op 1 further contended that, the Op 2 though had the perfect knowledge about the requirements of the complainant had negligently sent these flooring materials to the complainant instead of roofing materials. There is no any deficiency in service/unfair trade practice on the part of this Op with respect to the allegations made by complainant; they have only raised the bills for the materials supplied by Op2. It is only Op 2, who supplied the wrong materials to the complainant. Hence, there is no any negligence on the part of this Op. Hence, prays for dismissal of the complaint.
5. Op 2 also filed version and contended that, the complainant has filed this false complaint in order to gain wrongfully. The complainant has approached this Hon’ble Forum with unclean hands and filed complaint in order to obtain unjust monetary gains, there is no cause of action arose in the complaint as alleged by complainant. The complainant has not suffered any mental or physical or financial loss or inconvenience due to any act or omission of this Op, the complaint is without any merits and the same is liable to be dismissed.
There is no privity of contract between the complainant and this Op, the complainant has placed an order for supply of roofing materials with Op 1, as per the specification received from Op 1, the materials were dispatched to Op 1 and payment has been received by this Op from Op 1, the said payment was released only after the materials were inspected and delivery and there is no manufacturing defect found in the materials supplied to the complainant and there is also no deficiency in service/unfair trade practice on the part of this Op. The complainant had never placed any order with this Op and this Op also not provided any services to the complainant.
Op 2 further contended that the complainant had approached this Op for inspection of the site and this Op had deputed its representative who, upon inspection, had informed the complainant that the materials has not been properly installed and the following infirmities were pointed out.
- The Grid spacing was not as per the code of practice of this Op, which is mentioned in the invoice. As per the approved code of practice the grid spacing must be maximum 2ft by 2ft whereas at the site it was observed that grid space was 3ft by 6ft which was inadequate to take the load of the boards and finishing materials to be fixed on the top of the board of the materials supplied by this Op.
- As per the code of practice all the joints should be sealed with external grade sealant. This Op is placing on record the photographs which clearly show that the joints were not at all sealed.
- Since the Everest Fibre Cement board falls under Type B category 3 as per 15 code 14862;2000 it should be Type B boards are used in external application, the board should be suitably coated to protect it from external weathering condition.
- After installing the boards the roof finishing i.e., shinghles were not affixed immediately and the boards were left exposed to the weathering condition. Till date the shinghles are not affixed on the top of the board.
Hence, aforesaid it is clear that this Op had provided the service as requested by complainant and there is no unfair trade practice on the part of this Op.
Op 2 further contended that, this Op had not carried out the installation as alleged by complainant, the installation of the materials were carried out by complainant himself and the installation was not as per the code of practice. The materials supplied by this Op could be used for roofing. Hence, it is false that the materials supplied by this Op could not be used for roofing as alleged by complainant, it is false that they have supplied wrong materials to the complainant, the materials were supplied as per the specification and payment was released after inspection of the materials only. This Op also do not know that the purpose for which the materials were being procured as this Op had not met the complainant prior to supply of the materials and thereafter it was only when Op 1 asked for inspection they have appointed the representative to inspect the supplied materials, it is false that they have supplied wrong materials negligently. In fact no order was placed by complainant, it is only order placed by Op1. Hence, they are not liable to pay any amount as claimed in the complaint. Hence, prays for dismissal of the complaint.
6. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.8. Op 2 filed affidavit and marked documents as Ex.R.1. Op 1 also filed affidavit and marked documents as Ex.R.2 and Ex.R.3.
7. Heard the arguments.
8. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a Deficiency in service/Unfair trade practice on the part of Op 1?
- Whether there is a Deficiency in service/Unfair trade practice on the part of Op 2?
- Whether complainant entitled for any relief & what Order?
9. Our findings on the above points are as follows:-
- Point No.1: Negative
- Point No.2: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
10. On going through the pleadings, affidavits and documents produced by both complainant and Op 1 and 2, it is admitted that the complainant placed an order for roofing materials manufactured by Op 2 through Op 1 and also paid an amount of Rs.2,70,220/- on 10.03.2014 and another Rs.2,70,220/- on 01.04.2014. After receipt of the said payments Op 2 directly delivered the roofing materials to the complainant estate and afterwards complainant installed the said roofing materials. Subsequently, complainant came to know that the said materials sent by Op 2 are not roofing materials. The said materials are only a flooring materials, which resulted in collapse of the said roofing boards, immediately he approached Op 1 and in turn Op 1 intimated the Op 2, for which Op 2 has send their expert to inspect the spot and to find out the quality of the materials, accordingly, the said person inspected the materials and confirmed that the materials sent by Op 2 are of flooring materials and not roofing materials. Hence, complainant alleges deficiency in service/unfair trade practice on the part of Op 2 in sending wrong materials. Hence, prays for refund of the amount paid towards the said materials. Complainant also sworn affidavit that he spent Rs.1,00,000/- for installation of the roofing materials to his house. Hence, Op 2 also liable to pay the said installation expenses to the complainant.
11. On contrary Op 1 has taken a contention that, they have only arranged a communication between the complainant and Op 2 for supply of the roofing materials to the complainant, accordingly, they have made arrangements to supply directly the said materials and complainant also had paid the cost of the materials to Op 2 directly. Hence, submits no deficiency in service/unfair trade practice on his part.
Op 1 further sworn affidavit that, they have intimated the Op 2 about the wrong materials supplied to complainant, but Op 2 had not taken any steps to replace the said materials. Hence, if there is any unfair trade practice is only on the part of Op 2 and not on them. Hence, prays for dismissal of the complaint.
12. Op 2 on contrary has taken a contention that, there is no direct nexus between the complainant and this Op, complainant had placed an order for roofing materials with Op 1, in turn Op 1 had intimated this Op to supply the said materials to complainant’s house. Accordingly, they have delivered the materials to the complainant house, after delivery of the said materials complainant after verification without their knowledge had installed the said materials, the materials supplied by them are good quality and there is no any defect in the materials. Hence, submits no unfair trade practice on their part.
Op 2 further sworn affidavit that if there is any damage to the materials that might be due to wrong process of installation by complainant and not quality of the materials. Hence, they are not liable to pay any compensation or refund as prayed in the complaint and prays or dismissal of the complaint.
13. Complainant filed a list with documents such as two cash bills dated 10.03.2014 and 01.04.2014 for Rs.2,70,220/- each marked as Ex.P.1 to Ex.P.2 to show he placed an order for Everest roofing boards quality 400, photos to show that he has installed the roofing boards to the house of the complainant marked as Ex.P.3, Office copy of the legal notice marked as Ex.P.6.
Op 1 also produced a list with documents such as dispatch challan-cum-tax invoice marked as Ex.R.2 and Ex.R.3 to show the Everest floor boards was delivered to the complainant’s house. Op 2 also filed a list with documents in support of their case.
14. On going through the invoice cum credit bills dated 10.03.2014 and 01.04.2014, it is clear that complainant definitely had booked a roofing boards 400 quality for the purpose of roofing his house at his estate. Accordingly, Op 1 and 2 have delivered the boards to the complainant, but at the time of delivering the said roofing boards the Op 2 had made a mistake by sending flooring boards, which clearly reflected in Ex.R.2 and Ex.R.3 i.e., dispatch challan/tax invoice. During the course of trial the Court Commissioner was appointed to inspect the spot to find out whether the Op 2 had delivered the roofing materials or flooring materials to the complainant and the said Court commissioner has given a report stating that the materials used for roofing of the house of the complainant is not roofing they are the Type B materials, the Court Commissioner has clearly given a opinion that the materials supplied by Op 2 are suitable for interior purpose and not for exterior roof. Hence, it is clear that the Op 2 had supplied floor materials instead of roofing materials to the complainant. Even the person who was inspected on behalf of Op 2 after receipt of the complaint by complainant also given an opinion that the said materials are not of roofing materials, it is only flooring materials, but Op 2 had neither in version nor in his affidavit admits that he had delivered wrong materials to the complainant. Hence, it is clear case of unfair trade practice on the part of Op 2, who delivered the wrong materials to the complainant by receiving a huge amount of Rs.5,40,440/- towards 400 roofing boards. Hence, Op 2 is liable to refund the said amount to the complainant. We observed that inspite of receipt of the legal notice Op 2 not made any attempts to replace the floor materials with roofing materials, he had kept quite without reply the notice suitably. Hence, Op 2 rendered unfair trade practice in sending the wrong materials to the complainant. For which Op 2 is liable to pay compensation of Rs.25,000/- for unfair trade practice.
Complainant further sworn affidavit that he had spent nearly Rs.1,00,000/- towards installation of the materials supplied by Op 2, but had not placed any materials to show he spent such an amount to installation. Anyhow considering the average installation charge we are of the opinion that complainant is entitled to get Rs.50,000/- towards installation of the said materials to the roof of the house. Op 2 is also liable to pay litigation expenses of Rs.2,000/- along with above said amounts to the complainant.
The complaint against Op 1 is liable to be dismissed because he acted as only an agent between the complainant and Op 2, who placed an order to Op 2 on behalf of complainant for delivery of the materials. Even we noticed that no amount was received by Op 1 from complainant in this transaction. Hence, we found there is no deficiency in service on the part of Op 1. As such the complaint is liable to be dismissed against Op 1and for the above said reasons, we answer the above point no.1 in the Negative, Point No.2 and 3 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op 2 is directed to refund an amount of Rs.5,40,440/- (Five Lakh Fourty Thousand Four Fourty) and Rs.50,000/- (Fifty Thousand) towards installation charges along with compensation of Rs.25,000/- (Twenty Five Thousand Rupees only) for deficiency in service/unfair trade practice and litigation expenses Rs.2,000/- (Two thousand Rupees only) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- The complaint against Op 1 is dismissed.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 10th day of October 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Cash bill dtd:10.03.2014.
Ex.P.2 - Cash bill dtd:01.04.2014.
Ex. P.3 - E-mail of Op 2.
Ex. P.4 & 5 - Two visiting cards.
Ex. P.6 - Office copy of legal notice.
Ex. P.7 & 8 - Postal Ack. dues.
Documents produced on behalf of the OP/S:
Ex.R.1 - Power of Attorney.
Ex. R.2 & 3 - Two Dispatch challan-cum-tax onvoice.
Dated:10.10.2017 President
District Consumer Forum,
Chikmagalur.
RMA
