Assam

Dibrugarh

CC/26/2015

SRI JAYANTA SONOWAL - Complainant(s)

Versus

THE PROPRIETOR. HARIPRASAD SANDEEPKUMAR & CO. - Opp.Party(s)

SRI BISWAJIT BARUAH

28 Feb 2024

ORDER

Date of Argument- 01.07.2021

                                                                                    Date of Judgement- 28.02.2024

The complaint petition is filed U/S 12 of Consumer Protection Act, 1986 praying for compensation of total Rs.1,00,000/- for unfair trade practice of the O.P.s and cost of litigation for Rs.25,000/-.

 JUDGEMENT

1. The case of the complainant Sri Jayanta Sonowal in brief is that he is a permanent resident of Sontoshi Maa Path, Chiring Chapori, P.O., P.S. & Dist: Dibrugarh, Assam and the O.P. No.1 is the proprietor of the shop doing business under the name and style of Hariprasad Sandeep Kumar & Co. situated at the aforementioned address and an authorized distributor and seller of the products of the O.P. No.2 M/S Sika India Pvt. Ltd. One rainy morning the first week of May, 2015, the complainant found leakage of water in the roof of his newly constructed premises. After observation of 2/3 days, he went to the shop of the O.P. No.1 on 11.05.2015 for an enquiry whether the leakage could be prevented by using any adhesive bonding material. Complainant heard somewhere about an agent called “Dr. Fixit” works good in improving cracking surface which improves elasticity and tensile strength of cement and works good in waterproofing of pucca slabs with cement slurries. It is averred that when the complainant asked for the said material, the O.P. No.1 advised and strongly recommended to use another brand namely “Sika Latex Power” and guaranteed that it will do better than “Dr Fixit” and also stated that only “Sikha Latex Power” has a multipurpose high grade performance and enhances strength of joints with cement slurry. After being convinced, complainant purchased 20 kg of the said adhesive agent “Sikha Latex Power” @ 6,800/- manufactured by the O.P. No.2 from the shop of the O.P. No.1.

 

2. The O.P. No.1 had also provided a certified painter namely Sri Dipak Kalita to do the aforesaid job. And as per advice of the O.P. No.1, the complainant purchased 4 bags of cement @ Rs.1,700/- and engaged the painter Sri Dipak Kalita fixed at Rs.2,500/- for the job. After that the complainant had also to bear the expenditure of cleaning the floor by engaging labour @ Rs.1000/- apart from other miscellaneous expenditure and total expenditure of more or less of Rs.14,000/-. After the job was over by the certified painter as per specification seen that the same leakage of rain water was present there and the entire work done with expenditure of Rs.14,000/- as per advice of the O.P. No.1 proved to be a futile exercise. Thereafter the complainant immediately reported the matter to the O.P. No.1 who assured that the expert of the company would arrive within a day or two in Dibrugarh but even after expiry of almost two month, no such expert is visited the house of the complainant and thus the O.P. No.1 dragged the matter with such false promise and pretext etc.

 

3. Being constraint of the above facts, the complainant issued a legal notice to the O.P.s through his lawyer, Sri B. Boruah, advocate, Dibrugarh requesting them to do the needful or bear the expenditures already incurred by the complainant but the O.P.s never responded to the request of the complainant made through his lawyer and thus proved their malafide attitude and intention as such finding no way out the complainant prefers this petition before this Forum seeking relief against the unfair trade practice and monetary loss of the complainant. The cause of action for this arose on 11.05.15, when the complainant went to the O.P. No.1 to purchase the item “Dr. Fixit” but the O.P. No.1 lured him to purchase another item which is later on seen to be a standard item.

 

4. Hence the complainant prayed for compensation of total Rs.1,00,000/- for unfair trade practice of the O.P.s which cause both mental and physical harassment and precious time of the complainant and cost of litigation to the extent of Rs.25,000/-.

 

5. After receipt of notice the O.P.s have appeared before this Commission, but O.P. No.2 was absent without any step and also not submitted written statement. Hence this Commission vide order dated 07.06.16 proceed the case exparte against O.P. No.2 whereas the O.P. No.1 contested the case and filed written Statement on 06.05.2016 stating interalia that the case is not maintainable either in law or in fact as there is no cause of action for filing of suit. It is further stated that the averments are baseless frivolous and motivated in nature, and also the relief claim by the complainant is devoid of sanction of law. The O.P. No.1 further stated that the suit is not filed in proper form and not under prescribed procedure of law. The O.P. No.1 contended that the petition is lack of material particulars as the cement company including the vendor who sold the cement etc. to the complainant to prepare cement slurry has not been made party to the case. Further the person Sri Dipak Kalita who has performed their job of painter has not been made party to the case.
6. The O.P. No.1 stated that he is not the proprietor of the shop but a partner of the said firm and he is also not the authorized distributor of O.P. No.2 but only a dealer of AKJ Associates, Guwahati who is the distributor of O.P. No.2. O.P. No.1 further stated that he never recommended the complainant to use another brand “Sikha Latex Power” instead of “Dr. Fixit” and guaranteed to the complainant that it will do better than “Dr. Fixit and further never stated that only “Sikha Latex Power” has multipurpose, high grade with cement slurry. It was the complainant who with his own choice purchased the product , he never misguided the complainant to buy Sikha Latex and it has been just cooked up story by the complainant as the O.P. No.1 deals in both Dr. Fixit & Sika Latex.  Further O.P. No.1 also denied  the contention made by the complainant that he recommended the person namely Sri Dipak Kalita to complete the job. The O.P. No.1 only sold the product that was asked for by the complainant, neither did he advice nor recommended him on the product or the painter and also did not know what the complainant did after purchasing the said product.

 

7. The O.P. No.1 also denied that statement made that during the rainy days the complainant was surprisingly see that the same leakage of rain water was present and the entire work done with expenditure of Rs.14,000/- as per advice of O.P. No.1 proved to be futile exercise. The O.P. No.1 stated that the complainant has been cooked up by the complainant to extort money out of a hard working businessman and trying to pin the blame on him and excluding others, namely painter, cement company and cement vendor. He further stated that he is merely the dealer of the product of O.P. No.2 and not the service provider and even if the complainant faced any such problem, he ought to have contacted the O.P. No.2 i.e. the manufacturing  of the said product. The claim of Rs.1,00,000/- and 25,000/- as litigation  cost against the so called purchased of material worth Rs.6,800/- alone suffices the intention of complainant to harass and extort money out of O.P. No.1. Hence prayed to dismissed the complaint petition with cost.

 

8. The complainant Sri Jayanta Sonowal has submitted his evidence on affidavit as P.W. 1 and two other witnesses namely Sri Dibyajyoti Deori and Sri Kayfee Singh as P.W.2 and P.W.3 to support his claim. On the other hand O.P. No.1 has not filed any evidence on affidavit despite repeated opportunities given to him by this Commission, hence evidence of O.P. No.1 was closed on 27.03.2018.

 

9. The complainant in his evidence stated that he had purchased a brand namely “Sika Latex Power” on the recommendation of the O. P. No.1 when he was gone to buy some product to resist the leakage of water in the roof of his newly constructed premises. The complainant further stated that on recommendations of O.P. No.1 he engaged certified painter namely Sri Dipak Kalita to do the job for which he also purchased 4 bags of cement @ Rs.1700/-  and  Rs.2500/- was paid to the painter Sri Dipak Kalita, and further for cleaning the floor by engaging labour for Rs.1000/- and all total he had to bear Rs.14,000/-. But after the entire work was done the complainant surprisingly seen the same leakage of rain water was still existed as such entire work done as per advice of the O.P. No.1 proved to be futile exercise. He immediately reported the matter to the O.P. No.1 who assured that the expert of the company would arrive within a day or two in Dibrugarh however no such expert is visited to the premises of the complainant even after expiry of two months. Being constraint of the above facts the complainant issued a legal notice to the O.P.s requesting them to do the needful or bear the expenditure already incurred by the complainant but the O.P.s never responded nor give any reply. Hence the complainant preferred this complaint petition and seeking relief against the unfair trade practice and monetary loss caused to him. Complainant has filed below mentioned Exhibits to substantiate his claim which are as follows-

 

1. Ext. No.1 is the cash Memo dated 11.05.2015 of Rs.6,800/-
2. Ext.2 is the legal notice dated 08.07.2015
3. Ext. No. 3 and 4 are postal receipts

 

10. P.W.2 Sri Dibyajyoti Deori depose on behalf of the complainant stated that he knew complainant as they are friends since long. P.W.2 further stated that he knows the O.P. No.1 i.e. the proprietor of the shop Hariprasad Sandeepkumar & Co. casually as he used to purchase different items like paint, brush, nail etc. from his shop earlier. On 11.05.2015 when he visited the house of the complainant where he was asked to accompany him to enquire about materials which can stop leaking rain water from the RCC roof of his house and accordingly went to the shop of the O.P. No.1 and could come to know that he is the dealer of two such items called Dr. Fixit and Sika Latex. When they asked the O.P. No.1 which will be better, he advice the complainant and recommended strongly to use “Sika Latex Power” and guaranteed that it will do better than “Dr. Fixit”. On being convinced and lured with advice and recommendation of the O.P. No.1 the complainant purchased 20 KG of the said adhesive agent “Sika Latex Power” @ Rs.6,800/- manufactured by the O.P. No.2 from the shop of the O.P. No.1. Further O.P. No.1 also provided a certified painter namely Sri Dipak Kalita to do the job. As per advice of the O.P. No.1 and said certified painter, the complainant purchased 4(four) bags of cement @Rs.1,700/- and engaged the painter Sri Kalita for Rs.2,500/- for the job. Moreover, the complainant had to bear the expenditure of cleaning the floor by engaging labours @ Rs.1,000/- apart from other miscellaneous expenditure. Till then the complainant had to bear expenditure of more or less Rs.14,000/- which is known to him well. It is further stated that P.W. 2 was present on 15.05.2015, the day when the certified painter did the job but surprisingly the same leakage of rain water was present there and entire work done with monetary and physical expenditure proved to be futile exercise. Thereafter the complainant immediately reported the matter to the O.P. No.1 who assured that expert of the company would arrive within a day or two in Dibrugarh but no such expert visited the house of the complainant.

 

11. P.W.3 Sri Kayfee Singh deposed on behalf of the complainant stated that he has a good family relations with the complainant and his parents and other members of the family. On 15.05.2015 he met the complainant at Chowkidinghee who handed him over two painting brush and requested to deliver the same to the mason working in his house and stated that the complainant had go the new Market to purchase some other house building materials. He immediately went to the house of the complainant and handed over the brushes to the workers who were waiting for the same. He observed the work for the next 2/3 hours as it was new to him. The mason/painter mixed the cement and liquid in appropriate proportion and started the job of painting the entire floor and assured the complainant that no leakage of rain water would be there in future. Out of curiosity he asked the name of the painter who introduced himself as Sri Dipak Kalita, certified painter of the company and he provided his addressed of the shop Hariprasad Sondeepkumar of Marwaripatty, Dibrugarh. Later on, he came to know that there was no positive result of the  work and the complainant told him that he had to bear expenditure of more or less Rs.14,000/- and the O.P. had made the false promise. 

 

12.  The complainant has filed written argument on 01.06.2021 reiterated the same things as sated in the complaint petition. On the other hand the O.P. No.1 has failed to submit Written Argument.

Point to be decided

1. Whether the complainant is a consumer of the Opposite Parties under the Consumer Protection Act?
2. Whether the Opposite Parties are liable for deficiency of services towards the Complainant and had indulged in unfair trade practice as alleged by the Complainant?
3. Whether the complainant is entitled to relief prayed for in the complaint petition?

 

Decisions and Reasons thereof

1. We have carefully gone through the averments of the complainant, written statement, affidavit along with annexed documents and written argument on record by both the parties and it is found that the complainant had purchased 20 kg of “Sika Latex Power” at Rs.6,800/- manufactured by the O.P. No.2 from the shop of the O.P. No.1. Complainant relied upon Exhibit No.1 to prove the same. Thus purchase of the product namely “Sika Latex Power” for consideration is proved and established that the complainant is a consumer of the O.P. No.1 as prescribed provisions of the Consumer Protection Act.

 

2. Regarding deficiency of service, it is found that the complainant found leakage of water in the roof of his newly constructed premises and visited the shop of the O.P. No.1 and expressed his intention to carry out water proofing of his residential building to prevent leakage of rain water. It is alleged that when the complainant asked about the product namely “Dr. Fixit”, the O.P. No.1 advice and recommended to use another brand namely “Sika Latex Power”. After being convinced, complainant purchased 20 kg of the said product namely “Sika Latex Power” manufactured by the O.P. No.2 from the shop of the O.P. No.1. In paragraph 8 of the complaint petition, it is stated that as per advice of the O.P. No.1 deputed painter Sri Dipak Kalita fixed at Rs.2,500/- to do the water proofing work and also purchased 4 bags of cement @ Rs.1700/- and engaging labour @ Rs.1000/- and other miscellaneous expenditure and total expenditure of more or less Rs.14,000/-. After completion of the water proofing work, complainant noticed that the water leakage is not stopped. Immediately he approached the O.P. No.1 and complained with respect to the water leakage who assured that expert of the company would arrive within a day or two in Dibrugarh but no such expert visited the house of the complainant even after elapse of two months time. Thereafter complainant issued legal notice to the O.P.s requesting them to bear the expenditure already incurred but the O.P.s never responded. Hence, the complainant prayed for compensation for unfair trade practice on the part of the O.P.  On contrary the O.P. No.1 denied the allegation of the complainant and stated that he is not the proprietor of the shop but a partner of the said firm and he is a dealer of AKJ Associates, Guwahati who is the distributor of O.P. No.2. O.P. No.1 further stated that he never recommended the complainant to use another brand “Sikha Latex Power” instead of “Dr. Fixit as he deals in both Dr. Fixit & Sika Latex Power. The O.P. No.1 also stated that he sold  the product that was asked for by the complainant, neither did he advice nor recommended him the product or the painter.

 

Now it is to be considered whether there is any deficiency in service or any unfair trade practice on the part of the O.P.s for which monetary loss of the complainant in carrying out the water proofing work on the building belongs to the complainant. The grievance of the complainant is that the O.P. No.1 made the complainant to believe that “Sika Latex Power” is of better quality in comparison to “Dr Fixit” and complainant has claimed that by applying inferior quality of product namely “Sika Latex Power” water leakage in the roof of his building did not stop. Whereas O.P. No.1 have denied all the allegations and stated that he sold the product that was asked by the complainant and never recommended the product namely “Sika Latex Power” as he deals with both the products Dr. Fixit and Sika Latex Power. Further submitted that the complainant has his own choice purchasing the product, he never misguided the complainant to buy Sika Latex Power and also did not know what the complainant did after purchasing the said product. Considering the rival submission of both the parties it is noteworthy to mention that mere allegations are not sufficient, those are necessary to be proved by cogent evidence. It is noticed that except the bare word of the complainant there is no evidence to show that there was leakage from the roof of the complainant premises. Complainant has also not taken any photograph indicating the leakage. In the complaint petition as well as evidence of the complainant it is seen that complainant has exhibited only the payment receipt of the product namely “Sika Latex Power” and there is no other corroborate evidence to support the claim of the complainant. Complainant submitted that he purchased 4 bags of cement @ Rs.1700/- but no payment receipt on record to show that cement was purchased.  It is to be mentioned that there are many other factors which may result in the effectiveness of the product, but neither party has not made any  attempt to appoint any expert to inspect the spot with respect to the quality of work done by the complainant. Further after perusal of evidence of P.W.2 and P.W.3 it transpires that both the witnesses are friend of the complainant and have family relations since long as such in absence any independent witness it cannot be presumed that the contention raised by the complainant is believable, hence there is no evidence available on record to prove the deficiency of services on the part of the O.P. No.1. Further there is no specific averments or allegation of deficiency in service or unfair trade practice against the O.P. No.2. The complainant also not established that the products manufactured by the O.P. No.2 were of low quality.

3. So, keeping in view the aforesaid discussion, we are of the view that the complainant has failed to prove that the product purchased by the complainant from O.P. No.1 was inferior in quality or misbranded in any manner. Complainant had failed to substantiate his allegations before this Commission and thus in absence of any corroborated evidence it cannot be said that alleged leakage occurred in the building after the use of the recommended product supplied by O.P. No.1 and as such no room left for granting any relief to the complainant. The complainant does not deserve any compensation. In view of the findings above, the complaint of the complainant is liable to be dismissed and we hereby dismissed the complaint.

This instant C.C No.26/2015 is accordingly disposed of on contest.

Supply copy of this judgement to the complainant for information and for further action,  if he so desires.