Haryana

StateCommission

A/465/2017

J.K.WHITE CEMENT WORKS - Complainant(s)

Versus

RAJENDER KUMAR - Opp.Party(s)

NARENDER SINGH

19 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      465 of 2017

Date of Institution:      19.04.2017

Date of Decision :      19.02.2018

 

M/s J.K. White Cement Works, Padam Tower, 19-DDA Community Centre, Okhla Phase-I, New Delhi-110020, through M.D.

(A manufacturing unit of J.K. Cement Limited, a Company duly incorporated un der the provisions of Companies Act, 1956 having its Registered Office at Kamla Tower, Kanpur and Central Marketing Office at Padam Tower, 19, DDA, Community Centre, Phase-1, Okhla, New Delhi, presently through its authorised signatory namely Birendra Kumar Tiwari).

                                      Appellant-Opposite Party No.2

Versus

1.      Rajender Kumar s/o Sh. Deva Singh, Resident of Ward No.12, Nand Vihar Colony, Jind Road, Barwala Tehsil Barwala, District Hisar.

Respondent-Complainant

2.      Shri Ram Paints & Sanitary Store, Hansi Road, Barwala through Proprietor/Owner.

                                      Respondent-Opposite Party No.1

 

CORAM:             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Narender Singh, Advocate for appellant.

                             Respondent No.1 ex parte.

                             None for respondent No.2 (service dispensed with).

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated March 14^th, 2017 passed by District Consumer Disputes Redressal Forum, Hisar (for short ‘the District Forum’) in Complaint No.139 of 2015.

2.                Rajender Kumar – complainant (respondent No.1 herein) on April 02^nd, 2015 purchased 20 bags of J.K. Wall Putty and 45 bags of J.K. Laxmi P.O.P. on payment of Rs.15,190/- vide bill No.8 from Shri Ram Paints & Sanitary Store, Hansi Road, Barwala – Opposite Party No.1 (respondent No.2 herein) for using the same in his residential house. The opposite party No.1 is the authorised dealer of J.K. White Cement Works, New Delhi-Opposite Party No.2 (appellant herein)-manufacturer company of the cement. Wall Putty work in the premises of the complainant could be completed in six days and the complainant spent an amount of Rs.19,200/-  to make payment to the labour. In fact, the wall Putty purchased by the complainant was having manufacturing defect as it started falling from the walls. Facing this situation, the complainant informed the opposite party No.1 in this regard. The opposite party No.1 visited the premises of the complainant and noticed that wall Putty was falling from the walls when touched with hand and fingers. Although there was manufacturing defect but the opposite parties refused to give in writing. In this way, the complainant had to suffer monetary losses and had to face un –necessary harassment and mental agony due to manufacturing defect in the items purchased by the complainant.

3.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum with a prayer to direct the opposite parties to pay an amount of Rs.8800/- for purchase of wall Putty; an amount of Rs.19,200/- spent for making payment to the labourers and to pay an amount of Rs.70,000/- on account of un-necessary harassment, mental agony and litigation expenses.

4.                The opposite party No.1 in its written version has taken plea that the complaint is not maintainable in the present form; that the complainant has no cause of action to file the present complaint and that it is not a case of deficiency in service. It is pleaded that the opposite parties sold the wall Putty of the same batch to various other customers through various dealers and retailers but they did not receive any such complaint from customers. It is denied that the complainant ever made complaint in this regard to the opposite parties. The opposite parties never visited the premises of the complainant. There is no manufacturing defect in the items purchased by the complainant and prayed that the complaint be dismissed with costs.

5.                The opposite party No.2 in its written version has taken plea that a complaint was received from the complainant and Suresh Poonia, expert attached with the opposite party No.2, was appointed to inspect the premises and give his report. Suresh Poonia-opposite party No.1 visited the house of the complainant on April 06^th, 2015 and observed that in some area, there was chalking problem and in remaining area performance of wall putty was fine. Suresh Poonia told the complainant that this type of problem occurs due to only two reasons. First reason may be the pot setting (putty set before use i.e. delayed use after mixing) and other could be un-matured setting (putty dried before its strength gain – due to dry wall application of high temp or high wind velocity). The complainant at that time rubbed walls with force only to show the poor performance of 3 - 5 mm layer of wall putty. The complainant was told in detail regarding manufacturing procedure which is used by the opposite parties, quality control system and testing method but the complainant was not ready to listen anything about the application and precautions. He was only interested to grab money from the opposite parties. The complainant was also offered again to show use of wall Putty. As the complainant did not agree to any proposal, Suresh Poonia submitted his report on April 07^th, 2015. In this way, there was no manufacturing defect in the items purchased by the complainant.

6.                Parties led evidence in support of their respective claims before the District Forum.

7.                After hearing arguments, vide impugned order dated March 14^th, 2017 passed by the learned District Forum, the complaint filed by the complainant was allowed directing the opposite party No.1 to pay an amount of Rs.15,000/- to the complainant in lump sum with interest at the rate of 9% per annum from the date of filing of the complaint and to pay an amount of Rs.5,000/- as compensation on account of un-necessary harassment and mental agony.

8.                Aggrieved with the impugned order dated March 14^th, 2017 the opposite party No.1 has filed the instant First Appeal No.465 of 2017 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

9.                I have heard learned counsel for the appellant and perused the case file.

10.              During the course of arguments there was no controversy of any type that vide bill dated April 02^nd, 2015 (Exhibit PW-1/A), the complainant purchased 20 bags of J.K. Wall Putty on payment of Rs.8800/- from the opposite party No.1. It is admitted fact that the opposite party No.1 is the authorised dealer and opposite party No.2 is manufacturer of the items purchased by the complainant. In order to prove any manufacturing defect in the wall putty purchased by the complainant duly attested affidavits of Rajender Kumar, Satyawan and Giani Ram, Exhibits PW1/A, PW1/B and PW1/C respectively, have been adduced in evidence. No expert witness has been examined by the complainant to prove manufacturing defect in the wall putty item purchased by the complainant. Learned counsel for the appellant-opposite party has argued that it was the burdened duty of the complainant to prove manufacturing defect in the items purchased by him but the complainant did not examine any expert witness to prove any manufacturing defect in the wall putty. In support of his this contention, learned counsel for the appellant placed his reliance upon decisions of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case M/s Monarch Innovative Technologies Private Limited versus Manoj Krishna Thakur 2016(4) CLT 95 ; Mahender Kumar versus Hero Honda Motors Limited and another 2017(1) C.P.J. 333 and decision of Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in case Rameshwar Bhawsar versus Rajpal Enterprises Limited and others, 2002(3) C.P.J. 273.

11.              I have closely perused the above cited case laws. In the above cited three cases laws findings were required to be given regarding manufacturing defect in vehicles. In the above cited case laws, findings were given that the burden to prove manufacturing defect is upon the complainant and expert opinion is needed to give findings regarding manufacturing defect in the vehicle or machine. After close perusal, I find the cited case laws are not of any help to the opposite parties in this case as facts and circumstances of the case in hand are quite different.  As per facts of the case in hand, the version of the complainant is that there was manufacturing defect in the wall putty item purchased by the complainant which was used in the residential premises of the complainant. In the case in hand, the complainant tendered in his evidence the duty attested affidavit of the complainant (Exhibit PW1/A) besides affidavit of Satyawan (Exhibit PW1/B) and affidavit of Giani Ram (Exhibit PW1/C) to prove that there was manufacturing defect in the wall putty item purchased by the complainant. In this case, situation is different due to this reason that an expert of the opposite parties namely Suresh Poonia visited the premises of the complainant alongwith opposite party No.1 and the complainant. The expert after spot inspection submitted his report also. It is so mentioned in the written version filed by the opposite parties itself.

12.              In fact, when expert witness namely Suresh Poonia had already visited the spot and submitted his report to the opposite parties, certainly there was no necessity for the complainant to examine another expert witness. Although the opposite parties have taken plea in their written version that expert witness did not find any manufacturing defect in the item purchased by the complainant as per his report but the opposite parties intentionally avoided to produce the expert report in their evidence in this case. Best piece of evidence has been intentionally withheld by the opposite parties reasons best known to them. In these circumstances, it can be presumed that the opposite parties did not adduce in evidence report of the expert witness intentionally because there was manufacturing defect in the wall putty items purchased by the complainant and opinion of expert Suresh Poonia was also like this. Learned District Forum has also given findings in favour of the complainant only due to this reason. I feel findings of the learned District Forum on this point of controversy appear to be correct, valid and justified.

13.              Learned District Forum has awarded only an amount of Rs.15,000/- in lump sum in favour of the complainant on account of the total loss cause to the complainant with interest at the rate of 9% per annum and also awarded an amount of Rs.5,000/- on account of un-necessary harassment and mental agony.  The complainant appears to be satisfied with the findings given by the learned District Forum as he did not prefer to file appeal till date. In these circumstances, awarding an amount of Rs.15,000/- on account of total loss caused to the complainant instead of Rs.28,000/- as prayed in the complaint is justified. I find no illegality in the impugned order dated March 14^th, 2017 passed by the learned District Forum. Hence, the findings of the learned District Forum stand affirmed and the appeal stands dismissed.

14.              The statutory amount of Rs.11,500/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 19.02.2018

(Balbir Singh) Judicial Member

CL