DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB        : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 31^st  day of October 2023

CC.240/2019

Complainant

Sugathan.T.P,

S/o Damodaran Nair,

Pournami (HO),

Karuvissery Post,

Kozhikode – 673 010

(By Adv. Sri. Premdeep Mahesh)

Opposite Parties

1.                The proprietor,

Calicut Plywoods,

Near Amalapuri Church,

Kannur road,

Kozhikode – 673 001.

2.                The Managing Director,

Mayur Ply Industries Pvt. Ltd,

Corporate office, 46 C, Rafi Ahmed,

Kidwai Road, 2^nd floor,

Kolkata – 700 016

(By Adv. Sri.Janil John for OP1 and OP2)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

In order to modify the kitchen in the house of the complainant, on 30/06/2016 he purchased Royal Plywood Products (Mayur) worth Rs. 78,480/- from the first opposite party paying cash. He was issued a computer print of estimate with party’s name written as ‘Cash’. When he demanded bill, the staff of the first opposite party assured to issue him a cash bill at the earliest. But they never issued cash bill in spite of repeated requests. The first opposite party had assured him that the second opposite party was giving life time warranty for the product. It solely believed the words of the first opposite party that he had purchased the plywood. On 1/08/2016 he received a warranty card from the second opposite party.

3. Using the plywood, modular kitchen cabinets were made spending Rs. 52,000/- as labour charges. The work was entrusted to M/s Smartex Interiors. But after some weeks of fixing the plywood, it began to get affected by termites and within one year, the furniture made with the plywood became completely useless and the complainant had to remove the same.  Immediately after noticing the damage, the complainant informed the matter to Sri. Ganesh, the staff of the first opposite party, who personally inspected his house and noted the damage and assured that the plywood would be replaced by the company along with carpentry charges. But neither the first opposite party nor the second opposite party turned up thereafter. During the discussion in the watsapp chat, Sri.Ganesh asked him to send the bill copy on 12/11/2018 and accordingly the copy of the bill and the warranty card was sent to the watsapp on the same day. But no positive action was taken by the opposite parties.
4. There was gross deficiency of service on the part of the opposite parties. The complainant had to suffer huge financial loss, mental agony and hardship. Hence the complaint to direct the opposite parties to replace the defective plywood  with  new plywood or to return the purchase price of Rs. 78,480/- and to pay Rs. 52,000/- for the labour charges of the carpenter to design and fix the cabinet and also compensation of Rs. 50,000/- for the mental agony and hardship suffered.
5. The opposite parties resisted the complaint by filing written version separately. Their contentions are almost similar. The stand taken by the opposite parties is that they have not sold the plywood products to the complainant or issued ‘estimate’ and had never agreed to issue cash bill. The allegation that the first opposite party had represented that the second opposite party is providing life time warranty for the product is false and hence denied. The further allegation that the complainant purchased the plywood believing the words of the first opposite party is false and hence denied.
6. The complainant might have obtained the estimate from the first opposite party, but that is not a conclusive proof of purchase. Without producing valid invoice /receipt, the first opposite party is not liable and responsible for the damage, if any, happened to the product. The allegation that the plywood got damaged by termites is not within the knowledge of the opposite parties. The first opposite party has no staff by name Ganesh. The second opposite party is doing business through the first opposite party, who is the dealer. Since the plywood materials were not sold through the first opposite party, the opposite parties are not liable for the alleged loss, if any, the first opposite party had sustained. The warranty card produced by the complainant is not issued by the second opposite party. The plywood manufactured by the second opposite party is of good quality having good reputation and goodwill.   The complainant might have purchased some inferior quality plywood manufactured by some other company. He might have used some inferior quality plywood with the quality plywood like the product of the second opposite party. Even if the product is sold by the first opposite party, the same may get damaged due to improper fixation and usage. If the complainant produced the damaged plywood with proper records then definitely the opposite parties will replace the defective products. There is no deficiency of service on the part of the opposite parties. With the above contentions, the opposite parties pray for dismissal of the complaint.  
7. The points that arise for determination in this complaint are;

               (1). Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?

               (2) Reliefs and costs

8. Evidence consists of the oral evidence of PW1 and Exts A1 to A6 on the side of the complainant. The managing partner of the first opposite party was examined as RW1.  No evidence was let in by the second opposite party. 
9. We heard both sides. Brief argument note was filed by the complainant.
10. Point No. 1:  The second opposite party is the manufacturer and the first opposite party is the dealer of royal plywood product (Mayur).  The complainant, who is a homeopathic doctor, has approached this Commission with the grievance that the plywood products purchased by him from the first opposite party got damaged soon after making modular kitchen cabinets using the same and the opposite parties failed to address his concerns over the same.
11. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the estimate dated 14/06/2016 of Smartex Interiors, Ext A2 is the copy of the estimate dated 2/4/2019 of Smartex Interiors, Ext A3 is the copy of the estimate dated 30/06/2016   Smartex Interiors, Ext A4 is the life time warranty card,  Ext A5 is the print out of the screen shots of the chat with Sri. Ganesh and Ext A6 is the photographs of the termite affected places of kitchen cabinets.
12. The contention of the opposite parties is one of total denial. They have denied having sold the plywood products to the complainant. They have denied the issuance of Ext A3 and Ext A4 and also the watsapp conversation between the complainant and Sri. Ganesh as seen in Ext A5. RW1 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version.
13. The first point to be considered is as to whether the complainant has purchased the plywood in question from the first opposite party. PW1 has categorically  deposed before this Commission that on 30/06/2016 he purchased royal plywood products (Mayur) worth Rs. 78,480/- from the opposite party by paying cash and received Ext A3 estimate issued by the first opposite party. There is no reason to disbelieve PW1 in this regard. Even though PW1 was subjected to searching cross examination on this aspect, nothing has been brought out to discredit his version. It cannot be thought that PW1, who is a doctor, will falsely allege that he made the purchase from the shop of the first opposite party.  It also cannot be thought that PW1 wanted to help some other dealer by telling the name of the first opposite party. It is true that Ext A3 estimate does not contain the name and seal of the first opposite party. But it is common knowledge that several shops are issuing only estimates and not the bill in order to avoid tax liability. It is also important to note that in his chief affidavit and also during cross examination RW1 has rather admitted that the estimate was issued by them. Non issuance of the bill does not necessarily mean that the complainant had not purchased the product from the first opposite party. The contention of the opposite parties that without producing valid invoice/receipt, they cannot be held liable and responsible cannot be accepted.
14. Another important aspect to be noted is that according to the opposite parties, many people used to visit the shop and enquire about the price and other details of the plywood and on their demand estimates used to be issued to them. But Ext A3 is not in respect of plywood alone. Fevicol SH 2kg is also an item in Ext A3. Usually estimates are collected for major durable products and not for consumables like fevicol etc. This also lends support to the case of the complainant that Ext A3 is not just an estimate as contended by the opposite parties, but it is a document issued for cash purchase of the goods mentioned therein. Ext A5 communication also is indicative of the fact that product was sold by the first opposite party to none other than PW1. It is true that RW1 has denied that Sri. Ganesh is their employee. As rightly pointed out by the learned counsel for the complainant, such a contention is taken only to wriggle out of the situation and to escape from the liability for selling inferior quality products. Ext A5 shows that the complainant had sent the copy of the bill and the warranty card to Sri. Ganesh as per his request for onward transmission to the second opposite party. This aspect is not denied by the opposite parties.
15. Yet another important aspect to be noted is that in Ext A4 warranty card, the name of the dealer is shown as the first opposite party. The second opposite party in their written version has vaguely denied having issued the warranty card. Ext A4 contains the signature of the authorised signatory of the second opposite party. The said signature is not denied or disputed. The second opposite party has not entered the box or adduced any evidence. It is clear that the second opposite party is denying the issuance of Ext A4 with a view to avoid the liability. The opposite parties have no case that Ext A4 is a concocted document or that the name of the first opposite party was fraudulently incorporated therein. The evidence of PW1 coupled with Exts A3 to A5 documents would establish and prove that on 30/06/ 2016, the complainant purchased Mayur Royal Plywood manufactured by the second opposite party from the shop of first opposite party dealer.  
16. The next point to be considered is as to whether the allegation of the complainant that the plywood got damaged due to termite attack is true, as alleged. The evidence of PW1 shows that by using the plywood he made modular kitchen cabinets in his house. But after a few weeks, it got affected by termites. Ext A6 photographs show that the allegation of the complainant is true and genuine. Ext A6 show the termite affected places of the kitchen cabinets. Ext A6 is not seriously disputed or challenged by the opposite parties in the cross examination. Moreover, going by the averments in the written version of the opposite parties, it can be seen that they have not specifically disputed the aspect that the plywood got affected by termites. Their only case is that the same is not within their knowledge. From the testimony of PW1 coupled with Ext A6 and the admission of the opposite parties, we have no hesitation to hold that the allegation of the complainant that a few weeks after making the modular kitchen cabinets with the plywood, it was damaged by termite attack is true.
17. Ext A4 provides 10 years warranty for the product from the date of purchase. PW1 has deposed that despite his repeated requests, no positive action was taken by the opposite parties to redress his grievance. The act of the opposite parties in selling inferior quality plywood and the further neglect to address the concerns of the complainant over the product amounts to unfair trade practice and deficiency of service.
18. Plywood is not meant for use for a few weeks. The complainant used the plywood for making kitchen cabinets and the entire work had to be removed as they became useless due to termite attack. Undoubtedly, he was put to gross mental agony and hardship, besides monetary loss. The complainant is entitled to get refund of the purchase price of the plywood. Ext A3 includes the price of multiwood and fevicol and excluding those two items, the price of the plywood comes to Rs. 63,680/-. The complainant is entitled to get refund of Rs. 63,680/- from the opposite parties. Ext A1 shows that he had to pay Rs. 52,000/- towards carpentry labour charges. The opposite parties are liable to pay the said amount to the complainant. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 25,000/- will be reasonable compensation for the mental agony and hardship suffered  by the complainant. The complainant is also entitled to get Rs. 5000/- as cost of the proceedings.  The opposite parties are jointly and severally liable.
19. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

1. CC.240/2019 is allowed in part.
2. The opposite parties are hereby directed to refund Rs. 63,680/- (Rupees sixty three thousand six hundred and eighty only) to the complainant, being the price of the plywood.
3. The opposite parties are hereby directed to pay a sum of Rs. 52,000/- (Rupees fifty two thousand only) to the complainant towards labour charges. 
4. The opposite parties are directed to pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) as compensation to the complainant for the mental agony and hardship suffered.
5. The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees Five Thousand only) as cost of the proceedings to the complainant.                                                                                                                                                                                            f) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 63,680/- shall carry an  interest of  6% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 31^st day of October, 2023.

Date of Filing: 30/07/2019

                                              Sd/-                                                         Sd/-                                                       Sd/-

                                      PRESIDENT                                            MEMBER                                            MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Copy of the estimate dated 14/06/2016 of Smartex Interiors,

Ext A2 - Copy of the estimate dated 2/4/2019 of Smartex Interiors.

Ext A3 - Copy of the estimate dated 30/06/2016   Smartex Interiors,

Ext A4 - Life time warranty card, 

Ext A5 - Print out of the screen shots of the chat with Sri. Ganesh.

Ext A6 - Photographs of the termite affected places of kitchen cabinets.

Exhibits for the Opposite Parties :

Witnesses for the Complainant

PW1 -  Sugathan.T.P, (Complainant)

Witnesses for the opposite parties 

RW1 – Shukkur 

                                  Sd/-                                                            Sd/-                                                        Sd/-

                          PRESIDENT                                               MEMBER                                              MEMBER

True Copy,      

                                                                                                                                                      Sd/-

                                                      Assistant Registrar.