IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Date of filing : 27/11/2017
Date of order : 30.03.2023
PRESENT:
Shri.D.B.Binu President
Shri. V.Ramachandran Member
Smt. Sreevidhia T.N Member
C.C.No.522/2017
COMPLAINANT
Arun V.R., Rep. by his Power of Attorney Holder Anil Kaimal), S/o.V.N.Raveendran, Velan Parambil House, Mankulam Post, Devikulam Taluk, Idukki-685 565.
(By Adv.Surya J., Kumaran Arcase, 1st Floor, Power House Road, Kochi-682 018)
Vs.
OPPOSITE PARTIES
1) The Manager, Tomlukes India Kochi,20/74, Kaipadamugal, Seaport-Airport Road, Kalamssery, Kochi-682 021.
2) The Managing Director, Tomlukes India Kochi Head Office at Nediyizhathil Thowers, Killipalam Trivandraum.
3) Bharat Traders, 2937/3, 1st Floor, Chuma Mandi Pahar Ganj,
New Delhi-110 055.
(o.p1 and 2 rep. by Adv.Lilly Antony, Adv.Jolly John K., PKM Manzil, 2nd Floor, Flower Junction, T.D.Road, Ernakulam, Cochin-682 035)
F I N A L O R D E R
Sreevidhia T.N., Member
1) A brief history of the complaint is as stated below:
The complainant is the Power of Attorney Holder of Mr.Anil Kaimal. The opposite parties are the manufacturer of building products. The complainant is engaged in fabrication and interior works. He purchased compact panel tomex along with Rivet-Rustic wood for Mr. Anil Kaimal from the 1st opposite party on 09.06.2016. The opposite parties have assured 15 years UV guarantee, water proof as well as scratches proof etc. The complainant had transferred Rs.3,04,000/- to the account of the opposite party in South Indian Bank, Kalamassery Branch. The first opposite party accepted it on 09.06.2016 and delivered 40 units of compact panel tomex 6 m along with 1000 numbers of Rivet-Rustic Wood. The complainant made use of 38 use panels out 40 and placed on the wall of newly constructed house of Anil Kaimal. For the affixture of the panel the complainant had purchased aluminum beadings for Rs.50,000/- and seven labourers spend their 15 days for this work and complainant had spend total Rs.1,50,000/- as labour cost and accessories.
The complainant noticed that the outer layer of panel dilapidated due to fungal growth and this was communicated to the 1st opposite party. The 1st opposite party replaced it and provided another one to the complainant. Unfortunately, the complainant observed that the replaced panel was also defective one and again it was brought into the notice of the 1st opposite party. The Manager of the 1st opposite party assured the complainant that they are ready to provide 10 sheets of tomex panel to the complainant. Eventhough such an assurance was given by the opposite party to the complainant, there was no response from the side of the 1st opposite party till now. Therefore, the complainant had sent a legal notice to the 1st opposite party but no reply was made from their side. The complainant stated that the articles delivered by the opposite parties are of inferior quality. The house warming function of the building is fixed on next month and the complainant have to complete the work before that. There occurred delay in completing the work due to the defective panels sold by the opposite parties. The complainant suffered mental agony in not completing the work in stipulated time due to the negligent attitude on the part of the opposite parties. The complainant submitted that the material supplied by the opposite party is of having some manufacturing defect and hence the defect occurred within the warranty period. The complainant also stated that the opposite parties are liable to compensate the complainant for selling the defective panels. There is gross negligence and deficiency in service on the part of the opposite parties. The complainant had suffered mental agony and loss due to the act of the opposite parties.
2) Notice
Notices were issued to the opposite parties from this Commission on 23.09.2016 and the case was posted for R/N of the opposite parties to 13.10.2016 and then adjourn to 13.12.2016.
On 13.12.2016, 1st and 2nd opposite parties appeared through their counsel and seeks time for filing vakalath and version of the opposite parties. The case posted for version of the opposite parties to 22.12.2016. On 22.12.2016 the 1st and 2nd opposite parties have no representation and no version filed by them. Consequently, both opposite parties were set ex-parte.
On 22.02.2017, 1st and 2nd opposite parties filed a petition to set aside the ex-parte order dated 22.12.2016 against the opposite parties. Eventhough it was allowed. Version is filed beyond the statutory period and hence the Forum/ Commission not accepted the version of the opposite parties.
3) Evidence
Evidence in this case consists of the documentary evidence filed by the complainant which are marked as Exbt.A1 to A10. No oral evidence from the side of the complainant.
Subsequently, the 3rd opposite party is impleaded as additional opposite party in this case, and the notice sent to the 3rd opposite party is returned and the current address of the opposite party 3 has not been furnished by the complainant so far. Hence the case was posted for final hearing. Heard the counsel for the complainant.
We have verified the facts of the case with the documents filed by the complainant.
Exbt.A1 – Copy of power of attorney produced by the complainant dated 26.08.2016.
Exbt.A2 – Copy of invoice dated 09.06.2016 issued by the opposite party.
Exbt.A3- Copy of brochure
ExbtA4- Copy of legal notice issued by Advocate K.P Suraj, Sub Jail Road, Aluva- dated 22.07.2016.
Exbt.A5- photographs of the defective panels.
Exbt.A6- Acknowledgement cards of the legal notice sent to the opposite party.
Additional documents
Exbt.A7 to A10 – invoice of plywoods which are subsequently purchased by the complainant.
4) The issues came up for consideration in this case are as follows:
1) Whether any deficiency of service or negligence or unfair trade practice is proved from the side of the opposite party towards the complainant?
2) If so, reliefs and costs?
For the sake of convenience we have considered issue Nos. (i) and (ii) jointly.
The complainant is the power of attorney holder of one Mr.Anil Kaimal (Exbt.A1). As per Exbt.A2, brochure the opposite parties assured the following
- 15 year U.V.gurantee
- does not crack, chip or break even under extreme weather conditions, hard and rigid
- water proof as well as scratch proof
- Tomex Facade provides weather protection and thermal insulation and enhances the building appearance.
As per Exbt.A2, the opposite parties had issued a bill of Rs.3,04,000/- to Mr.Anil Kaimal on 09.06.2016 for the purchase of compact panel Tomex 6 mm 8x4 along with Rivet Rustic wood. Later the complainant had noticed that the outer layer of panel dilapidated due to fungal growth and the matter was communicated to the 1st opposite party. The complainant wants to complete the work in time. The complainant had sent a legal notice to the 1st opposite party. But no reply was received from the opposite party.
The complainant alleges that the articles supplied by the opposite parties are defective and were of inferior quality. Exbt.A5 are the photographs of the defective panel supplied by the opposite party to the complainant. ExbtA7 to A10 are the invoice of plywoods subsequently purchased by the complainant from the shops since the complainant wants to complete the work in time.
On two occasions, the complainant had moved an application to appoint an Expert agent and Indian Plywood Industries Research and Training Institute (IPIR), Banglore was appointed as Expert Agency. The complainant had sent some samples of plywood for inspection and later they returned the material stating that “For testing conformity to a given standard, full size sample ie., of size 8 ft x4 ft is required with a declaration specifying the grade/type of tests”.
The Expert agency also informed that dimensions and tolerances test cannot be done since sample is broken at corners. (as per letter dated 27.06.2017 No.JD/Testing/2017-18/1123).
The opposite party assured 15 year u v guarantee to the complainant. But the panels supplied by the opposite parties are of inferior quality, which is proved as per Exbt.A3 photographs. As per Exbt.A1 the compact panels are purchased on 09.06.2016 by Mr.Anil Kaimal whereas this complaint is filed on 08.09.2016. i.e., within a short span of period the compact panels became defective. Hence the complainant had to suffer mental agony, pain and other hardship due to the supply of the defective and inferior quality panels to the complainant. There occur a delay in completing the work due to the deficient action of the opposite party ie., selling the defective panels to the complainant.
Based on the above observations, it is proved that deficiency in service occurred from the side of the opposite parties towards the complainant and hence issue No. (1) is found in favour of the complainant.
Since deficiency of service is proved from the side of the opposite parties towards the complainant, the complainant is entitled to get compensation and cost of proceedings from the opposite parties. Thus issue Nos. (i) and (2) are found in favour of the complainant.
The complainant in the complaint states that ‘for the affixture of the panel, the complainant had purchased aluminium beadings for Rs.50,000/- and seven labours spent their 15 days for this work and the complainant had spent total Rs.1,50,000/- as labour and accessories’. But no evidence produced by the complainant to prove that he had spent Rs.1,50,000/- as labour cost and accessories for the affixture of the compact panels. Hence the complainant’s 2nd prayer to direct the opposite parties to pay a sum of Rs.1,50,000/- towards labour charges and cost of the accessories cannot be granted in this case.
In the result, the complaint is allowed as follows:
- We direct the opposite parties to refund the price of the defective compact panels ie., Rs.3,04,000/- to the complainant.
- We direct the opposite parties 1 and 2 to pay Rs.25,000/- as compensation to the complainant for the deficiency of service and for the mental agony suffered by the complainant.
- The opposite parties shall also pay an amount of Rs.5000/- as cost of the proceedings to the complainant.
- The liability of the opposite parties 1 and 2 shall be jointly and severally.
The 3rd opposite party is excluded from paying any amount to the complainant since the service of notice to opposite party 3 is not completed in this case and since no allegations are raised by the complainant in this complaint as opposite party 3 is subsequently impleaded in the party array.
The above order shall be complied with within 30 days from the date of receipt of a copy of this order, failing which the amount ordered as per (1) and (2) above shall attract interest @5% p.a. from the date of order till the date of realization.
Pronounced in the open Commission on this the 30th day of March 2023.
Sd/-
Sreevidhia T.N., Member
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exbt.A1 – Copy of power of attorney produced by the complainant dated 26.08.2016.
Exbt.A2 – Copy of invoice dated 09.06.2016 issued by the opposite party.
Exbt.A3- Copy of brochure
ExbtA4- Copy of legal notice issued by Advocate K.P Suraj, Sub Jail Road, Aluva- dated 22.07.2016.
Exbt.A5- photographs of the defective panels.
Exbt.A6- Acknowledgement cards of the legal notice sent to the opposite party.
Additional documents
Exbt.A7 to A10 – invoice of plywoods which are subsequently purchased by the complainant.
C.C.522/2016
ORDER DATED 30.03.2023
