National Consumer Disputes Redressal
Cera Board & Doors vs Mrs. Pallavip Shah on 5 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.85 of 2007 (From the Order dated 25.08.2006 in Complaint Case No.56/1999 of the State Consumer Disputes Redressal Commission, Tamil Nadu) Cera Board & Doors, Near Azhikkal, P.D. Azaikode, Kannur-670009 Kerala .. Appellant Vs. 1. Mrs. Pallavip Shah W/o Shri Pradeep Mavani, 303, Nandi Apartments, 29/32, Thirumurthy Layout, R.S. Puram, Coimbatore-641 002 2. M/s. Swastik Plywoods, No.2, Thiruvenkatasamyu Road (East) R.S. Puram, Coimbatore-641002 ..Respondents AND FIRST APPEAL NO.86 of 2007 (From the Order dated 25.08.2006 in Complaint Case No.55/1999 of the State Consumer Disputes Redressal Commission, Tamil Nadu) Cera Board & Doors, Near Azhikkal, P.D. Azaikode, Kannur-670009 Kerala .. Appellant Vs. 1. Mrs. Mradula Dhirajlal (Since deceased) Through Legal representatives, R/o 401, Nandi Apartments, 29/32, Thirumurthy Layout, R.S. Puram, Coimbatore-641002 2. M/s. Swastik Plywoods, No.2, Thiruvenkatasamyu Road (East) R.S. Puram, Coimbatore-641002 ..Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant in : Mr. Vineet Chadha and both the appeals Mr. Hitesh Sharma, Advocates For the Respondents : N E M O PRONOUNCED ON: 05.04.2013 O R D E R
ASHOK BHAN, J., PRESIDENT This order will dispose of both the First Appeals as the facts and the question of law involved in both the cases are the same. The facts have been taken from First Appeal No. 85 of 2007.
FACTS:-
Complainant/Respondent No.1 (hereinafter referred to as Respondent) purchased Milton brand block boards for her flat from the Respondent No. 2 (Opposite Party No.2 before the State Commission) between 17.03.97 and 12.09.97 for carpentry work and making furniture for a total sum of Rs.67,180/-. She was assured by the Respondent No.2 that the block boards and plywood were of superior quality and termite proof. She used the material purchased for making wall panelling, wall cupboards, dining table & chairs, wardrobes, coats, side tables, wall cabinets etc. and spent Rs.77,850/- towards labour charges, Rs.30,000/- for interior designing consultancy charges and Rs.1,54,758.36 towards other materials required for making the aforesaid articles. Within three months from the date of its purchase, the block boards and plywood were found to be infested with termites and borers. On complaint being lodged, representatives of the Appellant and Respondent No.2 visited to the flat of the Respondent for treatment of pest control four times but the defects in the furniture remained uncured. Respondent sent several letters to the Appellant and the Respondent No.2 to set right the problem but there was no response from either of them.
Respondent sent legal notice dated 12.11.98 to the Appellant and the Respondent No.2. Appellant replied that they were not the manufacturers of Milton brand block boards and the Respondent No.2 was not their dealer. Respondent No.2 tried to shift the blame on the Appellant. The health of the Respondent and her family members was adversely affected by the dust from the furniture items as also due to the termites and other insects moving freely inside her flat. Respondent got inspected her flat from a qualified Civil Engineer who reported that damage to the furniture and furnishing had been caused due to the inferior quality of plywood and block boards. Complainant, being aggrieved, filed the complaint before the State Commission.
On being served, Appellant put in appearance and filed its written statement resisting the complaint mainly on the grounds; that the Respondent No.2 was not its dealer and they had purchased the block boards and plywood from M/s. Neelagiri Traders, Coimbatore; that the Appellant was not the manufacturer of Milton brand block boards; that they do not manufacture plywood; that they were not liable to indemnify the loss suffered by the Respondent.
Respondent No.2 contested the complaint on the grounds; that they were not the dealer of Milton brand block boards; that they never advised the Respondent to buy block boards and plywood of a particular brand; that only on the reputation of the brand and the representation of the manufacture that it was termite resistant that the Respondent purchased Milton Brand Plywood and block boards; that the Plywood and block boards were affected by termites and bores which was a manufacturing defect and they could not be held liable to make good the loss suffered by the Respondent.
State Commission, after considering the material available on record and the evidence adduced by the parties, held that that the Appellant was the manufacturer of the material purchased by the Respondent; that they through Respondent No.2 and also by printing on the boards about the boards being termite proof and bore proof had assured the Respondent about the quality of the material; that the material supplied to the Respondent was of inferior quality and was not termite and bore resistant. State Commission allowed the complaint against the Appellant and directed it to pay a sum of Rs.1,75,030/- (Rs.67,180/- + Rs.77,850/- + Rs.30,000/-) to the Respondent along with interest @ 9% p.a. from the date of filing of complaint till payment.
Rs.3,000/- were awarded towards costs.
State Commission in its order observed as under:-
These two exhibits conclusively establish that the materials supplied by the opposite parties to the complainant were of inferior quality and were not termite and bore resistant as claimed that by purchasing the said plywood and block board and using them in making the cupboard, etc., the complainant had suffered monetarily and mentally. Opposite party No.1 cannot escape by denying a stand that opposite party No.2 were not their dealers that only Nilgiri Traders were their dealers, that they were the manufacturers is not disputed, that they had assured through opposite party No.2 and also by printing on the boards about the boards being termite proof and bore proof they had certified about the quality of the material. If the opposite parties had not so assured, it was totally unnecessary for them to have made several visits to the flat to know first hand as to what the problem was and after knowing the problem made attempts to solve the same. The deficiency in service on their part and unfair trade practice is clearly made out. We have already referred to the report of the Advocate Commissioner in which the advocate commissioner has pointed out that the complainant had taken precautionary measures and in spite of that there was presence of termites and white ants, wood bores and insects. A perusal of the report of the advocate commissioner clearly shows that not a single item had been spared. No doubt, there is no mention in the bills regarding the brand or trademark of materials supplied. But they were purchased from opposite party No.2 is not disputed and cannot be disputed.
Appellant, being aggrieved, has filed the present appeal.
No body is present on behalf of the Respondent despite service of notice through publication in the Newspapers. Respondent is ordered to be proceeded ex-parte.
We have heard the Ld. Counsel for the Appellant at length.
Ld. Counsel appearing for the Appellant contends that the Appellant is not the manufacturer of plywood and even if it is assumed that the Appellant is manufacturer of Milton brand block boards still the Appellant cannot be held responsible for the damage caused to the furniture and furnishings as the Professor C. Shanmugam, Chartered Engineer in his report has stated that the plywood which was used for making the furniture was affected/damaged by the termites; that the expert did not conclude that the Milton Brand block boards manufactured by the Appellant were affected/damaged by the termites or borers.
We find substance in the submission made by the Ld. Counsel for the Appellant that the Appellant cannot be fastened with the liability as the damage to the furniture/furnishings was caused due to the plywood infected with termite which had not been manufactured by it. In the legal notice issued by the Respondent, it is stated that the Appellant is manufacturer of the Milton brand block boards. It is nowhere stated either in the legal notice or in the complaint filed by the Respondent that the Appellant is the manufacturer of the plywood as well.
Respondent had purchased the block boards and plywood from the Respondent No.2. Professor C. Shanmugam, Chartered Engineer appointed by the Respondent/Complainant to inspect the infested furniture, has concluded in his report that the furniture and the furnishings were damaged due to plywood which was affected/damaged by the termites. The expert did not opine that the block boards manufactured by the Appellant were in any way affected/damaged by the termites. As the Appellant does not manufacture plywood, it cannot be held liable for the loss caused to the furniture/furnishings. Since the damage was caused due to use of plywood which was infested by termites, the Appellant which is manufacturer of the block board cannot be held liable.
The State Commission has clearly erred in ignoring this aspect and holding the Appellant guilty of supplying defective material which resulted in damage to the furniture/furnishings.
For the reasons stated above, the impugned orders passed by the State Commission are set aside and appeals are allowed. No order as to costs.
Vide order dated 23.02.07, this Commission had directed the Appellant to deposit 50% of the awarded amount with the State Commission in each case. State Commission is directed to release the deposited amount, if any, to the Appellant along with accrued interest.
Registry is also directed to refund the sum of Rs.35,000/- deposited by the Appellant in each case as statutory deposit along with accrued interest.
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(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER Yd/*