State Consumer Disputes Redressal Commission
Alps Industries Ltd.,A-2, Lodi Road ... vs M/S.T.P. Roy Chowdhury Company (P) ... on 29 April, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.S.Sambandam, B.Sc., MEMBER II F.A.128/2008 [Against order in C.C.162/2005 on the file of the DCDRF, Chennai (North)] DATED THIS THE 29th DAY OF APRIL 2011 1.
Alps Industries Ltd., | Rep. by Mukul Mittal, | Appellants / Opposite Parties AGM-Production & Marketing, | A-2, Lodi Road Industrial Area, | Opp. Mohan Nagar, Ghaziabad, | Uttar Pradesh, | Current address: | Alps Industries Ltd., | 57/2, Site IV Industrial Area, Shahibabad, | Ghaziabad, U.P. 201 010. | |
2. Rekha Dcor, | 91, Old No.27, Valluvar Street, | Arumbakkam, Chennai 600 106. | Vs. M/s.T.P. Roy Chowdhury Company (P) Ltd., | Respondent/Complainant Rep. by its Managing Director K.S.Janakiram, | 9, Sunkurama Chetty Street, George Town, | Chennai 600 001. | The Respondent / complainant filed a complaint before the District Forum against the opposite parties to pay Rs.1 lakh towards defective flooring materials and for mental agony. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.30.08.2007 in C.C.162/2005.
This appeal coming before us for hearing finally on 20.04.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order, of the District Forum, this commission made the following order:
Counsel for the Appellants/ O.Ps. : M/s.S.Rajasekar, Advocate.
Counsel for the Respondent/Complainant : Mr.A.Narayanan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties having failed in their attempt to resist the consumer complaint, brought by the respondent/complainant, have come to this Commission for redressal, challenging the order.
2. The complainant had purchased flooring materials under the brand name BAMVUD manufactured by the first opposite party, marketed through the Agent-second opposite party, after negotiation, paying consideration, which was laid in their Farm House near Beach with the help of the second opposite party alone, in September 2003. To the shock and surprise of the complainant, within few months time, the entire flooring was eaten by termites, which was reported to the second opposite party on 29.10.2004, demanding the amount spent namely Rs.45,000/- immediately, for which, he directed the complainant to contact the first opposite party, who had taken the plea that anti termite treatment ought to have been taken by the complainant at the building site, for which, they cannot be held responsible, on the condition Non-toxic anti pests Boric Acid Treatment alone. The goods manufactured and supplied by the opposite parties does not meet the quality promised, thereby they have committed unfair trade practice, offending the warranty period also, causing mental agony, which was not rectified even after the legal notice, thereby the complainant was constrained to file this case to recover the cost of the defective flooring material, as well replacement costs, totaling a sum of Rs.1 lakh.
3. The first opposite party admitting the manufacturing of flooring material named BAMVUD as well, its purchase by the complainant in a way, resisted the case inter alia contending that they have not given any guarantee for termite proof and if at all, the complainant himself have treated the floor for antitermite treatment, which they failed, that the Consumer Forum has no jurisdiction since the first opposite party is in Ghaziabad, Uttar Pradesh, that only due to lack of knowledge on the part of the complainant in failing to give adequate treatment for termites, if at all the flooring material should have been damaged, for which, the opposite parties cannot be held responsible since there was no warranty and the warranty was only against manufacturing defect, praying for the dismissal of the complainant, denying other averments also.
4. The District Forum by its order dated 30.08.2007, deducing a finding on the basis of the presumption, that the first opposite party should have manufactured poor quality of BAMVUD and supplied to the complainant has further recorded a finding that despite demand, the opposite parties have failed to rectify the defects, which should be construed as a case of deficiency of service. In this view, though the complainant had claimed a sum of Rs.1 lakh under two headings, without ascertaining the damage properly either on the basis of cost wise, or mental agony wise, awarded a sum of Rs.60,000/- as compensation, which is impugned in this appeal.
5. The complainant, a business concerned, is having a Farm House at Uthandi, near Beach, as seen from the description in Para 2 of the complaint.
In order to floor the Farm House, attracted by the advertisement given by the opposite parties, as seen from the Brochure, they have purchased the Bamvud material, needed for the house at 131.17 sq.ft. by paying valid consideration at the rate of Rs.300 per sq.ft., in addition, laying costs also, which was done by the second opposite party-dealer of the manufacturer, namely the first opposite party. The laying process appears to have been completed in the month of September 2003 by the second opposite party. But it seems, the Bamvud flooring decayed, eaten by termites, causing damage, to the entire extent. As seen from the records, without informing the floor damage to be inspected either by the manufacturer or by the dealer, it appears, the complainant themselves has removed the damaged Bamvud flooring, and re-laid with some other tiles. Thus, according to the complainant, they have incurred expenses, by two ways and to compensate the same, this case was filed, claiming a sum of Rs.1 lakh, which ended in partial success, resulting this appeal.
6. As seen from the pleadings, the claim was not laid, solely on the basis of warranty, though it is said, the tiles were treated for non toxic anti pests boric acid treatment, which will not mean, that the tiles are termite proof. As seen from the brochure also, we are unable to see any warranty of termite attack, though warranty was given for 20 years, against manufacturing defect. No case has been pleaded or made out that the tiles/flooring materials produced by the first opposite party, sold by the second opposite party had manufacturing defect. Therefore, on the basis of 20 years warranty against any manufacturing defect, the complainant is not entitled to claim any damage or the value of the goods or for relaying the titles in the place of damaged tiles.
7. In the brochure, the opposite parties had given manufacturing process, pattern, finishing and decors, how it fits in with the technical specifications etc., and nowhere they have said, flooring are termites resistance, though they have stated other resistance such as Abrasion, Chemical & Stain, Indentation, Slip etc., If really, the first opposite party had manufactured the tiles, having resistance for termites also, nothing would have prevented them to mention the same, in the technical specifications about the termites resistance also, which is not available.
Therefore, if the flooring was damaged due to termites, admittedly, as pleaded in this case, the opposite parties cannot be held responsible, since they never said it was termite proof.
The fact, the non toxic anti pests boric acid treatment will not mean, that it was meant for termite proof.
Realizing this also, when this question was raised by the first opposite party, they have replied that as per the communication dated 10.12.2004 that anti termites treatment was given by an Agent, Godrej Sara Lee Ltd., whose chemical for termites are well known all over India.
If that is a fact, when the Bamvud was destroyed or eaten by termites, they should have taken action against the Agent, Godrej Sara Lee Ltd., since their treatment or their medicines failed to protect the termites, or prevent the termites from eating the Bamvud. Therefore, if Bamvud flooring has been affected on account of termite eating, which is not covered by any guarantee, the opposite party cannot be held responsible.
8. On 25.10.2004 that is after the entire flooring was eaten by termites, a communication was sent by the complainant to the second opposite party informing that Bamvud steps have all decayed and have been eaten by termites, with the result that they have to remove the entire stretch of material laid with Bamvud in their dining hall. When the damage was available on the floor, the complainant ought to have informed and obtained the opinion either from the second opposite party or the first opposite party, the cause for the damage, which they failed. When it was challenged, as seen from the communication dated 08.11.2004, it is said The termites have affected the Bamvud within months after its installation and the expert opinion we took has also confirmed our contention that the quality of Bamvud is very poor and far from perfection and that no proper care had been taken in its manufacture to prevent termites damage, and we have not seen the expert opinion and it appears, it was also not filed before the District Forum. If that expert opinion had been filed, that would disclose the cause. In this case, it is the admitted case of the complainant that the Bamvud flooring was decayed and has been eaten by termites, for which, there is no guarantee. As we have already adverted to above, no manufacturing defect was established by pleading, decaying as well as termites eating, to the Bamvud which may not come within the meaning of manufacturing defect, which is also not the case of the complainant in anyway.
9. A submission was made on behalf of the complainant that no advise has been given for termite treatment, which is the duty of the complainant depending upon the location of the Farm House. As indicated above, the Farm House was near Beach, and there is every possibility of area being wet. In the Brochure under the heading, recommending usage area, it is specifically stated No wet areas. This being the position, to have a fancy look of the flooring, if the complainant had used the Bamvud, for flooring on their own, of course on the basis of the advertisement, without giving proper termite treatment, for which, there is no guarantee, the opposite parties cannot be held responsible, as if, Bamvud is very poor and far from protection and no proper care had been taken in the manufacturing, to prevent termite damage. The producer, had produced certain goods and they have given the specifications. It is for the purchaser to know the thing, whether the process to prevent termites was followed or not. When the opposite parties have not given such an assurance and they have given only assurance, for ordinary pesticides protection, which cannot withstand the termite attack, the claim of the complainant appears to be unacceptable.
The other parts of the Farm House is in tact, may not be a ground to hold that the Bamvud quality is sub-standard and it all depends upon the place where they used. Therefore, when the claim was made after relaying the flooring on their own, by the complainant, without informed the opposite parties, that was rightly rejected not to be treated, as negligent act or deficiency in service, which was not properly considered by the District Forum, whereas an erroneous finding was recorded, as if, they have manufactured the poor quality Bamvud, thereby committed deficiency, which finding, we are unable to endorse, in view of the admitted facts, Bamvud flooring was damaged only by termites, not for any other reasons such as manufacturing defect. Hence, we find merit in the appeal and the result would be, the order of the District Forum should be upset.
10. The learned counsel for the first opposite party submitted that the first opposite partys Industry was declared as sick industry and therefore, remedy if any for the complainant has to be agitated before the Board for Industrial and Financial Reconstruction. This question will arise when the order is sought to be enforced and therefore, we refrain from giving any finding, on the basis of Sick Industry.
11. In the result, the appeal is allowed, the order of the District Forum, Chennai [North] in CC No.162/2005, dt.30.08.2007 is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/ opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM M.THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Ns/mtj/Bank