State Consumer Disputes Redressal Commission
Greenply Industries Ltd. vs Sau.Sunita Vinod Bhongade, on 16 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, CIRCUIT BENCH, NAGPUR 5th floor, Administrative Building, Civil Lines, Nagpur-01 First Appeal No.A/07/497 (Arisen out of Order Dated null in Case No. of District ) 1. Greenply Industries Ltd. Through Br.Manager, Nagpur 2. M/s Anant Plywood, Through Its Proprietor, Yavatmal Vs. Sau.Sunita Vinod Bhongade, Yavatmal. BEFORE: Hon'ble Mr.B.A.SHAIKH, PRESIDING MEMBER HON'BLE SMT.JAYSHREE YENGAL MEMBER HON'BLE Mr. N.Arumugam MEMBER PRESENT: Mr.C.R.Gandhi, Adv. ......for the Appellant Mr.A.B.Patil, Adv. ......for the Respondent ORDER
(DELIVERED ON 16/08/2013) PER SHRI.B.A.SHAIKH, HONBLE JUDICIAL MEMBER
1. This appeal is directed against the order ated 12/3/2007 passed by Distt.Forum, Yavatmal by which, the complaint has been partly allowed.
2. The case of the complainant, as set out in the complaint, in brief is that she had engaged OP No.2 Interior Decorator to make interior decoration of his house. The complainant purchased ply wood for interior decoration from OP No.3 dealer through OP No.2 interior decoratior. The said plywood was manufactured by OP No.1 Green Plywood Co.Ltd. The OP No.3 had given warranty of 7 years. Moreover, there was a rubber stamp affixed to the said ply wood to the effect that it is waterproof and termite resistant. The OP No.2 prepared dressing table, kitchen trolleys and cupboards from the said plywood. However, the said furniture was infested with termite (white ants) within a period of two years. Therefore, it was totally damaged. The complainant was, therefore, required to replace the said furniture by another furniture by expending Rs.50,000/-. Therefore, the complainant claimed compensation of Rs.50,000/- from the Ops. towards the expenses incurred by her for purchasing new furniture. She also claimed Rs.1 lac towards mental harassment and Rs.5000/- towards cost of complaint.
3. The OP No.1 filed written version and resisted the complaint. It has denied the entire case of the complainant and submitted that no such plywood manufactured by it was purchased by the complainant from OP No.3. It submitted that complainant has not filed any document showing that she purchased the plywood from OP No.3. There is possibility of purchasing duplicate ply of lower cost by the complainant. It also submitted that the termite is an insect and it grows in the soil and lives in colonies and its reproduction is very fast and they spoil timber, paper and other like material. In order to avoid their attack, it is necessary to give soil treatment. There is no permanent solution to avoid termite attack. There can not be 100% guarantee that plywood would never be affected by termite. It therefore submitted that the complaint may be dismissed.
4. The OP No.2 the Interior decorator also filed written version and submitted that the material was supplied to him by the complainant and accordingly he prepared her furniture and, therefore, he can not be held liable. He also submitted that there is no evidence to show that plywood was purchased from OP No.3. He also submitted that the complaint is barred by limitation and, therefore, it may be dismissed.
5. The OP No.3 also filed his written version and resisted the complaint. It is denied by OP No.3 that complainant purchased plywood from him and OP No.2 prepared furniture from the same for the complainant. It is also denied that the said plywood was infested with termite within two years of its purchase and, therefore, the complainant was required to replace it with new furniture. He also denied that he had given warranty of 7 years for the said plywood. The complainant did not give prio notice to him. He also submitted that duplicate plywood is available in market and as the complainant has not purchased plywood from him, and as the complainant did not take precaution to avoid infestation of termite, he is not liable to pay compensation to the complainant.
6. The Distt.Forum below, appointed Commissioner to inspect the plywood of the complainant and to submit the report. The said Commissioner, after inspection of 5 pieces of the plywood, in presence of both the parties, submitted report before the Forum below. The Forum below relied on the said report. It observed that the purchase bills of the complainant have been lost due to infestation by termites and hence they were not produced by the complainant. It also observed that had the complainant not purchased plywood from OP No.3 manufactured by OP No.1 she would not have filed complaint against them The Distt.Forum below disbelieved the statement of Invoice details produced by the OP No.3 to prove that complainant did not purchase plywood from him. The Distt.Forum below also observed that the plywood purchased from OP 3 is of substandard quality and hence it was damaged and required to be replaced by new furniture. It also found that there was warranty of 7 years and, therefore the complaint is within limitation. It directed the OP 1 & 3 to pay Rs.20000/- jointly and severally to the complainant towards loss sustained by her and also to pay to her Rs.3000/- towards mental harassment and Rs.1000/- towards cost of complaint, within 30 days from that order.It also observed that in case of failure, Rs.20000/- shall carry interest @9% from 27/2/2007 till realization. It dismissed the complaint as against OP No.2.
7. Feeling aggrieved by the said order, Ori.OP Nos.1 & 3 have preferred this appeal. We have heard advocates of appellant and the Respondent. We have also perused the WNA and other papers filed by them.
8. The Ld.advocate of the appellant submitted that the District Forum below did not consider that the Commissioner appointed by it in his report gave no opinion about the quality of the plywood. He thus submitted that in the absence of any laboratory test it can not be said that the said plywood was of low quality. He further submitted that had the plywood manufactured by Appelllant No.1 was of substandard quality, the complainant would not have purchased plywood manufacture by Appelant No.1 for replacement of her alleged damaged furniture. He invited our attention to two receipts produced before us about purchases of the plywood by the complainant/Respondent herein for said replacement. He further submitted that the Distt.Forum below did not consider the certificate issued by the Chartered Accountant showing that the appellant No.2 never made transaction with the complainant. He further submitted that there is no document showing warranty of the plywood and as that complainant purchased duplicate plywood from open market, the Forum below, erroneously partly allowed the complaint. He also submitted that to prevent termite attack, it was necessary for the complainant to do pre construction anti termite soil treatment, which he did not do and that this material fact was also not considered by the Forum below. He also submitted that complaint is barred by limitation and hence appeal may be allowed and the complaint may be dismissed.
9. On the other hand, the Ld.Advocate of the complainant supported the impugned order and submitted that since the bills of the plywood were destroyed by the termite they could not be produced before the Forum and therefore, the Respondent herein had moved application before the Forum for production of the bill books by the appellants of the period during which the Respt. purchased plywood. But the audited bills were produced which were issued for the purpose of payment of tax and the temporary bills issued were not filed alongwith the audited bills. He further submitted that Respt.is residing in that house since last 22 Yrs. and there was no such termite attack in his house. He placed reliance on the spot inspection report of commissioner to prove that there was stamp of Green Ply company and on pieces of plywood inspected by the Commissioner. He also submitted that besides appellant No.2 there is no distributor of plywood of appellant No.1 in Yavatmal City. Thus he submitted that there is no merits in the appeal and it may be dismissed.
10. The minute perusal of the complaint shows that it is nowhere pleaded by the complainant that the bills of purchase of plywood were kept in the furniture and they were lost due to infestation by termite. Therefore, the plea raised by the complainant subsequently in his affidavit that the bills were lost due to termite attack, can be said to be afterthought. Moreover, it is the specific case of the complainant as per her complaint that the plywood was purchased by interior decorator i.e. OP No.2 from the OP No.3 dealer. The OP No.2 has denied that he had purchased the plywood from OP No.3. In our view, when OP No.2 has denied that he had purchased the plywood from OP No.3 and when there are no bills of the purchase and there is no proper explanation for their non production, it can not be believed that the plywood manufactured by OP No.1 was purchased by the complainant from OP No.3 Dealer. It is also pertinent to note that the Commissioner appointed by the Forum below, after due inspection of pieces of plywood of the complainant, submitted report on 22/12/2006. Its perusal shows that there was no such rubber stamp affixed to the plywood showing that it was manufactured by OP No.1. The Dist.Forum below, without any basis observed that there was a rubber stamp affixed to the said plywood showing that it was manufactured by Ori.OP No.1.
11. Besides the bare affidavit of the complainant, there is no evidence to prove that the plywood manufactured by Ori.OP No.1 was purchased by the complainant from the dealer OP No.3. The Distt.Forum below erroneously came to the conclusion that the said plywood was manufactured by Appellant No.1. The possibility can not be ruled out that the complainant had purchased duplicate plywood from open market.
12. The commissioner in his report dated 22/12/2006 found over 3 pieces of plywood, the matter written as Freedom from borer and powder and boiling water proof, preservative treated, termite resistant. The Distt.Forum has not properly considered the said matter written on the said plywood. There is no document showing that warranty of some period was given to the complainant in respect of the said plywood. No such warranty period was written on the said plywood. It is not disputed that termite grows in soil. Complainant has not produced anything to show that she had taken steps to prevent infestation of termite. In order to prevent infestation of termite it is required to treat the soil with anti termite chemicals. Therefore, the possibility can not be ruled out that the furniture might have been infested due to non taking such measures by the complainant. The District Forum below has not considered these material aspects and erroneously held on the basis of presumption that the complainant purchased the plywood from Ori.OP 3 manufactured by OP No.1 and also erroneously held that the plywood was of substandard quality. The Commissioner in his report dated 22/12/06 specifically stated that no opinion about standard of the furniture can be given. In the absence of any document in writing about the warranty of the said plywood and in absence of any other document showing that the plywood was of substandard quality, we hold that the Distt.Forum came to wrong conclusion and erroneously held the Opponents liable to pay compensation to the complainant.
13. We thus hold that the Compl.nt/Resp.herein has failed to prove that the defective plywood was sold to him by Ori.OP No.3 manufactured Ori.OP No.1. Therefore he is not entitled to compensation from Ops. The appeal therefore deserves to be allowed.
ORDER The appeal is allowed. The impugned order dt.12/3/2006 passed by Forum below in CC 271/06 is hereby set aisde.
Complaint stands dismissed.
No orders as to costs in appeal.
Dated 16/08/2013 [ Hon'ble Mr.B.A.SHAIKH] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [HON'BLE Mr. N.Arumugam] MEMBER