State Consumer Disputes Redressal Commission
Sant Nirankari Mandal (Regd) & Anr. vs M/S Bhola Ram & Sons & Anr. on 25 August, 2017
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Decision: 25.08.2017 First Appeal No. 782/2014 (Arising out of the order dated 31.03.2014 passed by the Consumer Disputes Redressal Forum, Kashmere Gate, Delhi in complaint case No. 271/2010) In the Matter of: 1. Sant Nirankari Mandal (Regd.) Administrative Block, Nirankari Sarovar, Complex Burari Raod, Delhi-110 009 Through Its Secretary Sh. Mangal Sain 2.Avtar Singh S/o Late Shri Kunan Singh, Plot No. 100, Sant Nirankari Colony, Delhi-110 009 ......Appellants Versus 1. M/s Bhola Ram & Sons. 4785, Hauz Qazi, Delhi-110 006 2. M/s Carborundum Universal Ltd. Regd. Office Parry House, 43-Moore Street, Chennai- 600 001(Tamil Nadu) .......Respondents CORAM Justice Veena Birbal, President Ms. Salma Noor, Member 1. Whether reporters of local newspaper be allowed to see the judgment? 2. To be referred to the reporter or not? Ms. Salma Noor, Member
1. Present appeal is preferred by the appellant against the order dated 31.03.2014 passed by the Consumer Disputes Redressal Forum, Kashmere Gate, Delhi in Complaint Case No. 272/2010 whereby the complaint of the appellant was dismissed by the District Forum.
2. The facts relevant for the disposal of present appeal are that the appellant-1/complainant-1 is a society, registered under the Registration of Societies Act 1860 with its registered office at Sant Nirankari, Colony, Delhi-110009. The appellant-2/complainant-2 is a Member and Sewadar with appellant-1/complainant-1. The appellant-1/complainant-1 being a socio-religious charitable society, undertakes number of activities for the benefit of public at large and builds its infrastructure through its Sewadars and Members. The appellant-2/complainant-2 worked as a skilled Sewadar in the workshop of appellant-1's/complainant-1's welding and Fabrications Unit. The appellant-1/complainant-1 purchased a Grinder Wheel from M/s Bhola Ram & Sons i.e. respondent-1/OP-1 (in short the seller) vide Cash Memo/Bill No. 006929, Book No. 129 dated 06.10.2009. The seller represented that Grinder Wheel was manufactured by M/s Carborundum Universal Ltd./OP-1 (in short the manufacturer) and that it was of the best quality and durability.
3. On 06.02.2010 at about 12:00 noon/12:15 P.M. the appellant-2/complainant-2 was using the Grinder machine mounted with the above referred Grinder Wheel. As soon as the appellant-2/complainant-2 switched on the machine, then within few seconds, the Grinder Wheel (stone) burst into pieces sperading all over and few of them hit appellant-2/complainant-2 on the upper and lower jaws and grievously hurt him. The allegation of appellant-1/complainant-1 was that Grinder Wheel burst into pieces because it was manufactured by using inferior quality of material. It was alleged that appellant-2/complainant-2 was hospitalized for a long period. He suffered fracture of upper and lower jaws and lost 17 teeth in the said accident.
4. Appellants/complainants on the aforesaid facts and circumstances, filed a complaint before the Ld. District Forum after serving notice on both the respondents claiming a sum of Rs. 9,50,000/- as compensation.
5. Notice was issued to both the respondents. Respondents have filed their separate written statements admitting selling of Grinder Wheel to the appellants which was manufactured by respondent-2/OP-2.
6. Respondent-1/OP-1 i.e. M/s Bhola Ram & Sons denied any deficiency in service on its part and stated that Grinder Wheel supplied by him was manufactured by respondent-2/OP-2. It was further alleged that appellant-2/complainant-2 was not entitled for compensation as he was working for appellant-1/complainant-1 and accordingly, he could claim any compensation from the appellant-1/complainant-1 under Workman Compensation Act. It was alleged that there were no deficiency in service as the Grinder Wheel was sold to the appellant-1/complainant-1 in good condition.
7. The manufacturer i.e. respondent-2/OP-2 in its reply to the complaint alleged that there was no privity of contract between it and the appellants/complainants and the Grinder Wheel as purchased by the appellant-1/complainant-1 was not manufactured by it. It was further alleged that Grinder Wheel was purchased by appellant-1/complainant-1 on 06.02.2009 and the incident took place in February 2010. Therefore, it could not be said that the Grinder Wheel which was purchased by the appellant-1/complainant-1 from respondent-1/OP-1 was manufactured by respondent-2/OP-2. It was further stated that the Grinder Wheel was meant for industrial purposes and it was to be used as per prescribed instructions. It was alleged that the investigation team of the respondent-2/OP-2 visited the site but did not find the machine and broken wheel nor the same were shown. The investigating team could not even find any part of the wreckage of the alleged breakage of the Grinder Wheel. It was further stated that Grinder Wheel as manufactured by respondent-2/OP-2 was of best quality which was not only sold in India but also outside the country.
8. The appellants/complainants had filed rejoinder reiterating the same facts as pleaded in the complaint and controverted and denied the averments made in the written statements.
9. Both the parties have filed their evidence. After considering the material on record Ld District Forum passed the following order:
"The complainants have placed on the file, the copies of the Bill No. 006929, Book No. 129 dated 06.10.2009, issued by Bhola Ram & Sons. It is in regard to the purchase of Grinder Wheel. Through the complainant and the seller have pleaded and testified that the Grinder Wheel was manufactured by the OP-1 but the make of the Grinder Wheel is not mentioned in the bill, issued by the seller. The complainant did not produce the wreckage/pieces of the Grinder Wheel, which was broken at the time of its use by the complainant No. 2. According to the manufacturer, its investigating team visited the site but there also, the complainants failed to show pieces of the broken Grinder Wheel. In the absence of the non mentioning of the make of the Grinder Wheel in the retail Invoice/Cash Memo/Bill and also non producing of the broken pieces of Grinder Wheel, it cannot be said that the broken wheel was manufactured by the OP-1.
The Grinder Wheel is used for industrial purposes by a well qualified or experienced person. The complainant have not placed on the file any document to show the qualification or experience of the complainant No. 2 to confirm that he had the capacity to use the Grinder Wheel and that he used the Grinder Wheel as per prescribed instructions.
The complainants have placed on the file the copy of the pamphlet of the Do's and Don'ts of the industrial use of the Grinder Wheel. That pamphlet is that of the OP-1. There is nothing on the record to suggest that the complainants complied the instructions as per pamphlet relied upon by the complainants. Considering the use of the Grinder for industrial purpose only and absence of evidence about the use of that Grinder Wheel by the Complainant No. 2 as per prescribed instructions, it cannot be said that the Grinder Wheel was used properly and that it had broken due to manufacturing defect. Otherwise, since the pieces of the broken Grinder Wheel are not available, therefore, same could not be sent to the expert to examine the same to find out any manufacturing defect in the same. Considering the aforesaid circumstances, the complainants have not been able to establish any manufacturing defect in the purchased Grinder Wheel. Consequently, the breaking of the Grinder Wheel during its use by complainant No. 2 cannot be attributed to the manufacturing defect in the Grinder Wheel itself.
Under the circumstances, the Ops cannot be held responsible for any injury, said to have been suffered by complainant No. 2 while he was using the Grinder Wheel at the premises of the complainant No. 1. We do not find any merit in the complaint. The same is rejected."
10. Aggrieved by the aforesaid order of the District Forum, the present appeal is filed by the appellants/complainants.
11. We have heard counsel for the parties and perused the material on record.
12. There is no dispute between the parties that the Grinder Wheel was manufactured by respondent-2/OP-2 which was sold by respondent-1/OP-1 to the appellants/complainants.
13. We have carefully gone through the observations made by the District Forum and reached to a conclusion that the District Forum had duly considered all the materials on record and rightly came to the conclusion that there is no deficiency in service on the part of respondents/OPs. The Grinder Wheel sold by the respondent-1/OP-1 was in a good condition without any defects. The said grinder wheel was sold along with certain manual instructions for the use of the Grinder and the instructions had not been followed by the appellant-2/complainant-2. In such circumstances, appellants/complainants cannot take advantage of their own wrong. Ld. District Forum has observed that the appellants/complainants have not placed on record any document to show the qualification/experience certificate of appellant-2/complainant-2 that he had the capacity/knowledge to use the Grinder Wheel as per prescribed instructions. Further, according to the manufacturer the investigating team visited the site of incident but there also the appellants/complainants failed to show broken Grinder Wheel to them, therefore in absence of non mentioning of the make of the same it cannot be presumed that the broken wheel manufactured by respondent-2/OP-2 was defective. Even the pieces of the broken wheel were not produced by the appellants/complainants before the District forum. If they had produced, the same could have been sent to the expert for examination to find out any manufacturing defect in the grinding machine. Hence, appellants/complainants have failed to establish any manufacturing defect in the Grinder Wheel.
14. In view of the above discussion, we find no illegality in the impugned order and dismiss the appeal.
15. A copy of the order be sent to the parties as well as to Ld. District Forum for necessary information. Thereafter, the file be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member