National Consumer Disputes Redressal
Harish Madhan vs M/S. Gupta Sales Gorporation on 23 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 723 OF 2021 (Against the Order dated 23/06/2021 in Appeal No. 32/2021 of the State Commission Rajasthan) 1. M/S. GUPTA SALES CORPORATION ...........Petitioner(s) Versus 1. HARISH MADAN ...........Respondent(s) REVISION PETITION NO. 769 OF 2021 (Against the Order dated 23/06/2021 in Appeal No. 32/2021 of the State Commission Rajasthan) 1. HARISH MADHAN ...........Petitioner(s) Versus 1. M/S. GUPTA SALES GORPORATION ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : IN RP/723/2021
FOR THE PETITIONER :MR. ANUJ BHANDARI & MR RAJAT GUPTA ADVOCATES
IN RP/769/2021
FOR THE PETITIONER :MR. HITESH MANKAR, MR. ASHKRIT TIWARI AND
MR. HARSH PAL, ADVOCATES FOR THE RESPONDENT : IN RP/723/2021
FOR RESPONDENT :MR. HITESH MANKAR, MR ASHKRIT TIWARI AND
MR. HARSH PAL, ADVOCATES
IN RP/769/2021
FOR RESPONDENT :MR ANUJ BHANDARI & MR. RAJAT GUPTA, ADVOCATES
Dated : 23 February 2024 ORDER
1. This Order shall decide both Revision Petitions Nos. RP/723/2021 and RP/769/2021 filed under Section 58(1)(b) of the Consumer Protection Act, 2019 (the "Act") arising out from impugned judgment/ Order dated 23.06.2021 passed by the State Consumer Disputes Redressal Commission, Rajasthan ('State Commission') in First Appeal No. 32/2021. In this appeal, the State Commission partly allowed the appeal of the OP/Appellant, modifying the award by reducing compensation for mental agony from Rs.1,00,000/- to Rs.50,000/-. Consequently, it partly set aside and affirmed the rest of the impugned order dated 13.11.2019, passed by the District Consumer Disputes Redressal Forum, Bikaner ("District Forum") in CC No. 168 of 2018.
2. For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. The Complainant is denoted as Harish Madan. While M/s. Gupta Sales Corporation- a retailer who deals in Tiles and Sanitary Products is referred to as the Opposite Party ("OP").
3. In brief, the Complainant sought to renovate his house located at 5-D-25 Jai Narayan Vyas Colony, Bikaner and approached the OP to purchase tiles and related materials. Having prior dealings with the OP, the Complainant was assured of premium quality tiles by OP, described as scratch-free, blemish-free, and with color uniformity. The OP also guaranteed strength for the structure with the usage of these products. Relying on these assurances, he purchased the mentioned products at Rs. 235 per Sq Ft for use for flooring as wall. However, on completion of the renovation work by 16.11.2017, it was discovered that the tiles supplied were of inferior quality. Scratches and color variations were observed on the floor tiles, and the wall tiles were of such poor quality due to which Complainant was compelled to use screws to make it hold to the surface. Aggrieved by this, the Complainant filed Consumer Complaint No. 168 of 2018 before the learned District Forum, seeking a refund of Rs.5,00,000/- for the tiles and other articles, along with interest at 18%; Rs.5,00,000/- for labour and construction material cost; Rs.5,00,000/- for mental agony; and reimbursement of case expenses.
4. In reply, the OP refuted all substantial allegations and asserted that they consistently provided high-quality work. During tile purchase, he informed the Complainant that they were of premium quality, akin to mirrors, requiring skilled labour for installation. The Complainant was explicitly informed that steel or iron products should not be used on the tiles, and no guarantee or warranty was provided. During tile installation process, the Complainant did not visit the Respondent firm and was only informed about the high quality of the tiles. The Complainant insisted that their labour was skilled enough for the installation. The OP stated that no oral or written complaints were received regarding the tiles from the Complainant, after the tile installation was completed on 16.11.2017. Even during subsequent paintwork, no complaints were raised. When the OP demanded pending amount sum of Rs.1,60,777/- from the Complainant, he blamed the labour for damaging the paint and refused to pay the balance, indicating a motive to avoid payment. The OP argued that if the tiles were rendered defective due to his unskilled labour, they were not liable for any claims. The OP contended that if the tiles were indeed of defective quality, the Complainant should have promptly sought replacement/removal. He asserted that the as per manufacturer's guidelines, printed on each tile box, post-installation, the company is not liable. The Complaint was baseless and filed solely to avoid paying the balance amount owed.
5. The District Forum after hearing both the parties vide Order dated 13.11.2019, allowed the complaint with the following order:
" ORDER Therefore, accepting the complaint submitted by the complainant, the opponent is ordered that he should make payment for the tiles and Tile adhesive Rs.5,00,000/- and on this amount interest @ 9% p.a. from 29.05.2018 till the date of payment. Besides the expenses incurred in fixing 'tiles and for again fixing tiles etc., the payment for material and labour also to the complainant Rs.5,00,000/- and towards physical and mental pain Rs.1,00,000/ and towards expenses on complaint Rs.10,000/- should be paid. On not making payment of these amounts within one month, on these also interest @ 9% p.a. from the date of order till the date of payment would be payable.(Extracted from Translated Copy)
6. Being aggrieved by the Order of the District forum, the OP filed Appeal No. 32/2021 before the State Commission, which vide order dated 23.06.2021 partly allowed the Appeal and partly setting aside, thereby affirmed the rest of the Order passed by the District Forum, with the following Order / relief: -
"According to the above deliberations, with the view to merits, I the impugned judgment of the learned District Forum/ Commission is fit to be maintained. But on the point of relief, changing according to above deliberation, the appeal as below is fit to be accepted partially.
Therefore, accepting the appeal of the non applicant appellant partially, the order of giving "for the expenses incurred on tiles and for material and labour in re-fixing the tiles etc. Rs.5.00 lacs" is dismissed. The appellant non applicant would pay Rs.50,000/ instead of Rs.1,00,000/- towards physical and mental trouble to the defendant complainant. The remaining order of the District Forum/commission would remain same. The respective expenses of the appeal would be borne by the parties."
(Extracted from True Translated Copy)
7. Dissatisfied by the Order of the State Commission, both the parties i.e., the Complainant and the Opposite Party have filed the present cross Revision Petitions before this Commission with the following prayer.
RP/723/2021 - filed by the OP-M/s. Gupta Sales Corporation.
"a. Set aside the Order dated 23.6.2021 passed by the State Consumer Dispute Redressal Commission Rajasthan, Jaipur in First Appeal No. 32/2021;
b. Dismiss the complaint filed by the complainant; and.
c. Pass any such further or other orders as may be deemed just, fit and necessary in the circumstances of the case."
RP/769/2021 - filed by the Complainant-harish Madhan
(a) Allow the present Revision Petition and the order dated 23.06.2021 passed by the State Consumer Dispute Redressal Commission Circuit Bench, Bikaner in Appeal No. 32/2021 may kindly be modified to the extent of reducing the expenses incurred for re-fixing tiles and for labour charges i.e. Rs 5,00,000/- which was granted by Learned District Consumer Dispute Redressal Forum, Bikaner vide its order dated 13.11.2019 and also the compensation which was reduced to Rs 50,000/- from Rs 1,00,000/-.
(b) Pass any such other order as be deemed fit and proper.
8. The learned Counsel for the OP - M/s. Gupta Sales Corporation reiterated the grounds which already taken before both the fora and vehemently argued that the 'Local Commissioner' was not expert on tiles or adhesive and had given only prima facie opinion regarding design and colour. All defects alleged by the Complainant were manufacturing defects, for which the Dealer/Retailer cannot be held liable. Some defects were even attributed to improper use of the tiles and unskilled labour during installation. Therefore, the OP cannot be held responsible for damages arising from these defects. To support this argument, the Counsel cited settled legal principles indicating that a dealer or retailer cannot be held liable for defects in goods/products. They referenced judgments by this commission in Hindustan Motor Ltd., and Another vs. N. Sivakumar (2000) 10 SCC 654, and Abhinandan Vs. Ajit Kumar Verma and Ors. (2008) CPJ 336 (NC) to strengthen their position that the present complaint is not maintainable against the OP.
9. In his arguments, the learned Counsel for Complainant reiterated the facts of the case and emphasized that the Local Commissioner was appointed by the District Forum after consultation with both parties, to which the OP had also agreed without objection. The Spot Inspection Report clearly indicated that the tiles, represented as of superior quality and scratch-free by the OP, were actually of inferior quality. This misrepresentation amounted to a failure to exercise diligence and constituted deficiency of service. The Counsel pointed out that the OP did not contest the development of scratches on the tiles, as noted by the Local Commissioner. Additionally, the inspection revealed disparities in colour, design, quality, and brand of the tiles, further confirming the inferior quality of the products supplied by the OP. Therefore, the OP could be held liable for deficiency of service and negligence under the Act. Further, the Counsel argued that legislative intent allows for product-sellers/distributors to be held liable in certain situations, particularly when an express warranty is made, the identity of the manufacturer is unknown, and there is a failure to exercise reasonableness in inspecting and maintaining the product. In support of this contention, the Counsel cited the judgment of this Commission in Jivtesh Nayal & Anr. v. Emaar MGF Land. & Anr, CC No. 34 of 2015.
10. The learned Counsel for the Complainant further contended that while the State Commission rightly upheld the judgment passed by the District Forum on the merits of the case, it erred in modifying the award amount in favour of the OP. Specifically, the Counsel argued that the denial of Additional Compensation of Rs.5,00,000/- and the reduction of the Compensation towards mental agony from Rs.1,00,000/- to Rs.50,000/- by the State Commission were unjustified. To support this argument, the Counsel cited the judgment of the Bombay High Court in Gaon Real Estate And Construction Pvt. Ltd. v. The Chief Engineer And Ors., W.P. No. 18 of 2022-BOM HC-25-11-2022. The Counsel emphasized that the additional amount granted by the District Forum was not unreasonable given the financial loss suffered by the Complainant. Moreover, the Complainant would incur additional costs for removing the defective tiles and purchasing new construction materials such as cement and bajri due to the negligence of the OP. Furthermore, the Counsel referenced a judgment by the Hon'ble Supreme Court titled DLF Homes, Panchkula Pvt. Ltd vs. D.S. Dhanda, Civil Appeal Nos.4910-4941/2019, which held that:-
"16. The District Forum under the Consumer Protection Act, 1986 is empowered to inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposing party including to grant punitive damages."
11. The Counsel further argued that the Complainant, without any fault of his own, incurred financial losses due to the negligence of the Respondent. During the renovation of his house, the Complainant had to temporarily shift his residence, incurring additional expenses. He had to bear further costs of shifting due to the negligent act of the OP. Therefore, the Counsel prayed that this Commission should uphold the compensation granted by the District Forum to the Complainant.
12. Heard the learned Counsel for both the parties. Perused the entire material on record as well as Orders of both the fora.
13. It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019, (which are pari materia to Section 21(b) the Consumer Protection Act, 1986) confers very limited jurisdiction on this Commission. In the present case there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. From the pleadings and arguments, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. I would like to rely upon the decision of the Hon'ble Supreme Court in the case of 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.
14. The Hon'ble Supreme Court in 'Sunil Kumar Maity Vs. State Bank of India & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022, it was held that the revisional Jurisdiction of this Commission is extremely limited by observing as under: -
"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. ....."
15. Similarly, Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31, has held that:-
As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.
16. Based on the discussion above, I do not find any merit in both the cross-Revision Petitions and the both are dismissed. Consequently, the impugned Order passed by the State Commission is upheld. Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.
17. All other pending Applications, if any, stand disposed of ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER