State Consumer Disputes Redressal Commission
Adunik Plastic Industries Pvt Ltd & Anr. vs Rajshekhar Chitaranjan Gandhi on 23 February, 2011
BEFORE THE HON
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No. A/08/1109
(Arisen out of Order Dated 21/06/2008 in Case No. CC/05/515 of
District Solapur)
1. ADUNIK PLASTIC INDUSTRIES PVT LTD
280/281,NARSHI NATHA STREET,BHAT
BAZAR,MUMBAI 09
...........Appellant(s)
Versus
1. RAJSHEKHAR CHITARANJAN GANDHI
CHINTRANJAN BUNGALOW STATION
ROAD,PANDHARPUR,DIST SOLAPUR
2. The Supreme Industries Ltd.
Through its Managing Director, 612, Raheja
Chamber, Nariman Point, Mumbai - 400 021.
3. Mr. G. B. Mane
Proprietor Shrinath Enterprises, 1216,
Bhadule Chowk, Pandharpur - 413 304.
...........Respondent(s)
First Appeal No. A/08/1110
(Arisen out of Order Dated 21/06/2008 in Case No. CC/05/515 of
District Solapur)
1. THE SUPREME INDUSTRIES LTD
THROUGH ITS MANAGING DIRECTOR, 612, RAHEJA
CHAMBER, NARIMAN POINT, MUMBAI - 40 021.
...........Appellant(s)
Versus
1. RAJSHEKHAR CHITARANJAN GANDHI
CHITRANJAN BUNGALOW,STATION ROAD,PANDHARPUR
DIST SOLAPUR
2. Mr. Vinod Sabu,
Authorised Representative, Adunik Plastic
Industries Pvt. Ltd., 280/281, Narshi Natha Street, Bhat Bazar,
Mumbai 400 009
3. G. b. Mane
Proprietor of Shrinath Enterprises, 1216,
Bhadule Chowk, Pandharpur - 413 304.
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member
PRESENT:
U.P.WARUNJIKAR, Advocate for the Appellant
None present for respondents.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member By this common judgement, we are disposing of these two appeals filed by org. opponent Nos.1&2 against the judgement and award passed in consumer complaint No.515/2005 dated 21/06/2008. By the said award, District Consumer Disputes Redressal Forum, Solapur directed all the three opponents to pay to the complainant a sum of `88,160/- for the defective Silpaulin supplied to him by the opponents and also directed them to pay to the complainant further amount of `36,700/- towards cost of Foam and paste incurred by the complainant and `10,000/- incurred by the complainant as labour costs. District Consumer Forum also directed to pay `3,000/- as compensation for mental harassment and `2,000/- by way of cost to the complainant. Appeal No.1109/2008 has been filed by Adhunik Plastic Industries Pvt. Ltd./org. opponent No.2 and Appeal No.1110/2008 has been filed by org. opponent No.1/The Supreme Industries Ltd. Since, both these appeals are arising out of judgement and award passed by District Consumer Forum, Solapur in consumer complaint No.515/2005, we are disposing of these appeals by common judgement.
The facts to the extent material may be stated as under :-
The complainant is an agriculturist of Pandharpur. He wanted to prepare a Field Pond in his field and for that purpose he contacted opponent Nos.2&3 to purchase Silpaulin paper 150 G.S.M. and accordingly, purchased 30400 sq.ft. Silpaulin paper and Foam from opponent No.1 and installed it to form a Field Pond in his field somewhere in December 2003 with the expert advice given by opponent Nos.2&3 in May 2004. Said Silpaulin was found to be torn in from various sides. He therefore approached opponents and asked them to look into the matter. Opponents sent one Mr.S.S. Bhutada, who visited his field at Bhandishegaon and submitted report. According to the complainant, because of defective Silpaulin papers supplied by opponents they are guilty of deficiency in service and he therefore filed consumer complaint claiming amount of `1,24,860/- which incurred for preparation of field pond in his field and also claimed `20,000/- by way of labour costs and he also claimed `5,60,000/- for the loss suffered by him and `50,000/-
for mental harassment and `1,178/-
towards notice expenses. Thus, he claimed total amount of `7,56,038/- from the opponents.
Opponent Nos.1to3 filed written version and pleaded that complaint is liable to be dismissed for non-joinder of necessary parties since complaint was not filed against Manufacturing Company. They pleaded that opponent No.2 was in business and it has no concern with opponent No.1. It has never suggested the complainant to use Silpaulin papers for preparing field pond in his field. It pleaded that Silpaulin paper is used just to protect something from rain water and not for preparation of field pond. Opponents pleaded that they had not given any guarantee or warranty to the complainant and they had never visited complainants field. Opponents pleaded that complainant had not taken advice of any expert and at his own sweet will he has used Silpaulin papers for storage tank and he suffered damage for which opponents are not responsible. They also pleaded that higher temperature can also affect the Silpaulin papers and so there could be natural tearing process to the Silpaulin papers because of higher temperature. They pleaded that they were not guilty of deficiency in service of any kind and prayed for dismissal of complaint with cost. Both the parties filed affidavits and documents. Ultimately, after hearing both the parties, District Consumer Forum was pleased to allow the complaint holding that the complainant was supplied defective Silpaulin papers by the opponents and therefore, they were liable to refund the cost of the Silpaulin papers of `88,160/-
besides cost of Foam and paste totaling `36,700/- and also labour charges incurred by the complaint of `10,000/-. District Consumer Forum also awarded `3,000/-
for mental harassment and `2,000/-
as cost against all the opponents. Aggrieved by this order, opponent Nos.1&2 have filed these two appeals.
We heard submissions of Advocate Mr.Uday Warunjikar for the appellants. None present for the respondents though respondents were duly served.
We are finding that the District Consumer Forum had not appreciated the facts on record in proper perspective. In as much as when the complaint for defective goods is filed, it is the duty of the District Consumer Forum to obtain sample of the goods from the complainant, seal it, authenticate it and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory should make an analysis or test, whichever may be necessary, with a view to find out whether the goods suffer from any defect as alleged in the complaint. This procedure is prescribed for the defects in the goods under Section 13(1)(c) of the Consumer Protection Act, 1986. In the instant case, defects in the goods was alleged by the complainant, as such it was necessary for the District Consumer Forum, Solapur to procure sample of the said paper from the complainant, seal it and should have sent the sample in sealed condition to the appropriate laboratory for procuring expert report with regard to defects in the goods as alleged by the complainant. However, we are finding that at the initial stage, District Consumer Forum had not sent sampling paper in sealed condition to any appropriate laboratory, but then one sample of paper was procured from the appellant and it was sent to the laboratory at Mumbai, but Mumbai laboratory reported that sample paper sent to it for examination was such that it was not in a position to give any report. This being so, the District Consumer Forum ought to have dismissed the complaint since, there was no expert report and expert report procured by the District Consumer Forum in the course of proceeding before it, had not confirmed that it was a defective goods. In fact the said sample paper was sent after 3 years and that too it was procured from the appellant/opponent No.1 and not from the complainants Silpaulin paper which was affixed in the field pond of the complainant. That apart, Mr.Warunjikar submitted that at the fag end of the trial, complainant procured privately one report from Central Institute of Plastics Engineering & Technology, Bhopal, but that was privately procured report of the Institute produced on record on the day when the matter was fixed for hearing. It was tried to be contended by the opponents that this report was not pertaining to Silpaulin paper supplied to the complainants field. In the consumer complaint, complainant no where mentioned that he had procured privately report from the Central Institute of Plastic, Bhopal. Test report of Central Institute of Plastic Engineering & Technology, Bhopal is dated 11/04/2008 and the sample was sent to this Institute on 05/02/2008 and 01/03/2008. Sample was of HDPE Tarpaulin Film for testing. It is mentioned in the Test report that there is no sign of softening, stiffening, tackiness, brittleness, discolouration and presence of the characteristic odour of decomposition is observed. Specific requirement mentioned is that it should not be softening, stiffening, tackiness, brittleness, discolouration and presence of the characteristic of decomposition. This report is issued subject to note that this report should not be published, advertised or used for any legal action, unless prior permission has been secured. What is pertinent to note is that it is a report concerning the HDPE Tarpaulin Film and not Silpaulin paper which was purchased by the complainant from the Supreme Industries, one of the appellants herein. In the circumstances, even this report is of no use to prove that there was any defect in the Silpaulin paper supplied by the Supreme Industries, one of the appellants. What is pertinent to note further is the fact that the District Consumer Forum has not observed procedure prescribed in Section 13(1)(c) of Consumer Protection Act, 1986 and thereby, it appears that the procedure adopted by the District Consumer Forum in dealing with this case was contrary to what is contained in Section 13(1)(c) of Consumer Protection Act, 1986. District Consumer Forum had sent sample to the Mumbai Institute and Mumbai Institute has clearly stated that it was not in a position to give any report about the defects in the Silpaulin paper. When this is so, District Consumer Forum should not have relied upon the report privately procured by the complainant without prior permission of the District Consumer Forum. District Consumer Forum ought to have relied upon the Mumbai Institutes report and should have held that it was not established by the complainant that Silpaulin paper supplied to by respondent No.1 was in any way defective. In any view of the matter, we are finding that if the Silpaulin paper is exposed to heat due to higher temperature, then the Silpaulin paper can get spoiled. Moreover, there was no guarantee or warranty given by the appellants to respondent No.1. Silapuline paper was purchased by the complainant on his own for experimental purpose and it was his first venture of this kind and he had not taken help of any expert from the field and therefore, it is not established from the record that the appellants had supplied defective Silpaulin papers to the respondent No.1 and in the absence of expert report in respect of Silapulin 150 G.S.M. supplied by the appellants to respondent No.1, no award should have been passed by District Consumer Forum in this particular case. We are thus finding that the award passed by the District Consumer Forum against both the appellants is bad in law and that cannot be allowed to sustain in law. District Consumer Forum clearly committed an error in holding the appellants guilty of supplying defective Silapulin paper when defects in the said paper at the time of sale had not been proved. (There was no cogent and reliable evidence in that behalf). In the circumstances, we allow both these appeals to quash and set aside the award passed by the District Consumer Forum. Hence, we pass the following order:-
-: ORDER :-
1.
Appeal Nos.1109 & 1110/2008 are allowed. The impugned order dated 21/06/2008 is quashed and set aside as against the present appellants only. Consumer complaint No.515/2005 stands dismissed as against the present appellants only.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 23rd February 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member dd