Mathew Vs. P.J. Joseph and Another

JUSTICE SHRI.KR. UDAYABHANU : PRESIDENT

Appellant is the 1^st opposite party/dealer in CC.8/09 in the file of CDRF, Idukki. The appellant along with the 2^nd opposite party/manufacturer is under orders to pay a sum of Rs.2000/- as cost and that if the amount is not paid within one month the interest rate will be 12% from the date of default.

2. The case of the complainant who is running a shop for ladies items, fancy items etc is that the plywood purchased by him from the shop of the 1^st opposite party/appellant and manufactured by the 2^nd opposite party was of substandard quality and that as a result he had to dismantle the entire furnishing made to the shop and thereby he has sustained a loss to the tune of Rs.7,69,037/-. The furnishing in the shop was made in June 2002 and he paid an amount of Rs.1,89,448/- for the plywood from the shop of the 1^st opposite party who assured 10 years replacement guarantee and also for the quality. He spent a sum of Rs.1,70,587/- towards the labour charges and Rs.2,40,000/- for purchasing the finishing materials of the cupboard and Rs.1,17,000/- for painting and Rs.50,000/- for rub wood. Within a few months the furnishings were totally damaged due to the attack of termite and insects. According to him the damages were caused due to the low quality materials supplied by the opposite parties. The complainant had filed a representation before the President of Merchant Association, Thodupuzha on 31.7.2008. Several compromise talks were held but the same did not succeed. He has sought for a sum of Rs.7,69,037/- towards compensation.

3. The 1^st opposite party/appellant has filed version denying that he has offered any guarantee as to the quality of the materials. According to him the complainant purchased the materials of his own choice. According to him the complainant has purchased low quality plywood as the price of the same was low. The complainant ought to have sprayed chemicals on the materials so that the same is not affected by insects or dampness. According to him he had suggested the complainant to use marine plywood so that the same will not be affected by wet weather. He has denied the taking place of any compromise talk at the Merchant Association office. It is written on each piece of the plywood the address of the manufacturer ie “Best Ply and Veners, Pathamuttam.P.O, Kottayam owned by Mr.Jayalal (OP2). The manufacturer should be held exclusively liable as the defects were caused due to manufacturing deficiency.

4. The 2^nd opposite party who was subsequently impleaded has filed version denying that it is the plywood produced from his establishment that has been purchased by the complainant. It is pointed out that the 1^st opposite party is selling the plywood of several manufacturers. It is also pointed out that there are litigations pending between the 1^st and 2^nd opposite parties and hence the 1^st opposite party might have deliberately shown the address of the 2^nd opposite party as the manufacturer.

5. Evidence adduced consisted of the testimony of PWs 1 to 4, DW1 and 2, Exts.P1 to P4, Ext.C1 and C2.

6. Exts.C1 and C2 are the Commission report and the estimate of the rectification works prepared by the expert engaged by the commissioner and also the photographs with negatives. The Forum has pointed out that the complainant has mentioned different amounts in the 3 applications submitted by him. In the complaint he has mentioned the loss as Rs.7,69,037/- and in Ext.P4 in the complaint submitted before the Consumer Vigilance Forum as Rs.6,53,500/- and in Ext.P3 the complaint submitted before the Merchant Association as Rs.3,40,650/- and DW1 the person who executed the furnishing works on behalf of the complainant has stated that the cost of furnishing amounted to Rs.5,50,000/-. The Forum relied on the evidence of DW1 and directed to pay Rs.4,55,000/- towards the damages deducting the amount spent for ceilling ie Rs.45,000/- and Rs.50,000/- spent for electrification, as mentioned by DW1 and as there was no defect caused to the ceilling or to the electrification. The Forum has also directed to pay a sum of Rs.20,000/- as compensation for the mental agony etc. and altogether a sum of Rs.4,75,000/-.

7. Ext.C1 and C2 are the report of the commissioner and that of the expert engaged by him having proved by PW1 the commissioner and PW3 the expert respectively. It is pointed out by the counsel for the appellant that PW3 the expert was not appointed by the Forum. Further PW3 had stated that he assessed the repair costs as Rs.8,21,363/- on the basis of the estimate provided by the complainant. It is the allegation of the appellant that the service of PW3 was provided by the complainant and that he has only reported as suggested by the complainant and that the report cannot be relied. As per Ext.C2 the estimate of PW3, the total amount for rebuilding the furnishings would workout to Rs.8,21,363/-. He has stated in his testimony that the price of Rs.34/- per square feet the rate at which the plywood was purchased would be for good quality plywood. It is at the above rate that the complainant has purchased plywood from the 1^st opposite party as per Ext.P2 series of bills. Although it is contented by the counsel for the appellant that the only photocopy of the bill has been produced we find that although the photocopies are marked, the original bills are seen in the case bundle. The fact that the furnishings had been totally damaged within a short period is evidenced from the report of the commissioner ie Ext.C1 and the photographs produced. Ext.P1 series copy of the estimate for the purchase of the materials and Ext.P2 series the copies of bills do establish the fact that the materials as alleged have been purchased by the complainant from the shop of the 1^st opposite party and for the amount as alleged in the complaint. In Ext.C1 report by the Advocate Commissioner he has mentioned the areas where the furnishings have been damaged and the same is supported by the photographs numbering 44 produced by him.

8. Although the 1^st opposite party in the version has denied in talks or settlement, PW4 the President of the Merchant Association has testified that such talks were held and that at the time the 2^nd opposite party/manufacturer was also present and that the talks could not succeeded as the opposite parties offered amounts which were not to the satisfaction of the complainant. He has stated that 1^st opposite party offered Rs.60,000/- and 2^ndopposite party Rs.45,000/-. Further more it has also to be noted that the 1^st opposite party did not enter the witness box. In the circumstances we find that the case of the complainant that the plywood supplied by the opposite parties where of substandard quality and on account of the same the cup board, paneling, reception desk etc made at the shop of the complainant got damaged stands established. We find that no interference in this regard is called for.

9. As pointed out by the Forum the cost of reconstruction mentioned by the complainant in different Forums substantially varies. Ext.C2 estimate amount furnished by CW2 appears excessive. It has to be particularly noted that he has admitted that Ext.C2 is based on the estimate submitted by the complainant. Further more PW3 was not appointed by the Forum. Hence we are not inclined to accept Ext.C2 report that estimates Rs.8,21,861/- towards the rectification works. The Forum has accepted the evidence of DW1 as he was the person engaged by the complainant for the original construction of the furnishings. Although the Forum has noted that it appears that he has colluded with the 1^st opposite party, as he has deposed on behalf of the 1^st opposite party the Forum has accepted his statement that the amount incurred was Rs.5,50,000/-. We find that he has further stated that the complainant had told him that the amount incurred is Rs.5,50,000/-. Evidently his statement cannot be treated as exact. But we find in Ext.P3 complaint submitted by the complainant before the Merchant Association, it is mentioned that the (interior) designer had informed him that a sum of Rs.3,40,360/- would be required for reconstruction. In Ext.P3 it is also mentioned it will take 45 days for making the reconstruction and that for the above period on account of the loss due to closing of the shop including interests to be paid to the bank there will be an additional loss of Rs.1.lakh. We find that the above amount can be taken as the amount actually required for reconstruction. The same is seen inflated stage by stage ie in Ext.P4 representation before the Consumer Vigilance Forum and later in Ext.C2 estimate. In the circumstances we find that it would be reasonable to direct the opposite parties to pay the above amount of Rs.3,40,640/- towards reconstruction, Rs.50,000/- towards the loss on account of the closing down of the shop for 45 days or for a lesser period which would be required for reconstruction. The total amount would be Rs.3,90,640/-. The Forum has ordered to pay Rs.20,000/- as compensation for mental agony which we find is not required as interest has been awarded on the amount of compensation.

In the result the appeal is allowed in part as above. The opposite parties will pay a sum of Rs.3,90,640/- with interest as ordered by the Forum. The 1^st opposite party/appellant would be liable to pay 40% of the above amount and the 2^nd opposite party/manufacturer will be liable to pay 60% of the above amount. The opposite parties will make the payment and interest also at the above proportion.

The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 15% from 10.2.2012 the date of this order.

Office will forward the LCR along with a copy of this order to the Forum.