Dhanraj Khamatkar, Member:
[1] This appeal filed by the Appellant/original Opponent “ M/s. Perfect Ply-N-Wood (hereinafter referred to as the Opponent for the sake of brevity) takes an exception to an order dated 04/02/2012 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.237 of 2007, Mr. Paresh C. Parekh Vs. M/s. Perfect Ply-N-Wood.
[2] The facts leading to this appeal can be summarized as under:- The Respondent/original Complainant “ Mr. Paresh C. Parekh (hereinafter referred to as the Complainant for the sake of brevity) was to have furniture for his house which is situated in the vicinity of Gorai creek. Hence, he wanted furniture which is not affected by humidity and moisture. The Opponent, who is a dealer in plywood and doing the business in the name and style as Perfect Ply-N-Wood, had recommended to the Complainant to use the marine orchid plywood. Accordingly, the Complainant purchased marine orchid plywood and paid an amount of Rs.1,54,000/-. He made the payment during the period 12/01/2004 to 04/09/2005. The Complainant used the said plywood by employing a carpenter to whom he paid wages amounting to Rs.78,000/-. The Complainant contended that within a period of less than two years, he came to know that the plywood was not of the quality claimed by the Opponent and the plywood was not marine orchid plywood. Resultantly, the Complainant had to make new furniture. Opponent had refused to take the plywood back. Hence, the Complainant issued a notice to the Opponent alleging sale of defective plywood. However, the Opponent did not reply the notice. Finally, the Complainant approached the District Forum and filed a consumer complaint alleging deficiency in service on the part of the Opponent with a prayer that the Opponent may be directed to pay him an amount of Rs.1,54,000/- together with expenses of Rs.78,000/- paid to the carpenter alongwith interest thereon @ 18% p.a., besides an amount of Rs.50,000/- by way of compensation towards mental agony and harassment.
[3] Opponent contested the complaint before the District Forum by filing its written version of defence inter-alia contending that plywood alleged to be defective by the Complainant has been manufactured by Plywood Nilgiri Wood Craft, Yamuna Nagar, Haryana and the said manufacturer has not been impleaded in the complaint as a necessary party. It is further contended that the said plywood is of excellent quality and the manufacturing company had certified the same. Opponent further contended that an amount of Rs.60,385/- is still due and outstanding from the Complainant and despite demands being made by the Opponent, the Complainant has not paid this amount and to avoid the responsibility of payment of this amount to the Opponent, the Complainant has filed the present complaint. On these main grounds and other grounds as set out in the written version, the Opponent contended that there is no deficiency in service on its part what-so-ever and as such, the complaint may please be dismissed.
[4] The Complainant filed his rejoinder denying the allegations made by the Opponents in its written version and reiterated his claims.
[5] The District Forum after going through the complaint, written version filed by the Opponent, rejoinder filed by the Complainant, evidence led by both the parties on affidavits and upon taking into consideration an affidavit filed by one Shri Rajesh Vasantlal Doshi, who is an interior decorator by profession, certifying that the plywood was not of the quality to be claimed by the Opponent and pleadings of the respective advocates, came to a conclusion that the plywood sold by the Opponent to the Complainant is of substandard quality and as such, there was deficiency in service on the part of the Opponent and partly allowed the complaint directing the Opponent to pay to the Complainant an amount of Rs.2,04,000/- together with interest thereon @ 9% p.a. as from 05/05/2007 besides costs quantified at Rs.5,000/-. Aggrieved by the said order, the Appellant/original Opponent has filed this appeal.
[6] We have heard learned Adv. Dinesh Guchiya on behalf of the Appellant and learned Adv. Mr. Devmani Shukla on behalf of the Respondent. During the course of arguments, the Respondent/Complainant stated that the Appellant/Opponent has not filed all the papers which were on the file of the District Forum while deciding the consumer complaint and, therefore, he filed those papers as per list alongwith an affidavit in support thereof. We have carefully perused the voluminous record placed before us.
[7] Admittedly, the Complainant had purchased the plywood of marine orchid quality from the Opponent. Admittedly, the Complainant paid to the Opponent an amount of Rs.1,54,000/- towards purchase of plywood. It is the contention of the Complainant that the plywood is of substandard quality and within a period of two years from its purchase he noticed the defects in the plywood which damaged his furniture.
[8] In the written version, the Opponent had raised a point that said plywood is manufactured by Plywood Nilgiri Wood Craft, Yamuna Nagar, Haryana and the said manufacturer has not been impleaded in the complaint as a necessary party. Despite of such specific defence on the part of the Opponent in its written version, the Complainant did not take appropriate steps for impleading the manufacturer in the array of the Opponents as a necessary party. The Learned District Forum in its order observed that in the receipt issued to the Complainant, the Opponent had not mentioned the name of manufacturer of the plywood and, therefore, impleading the manufacturer as a party to the complaint proceeding was not necessary. Admittedly, the Opponent is not the manufacturer and he had disclosed the name of the manufacturer in the written version. However, the Complainant had not impleaded the manufacturer as a party to the complaint proceeding in the array of Opponents as a necessary party. Further, alongwith the written version, the Opponent had enclosed one Tax Invoice dated 05/04/2006 alongwith a notice dated 28/02/2007 sent by the Opponent to the Complainant. No doubt, this is replied by the Complainant in his rejoinder. However, the same is denial simplicitor. There is no reference to the notice sent by the Opponent to the Complainant. Surprisingly, learned advocate for the Complainant has issued a notice to the Opponent regarding defective plywood. There is no correspondence between the parties before the notice dated 28/02/2007. This is very strange.
[9] As regards evidence under Section-13(1)(c) of the Consumer Protection Act, 1986; the Complainant first approached Veer Jeejamata Technical Institute (VJTI) for the analysis of the plywood. Thereafter, he approached to a laboratory at Bengaluru. Thereafter, he filed an application for appointment of a Court Commissioner. Said application subsequently came to be dismissed. Finally, he filed a report from one interior decorator alongwith an affidavit.
[10] We have gone through an opinion submitted by Mr. Rajesh Vasantlal Doshi. He is the proprietor of Ishani Interiors and Designers. He states that he is a diploma-holder of Rachna Sansad Institute, Prabhadevi, Mumbai. He had only seen the samples of alleged spoilt used plywood shown and given to him by the Complainant on 24/04/2011. He observed that the samples of the plywood on which orchid symbol mark is not up to the mark and not the marine one or not anti-borer one. Here, it is pertinent to note that the learned expert had based his opinion only on the basis of two pieces of plywood handed over to him by the Complainant. Thus, the report of an expert is based on looking towards two pieces of plywood with naked eyes. In fact, the expert ought to have seen the entire furniture and on the basis of his inspection, he should have given his opinion. Thus, the said report cannot be acted and relied upon. No doubt, the Complainant has produced voluminous record. However, it is to be noted that the Complainant has not impleaded the manufacturer as a party to the complaint proceeding which is a necessary party. Further, the Complainant has failed to produce on the record an expert evidence as contemplated under Section-13(1)(c) of the Consumer Protection Act, 1986; about the quality of plywood sold to him for proving his case of sale of defective goods. The District Forum, overlooking these vital aspects arrived at a perverse conclusion which cannot be supported in the eyes of law. Hence, the appeal needs to be allowed and impugned order needs to be set aside. We hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 04th February, 2012 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.237 of 2007 is hereby set aside. Consequently, the consumer complaint stands dismissed.
Parties shall bear their own costs.