KRITI INDUSTRIES (INDIA) LTD vs RAVINDER PARKASH @ PAPPU & ANR

This revision is directed against the order of the State Commission Haryana dated 25.06.2012 in Appeal No. 741 of 2012 whereby the State Commission dismissed the appeal preferred by the petitioner Opposite Party no.2 against the order of the District Forum, Rohtak directing the petitioner to refund the price of PVC pipes Rs, 1,09,000/- with 9% interest thereon w.e.f.02.05.2008 till the realisation of amount besides Rs.2000/- was awarded as litigation expenses.

Briefly stated, the facts relevant for the disposal of the revision petition are that respondent no.1 Ravinder Parkash filed a consumer complaint in District Consumer Forum Rohtak alleging that he purchased 200 pipes manufactured by the petitioner company from opposite party no.1 on 25.04.2007 for a sum of Rs.1,09,000/- vide receipt no. 16532. Those pipes were laid in the agriculture fields of the complainant for the purpose of irrigation. According to the complainant, though he was assured that pipes were of good quality, actually the pipes were defective and pipes due to cracks etc. started leaking within two months of the purchase. The complainant brought the fact of leakage of pipe due to damage to the notice of the opposite parties but in vain. The complainant feeling aggrieved, thus raised a consumer dispute by invoking the jurisdiction of the District Forum.

The opposite parties on being served with the notice resisted the complaint. They pleaded that pipes were of good quality. It was pleaded that on receipt of the complaint from respondent no.1 / complainant, opposite party no.1 visited the site alongwith Sh. Parveen Sharma, Senior Sales Officer of the petitioner and Sh. Desh Pandey, Technical Engineer ( Projects) to verify the correctness of the complaint. On 11.02.2008 complainant was asked to show pipe line. The complainant refused to show the pipe line. Thereafter, opposite party no.1 and said officials made inquiries from the complainant and inspected the site and found that the pipes were not laid in proper manner. Air valves were not installed and the cement solvent for fixing the pipe was not properly used and, therefore, leakage if any might have occurred due to the above reason irrespective of the good quality of pipes. It was also pleaded that officials of opposite party no.1 & 2 did not see any sign of leakage at the time of their inspection.

The District Forum on consideration of the pleadings and the evidence allowed the complaint and directed the petitioner opposite party no.2 as noted above:

Being aggrieved of the order of the District Forum, petitioner opposite party no.2 preferred an appeal and the State Commission Haryana vide impugned order did not find any fault with the order of the District Forum. Accordingly, State Commission while concurring with the order of the District Forum dismissed the appeal.

Learned Mr. Umesh Gulati Advocate for Petitioner / Opposite Party no.2 has challenged the impugned order on the ground that foras below have decided the matter against him in total disregard of law pertaining to Onus to Proof. It is argued that as the complainant had moved consumer forum on the allegation that pipes were defective, the onus of proving the said allegation was on the complainant but perusal of the orders of the foras below would show that both the foras below have proceeded on the assumption that onus of proving that the pipes were of good quality was on the petitioner and decided the matter against them.

Learned Mr.Suryakant Singla, Advocate for respondent no.2 has contended that although the issue regarding improper laying of pipes was raised in the written statement, neither the District Forum nor the State Commission has made any effort to venture into that plea and has failed to return any finding on that aspect of the case and, therefore, impugned orders are liable to be set aside.

Counsel for respondent no.1 has argued in support of the impugned order.

I have considered the rival contentions and perused the material on record. The consumer dispute raised by the respondent no1 / complainant is with regard to supply of sub-standard PVC pipes. The question is whether the complainant has been able to establish that the pipes supplied to him were defective? In this regard, it is pertinent to note that sample of PVC pipes was not sent for examination to an accredited lab in order to find out whether pipes supplied to the complainant were defective. Thus, we are left with the affidavit evidence of the parties.

The case of the complainant is that pipes got damaged and started leaking within a span of two months from the date of purchase. In support of this contention, the complainant has filed affidavit evidence of self and two neighbours, namely, Ram Narain and Ram Phal. The said two witnesses as also the complainant have categorically averred in their affidavits that subject PVC pipes were laid to set up a water supply line in the fields and those pipes developed cracks resulting in leakage of water within two months. The mere fact that the pipes developed defects resulting in leakage within a span of two months of purchase is sufficient to conclude that the pipes were defective.

The stand of the petitioner is that the affidavits of the above witnesses cannot be taken as proof of sub standard quality of the PVC pipes because the pipes were never produced for inspection nor those were sent for examination to find out about the quality. It is contended that the stand of the opposite party is that leakage did not occur due to the defective quality of the pipes but because of wrong laying of pipes and incorrect use of cement solvent. In support of this contention, learned counsel has taken us through the affidavit of Sh. Lalit Joshi, Attorney of the petitioner Company.

In order to appreciate the contention of learned counsel for the petitioner, it would be useful to have a look on the relevant portion of the affidavit of Sh. Lalit Joshi, which is reproduced as under: "2. That the pipes had not started broken from different places as alleged. It is submitted that the pipes of Kasta Company are without any complaint. It is denied that the respondent no.1 refused to come on the spot. Though, it was not the duty of the respondent no.1 to visit and check the pipes but in order to have cordial relations with the customers the respondent no.1 not only himself visited the site but also visited alongwith Mr. Parveen Sharma, Senior Sales Officer, Delhi and Haryana Belt and Mr. Desh Pandey, Technical Engineers ( Projects) from Indore to verify the complaint of the complaint on 11.02.2008 and complainant was asked by the Deponent Mr. Parveen Sharma as well as by Mr. Desh Pandey to show the pipe lines but the complainant refused to show the pipe lines and asked the respondent no.1 and two other officers of Kasta Company that after harvesting the crops they will be called again. However, the respondent no.1 and these two officers made enquiries form the complainant as well as they inspected the site and found that the complainant had laid down the pipes not in a proper manner. The laying of pipe lines by complainant was not only defective but also without air valves on the spot. There was absence of non-return valve ( reflex valve) in between supply and delivery pipes. The method of lying the pipe lines was defective. Complainant admitted before the respondent no.1 and these two officers that there was no non-return valve (reflex valve) in between delivery pipe and supply lines. He also admitted that the air valve for the pipe of 5 inches should be of 1-1/4 inches whereas the air valves used by the complainant was 3 / 4 inches . As was visible from the spot and was admitted by complainant, there should be one air valve after every 300 meters length of pip and that at the beginning of the supply line, there should be 10 pipes of the pressure of 4 kg. or 6 kg. whereas complainant had laid the entire length of 2.5 kg. It was also admitted by complainant that the digging of the earth should be at one level whereas it was not done by complainant and the joining of the pipes should be at 180 degree level and that was also not done by complainant. On further enquiry complainant admitted that the cement solvent was used at a random by complainant for the purpose of joining the pipes. Here it is submitted that cement solvent is a chemical which has to be used in appropriate quantity and not excessively because it has the tendency of joining the pipes and work as welding of the pipes but if excessive solvent is used, the pipes at the joining points, where solvent is applied, tend to become weak and start leaking due to pressure of the water. It is also required that the band at the turning points should be of R-PUC which was not done by complainant. On further probe complainant admitted that after digging, the concerned place has to be cleared by removing the fables which was not done by complainant. This way, due to defective lying of the pipe lines and also due to improper digging and also due to non-use of the air valve of lesser capacity and the excessive use of solvent etc. as mentioned above might have resulted into leakage of the pipe by complainant. He also admitted that the pipe line was laid down by himself and not by any expert. All these facts and conduct and negligence on the part of complainant might have resulted into the alleged leakage though at the spot at time of above checking no sign of any leakage was found at the site by above persons."

On reading of the above, it is clear that affidavit filed by Sh. Lalit Joshi is not based upon his personal knowledge but on the basis of some information supplied to him. From the affidavit it appears that actually proprietor of Opposite Party no.1 and Parveen Sharma and Mr. Desh Pandey, officials of the petitioner company had visited the spot to verify the correctness of complaint of complainant regarding defective quality of pipes. Neither any report of said officials is placed on record nor the affidavit of those two officials and proprietor of opposite party no.1 has been filed. Affidavit of Sh. Lalit Joshi being based on hearsay is inadmissible in evidence and is of no avail to the petitioner.

In view of the discussion above, I am of the view that both the foras below have correctly appreciated the facts and impugned order does not suffer from jurisdictional error or material irregularity which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.