OM PRAKASH THATHUR vs INDIAN RAYON INDUSTRIES LTD.

PETITIONER, Om Prakash Thathur (hereinafter referred to as the complainant) has filed this revision petition against the order passed by the State Commission, Delhi. The facts leading to this petition are that the complainant had filed a complaint before the District Forum, Delhi alleging that he had purchased Birla White Cement from the present respondent No. 2 M/s. Gupta Building material Store (for short Store) for laying the floors of his house. After the floors had been laid and polished, it was found that the floors were spotty and blackish at most places. After a few months cracks also developed in the floor. After inspecting the condition of the floor, the Store confirmed that the quality of the cement supplied for laying the floors was spurious and adultered and offered to compensate the claimant to the extent of 50 per cent of the cost of the white cement. The complainant was not satisfied with that offer and he filed a complaint before the District Forum, Delhi alleging that he had incurred an expenditure of Rs. 26,018.15 paise on the cement, marble chips, white powder and labour charges while laying the floors. He also claimed Rs. 16,400/- on the ground that on account of the defective floors he had to carpet the surface of the floors.

RESPONDENT No. 1 M/s. Indian Rayon and Industries Ltd. were impleaded as respondent to the complaint, being manufacturer of Birla White Cement. They admitted that the white cement supplied to the complainant was defective and spurious. They, however, contended that they had no connection, whatsoever, with the Store who was neither an authorised stockist nor retailer of theirs. The Store also contested the claim petition and pleaded that he was dealer of Birla White Cement manufactured by Respondent No. 1 and no responsibility or liability could be cast upon him.

On appreciating the evidence led before them, the District Forum came to the conclusion that there was no evidence to prove that the Store was a retailer or an authorised stockist of Birla White Cement manufactured by respondent No. 1. It also found that the complainant had purchased the white cement, which was not only of inferior quality but also spurious, from the Store. The District Forum, therefore, ordered the Store to pay Rs. 26,018.15 paise to the claimant as the expenditure incurred by him on the flooring of his house. The Store was also ordered to pay on that amount interest at the rate of 15 per cent per annum from the date of the order till the date of payment. It was, further, ordered that the payment be made within one month.

FEELING aggrieved the Store filed an appeal before the State Commission, Delhi. They accepted the appeal only on the ground that the District Forum had not complied with Sec. 13(1)(c) of the Consumer Protection Act, 1986. They further remarked that the District Forum had not discussed as to on what basis they had concluded that the cement was defective or of an inferior quality. They accepted the arguments of the appellant before them that the alleged defect in the flooring could possibly be due to wrong application and workmanship etc. It was further remarked that the cement was purchased in August/September, 1988 and a long time had elapsed since then and they i.e. the State Commission did not think that any useful test could be made now on a sample of the cement if sent to an appropriate laboratory. Consequently, the order of the District Forum was set aside. Feeling aggrieved against the said order of the State Commission, the claimant has filed the present revision petition.

WE are of the opinion that in the present case there was no necessity for the District Forum to comply with the procedure laid down in Sec. 13(1)(c) of the said Act. The provision reads as follows : "Where the complainant alleges a defect in the goods which cannot be determined with out proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum."

The District Forum has remarked as follows in their order: "It is not denied that the cement supplied as Birla White Cement to the complainant is not only of inferior quality but also spurious and has spoiled the entire flooring of the complainant. M/s. Gupta Building Material Stores have not denied that the cement has been purchased from their shop."

No affidavit has been filed before us on behalf of the Store to show that the said observation of the District Forum is unwarranted and that no concession was made before them. Therefore, when it was not disputed before the District Forum that the Birla White Cement supplied to the complainant was spurious and of inferior quality, there was no necessity of following the procedure laid down in Sec. 13(1), namely taking a sample out of the cement used by the complainant and to send it to the appropriate laboratory for analysis. In the light of the above discussions we hold that the learned State Commission exercised its jurisdiction illegally and with material irregularity in setting aside the order of the District Forum and accepting the appeal on the ground of non compliance with Sec. 13(1). Consequently we allow the present revision petition, set aside the order of the learned State Commission and restore that of the District Forum. We make no order as to costs. Petition allowed.