SREE MASTHI ENTERPRISES vs KALLINGAL IQBAL

-THE opposite party in O. P. No. 124/2001 before the CDRF, Malappuram has come up in appeal against the order dated 29. 5. 2002 whereby the lower Forum has ordered the opposite party to refund Rs. 1,37,486. 97 being the price of the tiles together with interest @ 12% p. a. from 17. 2. 2001 till realisation and pay cost of Rs. 5,000 within 3 weeks from the date of receipt of order.

THE facts of the case berefit of unnecessary details are that the complainant had selected 132 cartons of tiles from the shop of the opposite party and the price of Rs. 1,37,486 had to be paid to the driver at the time of delivery of the tiles. However, when the cartons of tiles were delivered, it was found that they were not of the type of tiles selected by the complainant and the tiles were defective and differed in designs and as such the complainant requested for taking back the tiles and return the money paid by him. As the opposite party had neither returned the money nor had taken back the tiles, the complainant had to pave the tiles in his house and finding that the tiles did not given him satisfaction, the complaint was filed praying for directions to refund the price of Rs. 1,37,487 with 24% interest together with Rs. 25,000 towards paving charges, Rs. 1,50,000 towards mental agony and costs of Rs. 5,000. On getting notice from the Forum the opposite party entered appearance and filed version inter alia stating that the complainant himself had taken delivery of the tiles selected by him by paying the amount, Against the allegation that the tiles were delivered by the opposite party, it was also contended that the complainant had selected the 2nd quality tiles which were of lesser value and the opposite party had not given any assurance regarding the quality of the tiles. The further case of the opposite party is that if the tiles were defective, the complainant ought to have filed a complaint then and there instead of laying the same and as the complaint lacked bona fides the opposite party prayed for dismissal of the complaint. The Forum below has found that the opposite party resorted to unfair trade practice by selling damaged goods and has ordered for the refund of the price of Rs. 1,37,486. 97 with 12% interest from 17. 2. 2001 till realisation along with Rs. 5,000 as costs with a further direction to the opposite party not to sell seconds and commercial grade articles without hanging a board that commercial grade and seconds are inferior and damaged quality goods and no guarantee with regard to the quality colour in respect of commercial and second grade tiles.

The above directions are being assailed by the learned Counsel for the appellant/opposite party. The vehement argument of the learned Counsel before us is that the complainant had selected the tiles and he himself had taken the same after paying the value of Rs. 1,37,486. 97. It is also urged that if the tiles were defective, the complainant would not have paved the same in his house and instead would have filed a complaint then and there after having laid the tiles selected by him it was only to enrich himself that such a false complaint had been filed against the opposite party and the Forum had also lost sight of the fact that the complainant had not proved his case of manufacturing defect by taking out an expert commission rather than taking out an Advocate Commission who was not at all competent to give an opinion regarding manufacturing defect of tiles. The Counsel has also argued that the manufacturer was not made a party even though the complainant had alleged mainly manufacturing defect of the tiles.

THE respondent/complainant''s case is that the tiles that were supplied to him were having manufacturing defects and were having cracks (Regional matter omitted ). He has also alleged that the tiles differed in design and colour and he was forced to buy the same as the opposite party was not ready either to take back the tiles or to refund the amount the complainant had not enough money to purchase new tiles. It is seen that the complainant had prayed for appointing an "advocate commission" to convince the Forum regarding his case of unfair trade practice, and the prayer had been allowed by the Forum. Though the opposite party had filed a very serious objection to the commission report, the Forum had not considered the same. The learned Counsel for the appellant placed much reliance on the objection filed by the appellant/opposite party and we also find force in the arguments made by the learned Counsel. When manufacturing defects are alleged, the same should be proved by taking out a commission who should be competent in that field. Section 13 (c) of the Consumer Protection Act also lays emphasis on the fact that when allegation of defects in goods are there, the same should be sent to an appropriate laboratory for report or has to be inspected by a qualified and competent person in that field. We do not find it proper that the Forum has relied on the report of an Advocate Commissioner who is not technically qualified to test or inspect the quality of tiles sold by the opposite party. It is also unfortunate that when the opposite party had raised a serious contention as to the veracity of the report, the Forum ought to have been more careful in arriving at a conclusion that the goods delivered are of inferior quality placing reliance on Ext. C1 report.

THE Counsel for the appellant invited our attention to the decision reported in I (1997) CPJ 107 (NC) Regional Manager, Ceat Limited v. Katamreddi Gopal Reddy and Anr. , wherein it is stated that the certificate obtained from a vulcanizer that tyres suffered from manufacturing defects cannot be accepted as vulcanizer is not an expert. In the instant case also the Advocate Commissioner is not an expert or technically qualified person to say that the tiles are of inferior quality. The learned Counsel has also argued that when complainant alleges manufacturing defect, the manufacturer is a necessary party for the proper adjudication of the case and in such a position the complaint is bad for non-joinder of necessary parties. The still further case of the appellant is that after having laid the tiles by the complainant, the Forum ought not have ordered for the refund of the whole price with the interest and cost which are highly on the upper side and as such the order in its entirety has to be upset. We have bestowed our earnest consideration to the arguments of the learned Counsel for the appellant and the records produced by him. On a perusal of the complaint, it is noted that the complainant has alleged manufacturing defects also no expert evidence is forthcoming other than the report of the Advocate Commissioner. As discussed earlier we are also of the opinion that the report of an Advocate who is not technically qualified is insufficient to be relied on and in a case of manufacturing defect, this Commission has also held that manufacturer is a necessary party for the proper adjudication of the case. V. Raveendran Nair v. P. Radhamma, III (1997) CPJ 440=1998 (2) CPR 113. In the aforesaid circumstances we find that this is a fit case for remitting the same to the lower Forum for fresh adjudication and disposal after giving opportunity to the parties to adduce evidence if any, and to implead the manufacturer also if the parties so desire.

IN the result, the appeal is allowed setting aside the order dated 29. 5. 2002 in O. P. 124/2001 and remitting the case to the lower Forum for fresh disposal in accordance with law. However, the parties are directed to bear their respective costs in the facts and circumstances of the case. Appeal allowed.