Vindhya Pipes And Plastics Ltd vs ANGREJ SINGH

THIS petition has been filed by M/s Vindhya Pipes and Plastics Ltd. which was opposite party before the District Forum challenging the order dated 1.8.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula whereby the State Commission dismissed the First Appeal No.118 of 2010 filed by the petitioner and upheld the order dated 30.11.2009 passed by the District Consumer Disputes Redressal Forum, Kurushetra in complaint No.347 of 2006. The District Forum vide its order allowed the complaint filed by the three complainants who are respondent Nos. 1 to 3 herein respectively in terms of the following directions: - "10. For the reasons recorded above, we accept this complaint and direct the OPs to pay Rs.86,700/ - and Rs.20,620/ - as the cost of the pipes, Rs.20,000/ - as installation charges to complainants with interest @ 6% per annum from the date of filing the complaint i.e. 24.8.2006 till realization. OPs are further directed to pay Rs.5,000/ - as compensation for harassment. This order shall be complied by all OPs jointly and severally but the first charge shall be on OPs. This order shall be complied within 30 days from the date of announcement of order failing which penal action under section 27 of Consumer Protection Act will be taken. File be consigned to record after due compliance."

DELAY of one day in filing this revision petition is condoned.

BRIEFLY stated, the facts relevant for the disposal of this petition are that the respondents/complainants who are agriculturists had purchased PVC pipes as well as other equipment from the OPs vide bills dated 9.5.2006 and 10.5.2006 for a total sum of Rs.87,500/ - and Rs.20,600/ - respectively. The complainants besides the purchase price of PVC pipes and other equipment purchased from the opposite parties, also spent about Rs.30,000/ - for the purchase of Bajri, labour and transportation expenses for the boring purposes which failed. The grievance of the complainants before the District Forum was that the OPs had supplied defective pipes to them because on two occasions, when the process of boring was going on, the pipes got burst. As per the allegation, this all happened due to supply of defective PVC pipes by the OPs. Thus, attributing deficiency in service and unfair trade practice, the complainants invoked the jurisdiction of the District Forum by lodging a consumer complaint. On the other hand, OPs resisted the claim of the complainants with the averment that the pipes supplied to the complainants were of good quality. It was submitted by opposite party Nos.1 and 2 that they were only traders of the pipes manufactured by OP No.3/petitioner and hence the cause of action qua manufacturing defect would lie against the manufacturer of the articles and not against the traders. It was also pleaded that the complaint was hit by section 13 (1) (c) of the Consumer Protection Act, 1986 as no manufacturing defect could be alleged until and unless the article in question were analyzed from a competent laboratory. In this context, it was also submitted by the OPs that the installation of a tubewell would involve a number of steps which required not only good quality of PVC pipes but a number of other material as well as expertise, all of which were crucial for successful outcome. In view of this and other submissions made before the District Forum, it was prayed that the complaint be dismissed. On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum allowed the complaint vide its order reproduced above. Aggrieved of the order of the District Forum, the petitioner/opposite party No.3 filed an appeal before the State Commission against the aforesaid order which came to be dismissed by the State Commission vide its impugned order. Under these circumstances, the petitioner has now approached this Commission through the present revision petition challenging the impugned order.

WE have heard Shri Sanchar Anand, Advocate for the petitioner. At the outset, learned counsel for the petitioner submitted that the State Commission proceeded to pass the impugned order without hearing the arguments of the petitioner since none could remain present on behalf of the petitioner at the time of arguments. According to learned counsel, the State Commission ought to have either waited or adjourned the matter in the interest of justice so that the petitioner got an opportunity to make its submission. On merits, the main argument of learned counsel was that the statutory requirement contained in section 13 (1)(C)of the Act which prescribes that the District Forum shall obtain a sample of goods in question and have them tested in an appropriate laboratory in case where the complaint pertains to any goods, was not complied with and as such the order of the District Forum which was challenged by the petitioner before the State Commission could not be sustained in the eye of law being contrary to the specific procedure laid down by the Act under section 13 (1) (C) and was liable to be set aside. Learned counsel submitted that the State Commission gravely erred in ignoring this important aspect while dismissing the appeal of the petitioner. Another limb of argument made by the counsel was that only one pipe had actually bursted whereas the Fora below have directed refund for the entire length of the pipes. Learned counsel, therefore, pleaded that the revision petition be allowed and orders of the Fora below be set aside for non -compliance of the mandatory requirement of law. Alternatively, he submitted that it be suitably modified to limit the compensation only in respect of the defective piece of the pipe.

WE have considered the contentions raised by counsel for the petitioner and have also perused the record. The State Commission while dismissing the appeal of the petitioner and upholding the order of the District Forum has observed thus: - "The supply of pipes as well as other bore material to the complainants by the opposite parties is not disputed. The receipts produced by the complainants prove that they had paid price of the goods purchased by them from the opposite parties. It is also not disputed that the opposite parties No.2 and 3 are the Distributor and Manufacturer of the PVC pipes which were supplied to the complainants but they did not pay any heed to get the defective pipes tested from any laboratory. However, at the same time, it cannot be ignored that the defects in the pipes could be visible to the naked eyes because during the process of boring, the pipe got burst and this all happened due to manufacturing defect in the pipes. The PVC pipes which are used in tubewell bores are always of hard material but in the instant case the pipes were found defective due to substandard material."

WE agree with the view taken by the State Commission. So far as the requirement of section 13 (1) (C) is concerned, we may note that the testing of the sample of the goods in question is not required to be done in each and every case and is required to be done only in cases "where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods .". It has to be appreciated that the complaint in question pertains to the bursting of the pipe and its leakage and as such by its very nature the alleged defect for which analysis or testing in a laboratory could be ordered cannot be said to be absolutely essential to arrive at a conclusion regarding the alleged defect. Besides this, learned counsel during the course of arguments fairly admitted that the petitioner did not make a formal request or insist for testing of the defective goods by an appropriate laboratory. In response to a query from us, learned counsel further admitted that the petitioner did not offer to replace the pipe which according to own admission of the petitioner was defective.

THUS we find that the two Foras below have returned their concurrent finding of fact in favour of the respondents/complainants and the petitioner has not produced anything before us which could justify and call for our interference with the concurrent findings of both the Foras below under section 21 (b) of the Consumer Protection Act which confers only limited powers on this Commission while considering a revision petition. Hon''ble Supreme Court while dealing with this aspect in the case of Mrs. Ruby (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 3 JT 586 has observed thus: - "23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora."

THE present revision petition is squarely covered by the above ratio laid down by the Apex Court. In view of the above discussion, we dismiss the revision petition with the parties bearing their own costs.