Viraj Polyplast Technology Pvt. Ltd. vs ANKUR GUPTA

THE petitioner placed order with the respondent on 03 -01 -2012 for certain polymer moulds. Responding to the said order the petitioner sent proforma invoices against which payment was made by the complainant. The case of the complainant is that the polymer moulds supplied to him were not as per the samples and when production started using these moulds it was found that broken tiles were being produced from the said moulds which were not fit for sale in the market. The complainant, therefore, approached the District Forum by way of a complaint, seeking return of the defective polymer moulds against payment of the price paid by him as well as fare of the truck, interest at the rate of 18% per annum and damages amounting to Rs. 2,00,000/ -. Cost of litigation was also sought by the complainant.

THE complaint was resisted by the petitioner inter alia on the ground that there was no defect in the polymer moulds supplied by them. It was further stated in the reply that if the raw material is not proper than the production will also not be proper and in that case the producer himself would be responsible for the product not being proper. The District Forum vide its order dated 21 -05 -2013 directed the petitioner to pay a sum of Rs. 2,28,457/ - to the complainant towards refund of the price paid by him and Rs. 8,941/ - towards the truck fare. Interest at the rate of 9% per annum and compensation amounting to Rs. 5,000/ - was also awarded to the complainant.

BEING aggrieved from the order of the District Forum the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order dated 29 -01 -2014, the petitioner -company is before this Commission by way of this revision petition.

THE learned counsel for the petitioner submits that since the mixture used for making the tiles was not alkaline resistant, the tiles manufactured using the moulds supplied by the petitioner could not have been proper. In other words, the contention is that the defect in the tiles is attributable to the nature of the mixture used for the purpose of manufacturing the tiles as the said mixture was not alkaline resistant. There is absolutely no material on record to indicate that at the time of selling the moulds the petitioner had informed the complainant that the product using the said moulds would come out in proper shape only if the mixture used for the purpose was alkaline resistant. A perusal of the emails exchanged between the parties also shows that no such specific stand was taken by the petitioner. In fact, even in the reply to the complaint filed before the District Forum the petitioner did not say in so many words that the moulds would have worked properly only if the mixture used was alkaline resistant, though it was generally stated that the defect in the product was on account of the raw material not being proper. Therefore, it cannot be accepted that at the time of selling the moulds the petitioner had made it clear to the complainant that the production would be proper only if the raw material used was alkaline resistant. Since the complainant was not using alkaline resistant material, he would not have purchased the moulds had the petitioner informed him, before supplying the moulds, that the finished product would be of proper quality and shape, only if the mixture used was alkaline resistant. Therefore, no fault can be found with the order of the District Forum awarding refund of the money which the complainant had paid to the petitioner along with truck fare and interest at the rate of 9% per annum. In any case, a finding of fact having been rendered by the District Forum and having been accepted by the State Commission by dismissing the appeal filed before it, the said finding cannot be interfered with in exercise of the revisional jurisdiction unless it is shown to be perverse in nature. However, considering the material available on record it cannot be said that no reasonable person acting on the said material, would have returned the finding which the District Forum returned in this case.

THE learned counsel lastly submits that the complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. He, however, fairly concedes the legal proposition accepted by the District Forum that if the goods are covered under a warranty and the warranty period is not yet over, this question needs not be gone into by the consumer forum. The District Forum has taken a view that the goods in question were covered under a warranty clause and, therefore, the plea raised by the petitioner would not apply. Reliance was placed by the District Forum on the decision of this Commission in Super Computer Centre Vs. Globiz Investment Pvt. Ltd. : III (2006) CPJ 265 (NC). Since a finding of fact has been recorded by the District Forum that the polymer moulds in question were defective and the said finding has also been accepted by the State Commission, it would not be appropriate for me to revisit the said finding in exercise of the revisional jurisdiction of this Commission particularly when the moulds admittedly are covered under the warranty clause whereby the warranty period was stipulated as 1000 impressions or 36 months whichever was earlier and there was no material before the District Forum to show that 1000 impressions had been taken from the moulds in question before the complaint was lodged with the petitioner through email.

SINCE I do not find any merit in the revision petition I need not take a view on the application for condonation of delay in filing the revision petition. The application for condonation of delay as well as revision petition are accordingly dismissed.