Essen Multipack Limited vs Bapu Chintamani Range

BOTH the Fora have decided the case against the petitioner/O.P. 1. There appears to be no question of law which needs adjudication. However, the Counsel for the petitioner insists that the facts were not rightly appreciated. The facts germane to this case are these. Bapu Chintamani Range, the complainant, is an Agriculturist, who wanted to dig a water tank in his field for storing water in the said tank, which required a multilayer polythene sheets. The complainant purchased polythene sheets from Essen Multipack Limited, O.P. 1/petitioner, through its dealer, S.P.A. Flora Pvt. Ltd., which was arrayed as O.P. 2, in the complaint. Those polythene sheets were laid by one, Sh. Omkar Agro, O.P. 3.

THE said sheets were purchased on 26.8.2007 and kept the same in cold storage. Those were actually laid on5.7.2008. It transpired that the sheets were leaking. Consequently, the water from the tank percolated elsewhere and it affected other portion of his land. There could be two reasons, either these sheets might not be of 500 microns thickness or they might not have been properly laid by O.P. 3. A complaint was filed claiming compensation in the sum of Rs. 15,00,000, before the District Forum. The defence set up by OPs 1 and 2 was that they had supplied the polythene sheets which were of 300 microns thickness. They allege that the invoice was forged, by writing, 500 microns thereon. It was contended that if the thickness of the material is 300 micron, then the sheet would 3.5 sq. mtrs. per kg by weight and if the sheet is of 500 micron thickness, its size would be 2.1 mtrs. per kg. of weight. It was pleaded that the complainant had paid a sum of Rs. 1,92,000 only and an amount of Rs. 15,336 was still due to him. According to O.P. 3, the sheets were not kept properly and had been folded. The same were not fit to be laid in the field.

THE District Forum accepted the complaint and directed the O.P. to pay a sum of Rs. 2,05,013 towards cost of polythene sheets and Rs. 50,000 towards compensation. O.P. 1 filed an appeal before the State Commission, which modified the order of the District Forum and directed the petitioner/O.P. 1 to pay Rs. 2,05,013 minus Rs. 13,336, total being Rs. 1,92,000, with costs of Rs. 50,000, with interest @ 12% p.a.

LEARNED Counsel for the petitioner submits that 500 microns was written in hand by the complainant, and as such, it is a forged one. The Counsel was asked to produce the original one, but he could not produce the same. The forgery, if any, can be judged only if the original and copy are compared with each other. The next submission of the Counsel for the petitioner is that the price of 300 microns and 500 microns is the same and he had filed a list in this regard.

WE are unable to subscribe to his view. The weights are different and so the price cannot be the same. The State Commission held: Learned Counsel for the appellant first submitted that the appellant had never promised to supply polythene sheets with the thickness of 500 micron. He submitted that what was agreed to be supplied as per the invoice was multi -layer polythene sheets with the product code SUNCOOL BL 3206 POND/CANAL LINING FILM. He submitted that 14 bundles of such sheets were supplied and the details of the bundles were also given in the packing slip. Each bundle according to the packing slip was 5 meter x 80 meter x 300 micron. The packing slip also gives weight of each bundle and it ranges from 107.200 kgs. to 126.300 kgs. One more bundle was supplied subsequently and it packing slip shows that it contained 5 meter x 72 meter x 300 micron sheets weighing 108.600 kgs. The learned Counsel also referred to a paper titled as ''Coverage'', where for various gauges of thickness of polythene sheets its spread per kg of the material is mentioned. For 300 micron sheets it is 3.5 sq. meter per kg and for 500 micron it is 2.1 sq. meter per kg. The coverage calculation also shows that there can be variation of plus minus 5%. Learned Counsel submitted that since it is a product produced by machine, this variation is bound to be there. While there can be no doubt that there can be some variation, after stating that the variation could be plus minus 5%, it is difficult to reconcile the weight given in the two packing slips. In the first packing slip of 14 bundles, which contained 5 meter x 80 meter x 300 micron sheets, the difference in weight as already pointed out is from 107.200 kgs. to 126.300 kgs. i.e., almost 17619.100 kgs. Even if a mean is taken, the variation would be more than plus minus 5%. The second consignment contained only 5 meter x 72 meter x 300 micron sheets and its weight was 108.600 kgs. Thus, though it was 40 sq. meters less in spread, its weight was more than 80 meter sheet. Therefore, on the appellant''s own showing, the sheets cannot be necessarily said to be 300 microns thickness. In any case, these packing slips would only show that what was supplied was 300 microns thickness sheets. The price list which shows SUNCOOL BL 3206 POND LINING FILM having price of Rs. 117 per kg., does not give any specifications of these sheets. It should have been perfectly possible for the appellant as the manufacturer of the product to give specifications of various products mentioned in the price list. Appellant could have established that SUNCOOL BL 3206 POND LINING FILM, is in fact a 300 micron sheet itself and not 500 micron sheet. The appellant has not done so. Thus, when a party has best evidence with it and does not produce it, there should be no reason why an adverse inference should not be drawn. Therefore, we find no fault with the conclusion of the District Forum that what complainant sought to purchase, was sheets which were supposed to be of 500 micron thickness. It must be borne in mind that the sheets were preserved in cold storage. The question of their getting damaged, ordinarily, cannot arise. It is difficult to fathom as to why did the O.P. 3 agree to lay the said damaged sheets. The Panchnama shows that the sheets had developed cracks but it does not mention that those were eaten by rats. Why did it develop cracks? It clearly means that the loss caused to the complainant was attributable to the defective material which was supplied to the complainant. This clearly goes to show deficiency on the part of O.P. 1. The petitioner has not approached this Commission with clean hands. It kept the true facts under the hat. The copy of the Invoice which was given to the complainant, should have clearly mentioned the nature of polythene sold to him. This is a case of unfair trade practice. The petitioner has no bone to pluck with the complainant and, therefore, the revision petition is hereby dismissed. No order as to costs.