M/S. Jai Durga Pipe Store vs Ranjit Singh Through Lrs.

Prem Narain, Presiding Member

This revision position has been filed by the petitioner M/s Jai Durga Pipe Store challenging the order dated 15th May 2015 passed by the Punjab State Consumer Disputes Redressal Commission Chandigarh in appeal No. 1490 of 2011.

The brief facts of the case are that the respondent complainant purchased PVC pipes from the petitioner/opposite party on 17th May 2009 by paying Rs.1,33,880/-. The pipes were purchased by weight and not in terms of length. There was no warranty given by the petitioner opposite party. The complainant has alleged that he further spent Rs.2,50,364/- in digging and in fixing the pipes. The pipes were damaged and some holes developed in the pipe. It has further been alleged that the petitioner agreed to replace the pipes, however, nothing was done. The complainant then filed a consumer complaint before the District Forum and the same was dismissed wide order dated 23rd August 2011.

Aggrieved by the order of the District Forum, the complainant then preferred an appeal before the State Commission and the State Commission vide the impugned order dated 15th May 2015 allowed the complaint and ordered refund of Rs.1,88,800/- along with compensation of Rs.50,000/- and cost of litigation as Rs.10,000/-.

Hence the present revision petition.

Heard the learned counsel for the petitioner and perused the record. The respondents being the LRs of the original respondent were proceeded ex-parte vide order dated 26th February 2019.

The learned counsel for the petitioner stated that the District Forum has clearly observed that no evidence has been placed by the complainant to prove that the pipes got damaged and it is only the assertion and complaint of the complainant that the pipes developed holes in it. The pipes were purchased in terms of weight and obviously quality cannot be expected in such pipes as they may be fit only for temporary purposes and not for permanent laying in the field. Clearly, there was no warranty or guarantee given by the petitioner either orally or in writing or by printing any such commitment on the receipt. Rather, it is clearly mentioned in the receipt that the seller will not be responsible on account of burning of the submersible motor, breakage of the material and the sticking of the same. The complainant has purchased this cheap material with full eyes open, hence, the complainant cannot blame the petitioner opposite party. Moreover, the complainant has not made the manufacturer a party in the complaint case though the complainant has alleged manufacturing defect. Clearly only the manufacturer will be responsible to compensate the complainant for any manufacturing defect. The petitioner is only a seller and has not given any warranty or guarantee to the complainant in any form. The State Commission has not considered these questions in detail and has passed only a non-speaking order. The State Commission has observed that the name of the manufacturer is not written on the invoice given by the petitioner, therefore, the complainant could not make manufacturer a party in the present case. This observation of the State Commission is not tenable because the name of manufacturer is written on the pipe itself and moreover the complainant could have asked the petitioner to give the name of the manufacturer however the complainant never approached the petitioner for this purpose. The State Commission has further observed that mentioning on the receipt that the seller is not responsible for any damage, does not absolve the seller from selling inferior quality of material. The learned counsel argued that PVC pipes are of many standards which are sold in the market and their strength and durability also differs and depends on the price. If the complainant has not purchased the standard item then the complainant is responsible for the same. The State Commission has even mentioned wrong amount to be refunded to the complainant as the complainant had purchased the PVC pipes only for Rs.1,33,880/- and not for Rs.1,88,800/- as mentioned in the order of the State Commission. When the complainant has purchased the pipes with eyes open, there should be no question of awarding any compensation for mental agony to the complainant.

I have carefully considered the arguments advanced by the learned counsel for the petitioner and examined the record. The District Forum has dismissed the complaint by observing the following:-

"9. It is not the case of the complainant that OP is the manufacturer of the PVC pipes and rather the complainant has categorically averred in the written statement that the complainant has not impleaded the manufacturer of the PVC pipes. It is recorded in the sworn affidavit of Vipin Kumar, the partner of the OP that despite the name of the manufacturing company of the pipes having been printed on each pipe, the complainant failed to implead the same.

Excs C7 and C8 are the bills no. 142 and 143 dated 17.05.2009, whereby the OP had sold 1345 kgms and 1925 Kgms of PVC pipes to the complainant. Under the bills there is a note given in red ink duly printed that the seller will not be responsible on account of burning of the submersible motor, breakage of the material and the sticking of the same. The invoice bill is duly recorded with the fact that the OP is a dealer for the sale of Lubi (a company manufacturing motors), Taxmo Taro, Duke Submersible motors, PVC pipes etc. Therefore, the said foot note pertains to all the items being sold by the OP. Neither on the bill nor on the reverse of the same any warranty is given regarding the quality of the product sold and therefore, in case the complainant was interested in getting the warranty about the quality of the product, he should have obtained the same on the bills.

The very fact that the complainant purchased the PVC pipes in weight is suffice to say that there was no assurance about the quality of the product to have been sold by the opposite party."

The State Commission, on the other hand, has allowed the complaint mainly by observing the following:-

"8. We have gone through the record minutely to ascertain and consider the point involved in the appeal. We have also examined the latest law laid down by the National Commission in revision petition No. 4534 of 2012 National Consumer Disputes Redressal Commission, New Delhi titled as M/s Vindhiya pipes & Plastics Ltd., through its authorized signatory v/s Angrej Singh & others, wherein it has been held that any person, who is selling any material from his shop and is liable to be held responsible for selling goods of inferior quality. The selling of inferior quality of goods to their customers on the pretext that on the invoices bills printed caution states that no responsibility would be taken if any breakages occurs, or same gets burnt, such type of printing on cash bills or invoices printed by them would not absolve them from their responsibility of selling inferior quality of material to their naive customers who are illiterate and are not having adequate knowledge about the material sold to them. From the perusal of the invoice, name of the manufacturer of the PVC pipes was not mentioned by the OP. Thus, the averment taken in their written reply that the complaint is bad for misjoinder and necessary parties i.e. the manufacturer was not impleaded as a necessary party. The said argument for not impleading the manufacturer was not a valid argument as the name of the manufacturer in the invoices has not been stated. We are of the opinion that the District Forum had wrongly relied upon the terms and conditions mentioned on the foot note of the invoices and had ignored the evidence brought on record by the complainant in order to support his version, on the record".

Clearly, the pipes were not of standard quality and the manufacturer and the dealer /seller both are responsible for supplying bad quality of pipes to the consumer. Clearly, the manufacturer should have been made a party in the complaint case so that the responsibility could have been fixed more pin pointedly. However, the petitioner/opposite party cannot escape the responsibility for selling bad quality product whereby the investment of the complainant farmer went down the drain. In such case, the manufacturer as well as the seller would have shared the responsibility for compensating the complainant. As the manufacturer has not been made a party in the present complaint case, the liability of the petitioner/opposite party would be limited to 50% of the compensation that the complainant would be entitled to. Giving no warranty or guarantee to the complainant farmer will not entitle the manufacturer to manufacture such bad quality of pipes and seller to sell such material. As the complainant has purchased these pipes on weight basis, clearly, the complainant intended not to purchase the standard quality of pipes. Moreover, no warranty was given by the manufacturer or the seller therefore compensation for mental agony is definitely not justified.

It is further seen that the State Commission has wrongly mentioned the figure of refund as Rs.1,88,800/- whereas the correct figure is Rs.1,33,880/- as mentioned by the complainant in the complaint.

Thus based on the above discussion, the revision petition is partly allowed and it is ordered that the petitioner will pay 50% of the cost of the pipes i.e.Rs.66,940/- along with interest at the rate of 6% per annum from the date of the order of the State Commission i.e. from 15th May 2015 till actual payment. The award of compensation for mental agony as Rs.50,000/- is set aside however, the cost of litigation of Rs.11,000/- is maintained. The order of the State Commission stands modified accordingly. This order be complied by the petitioner/ opposite party within a period of 45 days from the date of receipt of this order.