NUCHEM LTD. vs AARTI DRUGS LTD.

APPELLANT was one of the opposite parties before the State Commission, where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the appellant.

UNDISPUTED facts of the case are that the respondent/complainant M/s. Aarti Drugs Ltd., who were engaged in the business of marketing of bulk drugs, wanted to furnish its administrative office. For this purpose, they hired the services of one architect who in turn suggested use of MDF Panels manufactured by the appellant. These panels were purchased at a price of 1,79,021 and were used for making furniture like table, partitions, cabins and cupboards. Soon after, it was discovered, that the furniture and cabins were giving foul smell and causing eye watering. The matter was taken up with the architect as also with the appellant. Legal notice was issued to the appellant. Instead of replacing the panels they advised to use of polish on the panels so that the emissions could be reduced. A coat of paints was applied but the problem did not diminish. Finally a representative of the appellant came to the site and his advise was : "1. Unscrew the false ceiling and paint the under surface of the loft as also the upper surface of the false ceiling with at least two coats of primer and reinstall the same. 2. Provide ventilation for the cabins either individually or collectively by installing exhaust fans at appropriate places, which may be operated before entering the cabins. A similar arrangement was also advised to be provided in the hall."

The complainant was willing to carry out this advice, but at the cost of the appellant but this did not materialize. Technical and expert opinion was obtained and it confirmed distinct emission of irritant gas which was identified as formaldehyde in the Nuwud MDF Panels and this was continuing. The expert was of the view that this was hazardous and sale of this type of product should be stopped. The matter was again taken up with the appellant when no solution was emerging, a complaint was filed before the State Commission, who after hearing the parties and perusing the material including the expert evidence allowed the complaint and directed the appellant to pay Rs. 2,00,000 (Rs. 1,00,000 for rectification and Rs. 1,00,000 for the physical discomfort for a period of 2-3 years) along with a cost of Rs. 10,000. Aggrieved by this order this appeal has been filed.

We heard the learned Counsel for the parties and also perused the material on record. The sale of MDF Panels and its production by the appellant is not denied. After several discussions and exchange of correspondence between the parties, a representative of the appellant visited the office of the complainant and this is what emerged out of this visit: "Aarti Drugs Ltd., Mahendra Indl. Estate, Sion (E), Bombay 400 022. Dear Sir, We refer to the visit of the undersigned along with our dealer Mr. Vinod Gupta of B.P. Techno Pvt. Ltd. on 9.8.2003. It was observed that where Melamine Polish has been used in the cabin, the emission was high. Therefore, we would request you to consider painting those areas where you have used Melamine Polish so that the emission is reduced considerably, if not totally eliminated your problem could be solved to a large extent. Please give this matter your consideration and let us have the reply by return post. Your''s faithfully For NUCHEM Ltd. NUWUD MDF MKTG. DIVN. SD/-"

A mere perusal of this letter is sufficient to nail the case. It is a clear admission on the part of the appellant that the emissions were high and in order to evade the responsibility through this letter they go on to suggest that in order to minimize the effects of these emissions, they suggested that the panels be painted to solve the problem albeit to a large extent. We leave the matter at this stage for the time being and pick it up later. Learned Counsel for the appellant also tried to draw our attention to the prescribed standards of B.I.S. We have no difficulty in going through this in detail except to state that at no stage any MDF panels in the office of the complainant were ever subjected to any scrutiny or test to ascertain whether they met the prescribed parameters standards laid down by B.I.S. On record, as per the orders of the State Commission, there are two expert reports -one of Dr. N. Sriram, which supports the case of the complainant and there is another report, which was recorded almost 4 years after installation of MDF Panels manufactured by the appellant which admits that cause of pungent odour and its highly irritating effect to the mucous membrane of the eyes, nose and upper respiratory tracts its perceptible, and is even on concentration level then a fraction of pm but goes on to say that at the time of his visit no such irritant or emission of noxious gases were observed. The State Commission, in our view, rightly has given due weight to the second report of Dr. Bhargava in two ways firstly, with passage of time almost of 4 years, the noxious gases has disappeared and secondly, in the light of these findings, they have not awarded replacement of MBF Panels but have given Rs. 1,00,000 for its rectification and Rs. 1,00,000 for discomfort suffered by the workers therefor almost 2-3 years.

COMING back to the letter dated 16.8.1993, the emission levels were admitted to be high and we see no where either in the material related to B.I.S. or in any material relating to MDF panels where it is stated by the appellant that after its installation, the user would have to paint these panels. In this letter there is a clear admission on the part of the appellant that even this will not totally eliminate the problem. This tantamount to an unfair trade practice and is a clear case of deficiency in service, which is to be seen as writ large, when, based on the report of the Chemist Mr. Narender, they did not agree to paint the panels at their own costs and for that matter, they went into a defensive ''mode''. They were deficient in selling a product which emits gases harmful to the human beings or its organs and not meeting its professional and market obligation to keep them painted in order to reduce its after-effects. This is a clear case of deficiency in service, when they supplied material which is admittedly harmful to the workers working in that area. In the aforementioned circumstances, we find no merit in this appeal and the arguments advanced by the learned Counsel for the appellant and do not find any reason calling our interference in the well-reasoned order passed by the State Commission. This appeal is dismissed. Appeal dismissed.