ROMESH SHARMA vs REGAL POLYMERS LTD.

SHRI Romesh Sharma, Retreat (Holiday Village), Chahal, Village Kano, District Solan (H.P.) has filed an application under Section 12B of the Monopolies & Restrictive Trade Practices Act, 1969 (for brief the Act) and sought compensation from Regal Polymers Ltd., New Delhi after levelling charges against latter of indulging in unfair trade practices.

THE facts of the case as contained in the compensation application can be briefly summarised as below. Regal Polymers Ltd., the respondent had advertised in leading newspapers that they were manufacturing corrugated sheets for laying roofs of cottages. The advertisement claimed certain advantages for the respondent's products. The applicant placed an order in May, 1991 with the respondent for the supply of RMP sheets which was supplied by the respondent. The laying of the roof of the cottage in Chahal in Himachal Pradesh with the material purchased from the respondent was done by Laurie Baker Building Centre, New Delhi. The entire roofing of the cottage was punctured by the hailstrom within six months of its installation. The applicant who is in the business of providing tourist accommodation could not make use of the cottage and suffered a loss due to the defective material supplied by the respondent.

The respondent, Regal Polymers Ltd., replied to the notice of the compensation application in which it has made the following main points : (1) The material was supplied to the applicant by the respondent with a warranty clause which provided that the merchandise would be free from defects in material and workmanship for a period of one year from the date of despatch. The obligation of the respondent was limited only to repair and replacement of defective merchandise within the warranty period. (2) There was no complaint from the applicant from the date of purchase i.e., 13.5.1991 to 21.5.1993 regarding the quality of the sheets supplied or workmanship. After the pleadings are complete, the following issues are framed : (1) Whether the respondent has been indulging in restrictive trade practice/unfair trade practice as claimed in the CA? (2) If answer to the foregoing issue is in the affirmative, whether the restrictive trade practice/unfair trade practice is prejudicial to public interest or interest to the consumer or consumers in general. (3) Whether the applicant has suffered any loss as a result of the unfair trade practice/restrictive trade practice ? If so, to what relief is the applicant entitled to?

IN the hearing on 13.2.1995 both the parties agreed that the matter could be disposed of on the basis of affidavit and counter-affidavit. While the applicant was delaying the filing the affidavit of evidence the respondent filed an application for stay of the proceedings as Board for INdustrial and Financial Reconstruction (BIFR) had declared the respondent as a sick undertaking. The application for stay of proceedings filed by the respondent was dismissed as withdrawn on 24.7.1996. Notwithstanding the assertion, that the case could be adjudicated on the basis of affidavit and counter-affidavit, the complainant filed the affidavit of one Ms. Cheena Kanwal, and Architect working with Laurie Baker Building Centre, New Delhi who constructed the cottage with the material supplied by the respondent. The applicant did not file his own affidavit despite repeated opportunities nor did he make Ms. Cheena Kanwal available for cross-examination. Under the circumstances, the evidences of the applicant was closed on 27.7.1998. The respondent did not avail of the opportunity given to him to file the counter- affidavit of evidence. The applicant as well as the respondent however participated in the final arguments based on the record available. I gave a hearing to Mr. V. Shekhar, Advocate for the applicant and Mr. L.M. Ashthana, Advocate for the respondent.

I have carefully gone through the records of the case, evaluated the evidences adduced and also taken into account the arguments advanced by both the Advocates. In the compensation application, the applicant had levelled allegations that the sheets supplied by the respondent were punctured by the hailstorm within six months of their installation and he had approached the respondent both through phone and personally to seek redress of his grievance. This was denied by the respondent. The applicant has not furnished any proof that the damage to the sheets occurred within 6 months of their installation and that he had taken up the matter with the respondent Company immediately thereafter. In fact no affidavit of evidence to this effect has also been filed by the applicant. The only affidavit filed by Ms. Cheena Kanwal, an Architect reveals that she had personally carried out the work relating to laying of the roof. In September, 1993 when she visited the cottage at the invitation of the applicant, she found that cottage had developed holes which according to her had occurred on account of the hailstorms. She testified that the roof was one which was supplied by the respondent. The witness was not made available for cross-examination and on that ground evidence of the applicant was closed. While the evidence of Ms, Cheena Kanwal could be brushed aside, all that she had stated was that in September, 1993 she had found the sheets supplied by the respondent had holes. The applicant thus failed to prove that any damage to the material supplied by the respondent had occurred during the warranty period of one year. The applicant has also not proved that the respondent made any representation other than what was contained in the advertisement/ brochure at the time of supply of the material. The respondent had made representation as revealed through advertisement/brochure that the RMP sheets marketed by them are "extra tough", have "high impact strength" and "long lasting". The Advocate for the applicant argued that the respondent could not be allowed to take shelter under the warranty clause and if the material supplied did not meet with the qualities represented, it should be held guilty of indulgence in unfair trade practices. During the enquiry there has been no proof that the material supplied by the respondent did not meet the standards as represented by the respondent. Even according to the applicant the damage of the material occurred due to hailstorm and it is not his case that the material itself suffered from any defect either manufacturing or in quality. Since no claim was admittedly made before the expiry of the warranty period and since no conclusive proof relating to sub-standard quality of the product of the respondent has been furnished it is not possible to hold that the respondent guilty of indulgence in any unfair trade practice falling within the ambit of the Act.

SINCE the respondent has not been held guilty of indulgence in an unfair trade practice the question of examining whether the applicant has suffered any loss or damage as a result of such an unfair trade practice does not arise. In view of what is stated above, the compensation application filed by the applicant is dismissed. There is no order as to costs. C.A. dismissed.