1. This Revision Petition No. 1195 of 2018 filed by the petitioner/Opposite Party (OP hereafter) challenges the impugned order of the State Consumer Disputes Redressal Commission, Panchkula (‘State Commission’, for short) dated 19.02.2018 in FA 465/2017 vide which the appeal against the order dated 14.3.2017 of the District Consumer Disputes Redressal Forum, Hisar (‘District Forum’, for short) in Consumer CC 139/2015 was dismissed. In turn, the District Forum, had allowed the complaint and directed the OP to pay Rs. 15,000/- lump sum with 9% per annum from the date of filing of the complaint (21.4.2015) till payment, as also awarded compensation of Rs. 5,000/-. towards harassment and mental agony etc.
2. The brief facts are that on 02.04.2015, the respondent 1/complainant (complainant hereafter) purchased 20 bags of JK Wall Putty and 45 bags of JK Lakshmi P.O.P, on payment of Rs.15,190/- vide Bill No.8, from respondent 2/ opposite party 1-Shri Ram Paints and Sanitary store (OP-1 hereafter) for use in his house. OP 1 is the authorized dealer of JK White Cement Works, New Delhi and OP-2 is the manufacturer. Per the plaint, the complainant engaged 7 labourers for application of wall putty which was completed in 6 days, spending Rs.19,200/-. However, the wall putty was allegedly defective as it started falling from the walls. OP-1 also visited premises of the complainant and saw the putty falling upon touch. Aggrieved, a consumer complaint, CC 139/2015, was filed before the District Forum.
3. This was contested through written replies by OP-1 and OP-2. OP-1 took many objections such as the complaint was false, frivolous, vexatious; there was no cause of action; others who were sold the putty from the same batch did not have any complaints and that the purpose of filing the complaint was only to harass. OP-2 filed it’s reply along the same lines as OP-1 but added that there was no report of an appropriate laboratory to support the complainant’s allegation that there was a defect in the wall putty.
4. The District Forum, after considering the pleadings and evidence, allowed the complaint vide order dated 14.3.2017 as under :-
“Complaint is hereby allowed, with a direction to respondents, to pay Rs. 15,000/- lump sum to the complainant with interest @ 9 % per annum from date of filing the complaint i.e. 21.04.2015 till payment. Complainant is also hereby awarded compensation of 5,000/- for his harassment and mental agony etc. This order be complied with by respondents within 45 days, from date of receipt of copy of this order. A copy of this order be supplied to both the parties free of costs. File be consigned to record after due compliance.”
5. On appeal, the State commission dismissed the same and upheld the order of the District Forum, mentioning inter alia that there was no appeal in respect of the awarded amount by the complainant. Hence this Revision Petition, seeking the following:
b) Quash/set aside the impugned order dated 19.02.2018 passed by Ld. State Consumer Disputes Redressal Commission, Haryana, Panchkula in First Appeal No. 465 of 2017 titled “J.K. White Cement Works V/s Rajender Kumar and Anr.” and allow the said appeal, thereby dismissing the Consumer Complaint No. 139 of 2015 titled “ Rajender Kumar V/s Shri Ram Paints and Sanitary Store and Anr.” Filed before the District Consumer Disputes Redressal Forum, Hisar, Haryana;
c) Award the costs of proceedings throughout to the petitioner; and
d) Pass any other or further order(s) in favour of the petitioner, as may be deemed fit and proper in the facts and circumstances of the case.
6. Arguments were heard on 30.10.2019.
7. Learned counsel for the petitioner/OP-2-J.K. Cement Works drew attention to a report dated 7.4.2015 made by Suresh Poonia, Sr. Technical Executive. He argued that this was done by OP-2 when it had received the complaint through OP-1 about it’s product, wall putty: this report showed that the complaint had no basis because the flaking and chalking was not observed all over but only in some places and the same was due to application errors. He drew attention to para 4 of the complaint and argued that it was a rather bland statement to the effect that the wall putty falls even on touching by hand and that OP-1 had also visited and agreed that there may be a manufacturing defect. He referred to reply of OP-2, emphasizing that wall putty of the same batch had invited no complaints from other consumers and that the mandatory lab test/expert report to establish defect had not been done. He invoked two citations in support of his argument that the onus to prove defect lay on the complainant. He went on to argue that the District Forum, in it’s order, in para 7, acknowledged the visit of Sri Suresh Poonia but used it to reverse the argument of the OPs that there was no technical report while observing that Sri Poonia should have filed the technical report. The State Commission, in para 12 of it’s order, took the view that there was no need for another expert report since Sri Poonia had already visited and further held that his report was not submitted before the District Forum, perhaps because it may have favoured the complainant. Counsel argued that be that as it may, all this could not be a substitute for an appropriate lab test as provided in sec 13(1)(c) of the Consumer Protection Act 1986.
8. Complainant in person argued that the person alleged to have visited the complainant did not appear before the District Forum nor filed any report. He further submitted that he was, in fact, not even aware of the State Commission’s impugned order as he had been proceeded ex-parte.
9. After hearing arguments and carefully perusing the record, I am of the considered view that this Revision Petition cannot sustain.
First, I do not agree that the onus of proof, in this case, lay with the complainant. Drawing a distinction between burden of proof and onus of proof, it appears to me that the complainant has discharged the burden of proof by claiming a defect in wall putty and getting the OP-1, the dealer, to come and see for himself. Thereafter, if OP-2 holds the contrary view, it was for him to prove it. The fact that an official was deputed, submitted a report but he was neither produced before the District Forum nor was his report filed, is , to say the least, quite curious. OPs could have led some more credible evidence say, affidavits of testimony about the quality of the wall putty used by others in the same locality from the same batch. This was not done.
Second, arguably, wall putty and POP are works undertaken to get a proper finish and if this finish, in any manner, is not achieved, it does give cause for complaint. To be able to explain that this or that may have been the cause while the good itself was perfect is the approach taken by the OPs. This, as already noted, cannot satisfy a consumer who had spent good money and was not satisfied with the performance of the product. Instead of making amends, say by undertaking to do up the affected portions, the OPs have sought to contest. Leaned counsel for OP-2 has argued that para 4 of the complaint (supra) was rather blandish. I do not agree. On the contrary, this para expresses the complainant’s feeling of having been let down by the work undertaken by him.
Finally, law on revisional powers has been clearly laid down by the Apex Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269, as under:
Also, it is to be noted that the revisional powers of the Nationa
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l Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked.” 10. In view of the discussion above, this Revision Petition, after consideration, is dismissed. No order as to costs.