ETERNIT EVEREST LIMITED Vs. C G ABRAHAM

JUDGEMENT

(1.) Eternit Everest Ltd., Coimbatore, the Suppl. 3rd defendant in O.S. 16/1987 before the Sub Court, Ottapalam, is the appellant. C.G. Abraham, the 1st respondent herein, filed the suit claiming damages against the 1st defendant, Everest Building Products Ltd., Podanur, Coimbatore, and the 2nd defendant, Haridas Bhagath and Co. (P) Ltd., Coimbatore. During the pendency of the suit the 1st defendant company was taken over by the suppl. 3rd defendant appellant and hence the suppl. 3rd defendant was impleaded in the suit. The court below decreed the suit partly allowing damages. The above judgment and decree are under challenge in this appeal.

(2.) The case of the plaintiff as revealed from the plaint briefly was as follows: The 1st respondent plaintiff had constructed a new cinema theatre by name Geetha Theatre, at Shornur, and for the roofing of the above theatre, the plaintiff purchased asbestos sheets and accessories manufactured by the 1st defendant from its agent, the 2nd defendant on 6.11.1985 by invoice No. 10699 for a total value of Rs. 45815/-. The roofing work was completed in December, 1985. When the monsoon started in June, 1986, the sheets were found leaking. Accordingly the plaintiff sent a representation to the 1st defendant, and the officials of the 1st defendant, the manufacturer, advised the plaintiff to provide more ventilations at the ridge level. Accordingly ventilations were provided at the ridge level. Even then the leaking during monsoons continued and there was no change. The officials of the manufacturer again visited the theatre and they opined that the dripping of water was due to the condensation of moisture inside the structure during rainy season and it could be rectified by providing proper ventilations. Though the officials of the manufacturer were fully convinced that the leaking was due to the manufacturing defect of the asbestos sheets, yet they advised to provide sufficient number of radial exhausts and accordingly the plaintiff purchased sufficient number of radial exhausts on 23.7.1986 and those were installed. Yet there was no change to the leaking. The officials of the manufacturer further advised for providing lime coating and the plaintiff provided lime coating over a portion on an experimental basis, but even then the leakage could not be arrested. The leakage, in fact, was due to the defective material and bad quality of the asbestos sheets and it was a manufacturing defect. There was an implied warranty by continuous trade practice and usage that the goods were effective and fault proof for the purpose for which it was used ie., in respect of the quality of the Everest Asbestos Sheets purchased. As the sheets were of substandard quality and the sheets could not be used for the purpose for which it was purchased, the plaintiff was entitled to damages. It was further alleged that due to the leakage, material damage was caused to the ceiling made of plaster of paris and further amount had to be invested for putting waterproofs on the plaster of paris for saving the same from further damage. Thus the plaintiff claimed a total amount of Rs. 50565/- towards damages.

(3.) The 1st defendant, the manufacturer, filed a written statement contending that the court below had no territorial jurisdiction for considering the above claim as the sale was made and the goods were delivered at Coimbatore and also that the materials were purchased from the 2nd defendant and thus there was no privity of contract between the manufacturer and the plaintiff. The dripping of water was due to the condensation of moisture inside the structure as during rain the humidity inside the theatre would be very high and the atmosphere outside would cool down and the water vapor inside the structure would condense resulting the dripping of water inside and, if proper ventilation was provided, the dripping could be avoided. They denied the allegation that the materials supplied were of low quality. It was contended that there was no manufacturing defect, and the sheets were manufactured in accordance with the standard prescribed by the Indian Standards Institution as well as the British Standards specifications. The sheets were devoid of any defects and the dripping was due to the improper and defective construction of the theatre. There was no implied warranty as alleged and the 1st defendant prayed for a dismissal of the suit.