DOF.14.10.2008
DOO.24.02.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Dated this, the 24th day of February 2012
CC.No.223/2008
C.H.Ramachandran,
Athira, ‘Kumbham’, Complainant
P.O.Koodali
(Rep. by Adv.T.V.Haridasan)
1. H & R Johnson (India) Ltd.
Windsor, 7th floor,
CST Road, Kalina,
Santacruz(E) Mumbai 98
2. H&R Johnson (India) Ltd,
Branch Office, 14, 51 F Bismi Tower, opposite parties
Kallai Road, Calicut 2.
(Rep. by Adv.Shyam Padman & ors)
3. Proprietor, Chandra Marbles,
Mattannur
O R D E R
Smt.K.P.Preethakumari, Member
This is a complaint fled under section 12 of consumer protection act for an order directing the opposite parties to pay `1,63,150 to the complainant with interest at 12% p.a from the date of complaint till realization with cost.
The case of the complainant in brief is as follows: The complainant has purchased 700 x 700 Galaxy tiles, 95 boxes worth `79,650 including tax from 3rd opposite party as per the assurance given by the opposite parties that the tiles are superior quality and free from defects and also assured the guarantee and free replacement in case of any eventuality. 3rd opposite party arranged the workers for laying work and was completed during March 2009. The tiles are layed after removing the mosaic in central hall, 3 bed rooms, dining hall, sit out, store room and stair case. Soon after completing the laying work it appeared different in different parts. The sides of tiles are projecting upwards causing injury to legs and the same defects are found through out the surface. The opposite parties men visited the complainant’s house as per the information given by the complainant and he had convinced the defects and assured the replacement, but they have not fulfilled their promise even though the complainant had contacted them through over phone and personal meetings. So there is deficiency of service and unfair trade practice on the part of opposite parties and the complainant has sustained great loss and mental agony. So the opposite parties are liable to compensate the complainant. Hence this complaint.
In pursuance to the notice issued by the Forum opposite parties 1 and 2 appeared and filed their version. Even though proper notice was served upon 3rd opposite party he remains absent and hence was called absent and set exparte.
Opposite parties 1 and 2 filed version contending that the complainant is not a consumer as per consumer protection Act and there is no deficiency of service on the part of opposite parties 1 and 2. There is no privity of contract between opposite parties 1 and 2 and the complainant. The opposite parties 1 & 2 have branch office at Calicut, Cochin and Trivandrum and hence the Forum has no jurisdiction to entertain the complaint. The complainant has not come with clean hands and suppressed the true, correct and material facts. From the complaint itself, it is seen that the complainant has not complied with specific instructions for fixing the tiles and conspicuously printed on the carton box and not produce these carton box to suppress the same. The opposite parties 1 & 2 having world class plants with ISO 9001, ISO 14001 and OHS AS 18001 certifications for excellence in quality, environmental and safety standards and having 50 years experience in India and over 100 years globally through associates with Johnson Ceramic International, U.K. All the products are subject to strict quality stands and checks and no effort spared to provide high quality world standard tiles to the customers.
The opposite parties are not admitted the purchase and the notice of alleged defects were not given to opposite parties 1 and 2. In the carton box it is mentioned that certain amount of variations in shade or size being inherent in all ceramic products, hence before fixing the tiles they will have to b e laid out in the desired pattern to make sure that they give the acceptable bend of colour and also it has to be made sure that the tiles are acceptable to the satisfaction of the customers. The company has no liability after fixing the tiles. For fixing the tiles the instructions have to be followed and correct proportion of cement, sand mortar and water has to be used and the final result depends upon good workmanship and supervision as well. The laying pattern also has to be followed strictly and as far as possible tiles for a specific area has to be from the same batch itself. All these are highly necessary to obtain the proper and correct finish. The company does not accept any liability incase of problems arising out of non-adherence to the tile fixing instructions. The opposite arties have not given any false representation or assurances or they have authorized or empowered anyone else to make any such representation. Opposite parties 1 and 2 are not aware of the statements given by 3rd opposite party or that 3rd opposite party had arranged workers. On enquiries it is learnt that the work was being done in the house without shifting the residence, thus stepping on the tiles before proper fixation may happened, which as well would adversely affect the result. If the tiles appeared different in different parts and the sides are projecting upwards as seen alleged the same could only be on account of improper and negligent lying of the tiles, obviously in violation of the instructions. The tiles manufactured by the opposite parties 1 and 2 have no defect and the defects of the tiles in the complainant’s floor is due to improper laying the allegation that the men of the opposite parties were convinced about he alleged defects and offered replacement etc. are not correct. So there is no unfair practice or deficiency of service on the part of the opposite parties. The allegation that loss, injury, hardship or mental pain has been caused to the complainant on account of opposite parties act are not correct. The alleged damage noted in the complaint is baseless and unsustainable. For the failure on the part of complainant the opposite parties cannot be held liable and hence the complaint is liable to be dismissed.
In the above rival contentions the following issues have been raised for consideration.
1. Whether the Forum has territorial jurisdiction to try this case?
2. Whether there is any deficiency on the side of opposite parties?
3. Whether the complainant is entitled to get any relief as prayed in
the complaint?
4. Relief and cost.
The above case was once decided by the Forum as exparte and hence the Hon’ble state Commission had remanded back the complaint for fresh consideration by giving opportunity to appear and adduce evidence by opposite parties.
The evidence consists of the oral testimony of PW1,CW1 and Exts.A1, A2 and Ext.C1.
Issue No.1
The opposite parties 1 & 2 contended that since they have branch office in Kerala only at Calicut, Cochin and Trivandrum and are not having any office or branch office at Kannur and hence the Forum lacks territorial jurisdiction to entertain the complaint. But Ext.A1 clearly shows that the subject matter tiles were purchased from 3rd opposite party Chandra marbles at Mattannur, Kannur. So it is seen that 3rd opposite party is within the jurisdictional limit of this Forum from where the complainant had purchased the alleged tiles and hence we are of the opinion that the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.
Issue Nos. 2 to 4
The further case of the complainant is that he has purchased 700 X 700 glazy tiles 95 boxes for `70799 made by opposite parties 1 and 2 through 3rd opposite party and some of the tiles become defective due to its inferior quality. In order to prove his case he has produced the bill, brochure and commission report and CW1 was examined. The Ext.A1 is a bill dt.4.1.08 issued by 3rd opposite party for an amount of `79650 as the value of glazing tiles purchased by the complainant. But the opposite parties 1 and 2 denied the version that the tiles purchased by the complainant were manufactured by them. The complainant deposed before the Forum that “A1 bill t\m¡n-bm Fsâ ho«n ]Xn¨ tiles BcpÂ]m-Zn-¸n-¨-Xm-sW¶p ImWn-Ã.. Opposite parties 1 and 2 manufcture sNbvX tiles BWv. AhnsS ]Xn-¸n-¨Xp F¶p ImWn-¡p¶ bmsXmcp tcJ-I-fpT lmP-cm-¡n-bn-«nÔ. So from the above deposition also it is seen that the complainant has not produced any documents to connect with the opposite parties 1 and 2. It is true that the complainant has produced Ext.A2 brochure by opposite parties 1 and 2. But the complainant has no case that it was issued by 3rd opposite party at the time of purchase of tiles. It can be obtained from anywhere else. The complainant further deposed that “tiles hm§pt¼mÄ box emWv In«n-b-Xp. B box ]c-cm-Xn-tbm-sSm-¸T lmP-cm-¡m-Xn-cn-¡m³ Imc-WT s]«n-\-in-¨p-t]m-b-Xp-sImmWv. So it is seen that the complainant has not produced the carton box also. So there is no evidence connecting the complainant and opposite parties 1 and 2.
The Ext.A1 shows that the complainant had purchased the tiles from 3rd opposite party. But even though proper notice was served upon 3rd opposite party, he remains absent. So we are not in a position to ascertain who is the manufacture of the tiles supplied by 3rd opposite party. The expert commissioner CW1 was examined and he had submitted Ext.C1 report also. He has shown the measurement of the tiles in his report. The total measurement in which tiles were laid is shown as 1067.37 sq.ft. The opposite parties 1 and 2 contended that the tiles are defective due to poor workmanship. But the expert commissioner reported that “workmanship is kept while laying tiles but due to defective in tiles, Tiles are projected upwards in many places. He further reported that “opposite parties exploited the lack of technical knowledge of the complainant and supplied the low cost and inferior qualities. Due to defective quality of tiles many tiles are having bents and hence projected upwards causing inconvenience and injury to occupants. Many tiles are having bends which are purely of manufacturing defects”. The CW1 commissioner reported before the Forum that “ Rm³ I tilessâ Ipg-¸T Nne tiles edges]m´n-bn-cn-¡p¶p. Improper laying sImm-InÃ. He further deposed “physical test \S-t¯ Bh-i-y-an-Ã. AÃmsX Xs¶ Im a\-Ên-em-IpT”. So from the expert’s report and from his words it is evident that the tiles supplied by 3rd opposite party were defective. So we are of the opinion that there is deficiency of service and unfair trade practice on the part of 3rd opposite party. Opposite parties 1 and 2 are exonerated since the complainant failed to establish that they are the manufcturer.
The commissioner further reported that the floor surface cannot be demolished without breaking tiles or it cannot be used or change the defective tiles alone. So remedy is to replace the tiles of the entire floor surface relaying with fresh qualities of tiles. The commissioner reported that for removing and relaying the defective tiles `1,06,834 is required as expenditure. It is true that the labour charges were considerably increased, we calculated the amount required for relaying including tiles is `1,10,000. The complainant is also entitled to get `2500 as cost of the litigation. So we are of the opinion that 3rd opposite party is liable to compensate the complaint for his deficiency of service and unfair trade practice by giving `1,10,000 as relaying charge including the value of tiles with `2500 as cost of proceedings and order passed accordingly.e further deposed that “ physical tesgt.””
In the result, the complaint is allowed directing the 3rd opposite party to pay a sum of `1,10,000/-(Rupees One lakhs Ten thousand only)as relaying charges including value of tiles with `2500(Rupees Two thousand five hundred only) as cost of this litigation to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to get interest @ 12% p.a upon the above said amount of `1,10,000 from 14.10.2008 ie. date of filing of the complaint till realization. The complainant is entitled to execute the order after the expiry of one month as per the provisions of consumer protection act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the complainant
A1.cash bill dt.4.1.08 issued by 3rd OP
A2.Catalogue issued by 1st OP
Exhibits for the opposite parties: Nil
Exhibits for the court
C1.Commission report
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite parties: Nil
Witness examined for the court
CW1.P.K.Mohanan
/forwarded by order/
Senior Superintendent
Consumer disputes Redressal Forum, Kannur.
