D.O.F. 27.06.2008

D.O.O.05.10.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:       Sri.K.Gopalan                  :                President

                   Smt. K.P.Preethakumari   :               Member

                   Smt.M.D.Jessy                 :                Member

Dated this the 5^th day of October,  2010

C.C.No.153/2008

P.K. Raveendran,

S/o. T. Kunhappa Nambiar,

‘Vaikundam’,                                                        :         Complainant

Pathiriparamba, Chovva,

Kannur – 670 006         

(Rep. by M.K. Associates)   

1.  Mr. Hudaif Sathar V.P.,

    Partner, M/s. K.L. Abdul Sathar,

    Wholesale and Retail, Byepass Road,

    Thazhechovva, P.O. Chovva, Kannur.

(Rep. by Adv. K.L. Abdul Salam)

2.  The Manager,

     The Calicut Tile Co.

     Feroke, Calicut.

(Rep. by Adv. Sanesh R.P.)                                   :         Opposite parties

3.  Lakshmidevi Ceramics, Kallur,

     Kerala.                                                  

(Rep. by Adv. A.V. Sajith Kumar)     

4.  Proprietor, M/s. K.L. Abdul Sathar & Company,

     Wholesale and Retail, Bypass Road,

     Thaze Chovva, Kannur.

(Rep. by Adv. K.L. Abdul Salam)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay Rs.1,12,916 as damages and Rs.10,000/- as cost of the complainant.

          The brief case of the complainant is as follows :  Complainant built a house out of his pensionary benefits at Edakkad Amsom, Thottada desom in R.S.No.41/1.  In April 2008, complainant wanted to lay the roofing tiles as rains were probable by May and weather report clearly stated that by 29.05.2008 the rain will begin by the end of May itself.  The complainant approached opposite party 1, who is a whole sale and retail dealer of roofing, for purchasing best quality defect free roofing tiles.   Opposite party 1 showed him some samples of roofing tiles, and assured the complainant that the tiles are best quality.  Complainant purchased 1600 pieces of roofing tiles on 01.05.2009 at the rate of Rs.8.25 per piece.  It was loaded by the workers of the opposite party 1.  The total cost of the tiles including loading and unloading charges would come Rs.13,200/-.  On 01.05.2008 the tiles were kept at the shop of opposite party 1 and on the next day 02.05.2008. Opposite party 1 arranged the vehicle for transportation and the hiring cost Rs.450/- was paid by the complainant.  A contractor was entrusted the laying work.  When tiles were being laid covering the concrete roofing the complainant saw 60% of the tiles had cracks on them.  Workers of the tiles told him that the tiles are of poor quality and most of the tiles are cracked.  It was telephonically informed to opposite party l.  He promised to give fresh and defect free roofing tiles for covering the rest of the roof. On 26.05.2008 the complainant again approached the opposite party 1 for purchasing 325 roofing tiles.  But the opposite party and his staff behaved very rudely to the complainant insulting him before other consumers.  But due to dire need for laying the tiles before the rain the complainant suffered the insults and rude behaviour.  Again out of 325 tiles most of the tiles had cracks. The complainant was forced to purchase the tiles from opposite party because, the concrete ridges were prepared in accordance with the sample tiles provided by the opposite party and also for the reason of fast approaching monsoon.  On 29.05.2008 the roof was laid and painted, but the works who got on top of the roof reported that many tiles are completely broken and the broken and the tiles cannot be replaced as it is placed in such a way that it is interlocked with the ridge tiles and other adjacent tiles.  Now the rain water enter the concrete roofing through the broken tiles and flow down through the board at the end of concrete roofing and caused ugly scars.  Opposite party 1 supplied defective roof tiles and poor quality ridge tiles and has thus caused much mental agony and loss to the complainant.  The opposite party has charged Rs.9.5 for each roofing tiles from 26.05.2008 onwards.  The opposite party supplied defective tiles of poor quality.  The rectification is possible only by removing and replacing with new concrete ridges.   The opposite parties are jointly and severally liable to meet consequences.  So it is prayed for an order in the interest of justice.

          Pursuant to the notice opposite party entered appearance and filed versio.  Opposite party 1 concluded that he is one of the partners of   M/s. K.L. Abdul Sathar & Company which is a proprietory business concern and the authorised wholesale and retail dealer of the 2^nd and 3^rd opposite parties.  He has no personal liability.  Complaint should be filed against the proprietor.  Opposite party 1 admits that complainant has purchased 1600 pieces of roofing tiles on 01.05.2008 having the cost of Rs. 8.25 per piece and paid Rs.13,200/- to M/s. K.L.Abdul Sathar & Company.  Complainant approached this opposite party by enquiring about a third quality roofing tiles having the low price.   This opposite party is selling not only a low quality tiles purchased by the complainant but also 5 other different grade also having the price Rs.10, 11.50, 13, 15, 17 etc for a single piece respectively.  Out of these good quality tiles complainant has purchased very low quality, which have no guarantee or warrantee.  If the workers of the contractors saw cracks at the time of laying the tiles on the concrete roofing they can very well stop the works of leaving at the same stage itself to avoid further loss and ask for the replacement even before laying.  All the cracks reported by the workers made only due to careless and negligent laying of tiles by the inexperienced and untrained workers.  Since complainant purchased low quality tiles they must have take more care in laying.  The complainant never informed anything about this either by telephone or by directly. If the complainant convinced that he has got low quality tile instead of higher quality after laying the 60% purchased earlier he couldn’t approach again this opposite party for purchasing the same quality 325 tiles on 26.05.2008 from the opposite party.  These facts disclose the facts that no cracks have been found immediately after laying.  The statement of complainant that workers reported on 29.05.2008 that many tiles are completely broken down clearly proves that the cracks occurred consequently upon the tiles. It happened only at the time of painting.  Painting workers stepped on the tiles and walked over them to paint the tiles.  This opposite party never supplied defective roofing tiles and ridges of poor quality to complainant.  The complainant examined each and every tiles at the time of loading and unloading the tiles.  The above complaint has no merit. Hence to dismiss the complaint.

          Second opposite party filed version contenting that the 1^st opposite party approached the opposite party 2 and placed order for rejected and damaged quality of roofing tiles and opposite party agreed to sell the rejected tiles to the opposite party at the rate of Rs.5.75 per tile.  On 04.04.2008 the opposite party 1 purchased 4000 Nos rejected roofing S.G. VI^th tiles so also on 17.04.2008  1^st opposite party purchased 3800 tiles and 4000 tiles on 19.04.2008 from opposite party 2.  The quality and quantity of tiles are shown in the cash bill also.  If any offer or assurance had given by opposite party 1 to the complainant the 1^st opposite party alone is liable.  In any event there is no liability on the part of opposite party 2.  Hence to dismiss the complaint.

          Opposite party 3 filed version contenting that the tiles purchased by complainant from opposite party 1 is not supplied by opposite party 3.  For the last 2 years opposite party 3 is not manufacturing such big size tiles.  Opposite party 3 is manufacturing only small size tiles.  This opposite party is an unnecessary party. There is no joint liability as far as the opposite party 3 is concerned.  Hence to dismiss the complaint against the opposite party 3.

          Opposite party 4 did not conducted the case actively and separate version has not been filed, though he is examined as DW2. PW1 was cross examined for opposite party 4 also.

          Upon the above pleadings the following issues have been taken for consideration.

1.           Whether there is any deficiency on the party of opposite parties?

2.           Whether the complainant is entitled for any remedy as prayed in the complaint?

3.           Relief and cost?

The evidence consists of oral testimony of PW1, DW1, DW2 and documentary evidence Ext.A1 series, B1 to B4 and Ext.C1.

Issues 1 to 3 :

          Admittedly complainant purchased 1600 pieces of roofing tiles on 01.05.2008 at the rate of Rs.8.25 per piece.  On 26.05.2008 the complainant purchased 325 roofing tiles.  The main allegation of the complainant is that when tiles were being laid he saw 60% of the tiles had cracks on them.   Workers of the tiles told him that tiles are of poor quality and most of the tiles are cracked.  When it was informed opposite party 1 promised to give fresh and defect free roofing tiles for covering the rest of the roof.  On 29.05.2008 the roof was painted and the workers who got on the top reported that many tiles are completely broken.

          Opposite party contented on the other hand that he has been selling not only low quality tiles purchased by the complainant but also 5 other different grade also having the price Rs.11.50, 13, 15, 17 etc per piece respectively.  Opposite party 1 further contented that complainant has purchased very low quality which has no guarantee or warrantee.

          Export Commission was appointed and he filed report which is marked as Ext.C1.  He has inspected the property after giving notice to opposite party 1 to 3.  He reported that the tiles covered in an area of 1304 Sq. Ft.  At about 1565 ordinary tiles 138 ridge tiles were used.  Almost 268 tiles were kept there unused.  He could see split and cracks on many of the tiles.  On his inspection he witnessed number of tiles as split and crack.  So also the ridge tiles are also of less quality with broken sides. He has also reported that Mr. P.P.M. Sakkeer, the Store Keeper of the Calicut tiles who represented the Company told him that those tiles are belonged to 6^th class category.  He also told that cracked tiles are included in the 6^th category and since it is so extra 60 tiles will be given for 1000 tiles.  Commissioner calculated the total amount for purchase of tiles is Rs.21,639/- as per the complaint.  According to the report of Expert Commissioner it will cost Rs.46,330/- for replacement as per P.W.D. rate.

          Complainant filed objection to the Commission Report and stated that Commissioner is erred in reporting that 2 Ltr of paint instead of 40 Ltrs.  The total loss to that respect itself will be Rs.42,139 instead of Rs.36,189/-.  Commissioner has not stated the price of concrete reapers.  Price of the tiles not used due to defect also has not been reported by the Commissioner.

          Opposite party 1 also filed objection to the report.  He submits that commission issued registered notice but it does not contain detailed address and place of schedule building.  So he could not reach the place at the time of inspection.  The number of tiles reported as split and crack is exaggerated one.  Reporting and calculation are quite imaginary.  The statements of requisite expenses estimated by the Commissioner for laying tiles are quite inflated as comparing the prevailing wages of the man, woman and Supervisors.  The expenditure calculated for painting are extraneous.  The total area of the tiles laid is not correct.  Commissioner who has not reported the reason for split and crack.

          It can be seen that the complainant has paid Rs.13,200/- as price of tiles as per Ext.A1(b).  The total amount of the bill is Rs.13,965/-.  Complainant stated in his chief affidavit that the opposite party 2 is the manufacturer of ordinary tiles and opposite party 3 is the manufacturer of ridge tiles purchased from opposite party 1.  Complainant stated in affidavit evidence that he has purchased the tiles believing opposite    party 1, who assured that the tiles are good and suitable for his use.  He also showed the sample tiles.  He has stated that it was only during the time of laying that he could see 60% of the tiles were split and crack.  The workers told him that there is no meaning in laying the tiles.  He further stated that after realizing that he was cheated he informed this to opposite party 1.  At that time he told the complainant that he will be given selected tiles but when he went to take the tiles he was insulted in front of others.  It was because of the compelling necessity he purchased again 325 tiles on 26.05.2008.  The main allegation of the complainant is that opposite party 1 supplied defective roofing and ridge tiles hence he fears that water will stagnate on parts of the ridge and will sweep through the roof.

          The Manager of the 2^nd opposite party DW1 Mr. P.P.M. Sakeer stated by his affidavit evidence that opposite party 1 approached and purchased rejected roofing tiles for cheap price from opposite party 2 as per Ext.B1 to B3. He has also concluded that this category tiles are most cheapest and it is called VI SG.  No guarantee or warranty has been given to consumers for these tiles usually.  He contented that if opposite party 1 & 4 has given any assurance to complainant he is not responsible for the same. Complainant never approached opposite party 2 for replacement or rectification.

          Opposite party 4 in his affidavit evidence admits that complainant has purchased 1600 tile for Rs.13,200/-.  But he contents that it is lie that he was made believe that those tiles were of good standard.  Complainant approach to get cheap tiles and he purchased these tiles knowingly well it is cheap quality tiles.  He further contented that it is not correct to say that cracks and splits were caused due to the manufacturing defect but it is due to the careless use of cheap tiles.

          The evidence makes it clear that the tiles in dispute are low quality cheap product.  DW1 in his cross examination deposed thus “I½o-j³ h¶-t¸mÄ Rm\p-­m-bn-cp-¶p. I½o-j-WÀ¡v A\-ym-b-¡m-csâ `mK¯v ]Xn-¨-Hm-Sp-IÄ R§Ä  DÂ]m-Zn-¸n¨ 6þmT Ivfmkv hn`m-K-¯n s]«-Xm-sW¶v Rm³ ImWn¨v sImSp-¯p.” Ext B1 to B3 proves that opposite party 1 sold the 6^th class tiles to complainant.  DW1 further deposes that “Xosc hne-\n-e-hm-c-T -Ip-d-ª-XpT No´-ep-IÄ hoW-Xp-amb HmSp-I-fmWv 6þmT Ivfmkv HmSn s]Sp-¯mdv F¶v Rm³ hn-i-Z-am-¡n-sImSp¯p. On close analysis of the dealings of opposite party 2 and opposite party itself reflects the different nature that distinguishes the unfair trade practice Ext.B1 is the first cash bill issued by opposite party 2 on 04.04.2008 to opposite party 1 when he purchased tiles.  The cash bill clearly shows the commodity item “Rejected Roofing SG VI”.  Ext.B2 and B3 also clearly shows the commodity item “Rejected Roofing SG VI”.  Opposite party 2 explained to commissioner who inspected complainant’s house that this is the very same item that is seen used for the roofing of complainant.  When complainant was purchased this item opposite party 1 issued Ext.A1(a), (b), (c) receipts.  It can very well see the price Rs.13,200/- and number of pieces 1600 in Ext.A1(b) but commodity item has not been written.  It is pertinent to note that missing of commodity item is purposeful.  Ext.A1(e) also number of pieces written 325 but commodity item missed.  This purposeful omission in writing commodity item is the actual reflection of unfair trade practice.  Opposite party 1 did not made known to the complainant that the item of tiles he purchased belongs to “Rejected Roofing SG V1” purposefully so as to create an impression that the item of tiles are not low quality or otherwise it should have been clearly shown in the receipt issued by opposite party 1.  Thus we are of considered opinion that there is unfair trade practice on the side of the opposite party 1.

          Complainant purchased 1600 pieces of roofing tiles on 01.05.2008 for a price of Rs.13,200/-.  When tiles were being laid complainant could understand by the remarks of workers that 60% of the tiles had cracks.  Complainant was shocked to see what the workman had remarked was true.  Immediately the matter was telephonically informed the 1^st opposite party. Opposite party 1 promised to give fresh and defect free roofing tiles for covering the rest of the roof.  On 26.05.2008 complaint approached opposite party 1 and purchased 325 roofing tiles.  This time when he purchase again complaint is fully aware 60% of the tiles which he had purchased were with cracks.  Complainant states in his proof affidavit as well as in his pleadings that the second when he approach to purchase tiles again, the opposite party and his men behaved very rudely to complainant .  Anyhow he purchased the tiles.  Complainant again alleges that in the second purchase also most of the tiles had cracks.  Even after being insulted he did not check the material were good or bad.  He went there to purchase second time with a bad experience of his earlier purchase wherein 60% of the materials shocked to see had cracks.  Then it is difficult to understand the reason why he failed to make ascertain that materials purchased this time is defect free.  It is on 25.05.2008 complainant purchased the tiles again.  On 29.05.2008 painting was done.  It is too difficult to understand why complainant painted the tiles knowing well that majority of the tiles had cracks.  Complainant if vigilant at least he could have avoided a huge expense of painting and even the expense of laying itself.  But the complainant done the painting knowing well that the tiles had cracks.  It is a proved fact that tiles are of low quality having defects. But a huge amount for painting had been knowingly done for which complainant himself should suffer, though opposite party 1 & 4 are liable for delivering the defective tiles.

          In the light of the discussion above we are of opinion that opposite party 1 and 4 have committed the offence of unfair trade practice under Section 2(1) (r) and hence they are liable to refund of Rs.16,288/- as price of the tiles.  Complainant is also entitled for compensation for an amount of Rs.10,000/- with a cost of Rs.1,000/-.  Thus issued 1 to 3 are found in favour of complainant an order passed accordingly.

          In the result, complaint is allowed partly directing opposite party 1 & 4 to pay Rs.16,288/- (Rupees Sixteen Thousand Two Hundred and Eighty Eight only) as price of the tiles and a sum of Rs.10,000/- (Rupees Ten Thousand only) as compensation together with a cost of Rs.1000/- (Rupees Thousand only) within one month from the date of receiving order failing which the complainant is entitled for 12% interest per annum from the date of order till the realization of amount.  Complainant is at liberty to execute the order after the expiry of one month as per the provisions of the Consumer Protection Act.

                            Sd/-                    Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.            Estimates issued by 4^th opposite party.

Exhibits for the opposite party

B1 to B3.  Cash bills dated 04.04.2008. 17.04.2008 and 19.04.2008

                 issued by opposite party 2 to opposite party 4.

B4.            Authorisation letter of opposite party 2.

Exhibits for the Court

C1.  Commission Report

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  P.P.M. Sakeer

DW2.  Uvaise Abdul Sathar

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT