DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PALAKKAD
Dated this the 26th day of November 2021.
Present : Sri.Vinay Menon V, President
: Smt.Vidya.A, Member
Date of filing: 29.11.2016
CC/185/2016
Hamsa V T
S/o Kunjayammu Haji - Complainant Valiyathodi House
North Paloor,
Malappuram – 679 323
(Adv. KR Santhoshkumar)
VS
1. Blue Art Granite Pvt. Ltd
(Rep.by Managing Director)
Pandi Road 8-A,
National Highway
Morthi 363 642
Gujarath. - Opposite parties
2. 4 Homes, Pattambi
(Rep. Proprietor)
Perinthalmanna Road
Sankaramangalam
Palakkad – 379 303
(By Adv. Shiju Kuriakose)
O R D E R
By Sri Vidhya.A Member
Brief Facts of the complaint
1 This is a case regarding the defects/damages caused to the tiles purchased by the complainant from the 2nd opposite party. The first opposite party is the manufacturer of the tiles and second opposite party is the dealer. The complainant purchased 604 square feet of tiles from the second opposite party’s shop on 04/09/2014 for a prize of Rs 72/- per square feet. The complainant paid a total amount of Rs 43,638/- for the tiles. At the time of purchase, the 2nd opposite party assured the product to be first quality with life long guarantee for its colour and shining. They made him believe that the tiles will not get stained for ever and he purchased it believing the assurance given by them.
But even before completing six months, the tiles got stained and black marks appeared on some tiles. On noticing this, he immediately contacted the second opposite party and they assured that they will report the matter to the first opposite party. For few days there was no response and later on a representative from the first opposite party visited his house and tried to clean this using acid, but all in vain. The opposite parties assured that they will solve the issue with expert staff. Later, a staff of the second opposite party came and tried to clean it with acid, but the stains did not go. Since they failed to solve the issue, the opposite parties agreed to pay a compensation of Rs 10,000/- which was not agreeable for the complainant. The acts of the opposite parties amount to clear deficiency in service and Unfair Trade Practice.
So this complaint is filed for getting Rs 1,15,298/- (including bill amount, labour cost, material cost and compensation) from the opposite parties.
2. Complaint admitted and notice issued to the opposite parties. First opposite party did not appear before the Forum and so they were set ex-parte . Second opposite party entered appearance and filed their version.
3. The main contentions in second opposite party’s version
Second opposite party admits that the complainant purchased tiles from their shop on 04/09/2014. Rest of the averments in the complaint are denied by this opposite party. The second opposite party is only a dealer and the tiles are manufactured and distributed by the first opposite party. The second opposite party is in no way responsible for the issues related to manufacturing defects of the tiles. After purchasing the tiles on 04/09/2014, the complainant did not raise any complains regarding the tiles at the time of laying down. Nobody else who purchased the same batch tiles as the complainant had raised any complaints regarding the quality of the tiles. From this itself it can be understood that the defects in the tiles happened due to inexperienced workman ship or by the use of harmful chemicals in cleaning the tiles.
Further the complaint is barred by limitation as it is not filed within the time limit prescribed under the C.P Act. The complaint is frivolous and vexatious and is to be dismissed with cost.
4. Complainant filed chief affidavit along with two documents which were marked as Ext A1 & A2 (series) - photographs of the defective tiles. Ext A3 (The C.D containing the conversation between the complainant and the opposite party) is marked subject to proof. Complainant filed IA 307/17 to appoint an Expert Commissioner. It was allowed and posted for submitting expert’s panel. Then The complainant’s counsel submitted for appointment of an Advocate Commissioner in the place of the expert and filed a fresh Commission application as IA 369/17. It was allowed and the Adv. Commissioner after examining the tiles, filed report which is marked as Ext C1. The second opposite party also filed chief affidavit and no documents were marked from their side. The 2nd opposite party filed IA 309/19 seeking permission to cross examine the complainant. As the complainant had already filed authorization, the second opposite party was permitted to cross examine the authorized person and the authorized person was directed to file fresh affidavit. Complainant filed additional affidavit along with some documents. After that there was no representation from the complainant’s side and the authorized person did not file fresh affidavit. So the evidence was closed.
Heard the 2nd opposite party.
5. Main Issue
(1) Whether the complaint is barred by limitation?
(2) Whether there is any deficiency in service/Unfair Trade Practice on the part of the opposite parties?
(3) If so, what is the relief as to cost and compensation.
6. Issue No:1
It is admitted fact that the complainant purchased the tiles from the second opposite party on 04/09/2014. The stains in the tiles appeared after 6 months as per the complainant’s contention. Then he contacted the opposite parties for solving the issue and the resolving process was going on and when it was not solved, he filed this complaint before this Forum on 28/11/2016. So the complaint is filed within 2 years from the occurrence of the cause of action and it is not barred by limitation.
7. Issue no. 2&3
As per the averments in the complaint, the complainant purchased the tiles believing the assurance given by the 2nd opposite party about the quality and durability. But even before completing six months, the tiles got stained and some black marks appeared on the tiles.
8. The complainant produced the photographs showing the stains on the tiles. The photographs which are marked as Ext A2 (series) clearly shows the stains and the marks on the place where the table is kept. The opposite parties have no case that the photographs are not of the tiles provided by them.
9. Further the Advocate Commissioner in his report which is marked as Ext C1 has clearly explained this. The relevant portions in Ext C1 reads as follows.
“മേപ്പടി വീടിന്റെ സിറ്റൗട്ടിൽ പാകിയിരിക്കുന്ന 15 ഫുൾ വലിപ്പത്തിലുളള ടൈലിൽ 10 എണ്ണത്തിലും കറ കാണപ്പെട്ടു. മേപ്പടി വീടിന്റെ വിസിറ്റിംഗ് റൂമിൽ പാകിയിരിക്കുന്ന 25 മുഴുവൻ വലിപ്പത്തിലുളള ടൈലുകളിൽ 6 എണ്ണത്തിൽ കറ കാണപ്പെട്ടു. മേപ്പടി വീടിന്റെ ഹാളിൽ പാകിയിരിക്കുന്ന 46 ഫുൾ ടൈലുകളിൽ 40 ടൈലുകളിലും കറ കാണപ്പെട്ടു. ടി റൂമിൽ പാകിയിരിക്കുന്ന 3 ടൈലുകളിൽ മര ഊണുമേശയുടെ കാലിന്റെ പാടുകൾ പതിഞ്ഞതായി കാണപ്പെട്ടു.
This shows that the tiles which are manufactured and sold by the opposite parties are of inferior quality and became defective within a short span of time.
10. The second opposite party’s contention in this regard is that the complainant did not raise any objection with regard to the quality of tiles at the time of laying it. The stains appeared because of the inexperienced workmanship and the use of cleaning materials containing chemicals which are harmful to the tiles.
This contention cannot be taken into account because the complainant had clearly stated that the black marks and stains on the tiles started appearing on the tiles within 6 months of laying down. Further the stains appeared in certain tiles and not on all. If it is because of the use of chemicals as alleged by the opposite party, it would have damaged the full tiles. The marks on the place where the table is kept clearly shows the poor quality of the tiles.
11 The counsel for the second opposite party argued that the complainant had failed to prove the manufacturing defect as alleged by him as he did not take out an expert to ascertain the defects in the tiles.
Eventhough the Adv. Commissioner is not an expert in finding out the manufacturing defect, as a prudent man, he inspected and filed a detailed report clearly describing the apparent details of the defects appearing in the tile flooring. We find nothing wrong in accepting Ext C1 as a reliable report. Further the opposite party did not file any objection to the Commission Report.
12. The complaint produced the estimate of the purchased items given by the opposite party which is marked as Ext A2. From this the cost of the BLUEART WHITE tiles can be seen as Rs.44,640/- (fourty four thousand six hundred and fourty only). The complainant had stated in his Additional Affidavit that when he returned the remaining tiles the opposite party refunded Rs.1152/- (One thousand one hundred and fifty two only) and charged Rs.150/- (One hundred and fifty only) for loading the tiles. So the total cost of tiles amounts to Rs.43,638/- (fourty three thousand six hundred and thirty eight only). The complainant had stated that the labour cost for laying the tiles as Rs.17,160/- (Seventeen Thousand One hundred and Sixty Only) and material cost as Rs.4500/- (Four thousand Five Hundred Only). But he has not adduced any evidence to show the exact amount.
13. It is pertinent to note that the 2nd opposite party did not provide ‘Tax Invoice’ for the purchased item, They issued only the Éstimate’ for the purchased item which is produced and marked without any objection from the opposite party. Non issuance of bill is an unfair Trade Practice under the C.P Act.
14. The opposite parties committed Unfair Trade Practice as they had manufactured and sold the tiles which are of lower quality and durability against their assurance. Further they are liable for deficiency in service as they were not willing to replace the tiles or refund the amount. So they are liable to compensate the complainant for that.
15. The tiles and other materials which are used for construction of buildings are meant for long use. If they become defective within short span of time, it is definitely because of their inferior quality.
The complainant who purchased it believing the assurance given by the opposite parties would have definitely undergone mental agony and financial loss. The 1st and 2nd opposite parties being the manufacturer and dealer respectively are jointly and severally liable to compensate the complaint for that.
In the result the complaint is allowed.
We direct:- (1) the opposite parties to give Rs.60,000/- (sixty thousand only) as the cost of the tiles, labour charges and material cost.
(2) We further direct the opposite parties to give Rs.20,000/-(Twenty thousand Only) as compensation for the deficiency in service and Unfair Trade Practice committed by them and
(3) Rs.10,000/- (Ten thousand Only) as cost of the litigation.
Order shall be complied within 45 days from the date of receipt of this order. In case of default, the complainant is entitled to get 9% interest on the first mentioned amount is Rs.60,000/- (Sixty Thousand Only) from the date of order till realization.
Pronounced in the open court on this the 26th day of November 2021
Sd/-
Vinay Menon.
President
Sd/- Vidya.A Member.
APPENDIX
Exhibits marked on the side of complainant
Ext. A1- Estimate of the purchased items given by 2nd opposite party to the
complainant
Ext.A2 –(series) Photographs of the defective tiles
Ext.A3- CD (subject to proof)
Exhibits marked on the side of Opposite parties
NIL
Cost : 10,000/-
