KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.158/2018

JUDGEMENT DATED: 01.11.2023

(Against the Order in C.C.No.34/2012 of CDRF, Thrissur)

PRESENT:

APPELLANT:

(by Advs. George Cherian Karippaparambil & S. Reghukumar)

Vs.

RESPONDENT:

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

          This appeal is filed by the opposite party in C.C.No.34/2012 of the Consumer Disputes Redressal Forum, Thrissur (District Forum for short) challenging an order dated 28.09.2017, allowing the complaint.  The respondent herein is the complaint.

          2.       According to the complainant, he had purchased roofing tiles from the opposite party on 29.08.2011 for Rs.41,600/-(Rupees Forty One Thousand Six Hundred).  At the time of purchase, the opposite party had assured that the tiles were of good quality.  But the tiles were of low quality.  According to him, he had actually purchased tiles worth Rs.41,600/-(Rupees Forty One Thousand Six Hundred) but the bill was given only for Rs.34,333/-(Rupees Thirty Four Thousand Three Hundred and Thirty Three).  The tiles were on its own broken due to lack of quality.  So the complainant painted many tiles experimentally.  But that too did no good.  So he issued a lawyer’s notice on 08.11.2011 to the opposite party.  The opposite party issued reply notice denying the allegations.  The reasons stated in the reply notice are not true.  The act of the opposite party amounts to deficiency in service.  Therefore, the complainant prayed for refund of the price paid by him with 12% interest along with compensation of Rs.50,000/-(Rupees Fifty Thousand) together with costs of the proceedings.

          3.       The opposite party filed version contending in brief that they have been doing this business even prior to independence.  The opposite party is a reputed business firm in the manufacture of tiles and there has been no complaint against their products so far.  The opposite party had given bill for the actual purchase amount.  Therefore, the statement to the contrary were denied.  The tiles would not break on its own.  The breakage could occur if the tiles were not laid and stacked on the ground where it is not level and if any goods are stacked on it or weight is applied on it.  The opposite party has specifically denied any defect in the tiles.  The opposite party had issued a reply notice on receipt of notice of the complainant stating the above details.  So there was no deficiency in service committed by the opposite party.  They prayed for dismissal of the complaint.

          4.       Complainant filed a petition before the District Commission for the appointment of an Expert Commissioner to examine the tiles and to ascertain their quality.  Accordingly, an Expert Commissioner was appointed.  The Expert inspected the tiles and submitted a report, which was marked as Exhibit C1.  According to C1 report, the tiles were not of good quality and were defective.  The opposite party objected to the report by contending that no scientific tests were conducted to ascertain the quality of the tiles or to identify the defects.

          5.       On the side of the complainant, Exhibits P1 to P4 documents were marked and the Power of Attorney of the complainant was examined as a witness.  The Expert Commissioner was examined as CW1.  The opposite party did not adduce any evidence.  The District Commission considered the complaint in the light of the evidence on record and found that there was deficiency in service on the part of the opposite party.  Therefore, the opposite party has been directed to refund the amount of Rs.34,333/-(Rupees Thirty Four Thousand Three Hundred and Thirty Three) paid by the complainant as per Exhibit P1 bill and also to pay a further amount of Rs.10,000/-(Rupees Ten Thousand) as costs.  It is aggrieved by the said order that this appeal is filed.

          6.       According to counsel for the appellant, there is no reliable evidence in this case to conclude that the tiles sold by the appellant were defective.  The Expert Commissioner who had examined the tiles has not submitted them to any scientific test.  The statutory mandate stipulated by Section 13(1)(c) of the Consumer Protection Act, 1986 (the Act for short) has not been complied with.  Therefore, the District Commission went wrong in blindly accepting the Commission Report as correct.  A reading of the report would show that the same is unreliable and that it has no evidentiary value.  Since the District Forum has not followed the procedure prescribed by Section 13(1)(c) of the Act, the order appealed against cannot sustain.  Exhibit C1 is solely on the basis of surmises and conjectures.  On the above grounds, it is submitted that, the order appealed against is liable to be interfered with and set aside.

          7.       We have heard the counsel at length.  We have also perused the Lower Court Records called for and produced before us.

          8.       In the present case, though the opposite party has filed version, they have not adduced any evidence on their side, either oral or documentary.  Therefore, this is a case where there is evidence only on one side.  Respondent has produced Exhibits P1 bill dated 29.08.2011 for purchase of roofing tiles.  The amount mentioned therein is Rs.34,333/-(Rupees Thirty Four Thousand Three Hundred and Thirty Three).  Therefore, the purchase of tiles is proved.  In fact, the purchase of tiles is not disputed by the opposite party.  The dispute is only with respect to the acceptability of Exhibit C1.  We have carefully gone through Exhibit C1.  Exhibit C1 has found that the name of the appellant’s business concern. “Sreeramachandra Industrials” was seen on most of the tiles.  The Expert has checked the strength of the tiles by breaking as many as sixty tiles, which is a substantial number.  He has found that they lacked sufficient strength.  According to him, the lack of strength could be attributed to many factors like low quality of the clay used, defects in the mixing process or defects in the baking of the tiles.  Though different reasons are stated by him for the lack of quality, his conclusion is definite, that the tiles were of low quality.  When he was examined as CW1, he was questioned regarding the basis of his conclusion.  He has stated that the quality of tiles could be assessed by the physical verification that he had adopted.  It is therefore clear that, Expert had adopted a reasonable procedure for ascertaining the quality of tiles, which cannot be dismissed as illusory or unscientific.  An experienced person would certainly be in a position to assess the quality of the tiles by such processes, which are commonly adopted in the trade.  Had the appellant been certain and confident about the quality of the tiles supplied by them, they could have taken steps to have the tiles subjected to examination and quality assessment at an accredited laboratory.  Since no such attempt was made, we are not satisfied that the report of the Advocate Commissioner should be rejected for the reasons put forward in the Appeal Memorandum.  As already noticed, though the Expert has listed the likely reasons for the lack of quality in the tiles, he has given a definite answer that the tiles were of low quality.  We do not find any material or evidence on record to impeach the said conclusion.  We therefore find that, the District Commission was right in accepting the C1 report and directing the appellant to return the price of the tiles paid by the respondent as per Exhibit P1 bill.  The compensation granted and the costs awarded are reasonable and do not call for any interference in appeal.  For the above reasons, this appeal fails and is accordingly dismissed.  No costs.

SL