By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows: -
1. The complainant is a non-resident Indian and while he was in abroad, he purchased prime milky white mat 600 x1200 Somany tiles vide invoice in the name of Mr. Anshad Mp, who is a close friend of the complainant. The invoice number is 530 dated 29/05/2020 for Rs.1,02,038/-. The opposite parties delivered 102 boxes of tiles to the residential address on the same date of invoice. The complainant entrusted Mr. Anshad M.P to purchase the tiles of somany believing in the advertisements of the product of the third opposite party. On enquiry Mr. Anshad M.P understood that CEE PEE, Arcade velimukku is the authorized dealer of the somany tiles. Hence, he went to the showroom of the opposite party No.1 and the staff of the opposite party No.1 induced to purchase the above-mentioned tiles giving assurance that the tiles are of good quality and assured warranty for several years. Believing the representations of the staff of the first opposite party, the complainant purchased the tiles.
2. The complainant submitted that within days the tiles were laid at the complainant’s house. The complainant entrusted to expert tile contractors and labours to lay the tile work in the house of complainant. The workers have initially dry laid the tiles and got the approval from the complainant’s family member and they have laid the tiles efficiently and cleanly meeting the complainant expectations. But soon after laying the tiles, the complainant’s family members notice that the tiles were losing its glare and finish the color faded. After the time of “house warming” the tiles were the topic of discussion for almost all the guests. The complainant was fed up hearing the statements of the gusts upon sympathy. The complainant felt unhappy about his dream house for the reason he must face insult before many guests. All these because of some defective tiles purchased.
3. The complainant has raised complaint to first and third opposite parties. After many elaborate procedures, the first opposite party replaced 27 boxes out of 102 boxes claiming that the remaining boxes are all good and fresh and without any defect. The complainant also had raised objection at that point itself and then the first opposite party assured that they will replace the other boxes in case of any discoloration or any defects to the other tiles.
4. Soon after the replacement of the tiles the other tiles also started to exhibit its defective nature. The discoloration / color fading was so evident that it is seen at a single glance itself. The complainant made efforts to cover the defective tiles by putting carpet on it. But this idea failed after a week or so were the fading of tiles spread all over and it is now impractical to cover the entire area by carpet.
5. The person with ordinary diligent can easily understand that the entire batch of tiles is having manufacturing defect.
6. Since the complainant had informed to opposite parties first and third, they did not respond positively and failed to full fill the assurance of replacement. The above said acts and conduct on the part of the opposite parties amounts to deficiency in service and unfair trade practice. The replacement itself is not that easy for the complainant as they have arranged all their furniture and utensils. It will require days of hardships for them to clear the furniture and to rearrange it. The extraction of tiles and re fixing will spread dust all over the area and spoil the freshly painted walls and other electronic equipment’s. But as this is inevitable for the complainant and as no other way but to suffer this.
7. The complainant submit that he suffered much loss, injury, hardship and damage besides the mental agony, trauma and stress has been and is being caused and occasioned to the complainant and his family on account of the manufacturing defect to the product, deficiency of service and unfair trade practice on the part of the opposite parties. The complainant estimate the said loss and quantify the same as sum of Rs.2,84,000/- which the opposite parties jointly and severally liable and responsible to pay to the complainant and also liable to replace the entire tile and to lay the same at the cost of the opposite parties. Though the complainant made repeated demands, there was no response from the opposite parties and the complainant issued a registered lawyer notice on 13/04/2021. But there was no response to the notice. On receipt of notice the first opposite party replaced 27 boxes of tiles on 26/02/2021.
8. The complainant submits that due to the act of the opposite parties the complainant incurred Rs.2,84,000/- which is the cost of the tiles and the labor charges to lay tiles and other expenses. Since the discoloration of the rest of the tiles, the complainant is decided to remove the tiles and lay new tiles and the removal of the tile flooring is really a hard task and expensive. Moreover, already installed furniture and other electrical fittings will get damaged and the cost of the same will be around Rs.1,50,000/-. Hence the prayer of the complainant is to direct the opposite parties to pay Rs.1,02,038, the price of the tiles which the complainant paid to the first opposite party, and to pay Rs.1,84,000/- the labor charge and other expenses to lay the tiles, and to pay Rs.1,50,000/- the labor charge and other expenses to remove the damaged tiles from the floor, to pay Rs. 2,00,000/- as compensation towards the mental agony caused to the complainant and to pay the cost of the complaint.
9. On admission of the complaint notice was issued to the opposite parties. Though notice served on first opposite party, did not appear, and so set exparte. Opposite parties two and three filed version. The second and third opposite parties denied the entire averments and allegations in the complaint. According to second and third opposite parties the complainant here in is not a consumer and the complaint is not maintainable.
10 The opposite parties denied that the complainant purchased tiles on 29/05/2020 for Rs.1,02,038/- from the opposite party. It is also denied that the complainant had purchased tiles from the first opposite party also. The opposite parties submitted that one Anshad had purchased tiles from the first opposite party. The opposite parties have no knowledge about the entrustment made between the complainant and the said Anshad.
11. The opposite parties denied that the complainant entrusted expert tiles contractors and labours to lay the tiles in the house of the complainant and they initially dry laid the tiles and got approval from complainant family members and laid efficiently and clearly meeting the complainant’s expectation. The complainant had to engage skilled labores to lay the tiles and further they had to follow the instructions mentioned on the cartoons strictly before the tiles were laid. So, in order to lay the tiles superior quality of raw material should have been used, that was not done by the complainant. It is denied that soon after laying the tiles the complainant’s family members noticed that the tiles are losing its glare and finish and the colour faded. If at all there is any color variation or fade on the tiles already paved it is because of the poor workmanship had inferior quality of raw materials used and it can be said that there is no any manufacturing defect or deficiency in service on the part of these opposite parties. The opposite parties submitted that the complainant has no locus standi to file such a complaint before the Commission.
12. The opposite party submitted that they have been manufacturing and marketing different varieties of tiles by using innovated technologies for the last 15 years. The ultimate object of the opposite parties is that the complete satisfaction of the customers. The intention of the complainant herein is to grab some money from the opposite parties. There is no cause of action and the Commission have no jurisdiction to entertain the complaint. Hence the prayer is to dismiss the complaint with cost of the opposite parties.
13. The complainant and opposite parties two and three filed affidavit and document. The documents on the side complainant marked as Ext. A1 to A6. Ext. A1 is copy of tax invoice No. 530 dated 29/05/2020 for Rs.1,02,038/-. Ext. A2 is tax invoice No.8060 dated 26/02/2021 for Rs.27,011/-. Ext. A3 is copy of tax invoice credit note number 110 dated 24/03/2021 for Rs.27,000.13/-. Ext. A4 is copy of lawyer notice issued by Adv. Pradeep. K to opposite parties dated 08/04/2021. Ext. A5 is postal acknowledgement. Ext. A6 is power of attorney executed by the complainant in favor of his brother MR. Sabeer C.K S/o Muhammed C.K, C.K S house, Hilltop, Mongam Post, Malappuram Dist. With Aadhar No..306224967814. The advocate Commissioner filed report on 12/12/2022 and it is marked as Ext. C1.
14. Perused affidavit and documents, heard complainant and opposite party. The following points arise for consideration
1) Whether the complaint is maintainable and whether the complainant has
got locus standi to file this complaint.
2) Whether the tiles used by the complainant was defective one?
3) Whether there is deficiency in service or unfair trade practice on the side of
opposite parties?
4) Relief and cost
15. Point No.1
The complainant herein is the power of attorney holder of Mr. Suneer, who purchased tiles from the opposite party to lay in the complainant’s house. The complainant Mr. Suneer being a non- resident Indian authorized his close friend Mr. Anshad to purchase the tiles from the opposite parties and so the invoice was issued in the name of MR. Anshad . Later Mr. Suneer executed power of attorney Ext. A6 in favor of his brother Mr. Sabeer and he filed the present complaint before the Commission. So, we do not find merit in the contention of the opposite parties that the complainant has no locus standi to file this complaint before this Commission and the Commission have no jurisdiction to entertain the complaint. The complainant purchased the tiles from the first opposite party which is within the jurisdictional limit of this Commission
16. Point No.2 and 3
The grievance of the complainant is that within the days of laying the tiles it was noticed the tiles are losing its glare and finish and the color faded. At the time of house warming the tiles were the topic of discussion for almost all guests and due to the same he felt unhappy about his dream house. Then the complainant immediately contacted first and third opposite parties and they replaced 27 boxes out of 102 boxes claiming that the remaining boxes are all good and fresh and without any defects. The complainant also had raised objection at that moment itself and then the first opposite party assured that they will replace the other boxes in case of any discoloration or any defect. The complainant further submitted soon after the replacement of the tiles the other tiles also started to Exhibit its defective nature. The discoloration / color fading was so evident that it can be seen at a single glance itself. The complainant submit that he made effort to cover of the defects putting carpet on it. It appears the entire batch of the tile is having manufacturing defect. Though the complainant informed opposite parties one and three they did not respond positively and failed to full fill the assurance of replacement.
17. The contention of the opposite parry is that the complainant failed to engage skilled labors to lay the tiles and to follow the instructions mentioned on the cartoons strictly before the tiles laying. Moreover, for laying the tiles superior quality of raw materials should have been used and in this case the complainant failed to use superior quality raw materials. The opposite party further contented that if at all there is any color variation or fade on the tiles on the tiles already paved it is because of the poor workmanship apart inferior quality of raw materials used while laying the tiles. The complainant failed to establish manufacturing defect to the tiles. It is further submitted that before laying the tiles, the same must be paved on the surface without fixing with the grout in order to ascertain clear design and color as same. Then only the tiles are to be fixed with grout. If there is difference in batches of same tiles there may be slight variation in color and the same could be understood before fixing with grout itself. The opposite parties further submitted it is bounden duty of meson to ascertain that the batch no of the tiles printed on this cartoon is same. According to opposite party there is no such color variation or fade in color of the tiles paved as alleged by the complainant. More over the opposite party submit the advocate commissioner has no skill or knowledge pertaining to the ceramic product or tiles and so the report of the advocate commissioner is no way helpful for the proper adjudication of the dispute.
18. In this complaint, complainant produced Ext. A1 to A6 and commission report Ext. C1. The Commission Repot C1 categorically reported that the color fading of the tiles is clearly visible to the commissioner but cannot assess the internal damages for which expert assistance is required. The photographs produced by the commissioner as part of the report substantiate the case of color fade of the complainant. The color fading to tiles is an apparent defect. So, there is no reason to discard the report of the Commission regarding the color fading of tiles. The grievance of the complainant is centered on color fading issue and so we find that case of the complainant stands proved through the documents and commissioner’s reports Ext. C1. The delivery of defective tiles caused replacement of 27 boxes of tiles. The complainant submit that the opposite parties had assured replacement of other tiles in case any discoloration or any defects to them. So not replacing the defective tiles of the complainant amounts unfair trade practice and deficiency in service on the part of the opposite parties, we find points two and three accordingly.
19. Pont No.4
The complainant is being a non-resident Indian entrusted to purchase tiles from the opposite party and later it was found defective during house warming itself and so the complainant was very much aggrieved. He complainant prayed Rs.1,02,038/- for the price of tiles and Rs.1,84,000/- towards the labour charge and other expense to lay the tiles and an amount of Rs.1,50,000/ towards the labor charge and other expense to remove the damaged tiles from the floor along with compensation of Rs.2,00,000/-.
20. The complainant produced Ext. A1 tax invoice to show the price of the tiles as claimed in the complainant. But there are no documents for other claims raised by the complainant. It can be presumed that the complainant might have incurred some amount towards the labor charge and chance to incur expenses to remove the damaged tiles from the floor. The Commission assess an amount of Rs.1,00,000/- for the labor charge and other expenses to lay the tiles and assess an amount of Rs.50,000/- to remove the damaged tiles from the floor. The complainant who is working abroad entrusted the work of laying tiles after purchasing the same from the opposite parties with much expectation. But on completion of the work and at the time of “house warming “occasion he was fed up with the comments of the tile work done in the house. So, the complainant suffered mental agony due to the defective product of the opposite parties is valid one. The complainant caused lawyer notice but there was no proper and effective remedial action from the side of opposite parties. Hence it appears the complainant is entitled reasonable amount as compensation and we allow Rs.1,50,000/- on that account.
11. In the light of above facts and circumstances the commission allow this complaint as follows:
1) The opposite parties 1 to 3 are directed to refund the cost of Rs.1,02,038/-(Rupees one lakh two thousand thirty eight only )as the price of the tiles to the complainant.
2) The opposite parties are directed to pay Rs.1,50,000/- (Rupees one lakh fifty thousand only) towards the labor cost to the complainant.
3) The opposite parties are directed to pay Rs. 1,50,000/- (Rupees one lakh fifty thousand only )as compensation towards the mental agony and inconvenience suffered by the complainant.
4) The opposite parties directed to pay Rs.10,000/- (Rupees ten thousand only) to the complainant as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite parties are liable to pay interest at the rate of 9% per annum from the date of filing this complaint till date of payment.
Dated this 29th day of May , 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A6
Ext.A1: Copy of tax invoice No. 530 dated 29/05/2020 for Rs.1,02,038/-.
Ext.A2: Tax invoice No.8060 dated 26/02/2021 for Rs.27,011/-.
Ext A3: Copy of tax invoice credit note number 110 dated 24/03/2021 for
Rs.27,000.13/-.
Ext A4: Copy of lawyer notice issued by Adv. Pradeep .K to opposite parties dated
08/04/2021.
Ext A5: Postal acknowledgement.
Ext.A6: Power of attorney.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
