O R D E R

Sri. P. Satheesh Chandran Nair (President):

                The complainant filed this complaint against the opposite parties u/s.12 of the C.P. Act, 1986 for getting a relief from the Forum.

             (2) The case of the complainant is stated as follows:  The complainant is the consumer of opposite parties who bought product of 2^nd opposite party through their authorized agent 1^st opposite party.  The complainant purchased Mist Bianco 2*2 premium italica tiles of 2^nd opposite party and other miscellaneous articles from 1^st opposite party on 30.06.2014 for a consideration of Rs.92,000/-.  The 2^nd opposite party as the agent of 1^st opposite party delivered the tiles to complainant and he who received the balance amount Rs.90,000/- from the complainant.  The complainant contended that on inspection he found that the tiles were not the quality as ordered by the complainant.  According to him, he ordered for premium tiles but the tiles delivered to him was not the premium tiles and the quality printed on the cover at the tiles were tampered and this is an unfair trade practice of the opposite parties.  He again contended that the colours of the tiles in different box are different and this defect was communicated to the 1^st opposite party and he sent a representative to inspect the defect of the product.  Even though the representative understood the difference of colour of tiles he did not take any measures to redress the grievances of the complainant.  This is also a deficiency in service on the part of the opposite parties.  According to the complainant, the price printed on the packet cover is only Rs.850/- but 1^st opposite party received an amount of Rs.1,040/- per packet.  The excessive pricing is also a clear violation of law.  The complainant again stated that the above matters are communicated to 1^st opposite party several times but he was reluctant to redress the grievances.  The complainant sent a legal notice on 22.07.2014 stating all the above fact and demanding the original bill.  Though the 1^st opposite party received this letter on 23.07.2014 and the 2^nd opposite party received it on 26.07.2014, neither the opposite parties made any reply to the said notice nor made any arrangements for redressing the grievances of complainant which was stated in the notice.  The cause of action of this case arose on 30.12.2014.  The 1^st opposite party delivered 2^nd opposite parties defective tiles to the complainant through unfair manner at Ranny Taluk were 1^st opposite party carries on business, which is under the jurisdiction of this Forum.  As per this complaint, the complainant requested a relief of returning Rs.92,000/- to the complainant from 1^st opposite party and allow Rs.1 lakh as damage for mental agony, deficiency of service etc. of opposite parties and also for some other reliefs. 

              (3) The complainant filed this complaint before the Forum, the Forum entertained this complaint and issue notice to the opposite parties for their appearance.  Though both the opposite parties received notice and 1^st opposite party appeared before the Forum and 2^nd opposite party did not appear before the Forum and on 23.01.2015 2^nd opposite party declared as exparte. 

                 (4) The 1^st opposite party filed version as follows:- 1^st  opposite party admitted that he is the dealer of the 2^nd opposite party and is the Manager of Ceramic World, Kozhenchery.  He did not admit the complainant’s purchased of Mist Bianco 2*2 Premium Italica Tiles manufactured by the 2^nd opposite party for an amount of Rs.92,000/- on 30.06.2014.  According to him, no sale occurred on 30.06.2014 and the document No.1 is not at all a bill issued by 1^st opposite party to the complainant.  The complainant enquired about the above said tile which was not available in opposite party’s godown and he contacted the 2^nd opposite party and after knowing the availability of the said tiles, the 2^nd opposite party delivered the tiles at the spot of the complainant and 2^nd opposite party collected the balance price.  This material was not unloaded in Ceramic World and no sale occurred there.  According to 1^st opposite party, the party who delivered the tiles is not the agent of the 1^st opposite party.  He denied the allegation of the complainant regarding the excessive price, quality of the goods and the tampering alleged.  He emphatically stated that there is no unfair trade practice on his side.  The legal notice was only a mistake on the part of the complainant and the content of the notice was absolutely false.  The complainant again stated that if the material is found substandard, the complainant should have been returned to the 2^nd opposite party and if so it would have been replaced.  The complainant was satisfied with the tile that is why the complainant fixed the tile for his purpose.  According to the 1^st opposite party, except the notice stated above, no other complaint was made to him by the complainant.  According to this opposite party, there is no cause of action occurred against him for this complaint and the complainant has not liable to get any relief from him.

                (5) This Forum peruse the complaint, version filed by the 1^st opposite party and the document produced at the time of filing the petition and we raise the following issues:-

1. Whether the complainant is a consumer of opposite parties?
2. If so the complainant has suffered any deficiency in service or unfair trade practice or any other kinds of difficulties from the side of opposite parties?
3. Regarding the reliefs and costs?

        (6) On the side of the complainant the power of attorney holder is examined as PW1 and he filed an affidavit in lieu of chief examination and marked Exts.A1 to A6. Except the evidence of PW1 no further evidence adduced on the side of the complainant.  On the other hand for 1^st opposite party, who is examined as DW1 and marked Ext.B1.  Ext.A1 is the general power of attorney dated 22.10.2012 of the complainant Mr. Biji John in favour of his friend Joyce who is examined as PW1 in this case.  Ext.A2 is the bill dated 30.06.2014 issued by 1^st opposite party in favour of the complainant.  Ext.A3 is the legal notice dated 22.07.2014 issued by the counsel of the complainant to 1^st opposite party.  Ext.A4 is the postal receipt dated 22.07.2014.  Ext.A5(a) is the A/d card signed by 2^nd opposite party and Ext.A5(b) A/d card signed by 1^st opposite party in this case.  Ext.A6 is the cover of the tiles which is supplied by opposite parties to the complainant.  The 1^st opposite party is examined as DW1 and through him Ext.B1 tiles cover is marked.  After the closure of evidence, both the parties were heard.

        (7) Point Nos.1 to 3:- For the sake of convenience, the Point Nos.1 to 3 are considering together.  The learned counsel appearing for the complainant argued that the complainant has purchased the article on 30.06.2014 as per Ext.A2 receipt.  According to him, the Ext.A2 has to be treated as a bill because 1^st opposite party has received Rs.2,000/- as per this document and the price of the tiles and other materials are also clearly stated in Ext.A2.  Moreover, on the basis of Ext.A2, 2^nd opposite party delivered the tiles to the complainant at his premises and 2^nd opposite party’s persons received the balance amount of Rs.90,000/- on 30.06.2014 after deducting the advance amount of Rs.2,000/-.  Hence Ext.A2 document can be considered as a document to show the transaction of the article and the receipt of consideration of the article.  When the complainant found that the tiles delivered by opposite parties were not of the quality as ordered he complaint to 1^st opposite party regarding its low quality, excess price and the tampering seen in the cover and all of this acts of the opposite parties are clearly comes under unfair trade practice.  Exts.A3, A4, A5(a) and A5(b) are the evidence to show that the complainant sent legal notice to opposite parties and both the parties were received the said legal notice.  It is also come in evidence that the Ext.A6 tiles cover the quality referred is ‘Super Fine’ and the price is noted as Rs.850/-.  According to the complainant, he demanded ‘premium’ tiles but it is evident that the delivered article is ‘Super Fine’ and the price received Rs.1,456/- per packet instead of the printed amount is Rs.850/-.  If the 1^st opposite party has any bonafide with regards to Ext.A3 notice nothing prevented him to sent a suitable reply or 2^nd opposite party has to redress the grievances as per the Ext.A3 notice.  The non performance on the part of 1^st opposite party shows that he has committed deficiency in service and the receipt of excessive price shows that the opposite parties committed unfair trade practice in this dealing.    

        (8) The learned counsel appearing for 1^st opposite party vehemently argued that 1^st opposite party has no direct relationship with this complainant and he has neither received the amount of consideration from the complainant nor he supplied the article in question to the complainant.  As per 1^st opposite party, 2^nd opposite party is responsible for the sale and he has to face all the consequence if any arised out of it.  When we consider the submission of 1^st opposite party regarding this aspect we cannot agree with 1^st opposite party because Ext.A3 is very clear and even the 1^st opposite party admitted that it is issued by him and he received an advance amount from the complainant.  Moreover, the complainant approached 1^st opposite party as a well known dealer of tiles he who agreed to supply the tiles to the complainant as demanded.  It is admitted that 2^nd opposite party is the person who is the manufacturer of the tiles and as the capacity of the dealer 1^st opposite party acted here.  The learned counsel appearing for 1^st opposite party argued that there is no deficiency in service or unfair trade practice on the part of 1^st opposite party and for argument sake if any mistake happened as alleged by the complainant all its responsibility will have to be vested to 2^nd opposite party.  According to 2^nd opposite party when the complainant laid down the tiles for his purpose then he has no right to take up the issue again and he is not eligible to get any relief as claimed.  The 2^nd opposite party produced a tiles cover which was marked as Ext.B1 in this case.  As per Ext.B1 it is seen that the dealer has no responsibility for colour change and there is no return of tiles after its fixation.  But on the other hand Ext.A6 the tiles cover produced by the complainant shows that some kind of tampering happened to it.  It is admitted by DW1in cross.  Ext.A6-Â quality എന്നത് ചുരണ്ടിമാറ്റി വേറെ സീല് ചെയ്തിരിക്കുന്നതായി കാണുന്നുണ്ട്. ഞാന് ഇപ്പോള് കാണുകയാണ്v.  We can inferred that when the tiles delivered to the complainant the same tampering happened in Ext.A6.  He again admitted in cross “Tiles ഇട്ടശേഷം മിച്ചം വന്ന joint filler ഞാന് വാങ്ങി അതിന്റെ വില വാദിയ്ക്ക് നല്കിയിരുന്നു”.  He again answered in cross, “Ext.A6þല് ചുരണ്ടി മാറ്റിയഭാഗം കമ്പനി ആയിരിയ്ക്കാം ചെയ്തത് ”.  When we consider the deposition of DW1 in cross it is clear that Ext.A6 is a tampered document and 2^nd opposite party may tampered it for his own business interest.  DW1 again categorically stated that after lying the tiles he received the balance of filling materials and returned the balance amount to the complainant.  This is a cogent and conclusive evidence of his business relation with complainant.  Hence, we can come to a conclusion that the 1^st opposite party and complainant are enjoying a consumer relationship.  No way the 1^st opposite party can escape from the responsibility of this business transaction.           

         (9) When considering the above submissions we have to consider the grievances and other difficulties suffered by the complainant out of this purchase.  It is evident to see that he purchased the tiles and paid Rs.1,00,000/- (including the advance) as the price to 2^nd opposite party.  Though he informed the less quality and colour change of this tile to both opposite parties they were in deaf ears.  As a bonafide purchaser after paying a huge amount for the goods no person can wait for a remedial measures from this opposite parties though they were in deaf ears as stated above.  In order to save the amount and the material even though it is in low quality, the complainant is compelled to use it even without his will.  In this case as already stated earlier 2^nd opposite party is declared as exparte and the evidence against him is unchallengeable before this Forum.  It is seen from the evidence of this case that as per the direction of 1^st opposite party, one Manoj who is the representative of 2^nd opposite party visited the premises where the tiles unloaded and he convinced that the goods unloaded is low in quality etc.  If 2^nd opposite party is a responsible manufacturer what prevented him to redress the grievances of the complainant in this case at that stage. The latches on the part of 2^nd opposite party has no explanation in this case.  We found that both the opposite parties are jointly and severally responsible for the mistake committed as stated above.  Hence, 1^st and 2^nd opposite parties are committed deficiency in service and unfair trade practice as per the provisions of Consumer Protection Act 1986.

        In the result, the petition of the complainant is allowed as follows: 

1. The opposite parties are directed to pay Rs.50,000/- (Rupees Fifty Thousand only) as the cost of the product issued to the complainant.

2. An amount of Rs.10,000/- (Rupees Ten Thousand only) is allowed to the complainant from the opposite parties as the compensation for the damages and mental agony caused to the complainant.

3. The opposite parties are directed to pay Rs.2,000/- (Rupees Two Thousand only) as the cost of the case to the complainant (whole amount) shall be paid within one month from the date of receipt of this order or otherwise opposite parties are liable to pay an interest of 10% from the date of order onwards.

         Declared in the Open Forum on this the 30^th day of June, 2015.

                                                                   (Sd/-)

                                                  P. Satheesh Chandran Nair,

                                                                (President)

Smt. K.P. Padmasree (Member – I)      :      (Sd/-)

Smt. Sheela Jacob (Member – II)         :      (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Joyce

Exhibits marked on the side of the complainant:

A1 :  Power of attorney dated 22.10.2012 of the complainant Mr.  

        Biji John. 

A2 :  Bill dated 30.06.2014 issued by 1^st opposite party. 

A3 :  Legal notice dated 22.07.2014 issued by the counsel of the  

        complainant to 1^st opposite party. 

A4 :  Postal receipt dated 22.07.2014. 

A5(a) :  A/d card signed by 2^nd opposite party.

A5(b) : A/d card signed by 1^st opposite party. 

A6 :  Tiles Cover 

Witness examined on the side of the opposite parties:

DW1  :  Chacko Varghese

Exhibits marked on the side of the opposite parties:

B1  :  Tiles Cover       

                                                                       (By Order)

                                                                           (Sd/-)           

                                                              Senior Superintendent.

Copy to:- (1) Mr. Biji John, Valiyathundiyil Panavelil House,

                   Pazhavangadi.P.O., Ranni Taluk,

                   Pathanamthitta Dist.

2. The Manager, Ceramic World, Moolayil Buildings,

            Near Maramon Bridge, Maramon.P.O.,

            Pin – 689 549.

3. Managing Director, Italica Tiles, Bhandhunagar,

            Makansar, National Highway 8 A, Morbi,

            Gujarat – 363 642.

       (4) The Stock File.