DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 29^th day of December 2023

CC.366/2017

Complainant

                       A. Harimohan,

                        ‘Vrindavanam’,

P. O. Koothali,

Koothali Amsam Desam,

Koilandy Thaluk,

Kozhikode – 673525

           (By Adv.  Sri. T. K. Shibu)

Opposite Parties

Common Welth Trust (India) Ltd,

Common Welath Tile Factory,

Faroke. P. O,

Kozhikode - 673631

             (By Adv.  Sri. P. K. Dharmaraj)

ORDER

By Smt. PRIYA. S - MEMBER

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

On 27/03/2013 the complainant purchased 1250 roof tiles and 110 ridge tiles from the opposite party for a consideration of Rs. 44,114/-. For loading and unloading and vehicle rent Rs. 6,386/- was incurred. Rs. 17,500/- was paid as laying charge. The complainant laid the tiles in the month of May. When rain began in June, water started dripping in. When the manager of the opposite party was informed he had opined that new tiles would absorb water and in due course that would end up. So the complainant waited for some more time. But even after the rainy season the water was dripping in. So the complainant informed the opposite party. A person came and inspected the site and took a tile for detailed inspection. After few days on enquiry it was informed that there was no problem with tile and that due to paving of tile on G.I pipe it all happened. Hence the matter got prolonged for 2 years. Even after stoppage of rain, the water is dripping in. When the matter was drawn to the attention of the Manager he said that it was due to the lack of quality of the clay used for the manufacturing of tile. The opposite party filed OP 116/2015 before the Permanent Adalath, Kozhikode. The opposite party filed WP(C) No. 20224 of 2016(C) before the Hon’ble High Court. The Hon’ble High Court pronounced a judgement stating that the matter does not belong to the jurisdiction of Permanent Adalath and also reserved the liberty to file fresh petition before the proper forum. So the complainant prays to get Rs. 44,114/- being the price of tiles, Rs. 6,386/- being the loading and unloading charge, tiles paving charge of Rs. 17,500/- and Rs. 1,00,000/- for the mental agony and hardship, from the opposite party.

3. The opposite party filed written version.
4. According to the opposite party, the complaint is barred by limitation and complainant is not a consumer. Leakage of water through the tiles happened since the complainant had paved the tiles on G.I. square pipe. The leakage happened due to the level difference in laying of G.I square pipe. The averment that when the complainant contacted the opposite party’s Manager he said that new tiles would absorb water and by the passage of time it would stop is not correct and hence denied. The averment that since the clay used for the manufacturing of tiles was not available in Feroke, the opposite party had to bring the clay from Bangalore which was of inferior quality is not correct and hence denied. There is no deficiency of service on the side of the opposite party. There is no expert opinion in this case in order to prove the allegations against the opposite party. Hence the complaint may be dismissed with costs to opposite party.
5. The points that arise for determination in this complaint are;                                                                                                                             1) Whether the complainant is a consumer?                                                                                                                                             2) Whether the complaint is barred by limitation?                                                                                                                                   3) Whether there was any deficiency of service or unfair trade practice on the part of the opposite party, as alleged?                           4) Reliefs and costs.                 
6. Evidence in this case consists of oral evidence of PW1 and Exts A1 to A3 on the side of the complainant and oral evidence of RW1 and on the side of the opposite party. The expert report was marked as Ext C1.
7. Heard.
8. Point No.1: According to Section 2(1)(d) of the Consumer Protection Act, 1986 consumer means any person who buy goods for consideration. In this case, the complainant had purchased Rs. 44,114/- worth tiles from the opposite party vide bill no. FER/4353 dated 27/03/2013 (marked as Ext A1 document). So there is consideration paid by the complainant. Hence the complainant in this case is a consumer.
9. Point No. 2 : The complainant was agitating the matter before Permanent Lok Adalath, Kozhikode. In Ext A3 judgement dated 31/10/2016 in WP(C). No. 20224 of 2016(C) the Hon’ble High Court has made clear that the finding rendered in the above judgement will not stand in the way of the complainant seeking appropriate relief before the appropriate judicial forum. So the complaint filed on 13/10/2017 is not barred by limitation.
10. Point No. 3: In order to substantiate the allegation, the complainant got himself examined as PW1, who has deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the purchase bill, Ext A2 is the Identity Card, Ext A3 is the copy of the judgement of the Hon’ble High Court in WP(C). No. 20224 of 2016(C).
11. The Assistant Manager (Trainee) of the opposite party was examined as RW1 and he has filed proof affidavit and deposed supporting the contentions in the version.
12. The grievance projected in the complaint is that on 27/03/2013 he complainant purchased 1250 roof tiles and 110 ridge tiles from the opposite party for a consideration of Rs. 44,114/-. For loading and unloading and vehicle rent Rs. 6,386/- was incurred. Rs. 17,500/- was paid as laying charge. The complainant laid the tiles in the month of May. When rain began in June, water started dripping in. This has been spoken to by PW1 also. Going by the averments in the written version and the proof affidavit of RW1, it can be seen that the opposite party is also not seriously disputing the fact that there is leakage. But the case of the opposite party is that it is not on account of any manufacturing defects of the tiles, but because of the fact that the tiles are paved on metal roof top.
13. Dr. Raghu Kumar. C, Assistant Professor, Department of Civil Engineering, Government Engineering College, West Hill  P. O., Kozhikode was appointed as Expert Commissioner. He filed Report which is marked as Ext C1. The conclusion of the Expert Commission is as follows;                                                                                                                                                                                  1) The tiles are of inferior quality as compared to the minimum requirements for class AA and class A tiles as specified by                     IS:  654-1992.                                                                                                                                                                                        2) The tiles showed excessive water absorption which in turn resulted in primary quality and serviceability concerns.                        3) The discoloration and formation of loose dusty film of light terracotta colour over a considerable area in the underside of                   exposed tiles is adjudged as the principal sign of distress in the tiles.                                                                                                4) The discoloration and formation of loose dusty film has resulted in loss of material from the tile and may affect the                            durability of tiles.                                                                                                                                                                                5) The tiles could not satisfy serviceability states or conditions.

       Hence it is concluded by the learned expert that the Mangalore Pattern Tiles  referred in this case could not be considered as                       conforming to Indian standards and the tiles did not comply with the serviceability conditions and durability requirements.

14. The Expert Commission Report Ext C1 reveals the entire facts regarding the tile. There is no reason to disbelieve Ext C1. Actually no explanation is needed to clarify the report. Deficiency of service and unfair trade practice on the part of the opposite party stands proved. The complainant is entitled to get refund of the price of the tiles amounting to Rs. 44,114/-. He is entitled to get Rs. 10,000/- towards laying charges. The act of the opposite party resulted in grave mental agony and hardship to the complainant, for which, he is to be compensated adequately. Considering the facts and circumstance of the case we are of the view that Rs. 7,000/- will be reasonable compensation. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings.
15. Point No. 4: In view of the findings on the above points, the complaint is disposed of as follows;

1. CC 366/2017 is allowed in part.
2. The opposite party is directed to pay Rs. 44,114/-(Rupees forty four thousand one hundred and fourteen only), to the complainant being the price of the tiles.
3. The opposite party is directed to pay Rs. 10,000/- (Rupees ten thousand only), to the complainant as the laying charges of the tiles.
4. The opposite party is directed to pay Rs. 7,000/- (Rupees seven thousand only), as compensation to the complainant.
5. The opposite party is directed to pay Rs. 5,000/- (Rupees five thousand only), as cost of the proceedings to the complainant.

1. The payment shall be made with within 30 days of receipt of copy of this order, failing which, the amount of Rs. 44,114/- shall carry an interest of 6% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 29^th day of December, 2023.

Date of Filing: 13/10/2017

                                    Sd/-                                                     Sd/-                                                             Sd/-

                            PRESIDENT                                          MEMBER                                                 MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the purchase bill.

Ext.A2 – Copy of the Identity Card.

Ext.A3 – Judgement of the Hon’ble High Court in WP(C). No. 20224 of 2016(C).

Exhibits for the Opposite Party

Nil.

Commission Exhibits

Ext.C1- Expert Commission Report

Witnesses for the Complainant

PW1 - A. Harimohan, (Complainant)

Witnesses for the opposite parties 

RW1- Jijo Valsan.

                                           Sd/-                                                             Sd/-                                                    Sd/-

                                  PRESIDENT                                                 MEMBER                                         MEMBER

True Copy,   

                                                                                                                                                                      Sd/-

                                                                      Assistant Registrar.