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

Tuesday the 30^th day of May 2023

CC No. 42/2014

Complainant

          Baburajan,

          Kottayi Kuniyil House,

          Kunnummakkara -P.O,

          Chombala (via), Vatakara,

           Kozhikode.

Opposite Parties

1. Commonwealth Trust India Ltd.,

          CommonwealthTile factory, 27/2307,

           Puthiyara,

           Kozhikode – 673 004.

           ( By.Adv.Sri.K.Abdussalam)

2. The Managing Director

          Comtrust Super Designer Tiles Pvt. Ltd.,

          Olavakkode,

          Palakkad – 678 002.

          (impleaded as per IA No:173/16)

          ( By.Adv.Sri.B.M.Shamsuddin)

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:

The complainant is a resident of Vadakara. The first opposite party is the dealer and the second opposite party is the manufacturer of tiles. The complainant has purchased floor tiles of the following description from the opposite party on 05-10-2013. ie, BR coin 36 red 1135 pieces, GC coins 36 black 565 pieces. The total purchase price was Rs.82,351/-. The above mentioned floor tiles when laid in the courtyard in front of the complainant’s house immediately after purchase using competent and efficient workers. Within one week of laying the tiles it was noticed that the colour of the red tiles are fading and cracks are developing on the surface of the tiles. It was also noticed at the time of laying the tiles, that the sizes of the tiles are also different. The complainant informed the defects of the tiles to the opposite parties and the opposite parties assured the complainant that they will supply new tiles for replacing the damaged tiles and the expenses for replacing the tiles will be met by the opposite parties. But the opposite parties failed to act according to their promise and assurance. Hence the complainant was forced to send a lawyer notice to the opposite party dated 15-11-2013 which was received by the opposite party on 19-11-2013. But even after receipt of the lawyer notice the opposite party has not done anything to redress the grievance of the complainant.   

3. The complainant happened to purchase the floor tiles from the first opposite party because of the high reputation for the products of the first opposite party and also because of the good experiences he had with them while he purchased materials from the first opposite party four years back. When the complainant approached the first opposite party to purchase the floor tiles he was told by the first opposite party that the quality of the product is better than what he had purchased four years back. It was also told that because of the increase in cost of raw materials the price of the tiles is also high compared to his earlier purchase. It is on the promise and assurances made by the first opposite party that the quality of the tiles is the best, that the complainant had decided to purchase the tiles from the first opposite party. The total price he paid to the first opposite party was Rs.82,351/-. The complainant has to spend about Rs.60,000/- as labour charges for laying the floor tiles using expert workers.  Hence the complainant wants to get Rs.1,42,351/- from the opposite parties.

4. The second opposite party filed version.

5.    According to the second opposite party, they are manufacturer of good quality concrete flooring tiles basically meant for outdoor use, such as pathways, drive ways, yards, corridors etc. These tiles are marketed and sold by them directly as well as through various dealers including the first opposite party. The allegation that the complainant has purchased cement concrete tiles manufactured by this opposite party, from the first opposite party is to be proved by the complainant. This opposite party does not admit the allegation that the flooring tiles manufactured by this opposite party is defective broken and have lost its colour etc the durability and life span of tiles depend on the quality of the laying in the form of proper seating provided for the tiles. If the tiles are not paved properly with good seating it is possible that the uneven surface beneath the tiles, may result in breakage of tiles when pressure is exerted. Certain tiles were broken in transit and while unloading it from the first opposite party the opposite party had replaced the damaged tiles (100 nos) at own cost suppressing the above facts, the complainant had filed the complaint. The allegation that the complainant has paid 80% more price for the tiles than tiles of other manufacturers etc are not correct and true. The tiles are being sold according to the price fixed by the opposite party and the price of the product of other manufacturers cannot be compared with the price of this opposite parties’ product. The allegation of the polish of the tiles were lost within a period of a week is not correct and true and therefore denied. The polish applied on the tile is likely to fade over a period of many months since the concrete tiles are laid in open and subject to heavy rain and scorching sun. The opposite party does not guarantee for the durability of  the polish applied as every purchase is informed that over a period of time, there is every possibility of the polish fading the reasons stated above. The appearance of polish cannot be considered as a manufacturing defects as the polish is not the product of the second opposite party similar to the application of paint on building walls, the tiles can also be re-polished if the parties desire so. There is absolutely no manufacturing defect for the concrete tiles supplied by this opposite party and therefore the complainant is not entitled to get any compensation from this opposite party and this opposite party is not liable to pay any compensation to the complainant. The complainant himself has admitted in the complaint about the good quality of tiles manufactured by this opposite party and purchased by him earlier. The company is maintaining the quality of its products without any compromise. No notice has been issued by the complainant to this opposite party as alleged. The further allegation that the complainant had spent about Rs.60,000/- as laying expenses for the tiles. The complainant is not entitled to get back the bill amount of the product paid by him as the laying charges and expenses. For the reasons stated above it is prayed that the complaint may be dismissed with costs to this opposite party.

6. The points that arise for determination in this complaint are:

1. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?
2.  Reliefs and costs.

7. Evidence in this case consists of the oral evidence of PW1 and Exts. A1 to A2 series on the side of the complainant and oral evidence of RW1 from the opposite side. Commission Report was filed as Ext.C1.

8. Heard. Complainant and the second opposite party filed notes of argument.

9. Point No.1:  The complainant filed proof affidavit and deposed in terms with the averments in the complaint. The complainant was examined as PW1.

10. An Expert Commission was appointed to ascertain the paving of concrete flooring tiles. On 08-05-2018 complainant and Anil Narayanan, General Manager, Comtrust Super Designer Tiles (P) Ltd, Olavakode, Palakkad (representing the second opposite party) were present during inspection. Nobody represented the first opposite party.

11. The finding of the Commission Report is as follows.

1. The tiles are exposed to sun and rain and weathering occurred to the tiles by the passing of around 5 to 9 years. However, fading and cracks are more visible in the later laid tiles. Size of the later laid tiles are slightly less than the earlier laid tiles. Pattern also is slightly different.
2. The complainant has raised the issue long back and he was using the tiled yard all these years, without any maintenance.
3. Minor cracks are visible in around 20 tiles. Short supply about 54 tiles due to size difference is admitted by second opposite party. Hence around 74 tiles need to be replaced by the first and second opposite parties to the complainant at their own cost.
4. Regular maintenance by way of polishing would have given better appearance to the cement tiles. Polishing using good quality compounds can enhance the appearance of the faded tiles. This cost shall be met by the opposite parties.

12.     The complainant filed proof affidavit and was examined as PW1. Exts.A1 to A2 series were marked. On perusal of the deposition of PW1 (Page No.4) and also the Commission Report, it is made clear that 20 tiles had cracks. Short supply of 54 tiles due to size difference is admitted by the second opposite party. Hence around 74 tiles need to be replaced by the first and second opposite parties to the complainant. PW1 in his deposition (Page No.2) has admitted that due to shortage of tiles the complainant purchased tiles from Vadakara market. The second opposite party in their version had stated that if the tiles are not paved properly with good seating it is possible that the uneven surface beneath the tiles may result in breakage of tiles when pressure is exerted. There is no problem regarding laying or seating tiles further the second time also the tiles were paved by the very same workers. So it can be inferred that there is no problem with regard to laying or seating.

13.    The second opposite party filed objection to Commission Report which reads as follows: The most findings by the Assistant Executive Engineer failed in examining dispute tiles properly and did not test it by any known testing method or get it tested by laboratory using any established scientific methods to find out the alleged defects. His report is not based on any scientific examination expected from an expert. His observation is only based on ocular examination and so it cannot be treated as an expert opinion. In fact he inspected and reported only what can be seen and reported by a common man. The Commission has thoroughly mistaken and his conclusion that the complainant has  raised the issue for long and that observation is baseless and simply a reproduction of the representation of the complainant’s version P.W.D Engineer is not an expert to examine tiles and report it and he does not have any qualification and experience in testing tiles.

14.    It is vivid from Ext.C1 document (Commission Report) that minor cracks are visible in around 20 tiles. Short supply of about 54 tiles due to size difference is admitted by 2^nd opposite party. Hence around 74 tiles need to be replaced by the 1^st and second opposite parties to the complainant at their own cost. There is no contra evidence to prove the case otherwise by the opposite parties.

15.    After perusing the oral and documentary evidence in this case we are of the view that the complaint is only to be allowed. In this case there is deficiency in service and unfair trade practice from the part of the opposite parties. We find that opposite parties.  We find that approximately Rs.6,000/-  would be the cost of 74 tiles including laying charge. The complainant is entitled to get Rs.6,000/- as cost of 74 tiles including laying charges. Undoubtedly the complainant was put to gross mental agony, hardship and inconvenience, for which, he is entitled to get compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs.3,500/- will be adequate compensation in this case.  The complainant is also entitled to get Rs.3,000/- as cost of the proceedings.   

16. Point No:2 :- In the light of the finding on the above point, the complaint is disposed of as follows:

1. C.C. No: 42/2014 is allowed in part.
2. The opposite parties are directed to pay a sum of Rs.6,000/- (Rupees six thousand only) as cost of 74 tiles including laying cost to the complainant.
3. The opposite parties are directed to pay a sum of Rs.3,500/- (Rupees three thousand five hundred only) as compensation to the complainant.
4. The opposite parties are directed to pay Rs.3,000/- (Rupees Three Thousand only) as cost of proceedings to the complainant.
5. The order shall be complied with within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this the 30^thday of May, 2023.

Date of Filing: 24-01-2014.

                                    Sd/-                                        Sd/-                                      Sd/-

                            PRESIDENT                            MEMBER                           MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the bill dated 05-10-2013

Ext.A2  series- Photographs, Advocate notice dated 16-11-2013, Postal receipts and Postal acknowledgement cards.

Exhibits for the Opposite Party

Nil.

Commission Exhibits

Ext.C1- Report filed by Reni P Mathew, Assistant Executive Engineer( PWD),  Koyilandy, Kozhikode.

Witnesses for the Complainant

PW1 -  Baburaj (Complainant)

Witnesses for the opposite parties 

RW1- Anil Narayanan, General Manager, Comtrust Super Designer Tiles (P) Ltd.

                          Sd/-                                         Sd/-                                      Sd/-

                   PRESIDENT                            MEMBER                           MEMBER

 True copy,

                                                                        Sd/-

                                                           Assistant Registrar.