JUSTICE A.P. SAHI, PRESIDENT    

1.       A complaint was filed by the petitioner alleging deficiency in the shape of a manufacturing defect in vitrified tiles that were purchased by the complainant for being laid in his own house. There were 62 packets of snow-white colour vitrified tiles purchased from the respondent no. 2 of the brand and quality manufactured by the respondent no. 1. It may be pointed out that the second respondent, the dealer, has not chosen to contest this matter, the reason being, the deficiency was alleged in respect of the tiles manufactured and the liability was also fixed by the District Commission only on the manufacturer and not on the dealer.

2.       The complaint was tried where a written version was filed and the parties also led evidence. The allegation of the complainant was supported by a scientific test carried out in respect of the tiles stated to have been purchased by the complainant, and the said report of the test carried out by Central Glass and Ceramic Research Institute, Jadhavpur, Kolkata, was relied on. This report dated 12.02.2007 that was pressed into service, was submitted under the signatures of Dr. S. N. Mishra, the scientist in charge at the Institute. The said document is on record and in order to verify the correctness of the claim, the said Dr. S. N. Mishra was produced as a witness and he was also cross-examined by the respondents.

3.       The respondents on the other hand doubted the correctness of the said report on the ground that there were discrepancies therein regarding the size of the tiles as also the make of the tile and hence the report did not relate to the tiles which were purchased by the complainant. On the other hand the respondent no. 1 further took a plea in their written version that when they received the alleged complaint from the petitioner, they themselves got samples of the tiles collected through their man and tested it in their own laboratory, where the tiles were found to be perfect according to manufacturing standards. This fact was also stated in the reply to the legal notice given by the advocate of the respondent no. 1 dated 09.04.2007, which is also on record. Not only this, the aforesaid fact was sought to be supported by the evidence of one Ms. Sudipta Saha, Vice President of the Industrial Product and Natural Resources of the respondent no. 1. Her affidavit was placed on record testifying about the tests relating to the standards being undertaken. Thus, the respondents also led evidence to support the quality  and standard products of their tiles.  

4.       After exchange of affidavits and the evidence led, the District Commission after examining the statement of Dr. S. N. Mishra and also his cross-examination by the respondents arrived at the conclusion that the tiles which had been tested by him, for which a scientific report was on record, were Marbonite tiles and that the word ‘Grenomite’, was inadvertently typed in the test report. It is not disputed that the respondents are manufacturers of Marbonite tiles and they do not manufacture Grenomite tiles.

5.       On cross-examination, Dr. S. N. Mishra, verified the contents of the test report dated 12.02.2007 and he also stated that the samples of the Marbonite tiles were supplied by the complainant and the small cuts of the said tile were accordingly examined. The size of the tile is mentioned in the said report as 900mm X 900mm out of which cut tiles measuring 300mm X 300mm were the samples that were tested.

6.       The District Commission therefore accordingly recorded findings believing the evidence led on behalf of the complainants as the scientific test categorically indicated that the tests did indicate deficits in the parameters proving defects. It is based on the said scientific evidence that the claim was found to be admissible.

7.       On the other hand the evidence led by the respondents including the affidavit of Ms. Sudipta Saha was also examined by the District Commission and the same was disbelieved that she did not have any technical knowledge nor any such technical report was produced as such in the absence of any expert evidence or any affidavit of a technical expert her testimony was discarded.

8.       The respondents also took a plea that the tiles had suffered scratches as heavy furniture was moved after its installation. This was also not believed as no damages of this sort were proved and accordingly after going through the photographs that were also placed along with the affidavit of the photographer, the complaint was allowed.

9.       The District Commission directed the refund of Rs.1,24,860/- together with interest @ 8% from the date of the complaint coupled with labour charges to the tune of Rs.18,972/-, tile fitting charges of Rs.2,301/- and Rs.10,000/- as litigation costs and compensation to the complainant.

10.     Aggrieved the respondent/ company filed an appeal contesting the findings recorded by the District Commission on the ground that the tiles had been purchased for commercial purpose as the complainant was in  the business of construction. It was also contended that the tests contended at the research institute was of different tiles than what had been purchased by the complainant. It was further alleged that the scientific report did not disclose the defects or any shortage in the standard specifications, hence the District Commission ought to have discarded the same. It was also urged that the evidence of the company official was incorrectly assessed and in the absence of any actual manufacturing defect, the award was vitiated and therefore the order of the District Commission dated 17.02.2010 deserved to be set aside and the complaint deserved to be dismissed.

11.     The State Commission proceeded to adjudicate the appeal and held that the description of the tiles mentioned in the bill and their size did not match with the description of the tiles in the scientific test report. It was also observed that there was a possibility of an inadvertent description of the tile as ‘Grenomite’ instead of ‘Marbonite’, but the size of the tiles did not match and consequently the appeal was allowed and the order of the District Commission was set aside in a couple of paragraphs.

12.     Learned counsel for the respondents submits that the order is supported by the evidence on record and therefore the State Commission had rightly reversed the order of the District Commission. Mr. Bhardwaj, learned counsel has invited the attention of the Bench to the findings recorded and also the pleadings to submit that the District Commission had erroneously drawn conclusions with regard to the scientific evidence which did not in any way indicate a deficiency of supply of substandard tiles.

13.     Learned counsel for the revisionist however urged that the finding of the State Commission about the size of tiles is inherently unmathematical, in as much as, the size of the tiles that were purchased and mentioned in the invoice was 36” X 36” which conforms to the size of 900mm X 900mm. He has demonstrated this with the help of the metric scale conversion of inches into millimetres, where one inch is equal to 2.54mm. He submits that on a simple calculation the size mentioned in inches is equivalent to the size in millimetres, which has been reflected in the scientific test report. He further submits that the samples of cut tiles were taken from the same that were provided by the complainant and the test has been carried out from an institute of repute, which works under the Indian Council for the Scientific Research. There is no reason to doubt the veracity or probative value of the said test report which has been rightly believed by the District Commission and which indicates that the test of the parameters of the tiles that were conducted, demonstrates that the tiles were of substandard quality. The parameters are also mentioned on the website of the respondents as well, which he has placed during the course of submission and is extracted herein under:

“What are the Benefits of Johnson Marbonite compared to Marble and Granite?

14.     The contention therefore is that the findings recorded by the District Commission in respect of the size of the tiles, substandard quality thereof and the deficiencies was substantiated by the evidence of Dr. S. N. Mishra, the scientist, who had prepared the test report and had proved it before the District Commission through the cross-examination of the respondent. The contention is that this evidence has nowhere been reversed or even discussed by the State Commission and hence the impugned order of the State Commission is vitiated.

15.     He further submits that even though the respondents had claimed to have carried out a test of the same samples that were sold by them to be of a standard quality, the evidence to support the same was not produced nor any expert evidence was led to disprove the material placed by the complainant. In such circumstances the State Commission without dealing with the aforesaid evidence as discussed above could not have reversed the findings of fact recorded by the District Commission.

16.     Having considered the submissions raised, it is evident that the petitioner led his evidence and also substantiated it with the cross-examination of the scientist, Dr. Mishra who had prepared the test report referred to above. The respondents cross-examined the said scientist, whereafter, the evidence given by him was believed by the District Commission and which was in favour of the case set up by the complainant. It is also evident that the respondents set up their claim through the evidence affidavit of one of their official, Ms, Saha contending that they had themselves carried out a test which proved the standard quality of the tiles. This fact itself demonstrates that the respondents had collected the tiles and were aware of the complaint made by the complainant. Yet no effort was made to lead any expert evidence or any other scientific evidence of a test that was alleged by them to have been carried out. Thus, in the absence of any such proof, their testimony in respect of the quality of the tiles was rightly rejected by the District Commission holding that they had failed to prove anything to the contrary.

17.     With the aforesaid findings by the District Commission it was incumbent on the State Commission to have reversed the said findings only on the basis of any material that was placed on record. Instead the State Commission on presumptions came to the conclusion that the size of the tiles did not match and therefore the scientific test report produced by the Complainant was not compatible. This finding of the State Commission is patently erroneous and is against all mathematical calculation, in as much as, the size of the tile mentioned in the complaint or in the bill voucher measuring 36” X 36” in no way contrary to the size of 900mm X 900mm. On a simple multiplication, 36 X 2.54 comes to approximately 914.4 which is near to 900mm. Accordingly, because the parameters of the English unitary system have been mentioned in the description of the bill voucher and the metric system of measurement has been mentioned in the scientific report does not change the size of the tile and hence the conclusion drawn by the State Commission that there was a mismatch, is erroneous.

18.     The scientific evidence led by the complainant supported by the statement of Dr. S. N. Mishra therefore was proved before the District Commission and there is no plausible reason that can be perceived for the State Commission to have upset the said findings. This perversity is therefore a material irregularity and hence the impugned order is vitiated.

19.     The State Commission also did not choose to even discuss or reverse the rejection of the evidence led by the respondents before the District Commission. This is yet another error of irregularity in the impugned order.

20.     The deficiency with regard to the supply of substandard tiles by the respondents was therefore proved by the complainant and we therefore do not find any factual or legal error in the order of the District Commission. The findings recorded by the State Commission therefore cannot be sustained for all the reasons given hereinabove and accordingly this revision petition is allowed and the impugned order of the State Commission dated 02.04.2014 is set aside and the order of the District Commission dated 17.02.2010 is upheld and restored.

21.     The revision petition is allowed in terms of the order passed by the District Commission.