BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                              :           PRESIDENT

SMT. PREETHA G. NAIR                           :           MEMBER

SRI. VIJU  V.R.                                             :           MEMBER

C.C.No. 97/2019 Filed on 08/04/2019

ORDER DATED: 16/06/2022

ORDER

SMT. PREETHA G. NAIR: MEMBER

The complainant constructed a double storied residential house.  The construction was commenced during October 2016 and was completed during May 2018.  Complainant had procured/purchased materials, directly and got the various construction activities done by workers engaged directly by him or by reliable local contractors.  For laying the floor complainant had engaged a local professional Sri.Vincent Davi having years of experience in the field.  A sq.ft. work rate was also fixed.  Complainant made selection of the materials by visiting several reputed dealers in Thiruvananthapuram.  He took the assistance of Sri.Vincent Davi for selection.  Finally complainant decided to purchase the flooring materials manufactured by M/s.Johnson from M/s.A.V.Marble Palace, Anthiyoorkkonam, Thiruvananthapuram, a dealer of Johnson flooring materials.  The purchased materials were duly laid by Sri.Vincent Davi, and his workers at the final stage of the construction activities.  After completion of the construction work complainant duly got the occupancy certificate from the Panchayath.  Shortly afterwards complainant noticed colour changes in certain portion of the tiles.  After observing the change for some days complainant brought this to the notice of Sr.Vincent Davi who made the spot verification and confirmed the change.  The colour change was especially distinguishable when they observe the floor with a used tile of the same category placed on the floor.  Hence complainant contacted the dealer who provided him the Johnson tiles and complaint to the toll free no.  Then he got the reference of the tile Engineer and he complained the same to him.  Initially the response, though slow, was positive to certain extent.  Sri.Anto, tile engineer visited the premises and made verification and got convinced about the colour change.  He promised to take prompt follow-up action and offered to appraise the company about the serious nature of the defect in the tiles.  The complainant also agreed that the defective tiles have to be removed and new tiles have to be laid afresh.  He sought time to convince the concerned officials of the company and to provide fresh tiles and agreed to pay dismantling and laying expense.  Accordingly the complainant waited patiently and occasionally contacted the service authorities.  Inspite of the complainant repeated contacts, the further responses gradually become very lethargic and afterward complainant could not make contacts at all with them, obviously due to their avoidance tactics, hence this complaint.

The opposite parties filed version on stating the following contentions.  The complaint is not maintainable either in law or on facts and is liable to be dismissed.  The complaint had been filed without any bonfides, just to harass and vex the opposite parties.  The only aim of the complainants is for unjust enrichment from the opposite parties.  The complaint is bad for non-joinder of necessary party.  A.V.Marble Palace, the shop from which the complainant had allegedly purchased the tiled and Vincent Davi, the alleged person who has laid the tiles are necessary parties to the complaint.  Hence on grounds of non-joinder of necessary parties also the complaint is to be dismissed in limine.  The allegations in the complaint are one that require details evidence, detailed perusal of documents and hence cannot be considered under summary trial proceedings.  On these scores the complaint is to be rejected by this Hon’ble Commission.  Without admitting the maintainability of the complaint, the opposite parties averred that the complainant has to be put to strict proof as regards his averments regarding rate of purchase and the rate at which Vincent Davi charged for laying the tiles.  Further there is also ambiguity in the bills produced by the complainant in support of his pleading.  In one of the bill it is shown as Brand “JOHN” design name is “EASEL PLANK”.  This is wooden plank design product.  In bill No.2163 “RAK” (another company)  the design name is shown as  “NANO WOOD”.  This is also wooden design.  Therefore it is not clear to which product the customer has raised a complaint.  Rate of purchase in bill No.2163 is Rs.677.95 and in other bills rate is Rs.625/-.  So it seen that the same product has been purchased for different rates.  If it is presumed that “JOHN” is for Johnson brand tiles purchased for the complainant include other company’s products also.  Wood Design product of company is unique.  If two brands planks are mixed they will look like different and ambience of a perfect wooden floor will not be seen.  Naturally the surface will bear a finish of non-identical pattern.  This cannot be attributed as a manufacturing defect.  The product was purchased by one Vincent and not by complainant.  Thus the complainant cannot rely upon the said purchase and allege fault against opposite parties.  Though a complaint was received from the complainant – on inspection it was found that there was no manufacturing defect to the tiles.  On the contrary the same has happened due to unscientific laying of the tiles.  The present alleged defects to the tiles is due to unscientific laying of the tiles without taking adequate precautions and following the instructions.  The product of the opposite parties is highly abrasion resistant as per industry standards ISO 13006 and IS 15622.  Skilled labours are aware of the same and it is specified in each box also.  The opposite parties do not have any liability in case of any problems arising out of non-adherence if they are not laid as per fixing instructions.  None of the reliefs claimed in the complaint are legally allowable.           

Complainant and opposite parties filed proof affidavit.  Ext.P1 to P7 series marked from the side of the complainant.  Ext.C1 marked.  No documents produced from the side of opposite parties.  Both parties filed argument note.

Issues to be considered are:-

1. Whether there is any deficiency in service on the part of the opposite parties?
2. If so, what is the cost and relief?

Issues No.1&2:- Complainant produced Ext.P1 to P7 series.  Ext.P1 and P2 are Tax invoice in the name of Vincent.  Ext.P3 is the Tax invoice in the name of complainant.  Ext.P4 is the copy of letter showing the rate fixed for laying tiles.  Ext.P5 is the copy of letter obtained from Vincent Davi showing the expected expenses for the demolition of defective floor and for laying new tiles.  Ext.P6 is the copy of ownership certificate.  Ext.P7 series are the photographs.  The complainant stated that he took the assistance of Vincent Davi for selection and laying the materials, at the final stage of construction.  The Ext.P3 tax invoice for an amount of Rs.39,600/- is in the name of complainant.  It is evidence from Ext.P1 to P3 that the purchase of tiles in the name of Vincent Davi and complainant.  Also complainant admitted that he engaged Vincent Davi to laying tiles.  Hence the complainant is a consumer under the consumer protection act.  So the complaint is maintainable.  The complaint’s allegations were that after he finished tilling the floors in 2017 he found defects, mainly change of colour.  In Ext.C1 Commission report commissioner has stated that “The flooring has been done using flooring materials manufactured by M/s.Johson tiles.  The flooring is done on the ground floor of the building and the total area comes to 1720 sq.ft.  There are visible changes in the colours of tiles which laid in the floor.  Certain portions are seen faded and the colour change is distinguishable.  Hence this can be concluded as a manufacturing defect of the tiles.”  Further commissioner has stated that the amount of Rs.1,00,000/- (Rupees One Lekhs Only) claimed is reasonable based on the prevailing market rates.  The complainant had not produced any evidence to prove that he has stayed in the rented premises for 2 months.  The opposite parties had not produced any contra evidence to prove the quality of tiles. 

In view of the above discussions, we find that the act of opposite parties amounts to deficiency in service.

In the result complaint is allowed.  We direct the opposite parties jointly and severally to give new tiles (1720 sq.ft) of the same grade and colour or pay the cost of the materials at the present market rate and pay Rs,1,00,000/- (Rupees One Lakhs only) as compensation to meet the expenses of demolition and laying of new tiles and Pay Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation for deficiency in service and pay Rs.2,500/- (Rupees Two Thousand Five Hundred only) as cost of the proceedings  to the complainant within one month from the date of receipt of this order, failing which the amount except cost shall carry 9% interest from the date of order till the date of payment/realization.            

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 16^th day of June,  2022.

R

C.C. No. 97/2019

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

5.   COURT WITNESS:

                                                                                                                                                           Sd/-

PRESIDENT