Kerala

Idukki

CC/206/2016

Joseph George - Complainant(s)

Versus

Justin Joseph - Opp.Party(s)

Adv.Prince V Poulose

30 Mar 2023

ORDER

DATE OF FILING : 25.7.2016

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   30^th  day of   March,  2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.206/2016

Between

Complainants                                         : 1.Joseph George, S/o. Luka Varghese,

                                                                   Nambiaparambil Vadakkekara House,

                                                                   West Kodikulam P.O.,

                                                                   Thodupuzha – 685 582.

      2. Andrews Jose, S/o. Jose,

                                                                   Kottirickal House,

Edappally P.O.

                                                                   Now residing at :

                                                                   Nambiaparambil Vadakkekara House,

                                                                   West Kodikulam P.O.,

                                                                   Thodupuzha – 685 582.

 (Both by Adv:  Prince J. Pananal)

And

Opposite Parties                                      : 1. Justin Joseph,

                                                                    Managing Director,

                                                                    Sirex Designer Tiles India Pvt. Ltd.,

                                                                    Thekkumbhagom P.O.,

           Thodupuzha – 685 585.

       2. Sheena,

                                                                   Sales Representative,

                                                                   Sirex Designer Tiles India Pvt. Ltd.,

                                                                   Thekkumbhagom P.O.,

           Thodupuzha – 685 585.

                                                                3. V.K. Thomas @ Kurian,

                                                                    Mason,

                                                                    Sirex Designer Tiles India Pvt. Ltd.,

                                                                    Thekkumbhagom P.O.,

           Thodupuzha – 685 585.

  (All by Advs: M.M. Thomas &

     Smiju K. Das)                                                                                                                (cont....2)

 

 

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O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer protection Act of 1986 (the Act, for short).  1^st complainant is father-in-law of 2^nd complainant.  On 15.2.2016, complainants had gone to the factory outlet of Sirex Designer Tiles company represented by 1^st opposite party who is it’s managing director, for selecting sandstone design brick pavers (pavers in short hereafter), for  the courtyard of residential building of complainant.  2^nd opposite party is sales representative and 3^rd opposite party is a mason, both working in tiles company represented by 1^st opposite party.  1^st and 2^nd opposite parties claiming to be experts in manufacture of quality pavers and represented that 3^rd opposite party is a specialist in laying pavers perfectly.  Since opposite parties were claiming to be giving quality product and workmanship, they were charging higher rates for their pavers than other manufacturers.  1^st and 2^nd opposite parties had agreed that laying of pavers will be done by their workers at cost of Rs.59/- per sq. ft.  which includes price of pavers and labour charges.  They informed complainants that it was their responsibility to furnish sufficient crusher metal, metal sand and cement for the purpose of laying.  Complainant had purchased these materials by expending Rs.12500/-.  On the next day, as promised by 2^nd opposite party, 3^rd opposite party had visited the site and given instructions to carry out ground leveling works.  2^nd opposite party also informed that manufacture of selected pavers will commence only after advance payment of Rs.25,000/-  and that work will commence within 2 weeks from the date of advance.  Complainants were also informed that they had to pay unloading charges of pavers at site upon delivery at the rate of  0.75 paise per paver.  Believing the words of opposite parties, complainants had paid Rs.25,000/- to 3^rd opposite party as advance after informing 2^nd opposite party.  2^nd and 3^rd opposite parties had then informed complainant that work will commence within 2 weeks.  17.2.2016 is the date on which manufacture of pavers will commence.  Cut off dated was 5.3.2016.  They had also requested complainant to purchase 400 cubic feet of 6 mm size crushed stone metal, 50 cubic feet of stone sand and one packet of cement for which complainant had expended an amount of Rs.12,500/-.  Work could not be commenced as promised on 5.3.2016.  It had commenced late, only on 22.3.2016.  Pavers were brought in 5 consignments and 5 invoices were prepared for these goods.  Complainant had paid Rs.1 lakh against these invoices.  Understanding was that the amount would be adjusted towards price and expenses agreed to by parties.  Complainant had also paid unloading charges of Rs.7,000/- separately to workers of opposite parties.  Laying work was completed by 3^rd opposite party and his workers, on 7.4.2016.  600 pavers were in excess and these were taken by opposite parties.  They had promised to adjust the price of unused pavers against the total bill along with its unloading charges.  However, after completion of work, complainant had noticed defects in the laying of pavers and also that some pavers were damaged.  Some of the pavers were of uneven thickness, due to                                                                                                                 (cont…..3)

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which there was level difference in laying.  There was difference in shade of colour with regard to pavers of same colour.  Some of them were broken and were polished, in an attempt to conceal cracking.  Plastering and pointing of pavers was not perfectly done.  There were a large number of pavers with edges and corners broken.  All the pavers were of very poor quality, which tend to break even when dropped from a height of mere one metre.  Complainant had on 4.6.2016, sent an e-mail to 1^st opposite party outlining  the defects in  goods and workmanship along with 8 photographs showing the inferior quality of pavers and laying work.  Upon this, opposite parties had contacted the complainant and thereafter their representative had visited the site in middle of June.  He was convinced of defects and had promised that the company will take steps to replace the pavers.  However, nothing was done.  As manufacturer, dealer and contractor of pavers, opposite parties are liable to cure the defects by replacing damaged pavers with good quality ones and laying those in perfect manner at their own costs and risk, if not, they are liable to return the total amount of Rs.1,00,7000/- and also to pay Rs.12,500/- expended by complainants for purchase of laying materials.  Complainants submit that acts of opposite parties amount to deficiency in service and unfair trade practice.  They therefore pray for a direction against opposite parties to remove the defective tiles, to replace those with pavers of good quality and laying them correctly at their cost.  In the alternate, they pray for return of Rs.1,25,000/- being the amount received by them and Rs.7000/- taken as unloading charges by their workers and to reimburse Rs.12,500/- spent by complainant towards cost of laying materials with interest at the rate of 12% per annum from the date of payment.  They also seek a compensation of Rs.1 lakh from opposite parties for deficiency in service and unfair trade practice along with litigation costs.

 

          2.  Opposite parties entered appearance and filed a joint written version.  Their contentions are briefly discussed here under :   

 

          Opposite parties admitted that, on 15.2.2016, complainant had come enquiring about pavers for use in his courtyard.  They had represented that they were experts in the field and also that 3^rd opposite party was efficient in paving.  They had assured the complainant that pavers were of good quality and workmanship of 3^rd opposite party was perfect.  However, opposite parties deny that they were charging higher rates for pavers manufactured, sold and paved by them.  Opposite parties further contend that the rate fixed as Rs.59/- per sq. ft. was inclusive of labour charges involved in paving.  They denied that they have received Rs.12,500/- from complainant towards purchase of materials necessary for laying and leveling the ground.  On next day, the site was inspected.  Thereafter an advance of Rs.25,000/- was demanded.  Opposite parties were manufacturing and selling pavers in black and grey colours alone, since these were in high demand.  Complainant wanted red and black coloured pavers for his use.  Since red colour pavers were not readily available, they had informed complainant that those                                                                                                                    (cont….4)

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pavers have to be manufactured and that these can be made ready only within a month, as this much time was necessary for manufacturing and curing process of pavers.  There was no promise that pavers would be delivered within 2 weeks of purchase.  Opposite parties had not demanded any unloading charges at the rate mentioned by complainant or at any other rate.  They had not received Rs.7000/- towards unloading charges and neither had their workers.  Work was scheduled to commence from or before 21.3.2016.  It had commenced on the scheduled day itself.  Pavers were delivered in 5 consignments for which separate invoices were drawn.  Apart from Rs.25,000/-, opposite parties had received Rs.1 lakh also towards price of pavers.  Paving work commenced on 5.3.2016 and ended on 7.4.2016.  Total area is 2463 sq. ft..  Due to negligence of complainant’s workers in unloading, some of the pavers got damaged.  Hence additional 600 pavers were required to complete the work, which was supplied by opposite parties.  Thus total supply was for area having an extent of 2630 sq. ft., instead of 2463 sq. ft.  Total cost including paving charges come to Rs.1,45,317/- at the rate of Rs.59/- per sq. ft.  Complainant had paid only Rs.1,25,000/-.  Though balance was demanded, it was not paid. 

 

          It is incorrect to say that the pavers were of inferior quality.  So also, allegations that workmanship was poor are also incorrect.  Some pavers were of different width than the remaining ones.  Similarly, there was slight variation in the shades of red colour for some pavers.  Such slight variations are permissible as per Indian Standard Specification.  Height difference owing to this is corrected by process of vibration and compaction of ground.  Complainant was supplied pavers of good quality.  Laying was done perfectly.  Opposite parties admitted that e-mail complaint sent by complainant was received on 4.6.2016.  Persuant to it, supervisor of opposite parties had inspected the site.  However, no serious defects in the quality of pavers, or in laying work was found.  Few pavers were found to be broken at edges and this was owing to negligence of complainant’s workers.  However, as a goodwill gesture, opposite parties had agreed to replace those pavers.  But complainant wanted all the pavers to be replaced.  Since his demand was unjustifiable, opposite parties had to refuse it.  Though they had repeated their offer to replace damaged pavers, complainant wanted all the pavers replaced and hence damaged pavers could not be replaced.  There was no deficiency in service or unfair trade practice from the side of opposite parties.  Complainant is not entitled for the reliefs prayed for in the complaint and same is to be dismissed with costs.

 

          3.  During the course of proceedings, upon application by complainant, an expert commission was deputed to inspect the pavers.  Commissioner had, carried out inspection after notice to both sides and filed a report.  Case was then posted for evidence.  Despite availing repeated opportunities complainant had not given any evidence.  Opposite parties also have not tendered any evidence.  As neither the parties nor their counsels were present on 8.3.2023, case was taken for orders.  Representations                                                                                                         (cont….5)         

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on that date and earlier were made by some other counsels not holding briefs and they were probably instructed by advocates on record only to make limited representations for adjournment as such. 

 

          Along with complaint, complainant has produced 3 documents.  1^st document is a computer print out photograph of the courtyard which was to be paved.  Ext.P2 series 5 in numbers relate to 5 consignments of pavers delivered by opposite parties to complainant at site.  Ext.P3 series 5 in numbers are computer print out of e-mail complaint sent by complainant and 4 photographs of the pavers laid in the courtyard of complainant.  Report submitted by retired Assistant Engineer, Mr. Ayyappan, after execution of commission is admitted as Ext.C1.  Now the points which arise for consideration are :

1)  Whether opposite parties had sold pavers of inferior quality representing that those were of good quality ?

2)  Whether paving work was done properly ?

3)  Whether there was any deficiency in service or unfair trade practice from the part of opposite parties ?

4)  Whether complainants are entitled for the reliefs prayed for ? 

5)  Final Order and costs ?

 

4.  Point Nos.1 to 4 are considered together :

 

          According to complainant, he had paid Rs.1,25,000/- in total towards cost of pavers including paving charges.  This fact was admitted by opposite parties also.  Complainant would further claim that he had paid unloading charges at the rate of 75 paise per paver, totaling to Rs.7000/- to the workers of opposite parties.  Demand for and receipt of unloading charges is denied  in the written version.  There is no proof of such payment.  Complainant also claims to have purchased 400 cubic feet of 6 mm size crushed stone metal, 50 cubic feet of stone sand and one packet of cement, costing Rs.12,500/- in total for the purpose of laying of pavers.  No bills were produced in this regard.  No evidence was given either.

 

          Similarly, opposite parties have claimed that 600 pavers were damaged due to negligence of complainant’s workers and hence these were supplied additionally.  According to them, total area would come to 2630 sq. ft. instead of 2463 sq. ft. as initially agreed.  They would contend that complainant had to pay Rs.1,45,317/- at the rate of Rs.59/- per sq. ft as agreed between them.  Here also there is no evidence from opposite parties to prove that 600 pavers were required in addition to the initial quantity, sufficient to cover the area of courtyard.  Hence this claim also cannot be sustained.

 

                                                                                                                      (cont….6)

 

• 6  -

          Admitted case is of payment of Rs.1,25,000/- by complainant towards purchase of pavers including laying charges.  We also notice that complainant does not mention what was the total extent of the courtyard which was to be paved.  Complainant also does not mention the number of pavers necessary for completion of work.  Instead, complainant has claimed that there were 600 pavers in excess and these were taken by opposite parties promising that their price will be adjusted against the total bill along with its unloading charges.  However, there is no evidence with regard to returning of 600 pavers.  What has been proved is payment of Rs.1,25,000/- towards price of pavers and laying charges and  payment of initial advance.  Ext.P2 series are 5 invoices.  Out of these, 4 of them are for Rs.26,977/-.  These 4 bill totals to Rs.1,07,908/-.  Ext.P2(d), the last invoice is for Rs.18,385/-.  Total amount will be Rs.1,26,293/-.  Thus going by Ext.P2 series, 5  in numbers, there is short payment of Rs.1,293/-.  Ext.P2 series cover only the price of pavers.  However, both parties have admitted that what has been agreed  between them is price per square feet including labour charges involved in paving.  Admitted case is of complainant having paid Rs.1,25,000/- towards purchase of pavers and labour charges. 

 

          Coming to his allegations with regard to quality of pavers supplied and workmanship in laying of pavers, Ext.C1 report would substantiate his contentions  to some extent with regard to difference in width of pavers which had resulted in uneven paving and shade differences  of some  maroon colour pavers.  Commissioner has reported that thickness of certain pavers vary from 3 mm to 8 mm and therefore paving surface is uneven in the portion where those were laid.  Commissioner was not asked to report the number of pavers of different width and nor was he asked to report the area  where  there is level difference in paving.  Similarly, commissioner was also not asked to report number of pavers in different shades of colour.   It is stated in Ext.C1 that colour of some of the maroon and black colour tiles are not uniform.  Some of these tiles are affected by weather.   Fungi and moss appear in substantial number of pavers.  Some pavers appear to be in perfect condition.  Here also number of pavers which are of different shade, weather affected ones and those which were in perfect condition are not  reported.  We also notice that the commissioner was not asked to report the total  number of pavers as such.  Commissioner has not noticed any defect in cement plastering and pointing in the borders of pavers.  As asked for, he has reported that 104 number of pavers have corners broken.  To the last query, commissioner has reported that he has not noticed any defect in quality of pavers. Those have not broken when dropping from a height of 1.50 meters.  Expert has finally reported that top finishing of tiles is not found to be perfect in most of the area.  That quality of materials used and its strength can be ascertained only by lab test or by loading test.

 

          Admittedly, pavers were delivered in April 2016.  As per complaint, work was completed on 7.4.2016.  However, opposite parties had contended that work was in fact                                                                                                        (cont…..7)

 

• 7  -

 completed 2 days earlier, on 5.4.2016.  Inspection of commissioner was on 16.12.2019 that is, after more than 3 years and 8 months.  In view of the time span involved, damages due to normal wear and tear cannot be ruled out. Appearance of fungi and moss could also be due to weather conditions, wear and tear by the passage of time.  Complainant has no case that the paved tiles were being polished or maintained regularly at fixed intervals, once in 6 months or on an annual basis. However, his contention that there is level difference is to some extent correct, since commissioner has reported that some of the tiles were of different width.  The difference ranges between 3 mm to 8 mm.  There is no evidence to prove the number of pavers which were of different width.  In so far as difference in colour shade is concerned, as per Ext.P3 series, the difference is very much evident upon a mere perusal of the pavers.  This does not appear to us as one brought about by passage of time or climatic               conditions.  Similarly, commissioner has reported that 104 pavers with broken cornerss were found to be affixed.  Hence we are of the view that breaking of corners could not be attributed to normal wear and tear.  Just as the case of pavers of different width, there is no evidence to show that how many pavers were there in a different shade of red.

 

          Opposite parties have admitted in their written version that they are subsequently had gone and inspected the site after receipt of Ext.P3 e-mail complaint.  If any differences were to be there, those must have been noticed by him.  They have further contended that as measure of goodwill, there was a promise to replace damaged pavers, however, complainant wanted a complete replacement.  Again as mentioned earlier, there is no evidence to prove that there was such request from the side of complainant. 

 

          From the documents of complainant side and also considering the pleadings addressed by both sides, we find that some pavers with a different shade of colour were paved along with some pavers of different width.  104 pavers with broken corners were paved.  There is no evidence with regard to number of pavers with different colour shade and pavers of different width.  Non-replacement of these pavers does amount to deficiency in service, though not to the extent mentioned in the complaint and in the e-mail complaint preceding the same. Upon a fair estimate, we would quantify the damages to Rs4000/- on this count. It is admitted that cost of one paver including labour charges for laying the same is Rs.59/- per sq. ft..  in the written version filed it is stated that 600 pavers were used to cover an area of 167 sq. ft..  In this proportion, 104 pavers would cover an area of 29 sq. ft..  Cost per square feet inclusive of labour charges will come to Rs.1711/-. It is also mentioned in written version that opposite parties had offered to replace those pavers as a goodwill gesture. We are not inclined to believe that such magnanimous offer was made  only for the sake of goodwill, what is pertinent is that opposite parties had agreed to replace damaged pavers. Coming to quality /strength of pavers, there is no evidence to prove that the they were of inferior quality, going by                                                                                                                   (cont….8)

• 8  -

Ext.C1.  Commissioner has not noticed any defect in the manner of paving, except for paving pavers of different width which caused level difference as mentioned earlier.  Deficiency in service is only with regard to non replacement of pavers with corners broken, those with different colour shade and pavers of varying width.  In the absence of evidence with regard to claimed damages, as mentioned earlier, complainant is entitled for a compensation quantified as above.  Failure to replace those pavers would certainly amounts to deficiency in service.  Apart from the amount quantified above, complainant will be entitled for a compensation of Rs.5000/- for deficiency in service and litigation cost of Rs.2,100/-.  Point Nos.1 to 4 are answered accordingly.

 

Point No.5:

 

          In the result, complaint is allowed in part with costs upon the following terms :

 

1.  Opposite parties 1 and 2 are directed to pay Rs.5711/- to complainant with interest at the rate of 12% per annum from 5.4.2016, till the date of realization. 

 

2.  Opposite parties 1 and 2 are directed to pay a compensation of Rs.5,000/- to complainant with interest at the rate of 12% per annum from 25.7.2016, till the date of payment or realization.

 

3.  Opposite parties 1 to 3 shall pay litigation costs of Rs.2100/- jointly, to complainant.

 

          Amounts ordered above shall be paid within a period of 45 days from today.  Failing which complainant shall be entitled to realise the said amount by proceeding against opposite parties 1 and 2 in accordance with law.  Parties are directed to take back extra sets of copies filed.

 

          Pronounced by this Commission on this the   30^th   day of  March, 2023

 

 

                                                                                          Sd/-

                                              SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                        Sd/-       

       SMT. ASAMOL P., MEMBER

 

                             Sd/-          

       SRI. AMPADY K.S., MEMBER

 

 

                                           (cont...9)

• 9  -

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -   computer print out photograph of the courtyard which was to be paved. 

Ext.P2 series (5 in numbers) - 5 consignments of pavers delivered by opposite. 

Ext.P3 series (5 in numbers) -  computer print out of e-mail complaint sent by

         complainant and 4 photographs of the pavers laid in the 

Ext.C1     -  Report submitted by the Commissioner,  retired Assistant Engineer,

        Mr. Ayyappan.

On the side of the Opposite Party :

Nil.

 

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                 ASSISTANT REGISTRAR