KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 323/2008
JUDGMENT DATED:16-06-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
P.C.Vijay,
Manager and Proprietor,
Bombay Marbles & Cement Brick Co., : APPELLANT
Paravattani, Thrissur.
(By Adv:Sri.R.S.Kalkura)
Vs.
K.Gopinathan Nair,
“Aiswarya”, Palappuram, : RESPONDENT
Ottappalam-3.
(By Adv:Sri.Sunny George)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant is the opposite party and respondent is the complainant in OP.581/04 on the file of CDRF, Thrissur. The complaint was filed alleging deficiency of service on the part of the opposite party in supplying cement flooring tiles to the complainant. Hence the complainant claimed a total of Rs.1,09,615/- as compensation including the cost of the tiles, cost of laying the tiles, cost of transporting charge and cost of the materials like cement, sand etc.
2. The opposite party entered appearance and filed written version denying the alleged deficiency of service. He contended that he supplied good quality cement flooring tiles and there was no defect for the tiles which were supplied to the complainant. It was further contended that the defect or damage occurred due to improper laying of the tiles. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, Exts.P1 to P9 documents were produced and marked. No oral evidence was adduced from the side of the complainant. The opposite party did not adduce any evidence in this case. An expert commissioner was deputed from the Forum below and the expert commissioner submitted C1 commission report. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:8th April 2008 directing the opposite party to pay to the complainant Rs.20,837/- as the cost of the tiles and the other charges incurred by him and also to pay Rs.30,000/- for rectifying the damage and defect. The opposite party is also directed to pay interest at the rate of 6% per annum on Rs.20,837/- from 28/7/2003 till realization. Aggrieved by the said order, the present appeal is preferred.
4. We heard both sides. Learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was no deficiency of service on the part of the opposite party in supplying the cement floor tiles to the complainant and that the damage to the tiles occurred due to improper laying of the same. It is further submitted that there is no evidence available on record to substantiate the case of the complainant that the laying work was done under the instruction of the opposite party. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He much relied on C1 expert report and argued for the position that there was manufacturing defect in the cement flooring tiles supplied by the opposite party and that the complainant suffered huge financial loss on account of the deficiency of service on the part of the opposite party. Thus, the respondent/complainant prayed for dismissal of the present appeal.
5. There is no dispute that the respondent/complainant purchased cement flooring tiles from the appellant/opposite party. The documentary evidence viz, the bills and other receipts produced from the side of the complainant would show that the complainant incurred a total of Rs.20,837/- for purchase of the cement flooring tiles and for laying the same. Ext.C1 expert commission report would show that the tiles supplied by the appellant/opposite party were of inferior quality and that the defects in the tiles occurred due to insufficient curing and compaction. It is also reported by the expert commissioner that the said defect is also occurred due to improper laying of the cement flooring tiles. There can be no doubt about the fact that the appellant/opposite party supplied defective tiles to the complainant. If that be so, the appellant/opposite party is liable to compensate the complainant. It is further to be noted that sale of defective tiles would amount to deficiency of service. Thus, the Forum below can be justified in directing the opposite party (appellant) to pay a sum of Rs.20,837/- to the complainant with interest at the rate of 6% per annum from 28/7/2003 till realization.
6. The expert commissioner has also reported that the damage to the flooring tiles occurred due to improper laying. The respondent/complainant would allege that the laying of the tiles was done at the instance and under the direction of the appellant/opposite party. On the other hand, the appellant/opposite party would contend that he had no role in laying the flooring tiles and that the laying of the tiles was done at the risk and cost of the complainant. The respondent/complainant has not adduced any evidence to show that the laying work was undertaken by the appellant/opposite party. So, this circumstance would give an indication that the respondent/complainant was also responsible for causing damage to the flooring tiles. If that be so, the Forum below cannot be justified in awarding Rs.30,000/- to the complainant for curing the defects. The aforesaid order passed by the Forum below is liable to be modified. The Forum below has not awarded any compensation or cost in the matter. Admittedly, the complainant incurred expenses for getting the report of an expert commissioner. It is also to be noted that the complainant adduced documentary evidence in support of his case. On the other hand, the opposite party has not adduced any evidence in support of his case. Considering all these aspects, the complainant is to be awarded a sum of Rs.1,500/- by way of cost of the proceedings. Thus, the compensation of Rs.30,000/- ordered by the Forum below is deleted but the appellant/opposite party is directed to pay Rs.1,500/- to the respondent/complainant by way of cost of the proceedings before the Forum below.
In the result the appeal is allowed partly. The impugned order dated:8/4/2008 passed by CDRF, Thrissur in OP.581/04 is modified and thereby the appellant/opposite party is directed to pay to the respondent/complainant a sum of Rs.20,837/- with interest at the rate of 6% per annum from 28/7/2003 till realization and cost of Rs.1500/-. The order passed by the Forum below directing payment of Rs.30,000/- to the complainant to rectify the damage to the flooring tiles is deleted. As far as this appeal is concerned the parties shall bear their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
