Delhi

North East

CC/23/2016

Sandeep Saraswat - Complainant(s)

Versus

Kajaria Ceramics Ltd. - Opp.Party(s)

26 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 23/16

 

In the matter of:

 

	Mr. Sandeep Saraswat A-48, Mansarovar Park Shahdara, Delhi-110032.	Complainant
	Versus
1.                     2.	Kajarai Ceramics Limited Through Mr. Rishi Kajaria (Managing Director) Mr. Chandok, (Vice President) Mr. Rohit Chopra (General Manager) Mr. Chamba Basava (Tech. Head) J1/B1 (Extn.) Mohan Co-op Industrial Estate (Opp. Badarpur Thermal Power Station), Mathura Road, New Delhi-110044.   Mr. Kishan Chabra M/s GCL Enterprises T-12, Andheria More, Mehrauli.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

19.01.2016 05.04.2018 26.04.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that the complainant, being influenced from the advertisement and publicity in respect of the quality and goodwill of the material, he offered to get the services of the OPs and on 01.11.2014, placed an order with OP2 for purchase of 40 boxes of Kajaria Vitrified tiles for an amount of Rs. 53,390/-, double charged, Item Code K-8029 size 800x800mm Shift –C and the above tiles were delivered by OP2 on behalf of OP1 at F-2 Mansarovar Park, Delhi-32 address of the complainant. It has been stated by the complainant that prior examination of tiles was not allowed by OP2 to the complainant and when he checked the tiles delivered by OP2 on behalf of OP1 on delivery, he was shocked and humiliated to find that the tiles were manufactured way back in the year in 2012 as per the printed date of manufacturing. Further the tiles were not of the quality for which the amount was charged and order placed. Moreover, the same were delivered without any bill/ challan but only through a hand written slip of 40 boxes for an amount of Rs. 53,390/- which the complainant paid on the assurance of Mr. Praveen who was Kajaria Sales person, on delivery of the tiles. It has been further stated by the complainant that after the delivery of the tiles at the place of work, complainant found size variation fault immediately after using the tiles and as such he informed OP2 on 02.11.2014 but there was no satisfactory response given by OP2 and it was stated instead that there might be 2 or 3 boxes which may be defective but the rest of the tiles will be perfectly ok. Therefore believing OP2, the complainant used 5 boxes of tiles supplied by the OPs but all of them were defective in their sizes and quality and therefore he called OP2 on 03.11.2014 to request for taking back defective tiles from the place of work and to returned the money alongwith losses incurred because of use of defective and quality less tiles as well as paying the amount on account of compensation. However the OP2, instead of taking back defective and quality less tiles, refused to accept the same, threatened the complainant and gave the mobile number of sales person Mr. Praveen via SMS on 03.11.2014 asking the complainant to talk to representative of OP1 as named in the array of parties in the present complaint. He was assured that the matter would be sorted out by the OPs collectively and severally, however none of the OPs executed their promises and assurances and just shifted responsibility on to each other. Further one Mr. Chandan, technical Engineer visited the construction site of the complainant and found the size variation of the tiles and gave the mobile number of their head Mr. Chamba Basava to the complainant who was when informed about the entire issue, assured the complainant that the defective tiles would be returned by sales department. But Mr. Praveen refused to exchange the tiles and pressurized as well as forced the complainant to use the tiles with a use of Spacer. The complainant again requested OP2 to refund money by taking back the defective tiles and it was assured by the OP2 that a tempo driver would be sent to take back the defective tiles and refund the money to the complainant. Further on 12.11.2014, OP2 send the tempo Driver, namely Updesh to take back the tiles from the place of work but when the complainant asked the driver regarding the payment, he told the complainant that OP2 had not given the payment and had directed him to only upload tiles. The complainant was shocked to hear the above because as per the decision, the driver had to come with the payment. Further OP2 called the complainant and warned that if he will not let the tiles upload, then OP2 will not take these tiles back again and complainant should forget about the money and insisted upon material first and then return of payment. The complainant has stated that he had sent e-mails on 21.11.2014, 22.11.2014 and 24.11.2014 to Kajaria senior official, Mr. Rohit Chopra with the request to take back defective tiles and also about undue harassment caused by OP2 and Mr. Praveen but Mr. Rohit Chopra did not take any action. The complainant sent e-mail to vice president of OP1 Mr. Chandok on 26.11.2014 & 10.12.2014 complaining about the size variation details (116.10/ 115.95 and 116.10/ 116.20) done diagonally by Mr. Chandan but all this went in vain as Mr. Chandok neither gave any reply nor took any action in this regard. Further the complainant tried to communicate with Mr. Rishi Kajaria, the Managing Director of OP2 on his mobile number and e-mail ID but Kajaria employees did not give either the mobile number of e-mail ID giving excuses that they are not allowed to do so. It has been submitted by the complainant that he is compelled to take care of the defective tiles which have been supplied intentionally by the OPs in collusion with each other for causing loss to the complainant in his reputation and furthermore putting the dwellers of accommodation in danger. Moreover, the complainant is constrained to spend the money for storage the defective tiles and had to deploy a guard against the salary @Rs. 9,000/- per month. In view of the above the complainant has suffered a lot of physical and mental agony because of irresponsible act, ignoring all his correspondences and consequences of unfair trade practice opted by the OPs and as such the complainant has prayed vide the present complaint to direct the OPs to pay a sum of Rs. 53,390/- with interest @ 24% p.a. to the complainant and also pay a sum of Rs. 9,000/- per month against the salary of the guard paid by the complainant w.e.f 01.11.2014 till the date of removing the tiles by the OPs from the place of work and also direct the OPs to pay jointly and severally a sum of Rs. 2,00,000/- on account of compensation for supplying defective and quality less tiles alongwith Rs. 25,000/- on account of cost of litigation. 

The complainant has attached series of e-mails written by him between 21.11.2014 to 10.12.2014 to several senior level/ managerial level officers / employees of OP1 requesting them to take strict action against the guilty officials who deliberately sold defective tiles to the complainant through OP2 (dealer) in a well planned manner and exchanging the defective tiles and also to take away the defective tiles from his construction site to avoid further unrest and financial losses,copy of reply e-mail from Mr Praveen Kumar addressed to Mr. Rohit Chopra, Kajaria Senior Officials dated 22.11.2014 has been attached wherein it has been intimated that efforts to resolve the matter could not succeeded because the complainant wants payment first then returned the material which is not possible for him as the dealer wants material first and thereafter the return of the payment, copy of e-mail dated 22.11.2014 from the complainant to Mr. Rohit Chopra Kajaria Senior Officials has been attached wherein it has been requested to sort out the matter as the complainant had to finish his parking floor, where these tiles has been kept. Further a copy of e-mail by Mr.Rohit Chopra address dated 22.11.2014 has been attached wherein it is mentioned that he must go as per the dealer and do the needful. Thereafter, a copy of another e-mail from the complainant address to Mr. Rohit Chopra dated 24.11.2014 has been attached wherein it has been mentioned that since the problem could not be resolved by Mr. Rohit Chopra, he should provide him the e-mail Id and contact number of Mr. Chandok to avoid unrest and financial losses to the complainant. Two e-mails from the complainant addressed to vice president, Kajaria have been attached wherein the problem being faced by the complainant has been stated with the request to interfere in the matter. Lastly a copy of hand written bill mentioning the address of F-2 Mansarovar Park Shahdara and an amount of Rs. 53,390/- has been attached. Further a copy of Adhaar Card of the complainant has been submitted wherein residential address of the complainant is mentioned as A-48, Street No.9, Mansarovar Park Shahdara, Delhi-32.

2. Notice was issued to the OPs on 01.02.2016 for appearance on 04.03.2016 which was served to them on 08.02.2016 and 06.02.2016 respectively. However OP2 failed to appear despite service and was proceeded against ex-parte vide order dated 05.04.2016.
3. Written statement on behalf of OP1 was filed wherein it took the preliminary objection that the tiles in question were purchased by the complainant for his office work i.e. for commercial purposes and as such he is not entitled for any relief because he is not a consumer within the ambit of Consumer Protection Act. OP also relied upon the judgments pronounced by Hon’ble Supreme Court of India in case of Kishan Lal Vs Employees State Insurance Corp. (2007) 4 SCC 579 and Hon’ble NCDRC wherein it has been held that when the complainant purchases any materials for commercial purposes, he is not protected under the CPA. Further OP1 submitted that the complainant has failed to prove any manufacturing defect in the tiles purchased by him from OP2 and the present complaint is without any cause of action and as such merits dismissal. It has been further stated by the OP1 that OP1 are manufacturer of ceramic and vitrified tiles and are known internationally for quality and durability of their products which is why the complainant had decided to purchase their tiles and not due to any influence from advertisement or publicity. The OP1 further stated that on each and every box of the tiles, are the guidelines/ instructions mentioned which are 1. Please read instructions before laying the tiles 2. We do not entertain any claim after the tiles are laid and 3. Please inspect all tiles prior to installation. The OP1 stated that ones the tile are laid they do not entertain complaints. OP1, while denying the allegation that the complainant was not allowed to inspect the tiles before purchase stated that it was the duty of the complainant not to take the delivery of those tiles as he was duty bound to check the tiles before its delivery. OP1 further denied that the tiles were old manufacturing date or a bad quality. OP1 submitted that the averments by the complainant with regard to non delivery of bill or challan of 40 boxes of tiles for an amount of Rs. 53,390/- relates to OP2 and therefore denied for want of knowledge. OP1 denied any communication between Mr. Parven and OP2 or between complainant and OP2 for taking back the alleged defective tiles from place of work and return of money. OP1 while admitting to receipt of e-mails from the complainant on 21.11.2014, 22.11.2014.24.11.2014,26.11.2014 and 10.12.2014 to Mr. Rohit Chopra and other officers of OP1, denied any assurance given to complainant to return the defective tiles by its sales department. OP1 also denied any confirmation by Mr. Chamba Basava for sixe variation to the complainant. The OP1 urged that the complainant had malafide intention to blackmail the OPs and malign their reputation and goodwill to make out a false case of alleged defective tiles and pressurize OP1 to succumb to his illegal demands for which the OPs reserve their right to seek appropriate legal action against the complainant including filing of criminal complaint of defamation in the appropriate court of law.
4. Rejoinder to written statement of OP1 was filed by the complainant wherein complainant rebutted the allegation of tiles having being purchase by him for OPs for his ‘officials purpose’ as being a whimsical submission of OP1 without complainant having ever stated so and therefore the same is perjury. Further the complainant has stated that the tiles were not purchased for the purpose to generate the money rather it was purchased to utilize for individual works. Further complainant stated that Kajaria technician engineer found size variation in tiles and that OP1 was aware that OP2 had not delivered proper challan / bill for amount of Rs. 53,390/- towards purchase of tiles in question. Complainant further alleged both OPs being hand in glove with each other and indulging in unfair trade practice to sell defective tiles to the complainant. Further all the allegations raised by the OP1 in the written statement of the complainant leveling false allegation and pressuring OP1 to succumb to his pressure were denied by the complainant.
5. Evidence by way of affidavit was filed by the complainant where he reiterated his grievance and sequence of events as in his complaint and in his rejoinder and also exhibited in addition to e-mails and bill of purchase, copies of receipts of payments made to the guard Bablu @ Rs. 9,000/- per month from December 2014 to April 2016 for safety 35 boxes of the tiles purchased by him from the OP.  
6. Evidence by way of affidavit was filed by the OP1 wherein it was stated that the complainant has himself admitted in para 3 of the complaint that the tiles in question were purchased by him for his office work i.e. commercial purpose. A reference in this connection has been invited to the Apex Court Judgment in Kishori Lal Vs Employees State Insurance Corporation (2007) 4 SCC 579. OP1 further deposed that it was only when OP1 took the objection in the written statement of lack of documentary evidence filed by the complainant, that the complainant has forged and fabricated the alleged receipts from December 2014 to April 2016 showing remunerations paid to a guard @ Rs. 9,000/- per month from December 2014 to April 2016 for the tiles worth Rs. 53,390/- and as such the complainant is liable to be prosecuted for committing perjury and for creating false evidence in order to get undue favour from this Forum and this is unbelievable that any person will pay Rs. 9,000/- per month for putting a Guard for keeping watch on the tiles valued at Rs. 53,390/-. OP1 further urged that apparently, the said receipts have been prepared in a single day from a single pen which is prove after having a glance at those alleged forced and fabricated receipts for falsely claiming charges from OP1. In case the receipts had been in the possession of the complainant, he would have placed them on record alongwith the complaint. Therefore, the complaint is based on false and frivolous allegations and fabricated receipts and as such the complaint does not deserve any merit as no unfair trade practice is proven from documents issued by OP2 on behalf of OP1.
7. Written arguments were filed by both the parties.
8. In its written arguments, complainant reiterated the points made in his complaint as well as rejoinder and affidavit of evidence and submitted that the property F-2 Mansarovar Park, where the defective tiles were delivered, is registered in favour of complainant’s wife named Smt. Neera Saraswat. On directions issued by this Forum to the complainant vide order dated 21.12.2017 to satisfy that the subject tiles were purchased for residential purpose at the Mansarovar Park address of the complainant, the complainant filed a photograph of above property alongwith sale deed has also been submitted by the complainant in support of his contentions that the subject tiles were being purchased by him in capacity of ‘consumer’ and not for commercial / officials purpose.

Complainant placed on record / relied upon judgment of Hon’ble Apex Court in the case of Lourdes Society Snehanjali Girls Hostel and Anr. Vs M/s H & R Johnson India Ltd & Ors. in which the Hon’ble Supreme Court had set a side the observation / orders of Hon’ble State Commission and National Commission holding the appellant as a commercial entity and held that the same being a registered society helping tribal students in their education by providing hostel facility and charging only for maintenance and not for profit is a consumer within the meaning of section 2 (1) (d) of CPA.

9. In its written arguments, OP1 reiterated its defence taken in written statement as well as evidence filed by him. OP1 relied upon judgment of Bahirathan Vs HCL Info Systems Ltd and Anr. I (2007) CPJ 319 passed by UTCDRC Puducherry which rule that post 2002 amendment in CPA w.e.f. 15.03.2003 in section 2 (1) (d) (ii) person availing service for commercial purpose shall be excluded from definition of consumer and not open to allege deficiency of service. OP1 also relied upon judgment of Hon’ble Apex Court in Landmark case of Laxmi Engg works Vs PSG Industrial Institute II (1995) CPJ 1 (SC) in which Hon’ble Apex Court held that since complainant purchase machinery for commercial purpose therefore he is not a consumer. OP1 further relied upon judgment passed by Hon’ble NCDRC in M/s Kusumam Hotels Pvt Ltd Vs M/s Neycer India Ltd III (1993) CPJ 333 (NC) in which Hon’ble National Commission held that since the tiles were purchased for being laid in flooring of VIP rooms of hotel, transaction was a large scale commercial activity and of commercial purpose and therefore complainant cannot be a consumer. OP1 has also relied upon Judgment of Hon’ble Supreme Court In Kalpavruksha Charitable Trust Vs Toshniwal brothers (Bombay) Pvt Ltd III (1999) CPJ 26 (SC) in which Hon’ble Apex Court on the lines of Laxmi Engg Work Judgment observed and rules that CT Scan Machine in Diagnostic Centre of appellant had to paid for by patients and therefore ‘commercial purpose’ and therefore appellant is not a consumer. Lastly OP1 made an offer of settlement to the complainant on 02.02.2018 before this Forum to take back the tiles and refund Rs. 60,000/-(as rounded of bill value of Rs. 53,390/-) in accordance with the expenditure incurred by the complainant for purchase of allegedly defective tiles for Rs.53,390/- in the proceedings held on 02.02.2018, which offer was declined by the complainant on grounds that he had been submitted that since he is contesting the present case since last more than two years and prayed for order to be passed on merits.  
10.  We have heard the rival contentions of both the parties and have carefully perused the documentary evidence placed on record and judgment cited / relied upon by both the parties in support / defence of their respective case / rebuttal.

It is not in dispute that the tiles in question were purchased by complainant from OP2 dealer of OP1 (acknowledged by OP1) as its manufacturer on 01.11.2014 for a sum of Rs. 53,390/- paid by the complainant to OP2. The dispute arose with respect to the quality and size variation issues, manufacturing year raised by the complainant with the OPs vide oral telephonic and written communication between November 2014 to December 2014 with various officials of OP1 at functional / operational till managerial / management level, which correspondence is not denied by OP1, contents / allegations leveled therein though are. OP1 also raised objection to maintainability of complaint on allegation that complainant purchased tiles for commercial purpose / official use and therefore not consumer. In this respect complainant filed sale deed dated 31.01.2015 with respect to the premises in question alongwith the photographs to show that the said premises are residential in nature / use factor and tiles were therefore purchased for domestic and not official / commercial purpose. We find force in the argument of the complainant in light of documentary evidence placed on record with respect thereof the tiles were purchase on November 2014 when the sale of the said premises were getting finalized and therefore tiles were had to got done before shifting. The sale deed clearly mentions use as ‘residential’ so the ‘place of work’ as mentioned in para 3 of the complaint would be inferred as ‘site’ and not ‘office’. Therefore this issue is decided in favour of the complainant that the subject tiles were being purchased by him in capacity of consumer under section 2 (1) (d) of CPA and therefore complaint admissible under the statute. Therefore this issue is decided in favour of the complainant against the OPs.

11. OP1 has not placed on record any proper bill/challan to counter the allegation of the complainant that it was a mere hand written invoice which to our view is not a fair and proper business practice and a proper retail invoice system generated should have been given by OP2 to the complainant against the said purchased of the tiles with proper vat and other applicable taxes levied upon and therefore we hold OP2 guilty of irregular / improper/ unethical business practice in direction of a probable tax evasive tactic which is unfair trade practice and against public policy. OP1 in its written statement could not counter or explain why the defective tiles could not be receive back by OP2 against on the spot payment refund to the complainant and instead asking complainant to returned the tiles to OP2 vide e-mail dated 22.11.2014. This to our opinion is oppressive and dishonest trade practice since due to lack of trust / breach of trust as alleged by the complainant, he could not be expected to return the tiles without receiving refund thereof immediately which would have resolved the issue then and there but OPs did not do so thereby escalating the issue / crises. Moreover despite admission by OP1 to receiving several e-mails from complainant about his grievance and non responsiveness / non redressal, OPs failed to act upon any which to our opinion is deficiency of service and highly unbecoming of a reputed company of a stature of OP1 despite being aware of misdeeds / malpractice of its recognized dealer OP2. This issue is also therefore decided in favour of the complainant as against OPs. The allegation of manufacturing defect / old manufacturing defect in the tiles by way of documentary evidence is lacking in the evidence / documents placed on record by the complainant and find mentioned only in pleading and e-mails by complainant to OP1’s officers but the fact that the complainant had asked OP1 to take the same back immediately on purchase and opening of boxes and checking the tiles and not having use them till date and OP1 actually offering a settlement by way of refund (though belatedly at the stage of oral arguments) in the proceedings before this Forum is circumstantial evidence that the tiles in question were not as per the quality, specification, size, price paid and satisfaction of the complainant and therefore he had raised request for return and refund with the OPs and followed up for two months persistently but to no avail. Therefore this issue is decided in favour of the complainant that the subject tiles were not upto the mark and defective therefore lying unused with complainant till date.
12.  As regards the deployment of guard and wages paid by the complainant to him for keeping vigil of 35 boxes of tiles unused / unclaimed / unreturned for which the complainant has stated to have incurred an expenditure of Rs. 9000/- per month towards salary paid to the guard from December 2014 till April 2016 for which receipts have been placed on record alongwith evidence by way of affidavit and the same have been claimed to be forged and fabricated as an afterthought creation of documentary evidence by OP1, complainant has not placed on record any photograph of godown or place where the said tiles have been dumped or placed given the magnitude of space it would require 35 boxes of tiles to be accommodated and merely filing receipts of payment is not proof of deployment of guard or quantum of wages paid. The complainant have not filed any evidence by way of affidavit of any guard or watchmen on duty to swear or affirm the role / duty and wages if any paid with respect thereto. Such receipts can be manufactured and are not comprehensive of fool proof documentary evidence and therefore is not proof enough for the claim made. We are therefore not inclined to grant any compensation or entertained such a ground for relief to the complainant in the present case.
13.  However, having decided most of the issues in favour of the complainant against the OPs, we hold OP1 and OP2 guilty of deficiency of service and unfair trade practice qua the complainant and direct both the OPs jointly and severally as manufacturer and dealer to refund a sum of Rs. 53,390/- paid by the complainant towards cost of defective tiles alongwith interest @ 9% from the date of institution of complaint till realization. We also direct OP1 and OP2 jointly and severally to pay a sum of Rs. 25,000/- to the complainant on account of compensation for physical and mental agony and Rs. 5,000/- towards cost of litigation. Let the order be complied within 30 days from the date of receipt of copy of this order failing which for non compliance, OPs shall be jointly and severally liable to bear additional interest @ 9% on the total awarded amount of Rs. 83,390/- payable to the complainant from the date of order till realization.
14.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
15.   File be consigned to record room.
16.   Announced on 26.04.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member