CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 19th day of May 2014
PRESENT : SMT. SEENA. H, PRESIDENT Date of filing: 08/11/2012
: SMT. SHINY.P.R ,MEMBER
: SMT.SUMA K.P, MEMBER
CC/200/2012
Vinod.K.M.,
S/o. Mani.K,
r/a Kuppakkade House,
Kulavanmukku,
Palakkad Dt. : Complainant
(By Adv. Ullas Sudhakaran)
Vs
Kalliyath Sanitations,
Rep.by its Managing Partner,
East Bazar, Tirur,
Malappuram District. : Opposite party
( By Adv. E. Krishna Das)
O R D E R
By Smt. Seena. H. President.
Case of the complainant :-
Complainant purchased 51 boxes of Vertified Flooring tiles ( each box containing 4 tiles) named Apricena along with other tiles and other laying materials on 25/06/2012 from opposite party for an amount of Rs.67,000/- ( Rupees Sixty Seven Thousand only). Opposite party has delivered the tiles at complainant’s worksite at Palakkad district. Complainant has engaged a contractor for laying tiles @ Rs.09/-( Rupees Nine only) per Sq Feet . Laying was started on 06/07/2012 and was completed on 21/07/2012. After completing the laying and on cleaning the tiles complainant found that out of 204 tiles, colour of 80 tiles are different from the remaining 124 tiles. The fact was immediately intimated to opposite party. Opposite party’s representative came and inspected the tiles. They were convinced regarding the colour change and assured to settle the grievance. Opposite party so far has not settled the grievance. A lawyer notice dated 18/09/2012 was caused to the opposite party. Though received opposite party has not cared to send a reply. Opposite party is bound to supply same colour tiles and the act of opposite party has resulted in lot of mental agony and monitory loss to the complainant. Hence the complaint. Complainant prays for a total amount of Rs.1 lakh as compensation and Rs.5,000/- as cost of the proceedings.
Opposite party filed version contending the following. That the tiles were purchased from opposite party is admitted. The colour and tiles supplied by the opposite party is the one choosen by the complainant. Specific instructions are provided in the box containing tiles. For premium quality tiles, company gives warranty of replacement provided tiles are dry laid. Further states that the customer should satisfy himself regarding the design, colour and quality before fixing the tiles. Now after having laid the tiles without following any instructions, complainant cannot say that there is difference in colour or colour did not match. There is no deficiency in service on the part of the opposite party and hence complaint is liable to be dismissed.
The evidence adduced consists of the chief affidavit of both parties. Ext.A1 & A2 marked on the side of the complainant. Commissioner Report marked as Ext.C1 and C2. Complainant was examined as PW1. Commissioner examined as CW1. Questionnaire filed by the complainant was answered by opposite party.
Issues for consideration :
1.Whether the complaint is maintainable before the Forum ?
2.Whether there is any deficiency in service on the part of opposite party?
3)If so, what is the relief and cost complainant is entitled to ?
Issues No.1
Opposite party contended that, as the opposite party is conducting business at Tirur, Malappuram District, the Forum lacks jurisdiction to entertain the complaint. Complainant has stated that tiles were delivered at Complainant’s worksite at Palakkad District which is not denied by opposite party. Hence we are of the view that part of the cause of action has arisen within the jurisdiction of the Forum. Hence Issue No.1 is answered in favour of the complainant.
Issues No.2
Complainant purchased 51 boxes of tiles with other tiles and laying materials for Rs.67,000/- is born out by Ext.A1. Ext.A1 also reveals the fact that cost of 51 boxes of tiles is Rs.39,206/-. The complainant herein has not alleged any defect in the tiles purchased. The only grievance is regarding the difference in colour in respect of 80 tiles out of the 204 tiles. As per Ext.C1, commissioner has stated that out of the 204 tiles laid 80 tiles are different from the remaining 124 tiles in colour and shade/design. As per Ext.C2 it is stated that the colour of 124 tiles in the site are ivory and the remaining some are grayish and some are yellowish and some have different design too. Ext.C1 and C2 clearly establishes the case of the complainant. The learned counsel for the opposite party vehemently argued the point that what is the colour actually ordered by the complainant is not stated anywhere in the complaint. It is true that complainant has not stated the colour of the tile he ordered in the complaint, but Ext.A1 shows that complainant has purchased 51 boxes of tiles APRICENA (SF) POUC800X800-4 PRM(R) Ext.A1 is the bill issued by the opposite party. Opposite party is duty bound to note the colour of the tiles in the bill or else if the letters in the bill is the code denoting any specific colour, opposite party being the contesting party is the best person to adduce evidence to that effect. Further the contention of opposite party that all the tiles are to be drylaid first seem to be practically impossible one. As per Section 17 Sale of Goods Act, in the case of a contract for sale by sample, there is an implied condition that the bulk shall correspond with the sample. It has clearly come out in evidence that opposite party failed to supply the colour as demanded by the complainant. We also find fault with the complainant as the same was not noted by him before laying. Hence compensation as noted by the commissioner is not payable. We are of the view that the bill amount of 51 boxes of tiles alongwith Rs.30,000/- as compensation will meet the ends of justice.
In the result complaint partly allowed. Opposite party is directed to pay Rs. 39,206/-
( Rupees Thirty Nine Thousand Two Hundred and Six only) as price of 51 boxes of tiles alongwith Rs.30,000/- ( Rupees Thirty Thousand only) as compensation within a period of one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 19th day of May 2014.
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Invoice No.4614 dated 25/06/2012 issued by opposite party to complainant.
Ext.A2 series - copy of lawyer notice sent by complainant to opposite party along with
acknowledgment card copy of lawyer notice dated 18/09/2012.
Exhibits marked on the side of the opposite parties
Nil
Cross Examination of complainant
PW1 – Vinod K.M
Commission Report
C1 – Anilkumar. K
C2 – Anilkumar .K
Cross Examination of Commissioner
CW1 - Anilkumar. K
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
Nil
Cost allowed
No cost allowed.
