By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Case of the complainant:-
On 15/01/2014 complainant had purchased 100 boxes of Johnsons vitrified tiles worth Rs.1,02,000/- from opposite party No.1 shop for his newly constructing house. Opposite party No.1 provided a receipt for that. At the time of purchasing the above tiles opposite party No.1 assured that the tiles manufactured by opposite party No.2 and 3 were having very good quality and which will last a long time without defect and the above tiles are first quality tiles. By believing the words of opposite party No.1, complainant had purchased 100 boxes of the above tiles having high quality.
2. On June 2014, complainant and his family shifted to the new house and after six months of stay they noticed some dark shades on the edges of some tiles and complainant informed the matter to opposite party No.1 and the authorised person from Johnson Ceramics visited complainant’s house. But later, no communication received by complainant from the opposite parties .But again the dark shades spreaded in almost all tiles and the whole floor look ugly and complainant registered a complaint on January 2016 and a technician of opposite party No.2 came and inspect the tiles. But nothing was done by them.
3. Thereafter no steps was taken by the opposite parties to replace the dark shaded, colour faded tiles of complainant’s house. On March 2018 complainant again registered a complaint and on 30/03/2018 one authorised person from Johnson ceramics visited and inspected the defects and found the complaint of complainant is genuine. He reported that the colour changes occurred is not due to manufacturing defects, but the dealer that means opposite party No1 had made mistakes by delivering different batches of product. Thereafter complainant sent a lawyer notice to opposite party No1 on 31/05/2018 and they received the notice but no steps taken by them to rectify the defects. Complainant stated that the materials supplied by opposite party No1 are inferior quality products and not the product of Johnson ceramics. The dream of a new house for living happily collapsed due to the act of opposite parties. Now complainant wanted to reconstruct the whole floor with new flooring materials for making the floor clean and tidy. The deficiency in service and unfair trade practice from the side of opposite parties amounts to mental agony and hardships to complainant. Opposite parties provided low quality tiles and damaged tiles instead of the quality tiles assured by them. Hence this complaint.
4. Prayer of the complainant is that he is entitled to get Rs. 1,02,000/- the cost of purchased tiles, Rs. 1,00,000/- for laying the tiles in floor, Rs. 50,000/- for removing the damaged, faded tiles from the floor of complainant, Rs. 1,00,000/- as compensation for mental agony and hardship suffered by the complainant due to the deficiency in service and unfair trade practice from the side of opposite parties and Rs. 25,000/- as cost of the proceedings.
5. On admission of the complaint notice was issued to the opposite parties and notice served on them and they appeared before the Commission through their counsel and filed version.
6. In their version, they denied the entire allegation in the complaint except which are those expressly admitted. They again stated that complaint is not maintainable being barred by period of limitation. Complainant herein is not a consumer. Complainant as per the relevant document submitted herein is totally a strange person and is not known to this opposite parties. They again stated that, they are the top leading tile manufacturer in India and the quality of the same is known to everybody and need not have to be convinced with each and every customer. Complainant never contacted any of the opposite parties stating any of the grievances as mentioned in the complaint. They are not aware of any complaint registered as such from the part of the complainant as mentioned in the complaint. The complaint of dark shade which is alleged to have occurred within six months is not at all within the knowledge of these opposite parties. Neither they were approached nor informed with regard to this by the complainant till the first opposite party received the notice sent by the complainant in the month of June 2018. Their service manager never inspected the tiles of complainant during 2015 February and 2016 January.
7. The first notice, opposite party No.1 received as on June 2018 and the notice contained untrue exaggerated vague, improbable allegation and unjustifiable claims and the same was not responded to. None of the authorized person from opposite party No.2 and 3 had stated to the complainant with respect to any fault on the part of first opposite party. They again stated that any vitrified tiles even if of a very superior quality can be damaged by improper usage for a period of time. There is no guarantee provided by the opposite parties in the case of improper usage. The statement of accounts given by complainant is not true and astonishing against the real facts and the labour costs existing in the market as on the day and is evidently seen to be for the purpose of making undue profits out of the opposite parties.
8. According to the petition itself, there is no claimable allegation of the complainant against the opposite parties. It is well evident from the quotation submitted by the complainant that the date of purchase is 15/01/2014. From the specific pleading of the complainant in the second Para itself it is stated that the alleged dark colour shades happened within 6 months. The tiles are claimed to have purchased on 15/01/2014 and the alleged dark colour shades occurred within 6 months that means, if the alleged dark colour shades occurred, the same should have happened within December 2014. If that be the case, at least the complainant ought to have filed the complaint or taken any affirmative action within the month of December 2016 i.e, within two years of the date of cause of action, which is the period of limitation prescribed. But the complainant filed this complaint after an expiry of 18 months even after the date of limitation period, cannot be entertained and is liable to be rejected. The complaint is vague and it does not specify any date, month, year for the rest of the happening alleged to have occurred. Vagueness of the complaint is cleverly maintained in the pleadings of the same in order to take opportunity of it manipulate the issue at the time of evidence.
9. The quotation produced by the complainant is not a conclusive proof of purchase of any tiles, points that he purchased different company tiles on 15/01/2014 and the burden of proof of any loss to him by the opposite parties is on the complainant. The narration of the allegation does not have any substantial connection with the injury alleged to have suffered by the complainant. The case is that within six months the alleged dark colour shades occurred and this allegation the complainant makes after 4 years of purchase, which cannot reasonably be entertained on any ground. Further, the fixing instructions including the maintenance of the tiles after fixing are printed and specifically mentioned on each cartons containing tiles to be brought to the knowledge of customers. The directions are :- 1) Plaster the surface to be tiled with a good finish and complete the rendering and curing at least two weeks prior to tiling do not fix tiles on fresh surface. 2) Before fixing the tiles lay them out in the desired pattern and make sure that they give an acceptable blend of shade colour and design. Also make sure that the tiles are acceptable to your satisfaction. 3) The company bears no responsibility towards tiles exposed to outside process like transfers, printing and firing etc. 4) For fixing these tiles we recommend the use of ARDEX ENDURA tile flooring adhesives.
10. Moreover for fixing tiles using sand and cement then use cement and sand mortar in the ratio of 1:3. Add some water to make a consistence paste, do not use neat cement for fixing tiles, once the mixing has been completed do not add more water and use the mixture within one hour, soak the tiles in clean water at least 30 minutes before fixing , remove the tiles from the water and allow them to drain to ensure that there is no film of water on the tile surface, apply 20-30 mm layer evenly over an area of 1 square meter at a time on the surface of the area etc. They again stated some direction like mark and layout the tiles from the center of the area to be laid so that cut tiles if any will be on the outer edges towards the wall, wait for 24 hours after fixing the tiles, for cleaning tiles use moist cloth of sponge with water or diluted soap solution, do not scrub or scratch, do not use acid ,cleaning powders etc for cleaning tiles etc. Purchaser of tiles should have followed these instructions while fixing and cleaning the tiles otherwise company have no responsibility.
11. The opposite party No.2 and 3 herein is company having world class plants having ISO certification , excellence in quality , environmental and safety standards and having 50 years of experience in India and over 100 years globally through association with Johnson Ceramic International U.K. The opposite party No.2 and 3 affirmed that there is no possibility at all for any colour complaints of the tiles belonging to them if it is properly used. They are not liable for colour shades or defect cause due to improper and careless usage of the tiled floor and that also after a period of four years. Hence complaint may be dismissed.
12. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A3. Ext.A1 is the true copy of cash collection receipt given by opposite party No.1 to one Ramachandran on 15/01/2014., Ext.A2 is the true copy of quotation given to Ramakrishanan on 15/01/2014, Ext.A3 is the true copy of notice sent by complainant to opposite party No.1 on 31/05/2018. The commission report filed by the Advocate Commissioner on 07/01/2022 is marked as Ext. C1. Thereafter opposite parties filed affidavit in lieu of chief examination and they filed one document which is marked as Ext. B1. Ext. B1 is the authorisation letter given by the Executive Director and CEO of Johnson Limited to authorise Mr. Alias Mathew and Mr. Suresh CP to do all or any of the following acts in connection with consumer case No.244/2018.
13. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-
- Whether the complaint is maintainable or not?
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost.
14. Point No.1:-
Case of the complainant is that he had purchased 100 boxes of Johnson vitrified tiles worth Rs.1,02,000/- from opposite party No.1 shop for the floors of his new house. But within six months of stay in that house they noticed some dark shades on the edges of some tiles and they informed about this to opposite party No.1. When the dark shades of the tiles spreaded, he reported the matter to opposite parties in the year 2016. Then again due to the colour fading of tiles and spreading of dark shade, complainant registered a complaint on 30/03/2018. But opposite parties stated in their version that this complaint filed by complainant is not maintainable because it is barred by period of limitation. Moreover they said that complainant is not a consumer
15. But in this complaint, complainant is a consumer because complainant had purchased the tiles from opposite party No.1 shop which were manufactured by opposite party No.2 and 3. So there is a consumer relation between complainant and opposite parties. Ext.A1 clearly shows that complainant had purchased the above tiles from opposite party No.1 shop and he paid Rs.1,02,000/- to opposite party No.1 and they provided a cash receipt to complainant. Hence no such question arises regarding the consumer relation between complainant and opposite parties. Moreover opposite parties had appeared before this Commission through the same counsel and he filed vakkalath, version and affidavit for all the opposite parties.
16. Opposite parties admitted that opposite party No.1 received a notice send by the complainant in the month of June 2018 and that was the first and only intimation of such allegation from the part of complainant. So the question of limitation is not a point to be considered in this matter. Opposite parties admitted that they had received the notice in the month of June 2018. The defect to the tiles duly noticed by complainant at that time. Hence he send a lawyer notice to opposite party No.1. Thereafter complainant had filed this complaint, CC/244/2018 on 01/08/2018. Hence there is no delay in filing the complaint. As per the contentions of opposite party No.1 to 3, they said that they did not receive a complaint regarding the tiles from complainant in 2014 and 2016. They again stated that they have no knowledge about the dark shades in the tiles laid in complainant’s house. Hence complaint is maintainable and there is no such question arising about the limitation period of complaint.
17. Point No.2 & 3:-
As per Ext.A1 document it is clear that complainant had purchased tiles from opposite party No.1 shop and other items for an amount of Rs.1,02,000/- as per order No.2532 and he paid the amount to opposite party No.1 on 15/01/2014. As per Ext.A2 document, complainant got the quotation for 100 boxes of Johnsons vitrified tiles worth Rs. 80,600/-, 11 boxes Jagon black worth Rs.14,740/-, and six boxes of Somany Terracotta worth Rs.6,240/- and total of Rs. 1,02,000/-. But the name mentioned in both the documents are different. But complainant in his complaint clearly stated that there is some mistake happened in the name wrote in cash collection receipt. But in the order form No.2532 there clearly mentioned the name of complainant and that quotation number or the order form number is clearly mentioned in Ext.A1 document. The opposite parties never denied Ext.A1 document and they never said that it is a concocted one.
18. Another contention of opposite parties are that the vitrified tiles even if very superior quality can be damaged by improper and careless usage. There is no guarantee provided by opposite parties in the case of improper usage. But opposite parties did not convince the commission that there is an improper usage of tiles by complainant. At the time of inspection of Advocate commissioner, the authorised person of opposite parties was present. But commissioner did not report the reason for colour fading is improper usage by complainant. Opposite parties could have raised that contention before the Advocate commissioner. Another contention raised by opposite parties are that the quotation produced by the complainant is not a conclusive proof of purchase of any tiles. In Ext.A1 document there clearly mentioned the signature and name of opposite party No.1 and the amount is the same amount as alleged by complainant in the complaint. Opposite party No.1 never said that Ext.A1 and A2 are not provided by them to complainant.
19. Another contention of opposite parties are that there is ‘’fixing instruction'' including the maintenance of the tiles after fixing are printed and specifically mentioned on each cartons containing tiles to be brought to the knowledge of customers. We are on the view that opposite parties can easily produce the above mentioned instructions at the top of every carton before the Commission. They can easily submit before the Commission, the instruction portion of one of the new cartons or old one. Opposite parties did not produce documents to prove their case.
In their version and affidavit, opposite parties stated some fixing instructions regarding the use of sand and cement. But they did not produce document to show that complainant had fixed the tiles without using the proper ratio of cement and sand as per instructions. There is no document to prove that complainant had used Acid, Alkali or other oils for cleaning tiles and complainant used scrub to clean the tiles.
20. In this matter both the parties did not produce the warranty card before the Commission. So we are unable to come to a conclusion that the warranty period of the above tiles are over or not. Opposite parties can produce the warranty card for explaining their side properly. There is Ext. C1 document which is commission report filed by Advocate commissioner after visiting complainant’s house. On that inspection day both the parties were present. Complainant and opposite parties were not filed any objection to the commission report filed by Advocate commissioner. In that report, Commissioner stated that “മേപ്പടി ടൈൽസ് എ¨Ê പരിശോധാസമയത്ത് കളർ മങ്ങിയതായി കാണപ്പെട്ടു. ടി ടൈൽസ് ഉപയോഗിച്ച ഏകദേശം 80% ഭാഗങ്ങളിലും ടൈൽസ് കളർ മങ്ങി പാടുകളും മറ്റും വന്നതായി കാണപ്പെട്ടു.എന്നാൽ ഉപയോഗം കുറഞ്ഞ സ്റ്റെയർകേസി¨Ê സൈഡ് ഭാഗങ്ങളിൽ ടൈൽസിന് കളർ മാറ്റമോ മറ്റോ കണ്ടില്ല”. Commissioner has stated that the colour of the tile has faded in the areas of regular use, but the colour has not faded in the areas of less use. He stated that, tile colour faded in commonly using areas, but no colour fading in areas having less usage. From the above facts we are on the opinion that the tiles used in complainant’s house were faded and looking ugly within few days of its use. In the light of the above report of Advocate commissioner, the only solution to rectify the defects of the tiles is replacement of tiles. But the fact is that tile is laid in the year 2014. So we do not think to give the amount for replacing the tiles. Hence we are on the opinion that it will be proper to allow the cost of tiles at the time of purchasing. Moreover complainant did not produce documents regarding the coolie for laying tiles etc. There is clear deficiency of service and unfair trade practice from the side of opposite parties. Deficiency of service from the side of opposite parties caused mental agony, physical hardships and sufferings to complainant. Hence we allow this complaint holding that opposite parties are deficient in service.
21. We allow this complaint as follows:-
- The opposite parties are directed to refund Rs. 80,600/-(Rupees Eighty thousand and six hundred only) the cost of the Johnsons vitrified tiles to the complainant.
- The opposite parties are directed to pay compensation of Rs.50,000/-(Rupees Fifty thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs. 10,000/-(Rupees Ten thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 29th day of November, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A3
Ext.A1 : True copy of cash collection receipt given by opposite party No.1 to one
Ramachandran on 15/01/2014.
Ext.A2 : True copy of quotation given to Ramakrishanan on 15/01/2014.
Ext.A3: True copy of notice sent by complainant to opposite party No.1 on 31/5/2018
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1
Ext. B1: Authorisation letter given by the Executive Director and CEO of Johnson
Limited to authorise Mr. Alias Mathew and Mr. Suresh CP to do all or any of
the following acts in connection with consumer Case No.244/2018.
Ext.C1 : Commission report filed by the Advocate Commissioner dated 07/01/2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
