By Sri. P. Raveendran, Member<br /> <br /> Complaint filed Under Section 12 of the Consumer Protection Act. 1986<br /> Brief of the complaint is as follows:<br /> The complainant has constructed a new house at S. Bathery. During the final stage of completion of the house, in February, 2005 One Mr. Nazar, the representative of the 1st opposite party came to S. Bathery and stated that the 1st opposite party is the dealer of “Marbito” brand vitrified flooring tiles manufactured by the 2nd opposite party and that the said tiles are superior in quality and the same is having ISO 9001 Certification. He also assured that there was no complaints from any of the customers out of the use of the tiles at any stage . Believing the representations of the representative the complainant placed order for 35 boxes of 'marisa' model 605X605 premium tiles at the rate of Rs.992/- per Box on 22.2.2005 and paid the sum of Rs.34,720/-. The tiles were delivered at the Premises of the complainant's house as per invoice No.9723 dated on 23.2.2005. On the same day the tiles were laid in the drawing room and Varandha of the house. At the time of laying it was noticed that the tiles were with bends at the surfaces. The complainant informed first to 1st opposite party over phone and there upon the 1st opposite party directed him to put weight on the bend portions of the tiles. It was also carried out by him. Even after the removal of the weights the bends were there as before. Due to the uneven surfaces of the tiles, the edges of the tiles are causing injury to feet. The flooring became useless and the same has to be replaced completely. The matter was reported to the 1st opposite party, who in turn contacted the representative of the 2nd opposite party who visited the site and convinced about the defect and informed the complainant that the matter will be settled immediately after contacting the company. But nothing was done by the opposite party. So the complainant sent a lawyer notice on 20.4.2005 to the opposite parties calling upon them to pay a sum of Rs.55,560/- ( Fifty five thousand five hundred and sixty only) towards the losses incurred to the complainant by using inferior quality tiles or to replace the defective tiles with superior quality tiles with in 15 days of the receipt of the notice. Even though the opposite parties accepted the notices on 25.4.2005 and 28.4.2005 respectively. They had neither sent any reply to the notices nor complied with the directions in the notices issued to them.<br /> <br /> 2. Supply of inferior quality tiles as 'premium' tiles by the opposite party is against the principles of fair trade and cheating the consumer. The complainant was caused the loss of huge amount of money and incurred a sum of Rs.34,720/- towards the cost of the tiles, Rs.2,200/- towards the cost of 12 bags of cement, and Rs.2,800/- towards the cost of sand Rs.240/- towards the cost of tile mate and Rs.5,600/- towards laying charges and Rs.10,000/- towards compensation.<br /> 3. In the complaint, the complainant prayed for an order directing the opposite parties to pay Rs.55,560/- towards the financial losses incurred to him due to the use of inferior quality of tiles, to pay Rs,10,000/- towards compensation for lossing time, lossing reputation, mental agony etc. along with cost of this complaint.<br /> <br /> 4. The opposite parties entered into appearance and filed version. In the version they admitted that the complainant has purchased flooring tiles from the 1st opposite party as per bill No. 9723 dated, 23.2.2005. The complainant was satisfied the quality and quantity of the goods when he was taking the goods from the 1st opposite party from Calicut shop. Other contentions in the complaint were denied by them. On getting information over phone from the complainant regard Manufacturing defect over few tiles, the representative of second opposite party visited the site and noted that all tiles were already paid and found there was no defect in the tiles, but the uneven surface found few places is due to improper and careless laying of tiles etc. Subsequently they got lawyer notice. Then the complainant was informed that the expert from the second opposite party would visit within few days so as to find out more in details to convince the defect of laying items. But without waiting, the complainant filed the above complaint. They further contented that this Forum has no territorial jurisdiction as the transaction took place in Kozhikode. Further stated that there is no deficiency of service by either opposite parties and to dismiss the complaint with costs of the opposite parties.<br /> <br /> 5. Points in consideration are:<br /> 1) Is there any jurisdiction to entertain the complainant by this forum?<br /> 2) Is there any deficiency in service on the part of the opposite parties?<br /> 3) Relief and cost?<br /> <br /> 6. Point No.1 On going through the evidence and documents it is found that part of the transaction is taken place with in the limits of this Forum. Hence this Forum has jurisdiction to entertain the complainant. Opposite parties have not pressed the jurisdiction aspect at the time of hearing. <br /> <br /> 7. Point No.2: the complainant is examined as PW1, the commissioner is examined as PW2. Ext. A1 to A5 and Ext. C1 are marked to prove the complainant's case. Ext. A1 is the order form date, 22.2.05 for Rs.34,720/- issued by 1st opposite party to the complainant. Ext. A2 is the invoice issued by 2nd opposite party to the complainant which shows that 35 box MARISA 605X605 PRM MARBELLASE sold to the complainant for Rs.34,720/-. Ext. A3 is the lawyer notice date, 20.4.2005 sent by the complainant to the opposite parties. Ext. A4 is the postal receipts and Ext. A5 is the acknowledgment card. C1 is the commission report filed by the Expert Commissioner. In the commission report the learned commissioner (PW2) has stated that he inspected the site on 4.3.2008 and examined the tiles laid on the floor of Drawing room and veranda of complainant's residence and it is found that the tiles laid on the floor are having bends and the surface is uneven due to the defect of the tiles. In his deposition he stated that there was bend on the tiles. The complainant could not lay the tiles properly due to the defect of the tiles. To cure the defects the complainant has to remove the tiles and to lay new tiles. For this he has to spent an amount of Rs.1,38,988/- . Manager of 2nd opposite party is examined as OPW1 and Ext. B1 and B2 were marked. Ext. B1 is the instruction issued by the manufacturer and Ext. B2 is the instruction issued by the All Kerala tiles and sanitary ware Dealers Association, Kozhikode District Committee. The opposite parties are not succeeded to rebut the evidence adduced by the commissioner and complainant. It is admitted by opposite parties that the complainant has purchased the tiles and the complainant has informed regarding the defects of the tiles over phone. On getting information the representative of second opposite party visited the site and noted that all the tiles were already laid. They admitted that uneven surface found few places is due to improper and careless laying of tiles. They could not prove that the uneven surface is due to improper and careless laying of tiles. The complainant has succeeded in proving his case. Hence the complainant is entitled to get the cost of the tiles, materials and laying cost. He is also entitled to get cost of this complaint. Point No.2 is decided accordingly.<br /> <br /> 8. Point No.3: The complainant is entitled to get Rs.38,988/- being cost of tiles, materials used for laying the tiles and labour charges. He is also entitled to get Rs.2,500/- as cost of this complaint. Point No.3 is decided accordingly.<br /> <br /> In the result the complaint is partly allowed and the opposite parties are directed to pay Rs.38,988/- being the cost of tiles, materials used for laying the tiles and labour charges. They are also directed to pay Rs.2,500/- as cost of this complaint. This order is to be complied with in 30 days of this order.<br /> <br /> Pronounced in open Forum on this the day of 26th day of September, 2008.<br /> <br /> PRESIDENT: Sd/-<br /> <br /> MEMBER: I Sd/-<br /> <br /> MEMBER: II Sd/-<br /> <br /> <br /> <br /> <br /> 6<br /> A P P E N D I X:<br /> Witness examined for complainant<br /> PW1 Vasudevan Advocate<br /> PW2 Surash K.S. Engineer<br /> Witness examined for opposite party:<br /> OPW1 V. Pradeepkumar Salesman <br /> Exhibits marked for complainant:<br /> A1 Order form Dt. 22.2.2005<br /> A2 Invoice <br /> A3 Lawyer notice Dt. 20.4.2005<br /> A4 series Postel receipts<br /> A5 AD Card<br /> Exhibits marked for opposite party:<br /> B1 Instruction issued by the manufacturer<br /> B2 Instruction <br />