SRI. SAJEESH.K.P : MEMBER
The complainant has filed this complaint under Sec.12 of the Consumer Protection Act 1986, seeking direction against the OP to reimburse the purchase price of tiles ie Rs.22951/- and its workmen expense of Rs.25,000/- towards the placement of new tiles and Rs.10,000/- as compensation to the complainant .
Complaint in brief :-
According to the complainant, complainant works at Gulf and he entrusted his wife through power of attorney deed to contest the matter. On 28/8/2013, complainant purchased 48 numbers 600x600 vitrified tiles of Nako, from OP’s shop based on the persuasion of OP about the tile company, for his new house. On 31/12/2013, complainant again purchased 14 more tiles from OP’s shop. After that the house warming, complainant noticed a colour change whenever water falls on tiles or water contained vessels placed on the tile , the floor where Naco tiles laid. This was intimated to OP and OP sent somebody to check the defect and the same was convened by OP. At the end, in the year 2015, OP came with the representative of Nako and the defect still remains unresolved and hence this complaint.
After filing the complaint, commission has sent notice to OP, OP received the notice and entered appearance before the commission and filed his version accordingly.
Version of OP in brief:
The OP denied the entire averments except those specifically admitted. The OP’s first contention was that the complainant is not a consumer of OP. The OP admits that on 28/8/2013 one Mr.Babu purchased 48 numbers of tiles from his shop. The OP contended he never persuaded complainant to purchase Naco tiles. The OP is only a retail vender and the manufacturer ”Thai Impex (P) Limited “ is a necessary party and OP never practiced any deficiency in service or unfair trade practice with an ulterior motive to make unjust enrichment. The OP furthermore, contended that they never sold any defective tiles and the company of tiles which they sold is a highly reputed company and there is no bonafide in the complaint and hence it is liable to be dismissed with cost of OP.
Due to the rival contentions raised by the OP to the litigation, the commission decided to cast the issues accordingly.
- Whether there is any deficiency in service and unfair trade practice from the side of OP?
- Whether there is any compensation & cost to the complainant?
In order to answer the issues, the commission called evidence from both parties. The complainant produced documents which is marked as Exts.A1 to &A5 and Exts.C1and C2. Ext.A1 is the tax invoice issued by OP dtd.28/8/2013, Ext.A2 is the estimate dtd.31/12/2013, Ext.A3 is the lawyer notice sent by complainant to OP, Ext.A4 is the Acknowledgment card, and Ext.A5 is the power of attorney. Ext.C1 is the Expert commission report and Ext.C2 is the photos(CD). The complainant adduced evidence through proof affidavit and examined as PW1. OP produced one document marked as Ext.B1 is the tax invoice issued by Thai Impex(P) Limited to OP. OP adduced evidence through proof affidavit and examined as DW1. And the Expert commissioner examined from the side of OP as DW2.
Let us have a clear glance into the documents and evidences filed before the commission to answer the issues.
Issue No.1
As per the evidence available before the commission, the issue No.1 raised is answered accordingly. Firstly, the commission looked into the contention raised by OP, that the complainant is not a consumer comes under the purview of Consumer Protection Act 1986 and disputed the power of attorney(POA) deed stating that it was issued by one Mr.Elambilat Narayanan and POA deed executed by aforesaid is not to conduct the consumer case, and explained accordingly that complaint, chief affidavit, Ext.A1 is filed by Babu@Narayan, S/o Kannan Nair, Cheroota House. Being the beneficiary, complainant’s wife can adduce evidence and conduct case on behalf of complainant and Ext.A2 which was not disputed by OP issued to the wife of complainant. During the cross-examination of complainant’s wife she clearly deposed that her husband’s name is Narayanan@Babu. So the contention of complainant not a consumer will not lie. As per Ext.A1, purchase of tile worth Rs.17780/- and Ext.A2, 14 tiles worth Rs.5171.18/- is seen. As there is no dispute with regard to the purchase amount, no detail discussion is necessary. The dispute with regard to the quality of tiles purchased by complainant from OP’s shop. An expert panel was filed by complainant and present commissioner, who was appointed and filed the commission report . According to the points 1 to 5 stated in commission report, this Commission is in a view that the averments with regard to the faded colour and stains persist. Moreover, during the cross-examination of commissioner, he specifically deposed that at the time of his inspection OP was present. But here the complainant stated that the tiles laid on floor of varanda is faded and commission report affirms that the tiles on the floor is faded, and tiles laid on the sides has no complaint which was deposed by PW1. Moreover, expert commissioner admitted that he was not a manufacturing expert. If the OP’s has doubt on the credibility of expert or expert report , OP can take steps to remit CR or set aside the commission report, which was not done by OP herein. The most important thing is that the number of tiles is not taken by the commissioner nor the complainant mentioned the number of tiles in complaint or anywhere else which is materially got defected especially in the scenario where PW1 clearly admits there is no defect on the tiles laid in side part. Hence, the commission is not in a position to calculate the exact square feet of defective tiles. Based on the commission report, the commission came into a conclusion that there is unfair trade practice from the part of OP by selling low quality tiles. Hence the issue No1 is answered in favour of complainant.
Issue No.2:
Neither the commissioner nor the complainant stated the square feet of tiles which is defective. Commission is not in a position to assess the accurate loss suffered by the complainant. Based on the exhibits produced by the complainant and commissioner , the Commission is in the view that complainant is liable to be compensated by OP. The complainant is entitled to get Rs.20,000/- as compensation towards monetary loss and mental agony and Rs.5000/- as cost of the litigation. Hence issue No.2 is answered in favour of complainant.
In the result complaint is allowed in part, the opposite party is directed to pay Rs.20000/- as compensation towards monetary loss and mental agony and also pay Rs.5000/- as cost of the litigation to the complainant within 30 days of receipt of this order. In default the amount of Rs.20,000/- carries interest @9% per annum from the date of order till realization . Failing which complainant is at liberty to file execution application against opposite party as per the provisions of Consumer Protection Act 2019.
Exts:
A1-Tax invoice
A2-Estimate
A3-Lawyer notice
A4-Acknowledgment card
A5-Power of attorney
B1- Tax invoice
C1- Commission report
C2- Photos(CD)
PW1-Kanchana.C-P.A.Holder of Complainant
DW1-Shakeer.P.P - OP
DW2-P.S.Bijumon- Expert witness
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
