By Smt. PREETHI SIVARAMAN.C, MEMBER

1.Complaint in brief is as follows:-

          On 13/05/2016 complainant had purchased  67 boxes (201 Nos.) Exxaro naturalwhite series  800 x 800 -  Prem  (Exxaro)  Tiles  as  per  invoice No.139  from   secondopposite party which is  manufactured by  first opposite party for the construction of  complainant‘s house .  Complainant had paid Rs. 76,179/- to second opposite party as the cost of the tiles.

2.     By believing the words  and promises given by  opposite parties , Complainant purchased the tiles  and  they assured that  the flooring tiles are  having good quality  and  lifelong colour guarantee and  scratch proof. They exhibited the above promises before the shop through posters. Complainant purchased 67 boxes of tiles (201 Nos.) and paid Rs.76,179/- to opposite party and the tiles had fixed by experienced masons as per the instruction and direction given by  the manufacturer. Complainant spent Rs.30,000/- as labour charge for laying the tiles and also spent Rs.7000/- as material cost.

3.        After one year complainant noticed some colour variation on the tiles and he informed this  to the second opposite party.  The second opposite party came to complainant‘s house  and  after verification of the tiles, they promised  to the complainant that  they will inform the colour variation to the first opposite party and first opposite party  will take necessary steps to redress the grievance of complainant. Even after several months the first opposite  party did not  inspect  complainant’s house and  finally one representative of opposite party No1  inspected the residence of complainant  and took  photographs of the tiles  and promised to the complainant that company will do all necessary steps in this case. But nothing happened. Then complainant approached second opposite party for taking steps. The opposite party No.2 told to complainant that a technical expert of opposite party No.1 will inspect the residence of complainant and will make a detailed report and after that the first opposite party will be able to redress the grievance of complainant.  But no technical expert came to complainant‘s house yet.

4.     Later  opposite party No.2 started to evade and  misbehaved against the complainant and they told to complainant that since the first opposite party   is not taking necessary steps,  they have nothing to do in this matter and on 30/04/2019 they promised  to the complainant that they will redress the grievance of complainant before 31/05/2019. But nothing happened.  The colour of  almost  60% of tiles are changed, it looks very ugly  now. The appearance of flooring tiles  fixed at complainant’s house is not at all suitable for a house  which was constructed by spending  lakhs of rupees. For refixing  floor tiles minimum of Rs.1,25,000/- will have to be spent by the complainant. 

5.        Complainant again stated that the reason for the colour variation of the tiles is  due to  manufacturing defects and use of  substandard  manufacturing materials. The act of opposite parties was deliberate and they intended to misguide innocent customers. The act of opposite parties amounts to unfair trade practice and there is clear deficiency in service from their side .Hence this complaint.

6.       The prayer of the complainant is that, he is entitled to get a full refund of Rs. 76,179/- towards the cost of the Exxaro tiles  and he also  entitled to get Rs. 30,000/- and Rs.7000/- as labour charge and material cost, Rs.1,25,000/- towards the material cost and  labour cost for  refixing the  floor  with another good tiles, Rs.1,00,000/- as compensation on account of deficiency in service  and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and Rs. 10,000/- as  cost of the proceedings. 

7.        On   admission   of the complaint notice was issued to the opposite parties and

notice served on them and opposite party No.2  appeared before the Commission through their counsel and filed version. Opposite party No.1 did not appear before the Commission, hence they set exparte.  On 08/07/2020 opposite party No.1 filed one IA 178/2020 to set aside the exparte order against them by stating the reason that  the notice sent  from the Commission to the  factory address of opposite party No.1. The original office address is different, hence they unable to receive the notice in time.  Hence they requested to change their company address and they provided the office address of them.   Their petition allowed and set aside the exparte order against them.  As per their submission complainant amended the cause title of the complaint as per IA 240/2020 on 24/12/2020.  Thereafter opposite party No.1  and 2 filed version.

8.       In their version, they stated the complaint is not maintainable either in  law or on facts.  Complaint is not bonafide at all and there is no cause of action  to file this complaint. Opposite parties admitted that complainant had purchased the tiles from the second opposite party which is manufactured by first opposite party as stated in the complaint. They again stated that they had not offered lifelong colour guarantee and scratch proof for the tiles and the same fact has exhibited neither in the shop nor on any posters as stated in the complaint. They denied the contention of complainant that the tiles were laid by experienced mason and also denied the allegation of complainant about the instruction they  had given to complainant. Again they contented that the amount shown as labour charge and material cost  for laying the tiles are  an exaggeration  beyond proportion.   

9.        This complaint is  hopelessly bad by limitation.  The complaint is  filed beyond  the  period  of limitation   and they also denied  the allegation of complainant regarding  that  opposite parties will take necessary steps to redress the grievance of complainant  because there was no defect or colour variation to the tiles. At the time of first inspection of the tiles by this opposite parties there was no defects or colour variation to the tiles. Hence there was no need for a second inspection. There was no manufacturing defects to the goods supplied. Colour variation may occurred due to the use of highly concentrated cleaning materials which contains acids. It was admitted by the complainant himself to this opposite parties that he had used highly concentrated cleaning solutions which is using for the cleaning of granite surface, to clean the tiles fixed on the floor. They again stated that the amount assumed for the reaffixing of the tiles is only an exaggeration hence baseless. They again stated that complaint is wholly misconceived, groundless and unsustainable in law. Complainant has no locus standi to initiate the present proceedings.  Hence complaint may be dismissed.

10.         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 A5. Ext.A1 is the original invoice given by  opposite party No.2 to complainant on 13/05/2016.  Ext.A2 is the four numbers of  colour photographs of the floor. Ext.A3 is the CD of the call recordings and its screen shots   between complainant and opposite parties.  Ext.A4 is the copy of  the printouts of  screen shots  taken from the CD  in respect of mobile phone call (5 pages). Ext.A5 series are the call recordings in the form of statements. MO1 is the mobile phone having the mobile No.9946487555.

Opposite parties also filed affidavit and  no documents marked. Complainant filed one IA 241/2020 to appoint  an advocate commissioner to examine the tiles  of his house .  That petition allowed and Adv. Sabna Pullan is appointed as the Advocate Commissioner.  After inspection  she filed a report on 16/09/2021 which is marked as Ext. C1.  

11.    Heard complainant and opposite parties. Perused affidavit and documents.  The following points arise for consideration:-

1. Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
2. If so, reliefs and cost.

12.   Point No.1 and 2 :-

            Case of the complainant is that    the tiles he purchased from opposite party No.2 which is manufactured by opposite party No.1 and laid at his house   became defective. But opposite parties did not take any steps to rectify the defects of the tiles laid at complainant’s house. But opposite parties argued that there was no manufacturing defects to the tiles supplied.  Colour variation occurred due to the use of highly concentrated cleaning materials which contains acid. 

13.       As per Ext.A1 document it is clear that   complainant had purchased Exxaro tiles worth Rs.76,179/- from opposite party No.2 on  13/05/2016. Complainant filed this complaint on 10/07/2019. Opposite parties also admitted in their version and affidavit that complainant had purchased the tiles from opposite party No.2 which is manufactured by opposite party No.1. Moreover  opposite parties stated that  at any point of time this opposite parties  had not offered  any promise to the complainant regarding alleged  defects or colour variation, as  there was no defects or colour variation to the tiles at the time of first inspection  of the tiles  by this opposite parties.  That means they had inspected complainant’s house after getting complaint from complainant.  Moreover they had stated that there was no need of second inspection of the tiles as there were no defects to the goods at the first inspection. That means they had visited complainant’s house once   for inspecting the defects of the tiles.  So there is defects or colour variation in the tiles laid at complainant’s house. Otherwise they will not visit complainant’s house. Complainant had a case that a representative of first opposite party inspected the residence of the complainant and took photographs of the tiles and promised that the company will do all necessary steps in the matter, but no steps taken by them. Through the above admission of opposite party, it is clear that they got a complaint from complainant  and they inspected the tiles .

14.    Another  argument of complainant is that  the second opposite party told to him that since the first opposite party  is not taking  necessary steps,  the second opposite party has  nothing to do in the matter. Thereafter on 30/04/2019,  they promised that  the grievance will be redressed before 31/05/2019.  From the version of opposite parties   they admitted that they had visited complainant’s house to check the defect of tiles. Hence the above dates mentioned by complainant is also believable. Opposite parties did not mention anywhere  the dates  of their visit at complainant’s house. Opposite parties can easily  submit  the dates  because  their representatives  visited the house of complainant for checking the defects of the tiles.hey  will  surely  noted  the dates in their documents, because  complaint of customers will be registered  and after that  they will visit the places for checking the defects.

15.     As per Ext. C1 commission report, the commissioner inspected the house on 18/08/2021 and filed the report on 16/09/2021.   In the  commissioner’s report , commissioner   stated that T¢.l£-¶¢v Y¡-¨r e®-©q¡-s¢v G-J-©a-m« 126 sqft l-j¤-¼ o¢¨¨×ª-¶®, ¨¨V-c¢-¹® p¡w, k¢-l¢-¹® Gj¢-i, 2 ¨f-V®-s¥-h¤Jw, o®-¨×-it-©Jo®, A-T¤-´-q F-¼¢-l-J-q¢-k¡X® Exxaro Companyi¤-¨T ¨¨Tv-o® d-Y¢-µ c¢-k-i¢v F¨Ê dj¢-©m¡-b-c¡-oh-i« J¡-X¢µY®‘’. “F-¨Ê dj¢-©m¡-b-c oh-i« ©hv ¨¨Tv-o¤-Jw ±J£« J-q-s¡-i¢-¶¡-X® F-c¢-´® J¡-X¡u o¡-b¢-µY®. A-l-i¢v o¢-ת-¶® , k¢-l¢-¹® Gj¢-i ¨¨V-c¢-¹® p¡w F-¼¢-l-J-q¢v d-Y¢µ ¨¨Tv-o¤-J-q¢v C-T-l¢¶ ¨¨Tv-o¤-J-q¢v ¨O-q¢ d-×-¢i-Y¡-i¢ ©Y¡-¼¤-¼ j£-Y¢-i¢v J-qt ©n-V® J¡-X¡u o¡-b¢µ¤. j-Ù® ¨f-V®-

s¥-h¤-J-q¢k¤« Cª-Y-j-·¢v F-c¢-´® J¡-X¡u o¡-b¢µ¤. F-¼¡v F¿¡ ¨¨Tv-o¤-J-q¢k¤« ©hv d-s-º Y-j-·¢-k¤-¾ Jqt ©n-V® J¡-X¡u o¡-b¢-µ¢¿”.H× ©c¡-¶-·¢v J-Ù¡v ¨d¡-T¢ d¢-T¢µ ¨¨Tv-o® g¡-L¢-J-h¡-i¢ Y¤-T-µ¤-h¡×¢-i j£-Y¢-i¢v ©Y¡-¼¤-¼ l¢-b-·¢-k¡-X® h-c-oæ¢-k¡-´¡u J-r¢-i¤-J. F-¼¡v ¨Í-it©J-o¢v ¨Í-¸¢-¨Ê d¤-s« g¡L ·¡-i¢ d-Y¢-µ C-©Y ¨¨Tv-o¤-Jw F¿¡« c¿ Ivory J-q-s¢-k¡-X® F-c¢-´® J¡-X¡u J-r¢-º-Y®. Commissioner  also stated that  ±d-Y¬-È-·¢v ©hv ±d-J¡-j«  ¨Í-it-©J-o¢-¨Ê ¨Í-¸¤-J-q¢v A-T¢-i¢v d¤-s« g¡L-·® d-Y¢-µ  A-©Y ¨¨Tv-o® Y-¨¼-i¡-X® c¢-k·¤« d-Y¢-µ¢-¶¤-¾-¨Y-¼® C-j¤ d¡t-¶¢i¤« o-½-Y¢-´¤-¼¤-Ù® A-±d-J¡-j-h¡-¨X-Æ¢v c¢-k-·¤-d-Y¢-µ ¨¨Tv-o¢-¨Ê J-qs¤« ¨Í-it-©J-o¢¨Ê  ¨Í-¸¤-J-q¢v A-T¢-i¢v d¤-s-«g¡L-·® d-Y¢µ ¨¨Tv-o¢-¨Ê J-q-s¤« ±d-Y¬-È-·¢-v Y-¨¼ J-qt l¬-Y¬¡-o« J¡-X¤-¼-Y¢-c¡v d-j¡-Y¢-´¡-ju ©hv ±d-J¡j«  d-Y¢µ ¨¨Tv-o¢-c® L¤-X-c¢-k-l¡-j« J¤-s-l¡-¨X-¼® F-¨Ê dj¢-©m¡-b-c-i¢v l¬-Ç-h¡-l¤-¼-Y¡X®.’’.

16.      The contention of opposite parties are that the nominal colour variation seen

on some tiles are occurred due to the highly concentrated cleaning material which contains acid. Complainant also admitted that, he is using some cleaning materials to clean all the tiles but the defect is seen in some of the tiles at complainant’s house.  That statement of complainant is true. He is using some cleaning material in all the tiles, but   defects seen in some tiles at complainant’s house. Commissioner also stated that the colour variation seen in some of the tiles laid at complainant’s house.  Hence it is clear that the alleged defects caused not due to the use of cleaning material by complainant, but it is due to the inherent defect of the tiles itself. Moreover as per Ext.A5 series documents, the conversation between complainant and the representative of Exxaro Tiles Company also reveals that the tile had defects. That conversation between complainant and opposite parties occurred on 31/01/2019, 06/03/2019, 04/02/2019, 22/02/2019 etc. In Ext.A5 series documents and in Ext.A3, CD submitted by complainant clearly  reveals  that  the tile had defects  and  complainant called the representative of opposite party  and pointed out the defects of the tiles to him.  In  the conversation dated 06/03/2019 the representative of opposite party asked the complainant that A©¸¡ S½-¨q J-Ø-c£-¼® H-j¡-q® A-l¢-¨T l-¼® ©c¡-´¢-i¢-j¤-¼©¿¡ .He again said to complainant that  A-Y® C©¸¡ o®-J§-it e£-×¢-c® 15 j¥-d ¨l-µ¢-¶¡-X® d¡-o¡-i¢-¶¤-¾-Y®.  A-lt A-l¢-¨T l-¼® f¢¿¤« , J¡-j¬-¹-¨q¡-¨´ ¨O-´® ¨O-i®-Y¢-¶-¤-Ù®. 2016–k-¨× F-T¤-· ¨h-×£-j¢-i-k¡X®. A-¨¸¡ 15 ¨l-µ¢-¶-¡-X® C©¸¡ d¡-o¡-i¢-¶¤-¾-Y®.  He again stated that A-Y®  h¡-J®-o¢-h« A-©±Y J-Ø-c£-¼® J¢-¶-¤-¾¥. 10 B-X® d-s-ºY®. d¢-¨¼ 5 dealer A-T¤-·® d-s-º¢-¶®- -S-½w 15 B-´¢-µ-Y¡-X®.  From the above statements of   the representative of opposite parties it is clear that  the above said tiles had defects and they are ready to  pay Rs. 15/ per tile  to complainant. He again stated that S¡u F-±Y ±d¡-l-m¬-h¡-X-® A-l¢-¨T l-¼Y®. J-Ø-c£-¨Ê Bw-´¡t F-±Y ±d¡lm¬¡. That means ,  the representative of the company  people from the company were visited complainant’s house and  they  were convinced that the tile had defects. More over there is no objection from the side of opposite parties about the documents produced by complainant. Opposite parties never stated that, they have no such representative. On 04/02/2019 there is a conversation between complainant and opposite party No.2 , the dealer of Exxaro tiles. Opposite party No.2 called the complainant  and told to him that opposite party No.1 will call him  and they  want to  visit  complainant’s  house. He again told to complainant that we  all can sit together  and  discuss the  matter. Moreover  from the conversation it is clear that  opposite party No.2 contacted the  first opposite party the manufacturer and he is  ready to provide  the original bills etc to complainant and he is  to take steps to settle the matter. 

17.       There is nothing mentioned by complainant and opposite parties regarding  the warranty of tiles. The warranty details about the tiles is not known to us. There is no document to prove the same. It is easy for opposite party No.1 to produce documents regarding warranty is there or not. There is no document to prove the contention of complainant regarding the advertisement by opposite party that lifelong colour guarantee, scratch proof quality to the tiles. From Ext.A5 series documents it is clear that there was conversation between complainant and opposite party on 2019 to redress the grievance of complainant. So the complaint  filed within the limitation period as per  CP Act.  The Advocate Commissioner in her report stated that ©hv ¨¨Tv-o¢-¨Ê L¤-X-c¢-k-l¡j«, manufactor defectF¼¢-l Hj¤ Expert engineer ©c¡´¢ dj¢-©m¡-b¢-µ¡-v h¡-±Y©h J¥-T¤-Y-k¡-i¢ h-c-oæ¢-k¡-´¡u o¡-b¢-´¥.  A-±d-J¡-j-h¡-¨X-Æ¢v c¢-k-·¤-d-Y¢-µ ¨¨Tv-o¢-¨Ê J-qs¤«, ¨Í-it-©J-o¢¨Ê  ¨Í-¸¤-J-q¢v A-T¢-i¢v d¤-s-«g¡L-·® d-Y¢µ ¨¨Tv-o¢-¨Ê J-q-s¤« ±d-Y¬-È-·¢-v Y-¨¼ J-qt l¬-Y¬¡-o« J¡-X¤-¼-Y¢-c¡v d-j¡-Y¢-´¡-ju ©hv ±d-J¡j«  d-Y¢µ ¨¨Tv-o¢-c® L¤-X-c¢-k-l¡-j« J¤-s-l¡-¨X-¼® F-¨Ê dj¢-©m¡-b-c-i¢v l¬-Ç-h¡-l¤-¼-Y¡X®.’’  From the photographs submitted along with the commission report by Advocate commissioner, there also seen some colour variation in the tiles. But opposite parties did not file any objection to the commission report filed by commissioner.  So  we are on the opinion that  the tiles purchased by complainant from opposite parties had defects and colour variation. It is an unfair trade practice from the side of opposite party No.1. Moreover opposite party No.1 did not take any step to redress the grievance of complainant. So complainant is entitled  to get  the cost of the tiles.  But complainant  did not produce  documents  to prove  the contention  that labour cost  and  material cost as Rs.30,000/- and Rs.7,000/- respectively.  Moreover complainant did not produce a bill or quotation from a person  to prove that the material cost and labour cost  for refixing the floor with another good tiles. So he is not entitled to get that amount. But he is entitled to get compensation and cost of the proceedings. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint.

18.   We allow this complaint  as follows:-

1. The opposite party No.1 is directed to refund Rs. 76,179/- (Rupees Seventy six  thousand  one  hundred   and  seventy  nine  only)   the  cost  of  the  tiles   to

complainant.

2.  The opposite party No.1 is directed to pay compensation of Rs.75,000/-(Rupees Seventy five  thousand only) to the complainant on account of the unfair trade practice  on the part of opposite party No.1  and thereby caused mental agony, physical hardships and sufferings to the complainant.
3. The opposite parties are directed to pay Rs. 20,000/-(Rupees Twenty 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 24^th day of July , 2023.

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 A5

Ext.A1 : Original invoice given by  opposite party No.2 to complainant on 13/05/2016. 

Ext.A2 : Colour photographs of the floor (4 Nos.).

Ext.A3 : CD of the call recordings and its  screen shots   between complainant  and

               opposite parties.

 Ext.A4 : Copy of  the printouts of  screen shots  taken from the CD  in respect of

                mobile phone call (5 pages).

Ext.A5: Series are the call recordings in the form of statements.

Witness examined on the side of the opposite party                          : Nil

Documents marked on the side of the opposite party                        : Nil

MO1 : Mobile phone having the mobile No.9946487555.

Ext.C1 : Report filed by Advocate Commissioner, Sabna Pullan.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER