Kerala

Idukki

CC/182/2019

Binoy Sebastian - Complainant(s)

Versus

Mariya Traiding com. - Opp.Party(s)

Adv.Vinod Kumar

27 Jun 2022

ORDER

 

DATE OF FILING :21/10/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 27^th day of June 2022

Present :

SRI.C.SURESHKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

SRI.AMPADY K.S. MEMBER

CC NO.182/2019

Between

Complainant : Binoy Sebastian,

Vazheparambil House,

Rajamudy P.O., Vathikudy Village.

(By Adv.N.K.Vinodkumar)

And

Opposite Party : 1 . The Proprietor,

Mariya Trading Company,

Idukki Colony P.O., Cheruthony.

(By Adv.Shiji Joseph)

2 . K.A.G.India Pvt Ltd., 264/15,

Pelachery Road, East Thambaram,

Chennai – 600 059.

(By Adv.Sibi Thomas)

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant raised the following allegations against opposite parties and prayed for reliefs mentioned in the complaint.

 

1 . Complainant purchased porch tiles from first opposite party on 24/09/2018 by paying Rs.19950/-. At the time of purchase he noticed colour fade on tiles. But first opposite party made him to believe that after 2 or 3 times washing tiles would become more shine and beautiful. He layed the tiles within one week time. But, after laying them, he found that tiles were fading more and he informed first opposite party about this. Then first opposite party told him that after 4 or 5 washes it would become more shine and beautiful. After doing so, he noticed that many colour formed in the same tile and when he informed first opposite party about this, he promised to pay Rs.50,000/- being cost of tiles and laying charges

 

(Cont.....2)

-2-

within one month. Even though he had gone to the shop of first opposite party, above amount was not given.

 

2 . He had spent Rs.8000/- towards cement, Rs.6050/- towards sand and Rs.16000/- as laying charges. On 30/09/2019, he approached first opposite party and he was reluctant to give the amount and told him to seek legal remedy.

 

3 . He is entitled for compensation for deliberately giving him low quality and unusable tiles.

 

Hence he prayed for the following reliefs.

 

a . Direct opposite parties 1 and 2 to give Rs.19950/- to him being cost of tiles.

b . Direct opposite parties to give Rs.30050/- being material cost and laying charges mentioned above.

c . Direct them to pay 7% interest per annum from 24/09/2018.

d . Allow travelling expenses Rs.2000/- for going to the shop of first opposite party for getting the offered amount.

e . Allow and direct opposite parties to pay Rs.2000/- towards mental agony suffered by him and such other reliefs granted by the Commission.

 

He produced following documents along with the complaint.

 

1 . Tax invoice No.D.6703 dated 24/09/2018.

2 . Photograph of one tile.

 

Opposite parties 1 and 2 filed written version. Contentions of opposite party are as follows. All the averments in para 1 of the complaint are not fully correct hence denied. He admitted that complainant has purchased tiles from him. But the averment that tile was faded at the time of purchase is false hence denied. He also denied the allegation of complainant about fading of tiles within a few days of laying them is false.

 

First opposite party is not aware of the colour change after laying the tiles. He denied the allegation of promise to pay Rs.50,000/- to the complainant as false. It is also denied that he didn't pay Rs.50,000/- to the complainant as offered.

 

(Cont.....3)

-3-

All the averments in para 2 is false and exorbitant. He has not made the offer to pay Rs.50,000/- or any amount to the complainant as compensation.

 

First opposite party claimed that if the colour of the tiles is faded, then it is definitely visible condition at the time of purchase or when the boxes were opened and one of the terms and conditions mentioned on the package is” All tiles must be inspected prior to laying. No claim shall be entertained after laying the tiles”.

 

If the tiles were laid by using bad/poor quality of cement or cured in cement or sand or water with chemical reaction, then the colour of tiles might be changed or faded. Hence he prayed to dismiss the complaint with his cost.

 

Contentions of second opposite party are as under.

 

They deny all the allegations contained in the petition except those, which are specifically admitted in their written version. Complaint is an abuse of process of law and is not maintainable in its present form against them. Complaint is liable to be dismissed at its very threshold.

 

The complainant has made misconceived and baseless allegations of deficiency in service, gross negligence and unfair trade practice against them without any documentary evidence and / or expert evidence in support of allegations made in the complaint.

 

They cannot identify from the complaint that whether the article sold to the complainant is belonged to them. First opposite party is the dealer of similar type of tiles supplied by similar manufacturer. Further they are not aware of the quality and its rates. They are not aware when the complainant purchased disputed items and conditions of the tiles at the time of the sale or any promise or advise given by the first opposite party shop.

 

The complainant had admitted that he purchased faded tiles from the first opposite party and they informed him that the faded tiles will get clean after 3-4 wash/sock/cure. Second opposite party never aware of this type of sale or promise made by first opposite party. If the colour of tiles faded, then it is definitely visible at the time of purchase or when the boxes were open.

 

(Cont.....4)

 

-4-

 

They claimed that if the tiles were layed by using bad/ poor quality of cement or cured in cement or sand or water which cause chemical reaction then the colour of tiles might be changed/faded.

 

They are selling the tiles subject to following terms and conditions mentioned on the package and invoice as under.

 

1 . All tiles must be inspected prior to installation. No claim shall be entertained after fixing the tiles.

2 . No complaint shall be entertained once tiles were laid or cured in water.

3 . Once the goods sold will be not be taken back or exchanged.

4 . We are not responsible for damage, breakage or shortage in transit.

 

Hence they prayed for dismissing the complaint with their costs.

 

Complainant filed proof affidavit and examined as PW1. Invoice No. D 6703 dated 24/09/18 is marked as Ext.P1. Photograph of one faded tile is produced and marked as Ext.P2. Opposite parties has not adduced any oral evidence or produced any documents.

 

Both sides were heard.

 

We have examined the rival contentions of both sides and perused the documents and averments contained in the complaint and written version. On a careful examination of those reveal that following points arise for consideration.

 

1 . Whether there is any deficiency in service or unfair trade practice from the part of opposite parties?

2 . Whether the allegation of complainant that tiles purchased by him were law quality and faded?

3 . Whether the complainant is entitled to reliefs as prayed for?

 

 

 

 

(Cont.....5)

 

-5-

 

Point Nos.1 and 2 are considered together.

 

It is the specific averment of complainant that at the time of purchase he noticed minor fading of tiles. He has not taken out a Commission for ascertaining whether his allegations are correct and whether fading is affected in all tiles purchased from first opposite party and layed in his house. He has produced photograph of one tile only which seems to have some colour change.

 

He has not proved the request said to be made for refund of cost and expenses from first opposite party. No manufacturer or trader can say that no complaint shall be entertained once tiles were laid or cured in water and that goods once sold will not be taken back or exchanged. Selling of goods with inferior quality than offered is not permitted in law. Opposite parties did not care to privity of contract is between the customer and trader. If a manufacturing defect is occurred in a product, then the manufacturer is also liable.

 

Considering the entire aspects of case and evidence on record especially Ext.P2, it is found that tile was having some colour change and fading. But complainant failed to prove that such fading or colour change is happened to all tiles purchased from first opposite party and laid by him. It is the duty of a complainant to prove that defect or the products exists. Here, complainant has failed to establish such defects in all tiles. Inaction on the part of complainant to take out a Commission to establish his allegations is detrimental to his claims. In such a situation we cannot arrive at a definite finding that all tiles were of inferior quality than offered especially on the basis of photo of a tile.

 

In these circumstances, we find that complainant has failed to establish any deficiency in service or unfair trade practice on the part of opposite parties. Similarly alleged defects are not established by him. Hence we find that complainant's allegations are not established and therefore Point No1 and 2 are decided against the complainant. Above points are answered in the negative.

 

 

 

 

(Cont.....6)

-6-

Point No.3

 

For the reasons stated in Points Nos.1 and 2 , we find that complainant is not entitled to any relief as prayed. Point No.3 is answered accordingly.

 

In the result, complaint is dismissed however without any costs.

 

Pronounced by this Commission on this the 27^th day of June, 2022.

 

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SRI.C.SURESHKUMAR, PRESIDENT

Sd/-

SMT.ASAMOL P., MEMBER

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Binoy V.S.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - Invoice No. D 6703 dated 24/09/18

Ext.P2 - Photograph of one faded tile

On the side of the Opposite Party :

Nil

 

Forwarded by Order

 

 

ASSISTANT REGISTRAR

 

 

 

 

 

 

 

 

 

Forwarded by Order

 

ASSISTANT REGISTRAR