Act for an order directing the opposite parties to pay a total amount of `2,12,628 as cost of the tiles including freight charges and laying charges with `1,00,000 as compensation and cost.

          The case in brief of the complainant is that he had constructed a house in the landed property in Peringathoor amsom and desom with the advice of the architectural engineering consultants namely M/s. Rock Flowers Architectural Engineering Consultants and also done construction work of courtyard laying interlocking tiles through his consultant.  The complainant gave an order for flouring tiles (Tri-Tac Terracotta colour) for covering an area of 3020 Sq. ft. of the courtyard believing the words of 1^st opposite party’s representations that the tiles of 1^st opposite party are having high quality and their demonstration.  The rate of tile is 57.60 per sq.ft and remitted ` 1,41,150 through different demand drafts and they supplied ` 3020 with freight charge and `17,600 and delivery charge of ` 800 on each occasions.  The complainant entrusted the work of laying the above mentioned pre-polished cement concrete tiles in the courtyard of his newly constructed house through his building consultants when it was taken for laying it was notified that most of the tiles were out of use due to uneven shape, breakage, edge, chipping etc and the same was informed to opposite party through letter dated 23.10.08 and 19.11.08 by the building consultants.  The tiles laid in the courtyard were also broken at various places even when walking on the floor and when vehicles passes over them. On receipt of the complaint, the Senior Marketing Executive one Krishnamoorthy visited the tiles and convinced the problem and suggested replacing of 600 number of tiles in 150 packets and the same was sent to the complainant, but those tiles were also having the same defects and the contractor issued several letters to opposite party.   But there was no response from the side of the opposite party.  The 1^st opposite party had supplied tiles having manufacturing defects with an intention to get wrongful gain.  The contentions of the opposite party in his reply notice that they had issued good quality tiles and breakage and edge chipping etc were happened at the time of loading and unloading etc are false and contrary to the truth.  The product of 1^st opposite party is insured with 2^nd opposite party and hence 2^nd opposite party is equally liable to compensate the complainant for the damages caused to the tiles.   The 1^st opposite party has supplied only low quality products against their assurance.  So the complainant sustained a loss of ` 1,59,828 including its freight charge.  ` 52,800 was incurred as laying charge.  So the complainant has suffered a total loss of ` 2,12,628 due to the deficient service of opposite party.  The complainant is also entitled to get damages on account of mental agony and both opposite parties are jointly and severally liable to compensate the complainant.  Hence this complaint. 

          In pursuance to the notice both opposite parties appeared and filed their version.  The 1^st opposite party filed the version contending that the Forum has no jurisdiction to try the case.  The complainant through his agents requested 1^st opposite party for demonstration of tiles after seeing the advertisement and then the marketing executives of the 1^st opposite party approached the complainant and demonstrated the significance of the tiles manufactured by them.  The tiles manufactured are semi-automated and are subjected to strict quality control and tested with a reputed laboratory endorsed with ISO certification and are manufactured by using high quality white cement and packed with high quality carton box.  The complainant had purchased the tiles during April-May 2008 received in god condition and after a lapse of seven months the complaint was made.  For the sake of good will, replaced few numbers of tiles which was damaged in transportation and as per the terms and conditions of sale it is not being replaced against complaint made beyond 15 days.  The complainant cannot be fitted the tiles like uneven shaped with breakage and edge chipping etc.  The 1^st opposite party was in the tiles business right from 2002 and one of the leading manufactures quality concrete products, tiles and heavy duty premium concrete payers.  The tiles are interlocking tiles and if the tiles were uneven with breakage then it cannot be laid down at all, the logic even a lay man understands and hence the allegation is only a bald allegation.  The opposite parties replied to the letter of the complainant.  The above goods are insured with 2^nd opposite party and if the insured finds any damaged goods in transportation, they have to make claim within 7 days from the day receipt of the goods.  If the complainant had suffered any loss, it is due to the act of opposite party by not following the prescribed procedure while lying of the tiles in the soft soil. The amount shown by the complainant is unsustainable.  The complainant belatedly claimed for damages.  If the tiles are un-even shaped with breakage and edge chipping, then the complainant should have reported to the same before laying.  So the complaint is liable to be dismissed.

          The 2^nd opposite also filed version admitting that they have issued a Marine Cargo open.  Policy No.012001/21/07/02/00000134 from 00:00 hrs of 25.11.07 to the midnight of 24.11.08 in favour of M/s. Darsee Designer Tiles Pvt. Ltd. and the liability of 2^nd opposite party is governed as per the terms and conditions of policy, exclusions, exceptions, endorsements.  The liability of the insurer ends on delivery of goods at destination.  No intimation regarding damage of the goods was made either by the complainant or by the insured within the stipulated period and so it is made conclusive that there was no damage in transportation and hence at the time of delivery the goods were in intact condition.  Since the complainant took delivery of the goods in intact condition and layed the tiles he cannot seek compensation at a highly belated stage from the insurer.  The dispute regarding quality of goods, manufacturing defects, laying of the goods etc are between the complainant and 1^st opposite party and the insurer has to do nothing with the dispute and hence the complaint is liable to be dismissed.

          Upon the above rival contentions, the following issues have been raised for consideration.

1.     Whether the Forum has jurisdiction to try the case?

2.     Whether there is any deficiency of service on the part of opposite parties?

3.     Whether  the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consists of the oral testimony of PW1 and PW2 and Ext.A1 to A5, Ext.X1 to X3 and B1 to B3.

Issue No.1 :

          The 1^st opposite party in the above case contended that the Forum has no jurisdiction to entertain the complaint since the 1^st opposite party is not having any branch office at Kannur or in Kerala State and as per the terms and conditions of the sale, any dispute arouse among the parties, then the same shall be dealt within the Chennai jurisdiction.  But as per Section 11(2) says that “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.

(a)    The opposite party or each of the opposite parties, where there are more than one at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or

(b)    Any of the opposite parties where there are more than one at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.

(c)     The cause of action wholly or in part arises.

In this case the 2^nd opposite parties carries on business at Kannur which is within the jurisdiction of the Forum.  Moreover the cause of action of this complaint arises at the house of the complainant, where the tiles are laid at Peringathoor, Kannur which is also within jurisdiction of this Forum.  So as per Section 11(2) of the Consumer Protection Act, 1986, the Forum has ample jurisdiction to try the case and hence we are of the opinion that the complaint is very well maintainable before the Forum and hence issue No.1 is found in favour of the complainant.

Issue 2 to 4:

          The further case of the complainant is that the tiles laid in the courtyard of his house became defective due to the manufacturing defect and in order to prove his case PW1 and PW2 were examined and produced documents such as invoice dated 09.04.08, consignment note dated 09.04.08, invoice dated 14.05.08, vouchers four in numbers, plan of the courtyard of the house of the complainant, letters issued by PW2 to opposite parties and their replies etc.  In order to disprove the case opposite parties have produced, laying instructions, policy with conditions and specimen copy of tax invoice.

          According to the opposite parties they have manufactured tiles with high quality white cement and are leading manufacturers of quality concrete product tiles and they have supplied good quality and the defect was informed by the complainant only after seven months and if there any defects to the tiles it is due to incorrect laying.  The complainant on the other hand contented that when the tiles was taken for laying, it was noticed that most of the tiles were out of use due to unevenshape, breakage, edge chipping etc and the 1^st opposite party replaced 150 packets, having 600 numbers.  But opposite party denied this version of the complainant and submitted that they have replaced only few.  But Ext.X4 letter dated 25.11.08 substantiate the case of the complainant that the 1^st opposite party has replaced 600 numbers of tiles.  But according to 1^st opposite party the replacement was done as a special case and it is not because of any defects.  But the complainant has not taken any steps for an expert’s opinion.  The opposite parties have not admitted that they have replaced the files not because of any defects.  Moreover even as per the case of the complainant, they have paved the tiles on the courtyard.  So from the case of the complainant  it is seen that they paved the tiles eventhough the replaced 600 tiles have the same defect as that of earlier tiles ie no interlocking, uneven shape, edge chipping etc.  According to us a prudent man will not do such act ie paving the tiles, evenafter it is found defective.  So without the opinion of an expert we are not in a position to conclude that the tiles are defective.  Above all PW2 is an architect having experience in Civil Engineering side.  But his words is not useful to came to the conclusion that the tiles have manufacturing defect since he is an interested witness also.  So the complainant miserably failed to substantiate his case.  So we are of the opinion that the complaint is liable to be dismissed and order passed accordingly.

          In the result, the complaint dismissed.  No cost

                              Sd/-                    Sd/-                                                   

                       President               Member    

APPENDIX

Exhibits for the Complainant

A1.  Invoice issued by OP dated 09.04.08.

A2. Consignment note dated 09.04.08.

A3. Invoice issued by OP dated 14.05.08.

A4. Vouchers (4 in number).

A5. Plan of the courtyard of the complainant.

Exhibits for the opposite party

B1.  Copy of laying instructions.

B2.  Policy

B3.  Tax invoice form of 1^st OP.

Exhibits for the Court

X1. Letter dated 31.07.2008.

X2. Letter to 1^st OP.

X3. Letter to 1^st OP.

X4. Letter dated 25.11.2008.

Witness examined for the complainant

PW1. Complainant.

PW2. Mohammed Fizal P.

Witness examined for opposite party

Nil

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT