By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get compensation for the supply of defective tiles.
2. Brief of the complaint:- Having attracted by the specialities and features of 'Hr Alaska Crema Mati' tiles this complainant purchased 113 boxes of tiles on 16.06.2014 (Rs.88m 743.00) vide Invoice No.TL2596 and 16 boxes of tiles on 24.06.2014 (Rs.12m402.00) vide Invoice No.TL2853 from the shop of opposite party No.2 from the shop of opposite party No.2. Opposite party No.1 is the manufacturing company of the above said tiles. Complainant is an educational institution. After arranging sufficient best quality sand, and cement the complainant also arranged an expert mason for bedding the tiles. At the time of bedding the tiles the complainant and supervisor made it sure that the process is in accordance with the fixing instructions noted by the opposite parties. By 10.07.2014 itself noting some unusual change of colour, bend, absorbing external colours and dirt on the paved tiles the complainant had informed opposite party No.2. immediately. Though the Opposite party No.2 visited verified the genuineness of the complaint of the paved tiles in the School, they made no positive gestures to address the much worried complainant. At the time of purchase and delivery of the tiles, opposite party No.2 had made the complainant to believe that what is chosen and delivered is the best Quality. Expecting uniformity in the shade and colour the complainant and their mason strictly adhered fixing instructions. However it was great surprise and astonishment the complainant noticed unusual colour changes and bend on the edges of each pieces making an ugly look of the floor. It was a great mental shock to the complainant. The complainant had spend Rs.1,11,045/- towards the price of the tiles. The complainant arranged best quality sand for Rs.17,500/- and cement for Rs.12,680/-. The complainant had, also paid Rs.20,720/- towards labour charges. Thus as on 02.07.2014 the complainant had spent an amount of Rs.1,61,945/- for flooring of the school. After completion of the work and after spending Rs.1,61,945/- what is available is an unworthy shade with discolouring of the surface and edges. with bends of the tiles. The parents, pupils,-and the public and many construction experts who visited the site were all showing sympathy upon the complainant. Though the matter was brought to the light of opposite parties in person and through telephone they were not cared to redress the grievance of this complainant and this complainant alleges that it is only because of the manufacturing defect, which resulted unusual discolouring of bedded tiles. Thus the opposite parties have committed fraud and unfair trade practice. Hence filed this complaint.
3. On receipt of notice, opposite parties appeared and written version filed. In the version opposite parties stated that this complaint is not maintainable either under law or on the true facts and circumstances of the matter and the complainant is not a consumer as contemplated under the Consumer Protection Act 1986. From the allegations and claims seen made in the complaint itself, it is evident that the complainant has not complied with the specific instructions for fixing the tiles conspicuously printed on the carton/box of the tiles. These opposite parties are having world class plants with ISO 9001, ISO 14001 and OHSAS 18001 certifications for excellence in quality, environmental and safety standards, and having 50 years experience in India and over 100 years globally through association with Johnson Ceramic International, UK. The R & D centre is run by PhD's and scientists and is recognised by the Dept. of Scientific and Industrial Research [DSIR), Government of India. All the products of the opposite parties are subject to strict quality standards and checks, and no effort is spared to provide high quality world standard tiles to the customers. Opposite party admitted that complainant had purchased 113 boxes on 16.06.2014 and 16 boxes of tiles on 24.06.2014. As is specifically declared in the instructions contained in the brochure and the box/carton of the tiles, certain amount of variation in shade or size being inherent in all ceramic products, hence before fixing the tiles they will have to be la id out in the desired pattern to make sure that they give the acceptable blend of colour and also it has to be made sure that the tiles are acceptable to the satisfaction of the customer. The company will bear no liability/responsibility after the tiles are refixed. For fixing the tiles, the instructions have to be followed and the correct proportion/ratio of cement, sand mortar and water has to be used and the final result depends upon good workmanship and supervision as well. The laying pattern also has to be followed strictly, and as far as possible tiles for a specific area has to be from the same batch itself. All these are highly necessary to obtain the proper and correct finish. It is also made clear that the company does not accept any liability in case of problems arising out of non-adherence to the tile fixing instructions. The sales of the tiles are subject to these specific terms and conditions, fully understanding and agreeing to which the customer purchases the tiles. Opposite parties further stated that if there is unusual discolouring of the surface and bends of the sides as seen alleged, the same could only be on account of improper and negligent laying of the tiles and violation of the instructions. The allegation that the opposite party did not take care of the complaint is denied by the opposite party. Immediately after getting the information from the complainant the opposite party's men went to the complainant's site and inspected the tiles and found that there is no defect with the tiles but there was improper laying in violation of the instructions. For the failure on the part of the complainant, these opposite parties cannot be held liable or responsible. There was no request for any replacement as seen alleged and no such request could have been entertained where the tiles are fixed. The claim for damages and compensation is baseless and unsustainable and prayer to dismiss the complaint.
4. Subsequently complainant filed I.A.18/2016 to take out a commission. As per the Order in I.A.18/2016 commission inspected the site and report filed. Opposite party filed objection to Commission Report, thereafter complainant filed I.A.293/2016. As per the Order in I.A.293/2016 complaint amended and claim enhanced.
5. Complainant adduced evidence as PW1 and Ext.A1 to A6 documents and Ext.C1 Commission Report were marked. Complainant's witness were examined as PW2 and Ext.A7 Series were also marked. Complainant's agent adduced evidence as PW1 and authorization produced by the complainant is marked as Ext.A1. The purchase of the tiles from opposite party No.2 is proved through Ext.A2 and A3. The complainant spend Rs.1,11,045/- towards the price or the tiles, he arranged best quality sand for Rs.17,500/- and cement for Rs.12,680/- . The complainant had also paid Rs.20,720/- towards labour charges. Thus as on 02.07.2014 the complainant had spent an amount of Rs.1,61,945/- for flooring of the school. After completion of the work and after spending Rs.1,61,945/- what is available is an unworthy shade with discolouring of the surface and edges with bends of the tiles. The parents, pupils, and the public and many construction experts who visited the site were all showing sympathy upon the complainant. To prove the expenses incurred for affixing the tiles complainant produced Ext.A3 to A7 documents (photocopy of the purchase bills, Flooring works etc..).
6. On considering the complaint, version and evidences the Forum raised the following points for consideration:-
1. Whether there is any unfair trade practice from the part of opposite parties?
2. Relief and Cost.
7. Point No.1:- Complainant argued that he had complied the fixing instructions noted by the opposite parties but by 10.07.2014 itself noted some unusual change of colours, bend, absorbing external colours and dirt on the paved tiles. But the opposite parties were not cared the complaints. Complainant alleged that it is only because of the manufacturing defect resulted the unusual discolouring of paved tiles. Opposite parties supplied poor quality tiles as if it were the best quality product this resulted heavy loss and mental agony to the complainant. In order to prove the case of the complainant Commissioner appointed by this Forum inspected the tiles in dispute and report filed, that report was marked as Ext.C1. In Commission Report he has estimated a sum of Rs.2,51,991/- towards the cost of lying fresh tiles after removing the existing tiles.
8. Opposite party's Senior Executive adduced evidence as OPW1. Opposite party's admitted the sale of disputed tiles and opposed the case of the complainant stating that as is specifically declared in the instructions contained in the brochure and the box/carton of the tiles, certain amount of variation in shade or size being inherent in all ceramic products, hence before fixing the tiles they will have to be la id out in the desired pattern to make sure that they give the acceptable blend of colour and also it has to be made sure that the tiles are acceptable to the satisfaction of the customer. The company will bear no liability/responsibility after the tiles are fixed. For fixing the tiles, the instructions have to be followed and the correct proportion/ ratio of cement, sand mortar and water has to be used and the final result depends upon good workmanship and supervision as well. The laying pattern also has to be followed strictly, and as far as possible tiles for a specific area has to be from the same batch itself. All these are highly necessary to obtain the proper and correct finish. It is also made clear that the company does not accept any liability in case of problems arising out of non-adherence to the tile fixing instructions. The sales of the tiles are subject to these specific terms and conditions, fully understanding and agreeing to which the customer purchases the tiles. The tiles should have been dry laid before fixing, and the instructions followed properly. For the failure on the part of the complainant, these opposite parties cannot be held liable or responsible. There was no request for any replacement as seen alleged and no such request could have been entertained once the tiles are fixed. There was no failure to redress any lawful grievances. The complainant does not have any cause of action for instituting the above complainant.
9. Perusal of Ext.C1, Commissioner reported that “ the tiles used are of size 600 x 600. Tiles are laid with joints and due to the difference in size and bend, surface unevenness with varying width of joints are resulted. The cream colour of the tiles has faded with marks like mud, stains, over the entire are of the floor”. Cost of the removal of existing tiles as per PWD schedule of rates prevailing at present is 179.50 M2 x 61.11 m2 = Rs.10,969/-. In Ext.C1, Commissioner reported that Cost of laying fresh tiles for 1931.42 square area as per prevailing PWD rates = 179.50 M2 x 1403.85/M2 = Rs.2,51,999/-. Opposite party filed objection to Commissioner Report stating that the commissioner has reported the cost of tiles work as Rs.1,61,909/- but has not specified how he has arrived at that figure. Complainant has not field objection to Commission Report.
10. On going through the entire evidences and records we are of the views that in this case Commissioner has not specifically stated what is the reason for the colour variation and bend seen on the paved tiles, he has not answered whether the bend is within the permissible limit or not. The commissioner has not examined to get a clear picture of the above facts. OPW1 also could'nt say the bend shown in the paved tiles are within permissible limit or not. Same as complainant failed to prove the reason for the colour fading through chemical analysis of tiles. Hence the allegation about the 'manufacturing defect' of this disputed tiles stands unproved. If that be so commissioner noted colour variations, stains and bend on the paved tile area and the alleged defects noted wherein are noted within one year of fixing of tiles. Hence complainant is entitled to get compensation. As a consumer, complainant expected to get good quality tiles and good after sale service. Here opposite parties failed to provide good quality tiles and good service after sale. Point No.1 is found accordingly.
11. Point No.2:- Since the point No.1 is found in favour of complainant, he is entitled to get cost and compensation. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and opposite parties are jointly and severally directed to pay Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) as compensation to the complainant for the colour fading and bend seen on the paved tile area. Also opposite parties are directed to pay Rs.10,000/- (Rupees Ten Thousand) as cost of the proceedings. This Order must be complied within one month from the date of receipt of this Order, otherwise opposite parties are directed to pay interest at the rate of 10% per annum till payment.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 19th day of January 2017.
Date of Filing:07.07.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Siddique. Business.
PW2. Soopi. Business.
Witness for the Opposite Parties:-
OPW1. Suresh. Senior Executive, Marketing and Customer Support, H& R Johnson, Branch Calicut.
Exhibits for the complainant:
A1. Authorization Letter. Dt:26.06.2016.
A2. Invoice. Dt:16.06.2014.
A3. Invoice. Dt:24.06.2014.
A4. Copy of Cash Bill. Dt:02.07.2014.
A5. Copy of Retail Invoice cash/credit. Dt:13.06.2014.
A6. Copy of Retail Invoice cash/credit. Dt:23.06.2014.
A7(1). Voucher. Dt:21.06.2014.
A7(2). Voucher. Dt:02.07.2014.
C1. Commissioner Report. Dt:28.04.2016.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
