D.o.F:8/9/2009
D.o. Order:12/02/2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.202/2009
Dated this, the 12th day of February 2013.
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
Dr.(Smt)Veena Manjunath,
United Medical Centre, Kotekani Road, : Complainant
Kasaragod/671121
(Adv.K.Kumaran Nair,Kasaragod)
1.M/s H&R Johnson,
14/51/1, Bismi Towers,
Kallai Road, Kozhikode 673002.
2. M/s H&R Johnson,
Windsor, 7th floor,
C.S.T Road, Kaline South Cruz(E), : Opposite parties
Mumbai-400098.
(Adv. Shyam Padman
ORDER
SMT.P.RAMADEVI : MEMBER
The facts of the case in brief are as follows
The complainant purchased 750 boxes of first quality Ubeda Green tiles among other items from opposite party through the authorized agent of one Mr.Satheesh. The payment of Rs.3, 00,000/- was made by way of cheque. The tiles were meant for the new hospital complex of complainant. The articles were supplied to the complainant on 6/9/2008. The laying of the tiles was completed in the month of November 2007 and the hospital complex was opened and started functioning on 6/12/2007. The laying of the tiles, like all other works of the building was done at the direct supervision of expert engineers including the father of the complainant, who is a retired chief engineer. After some weeks of opening of the hospital the complainant noticed that the tiles are not of standard quality or of uniform colour. The colour of the tiles varies from green to white and shades of green mixed together which makes an awkward combination. It is also noticed that the Ubeda green tiles are not of uniform level. The complainant booked order for uniform colour of first quality Ubeda green tiles. But due to the poor quality of the tiles within a short period of the inauguration of the building the floor of the building lost their shining. At the same time the other tiles supplied by the opposite parties are free of any such defects. Immediately on realizing the aforesaid defects, the complainant contacted the opposite parties and their authorized agent. But there was no any action in the matter. Then the complainant sent letters to the opposite parties in the matter. But the opposite parties did not respond to the same. The complainant repeatedly requesting some urgent and positive action. But there is no response on the side of opposite party. Hence the complainant issued a registered lawyer notice to the opposite parties on 15/1/2009 asking to refund the price of the tiles and cost and compensation. The opposite party sent a false reply. Hence this complaint is filed for necessary relief.
2. On receipt of notice from this forum opposite parties filed their version through their counsel. As per the version filed by opposite parties they denied all the allegations made against them by the complainant. The Ist contention of opposite parties is that the complaint is not maintainable since this forum lacks territorial jurisdiction to entertain this complaint. 2ndly it is contended that there is no consumer dispute warranting the interference of this Forum since the purchase of tiles is for commercial purpose i.e., the purchase of the tiles is for the purpose of laying in the hospital complex being commercially run by the complainant. The further contention of the opposite party is that the complainant is filed after two years of the alleged purchase. Hence the complaint is barred by limitation. The further contention of the opposite parties is that the complainant is not approached with clear hands. The opposite parties are not admitting the tiles and are manufactured by them. They further contended that even assuming that the alleged tiles manufactured by them the complainant has not complied with the specific instructions for fixing the tiles conspicuously printed in the carton/box of the tiles and in the pamphlets and brochures supplied and made available with the product. It is further submitted that the opposite party is having manufacturing plants certified by ISO 9001,ISO 14001 and OHSAS 18001 certification for in quality enviournmental and safety standards and having 50 years experience in India. The opposite party fur4ther submits that the complainant had purchased 750 boxes of premium quality Ubeda Green tiles on 6/9/2006 to be laid in the hospital complex. According to opposite parties for fixing the tiles, the instructions have to be followed and the correct proportion ratio of the cement s sand and water has to be used and the final result depends upon good workmanship and supervision as well. According to the opposite parties the complainant has not complied with the specific instructions for fixing the tiles hence the opposite parties are not liable for the same. The opposite party further submits that on receiving the complaint from the complainant opposite parties authorized representative had inspected the tiles and except a few stains caused and occasioned on account of negligent and improper workmanship while laying and user, there was absolutely no defects in the tiles manufactured by opposite party. The complainant was also fully convinced about the same and acid wash to be done to remove the said stains free of cost, to which the opposite parties were not amenable because the said stains were caused not on account of any fault on the part of opposite parties. Hence there is no deficiency in service on the side of the opposite parties and the complaint is liable to be dismissed.
3. After going through the facts of the case the following issues raised for consideration.
1. Whether this forum lacks territorial jurisdiction to try the complaint?
2. Whether the complainant purchased the goods is for commercial purpose
3 Whether the complaint is barred by limitation?
4. Whether the tiles have got any manufacturing defect?
5. Whether there is any deficiency in service on the part of the opposite parties
6. If so what is relief as cost & compensation?
4. Here on the side of complainant PW1 is examined and Exts.A1 to A4 & Ext.X1 marked. DW1 is examined on the side of opposite party and Exts.B1 to B4(a) marked. Expert commissioner is also examined. Heard the counsels for the both sides and documents perused.
5. That the first issue is with regard to the maintainability of the complaint. The contention of the opposite party is that the purchase of the tiles and the manufacturing of the tiles are outside the territorial jurisdiction of this Forum and the opposite parties have no branch office in Kasaragod district. It is true that the opposite parties are not residing or their offices are not situated within the territorial jurisdiction of this Forum. But the tiles purchased by the complainant is laid within the territorial jurisdiction of this Forum. Laying of tiles constitute part of cause of action as per Sec.2(b) of the Consumer Protection Act. Therefore this forum has got ample jurisdiction to try the complaint. First issue is answered accordingly.
6. 2nd issue is whether the goods is meant for commercial purpose or not. In Harsolia Motors vs. New India Assurance Co. the Hon’ble National Commission has distinguished and defined ‘commercial purpose’ and ‘commercial activity’ and held that where the materials purchased are used not for directly generating profit still the purchaser is a consumer and the complainant filed alleging defects is maintainable before the Forum. Here the tiles are laid in the hospital premises which has no nexus with the medical service prescribed in the hospital and the tiles are not directly generating profit in the hospital purposes.
7. 3rd issue is whether the complaint is barred by limitation . Here the cause of action arose when the defect came to the notice of the complainant. Eventhough the goods supplied by the opposite party is on 6/9/2006 the complainant completed the laying work in the month of November 2007 and the hospital started functioning on 6/12/2007. The defect was noted after some weeks of opening the hospital. Before laying the tiles how the complainant came to know the defect? That means the cause of action of the complainant arose only when the complainant noticed the defect. Here it is after some weeks of opening of the hospital ie, after some weeks from 6/12/2007. The cause of action arose in the end of 2007 and the complainant filed on 8/3/2009. Here the complaint is filed within the period of limitation.
8. The specific case of the complainant is that the tiles supplied by the opposite party are not of standard quality or of uniform colour. In order to prove the above aspect the complainant had taken out an expert commissioner and commission report is marked is Ext.X1. As per the Ext.X1 the commissioner noted that the shining and colour of ubeda green tiles have faded considerably, the colour of tiles varies some are green and some are white and some are shades of green and is very glossy. Slight variation in levels are also noted by the commissioner but they are not prominent. The commissioner also noted the colour and shining of other tiles like Boutichino have not faded. The commissioner also noted there are lot of stains in obedia green tiles but stains are absent in other tiles. The opposite party filed objection against the Expert report and expert was cross examined by the opposite parties. According to opposite party the commissioner is a consulting engineer and not an expert in ceramic technology or a ceramist. The commissioner had not taken any sample of tiles from the premises nor sent the same to any approved laboratory for the purpose of finding out the correct reason for the alleged defect. According to opposite party the defects of tiles claimed to be found by the commissioner can be due to poor workmanship and inferior quality of materials and the same ought to have been reported by the commissioner. The further contention of the opposite party is that the defect is due to improper installation of tiles.
9. Here the contention of the opposite party regarding the Expert report is not fully acceptable. Admittedly the Expert commissioner is not an expert of ceramic technology. He is a civil engineer. But he has not reported about the ceramic technology. He only noted and reported the defects on the tiles. But he has not stated the reason for the defect. We cannot accept the contention of opposite party that there was no proper supervision while laying the tiles. Here the supervision was done by the father of the complainant. PW1 who is none other than a retired engineer. Then next contention is the laying of the tiles was not properly done by the complainant. Here there is no evidence to prove that whether the complainant used poor workmanship for laying the tiles. The expert is also silent in that point. Here the opposite party placed a decision regarding the Expert report. In Gujarat Gold coin ceramic tiles Ltd. Vs Nanda Kishore Tulsidas Katore, the Hon’ble Maharashtra State Consumer Disputes Redressal Commission observed that ‘’ Commissioner was an Advocate and not an expert of ceramics tiles, hence report is not reliable’.
10. Here the commissioner is a civil engineering diploma holder and he is not an expert of ceramics tiles. Hence report of the commissioner is not acceptable.
Holding of the above we are also of the opinion that the expert who inspected the tiles laid on the premises of the complainant’s hospital is not a properly qualified expert. Hence his report is not acceptable to reach a fair conclusion this case.
Therefore the complaint is dismissed as the complainant failed to prove the reason for the defects alleged to the tiles layed in the hospital. No order as to costs.
Exts:
A1-dt.17-8-06- copy of order booking letter
A2-27-10-08-letter sent by complainant to Ops
A3-1-12-08- do-
A4-15-1-09- copy of lawyer notice
B1-Carton-box of the tiles
B2- Brochures of the tiles
B3& B3 series- reply notice, AD Card and receipts
B4- copy of High Court judgements
Ext.X1- commission report
PW1-T.Damodaran- witness of complainant
DW1- Suresh .C.P- witness of OP
MEMBER MEMBER PRESIDENT
eva
