DOF.05.04.2010
DOO.05.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Smt.M.D.Jessy : Member
Dated this, the 5th day of September 2011
CC.99 /2010
N.Anil Kumar,
Kunumpurath House,
Thottada.P.O. 670 007. Complainant
(Rep. by Adv.RJagada Bai)
M/s.Mahe Tile House,
Royal Plaza Complex,
Near Old Check Post,
Kannothumchal, Chovva.P.O.
Kannur 670 006
(Rep. by Adv.Babu Mandein) Opposite party
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay an amount of `28,665 as cost of the tiles, laying charge `13,000 as laying charge and `7,000 as cost of other raw materials and to pay `3,000 as compensation for mental agony together with the cost.
The case of the complainant in brief is as follows:
Complainant attracted by the advertisement in news paper approached opposite party and purchased ceramic tiles measuring to 1285 sq. feet worth `28665 and opposite party issued an invoice No.654 opposite party assured the quality of tiles. It cost `13,000 for laying charge and `7000 for sand and cement. When tiles were laid its texture faded creating awkward crusts and designs all over those in an unimaginable extent. Complainant approached opposite party. Opposite party deputed an expert and it was confirmed that the disfigurement was due to its quality. But no action was taken to replace the tiles even if repeatedly requested. The fading out spread day by day and the whole house happened to look shabby. Since there was no favourable response Lawyer notice was send on 3.2.2010. But he did not take care to do anything even after getting the notices. This is an unfair trade practice on the part of opposite party. Hence this complaint.He
Pursuant to the notice from the Forum opposite party entered appearance and filed version denying the material allegations of the complainant. The case of the opposite party in brief is as follows: Complainant had purchased tiles from him on 14.11.09 and issued invoice No.654. It is not correct that he had given assurance with regard to the quality and texture of the tiles. It was relying upon the advertisement of manufacturer thereof that the complainant had selected this product. The opposite party denied that the produce sold was of defective quality. The opposite party is only the dealer. The defects caused to the tiles were due to the improper handling and laying by unskilled workman and due to spreading of chemicals and materials adversely affecting the tiles. Opposite party sold only the branded quality tiles which was distributed by the manufacturers. Hence manufacturer is a necessary party. Opposite party prays to dismiss the complaint upholding the contention of opposite party.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
party?
2. Whether the complainant is entitled for the relief as prayed in
the complaint?
3. Relief and cost.
The evidence consists of oral testimony of PW1, DW1 and Exts.A1 to A4. No documents marked on the side of opposite party.
Issue Nos.1 to 3
Admittedly complainant purchased ceramic tiles both floor and walls from opposite party and issued the invoice Nos.654. The case of the complainant is that when the tiles purchased from the opposite party laid, its texture faded creating awkward crusts and designs all over than in an unimaginable manner. It has spread day by day and the whole house looked shabby.
Opposite party contended that complainant purchased tiles relying up on the advertisement of manufacturer and not that of opposite party. Opposite party denied the averment that the product sold by opposite party was of defective quality. Opposite party is only the dealer. Opposite party sold only the branded quality tiles which was distributed by the manufacturer. Manufacturer has to be impleaded as a party. Opposite party has not given any assurance regarding quality.
Both parties filed chief affidavit in tune with the pleadings. Complainant stated by way of affidavit evidence that he has purchased tiles from opposite party for an amount of `28665 and obtained invoice No.654 dated 14.11.09. He has incurred `13000 towards laying charge and `7000 towards cost of raw materials like cement, sand etc. He further stated that when it was laid, the tiles lost its texture and faded creating awkward crusts and designs all over them in an unimaginable manner. The complainant approached opposite party for the redressal of his grievances. An expert was deputed by opposite party. He visited the house of the complainant and he confirmed that the disfigurement of the texture of tiles was due to defective quality. The affidavit evidence further speaks that complainant has sent lawyer notice since there was no response after the inspection of the expert. Even after notice there was no response on the part of opposite party.
Opposite party on the other hand adduced evidence by way of chief affidavit that he was only a dealer and he sold only branded items of different companies, it was not purchased due to the attraction of advertisement given by opposite party but by the manufacturer and it is not correct to say that tiles became faded immediately after laying. He further stated that it is not correct that the tiles sold to complainant were defective. The tiles became faded not because the quality of the tiles was bad but because it was laid by unskilled workers. It is due to the work done by inexperienced workers by laying unscientific way and thereby spreading chemicals and other materials all over the tiles.
Ext.A1 is the invoice No.654 dated 14.11.09 which shows the price of the tiles as `28665. Ext.A2 is the lawyer notice calling upon to refund the cost of tiles, laying charge and cost of other materials and also compensation with cost. A3 acknowledgement proves that complainant sent Ext.A2 to opposite party.
Though opposite party has the case that he is only a dealer he is not exempted from attending the complainant as the consumer. He has the liability to answer the lawyer notice. Non reply of lawyer notice is a negative approach of the opposite party towards the complainant as a customer. That itself is a deficiency in service for which opposite party is answerable by meeting the liability. The tiles were purchased on 14.11.09. The lawyer notice was sent on 27th day of January 2010. It shows the defect occurred within two months of lying. Opposite party has no case that it was not the tiles that has purchased from him. Opposite party has contended that the defect caused to the tiles were due to the improper handling and laying by unskilled workmen and due to spreading of chemicals and materials adversely affecting the tiles. It is pertinent to note that opposite party has kept mum towards the allegation that opposite party has send an expert and he was convinced the defect of the tiles. Though specifically pleaded by complainant this allegation opposite party has mentioned nothing about it in the version. Opposite party has also stated nothing about the notice send by the complainant. In the notice also complainant specifically alleged that the expert deputed by opposite party confirmed that the disfigurement in the texture of the ceramic tiles was due to defective quality. There is no justification on the part of opposite party keeping mum with respect to this allegation. Opposite party has no case that he has not deputed his expert. He has no case that he has not inspected the house of complainant. Then it is relevant to know the opinion of the expert. The opposite party is suppressing those facts before the Forum. This proves very well that opposite party is well aware of the defects of the tiles. Thus the deficiency is well proved. Oppose party was really concentrated to contend that it is not he who is answerable but the manufacturer whose product was sold to complainant by the opposite party as a dealer. It cannot be ignored the fact that as far as a consumer is concerned it is the dealer who is the sole person responsible for the product that he purchase. That spirit is accepted by the law and reflected in judicial decisions.
In Ashok Khan Vs. Abdul Karim and others reported in2005 CTJ 1207(CP(NCDRC) Hon’ble National Commission held that both the dealer and manufacturer of the machine, having defects in it, are jointly and severally liable to the purchaser because he knows only the dealer from whom he purchased that machine and not its manufacturer. This self speaking decision of the Hon’ble Commission undoubtedly a guiding principle to take a definite stand that the opposite party in the case in hand is defenitely are jointly and severally liable. In Hyundai Motor India Ltd. Hon’ble State Commission Himachal Pradesh, reiterate this spirit in its decision in Hyundai Motors India Ltd. Vs. Dr.B.K. Arora, Rampur Busha har and another that “ in fact dealer is the front man or the, face of the manufacturer for the state/marketing its manufactured products, therefore, both of them cannot escape from liability and are jointly and severally liable”. Hence the dealer at any rate cannot escape from the liability.
In the light of the above discussion we are of opinion that opposite party is liable for the deficiency in service and is liable to refund the amount `28,665 as cost of the tiles and `13,000 as laying charge. Complainant is also entitled for the amount of raw materials `7000 together with the cost (Total rounded to `49,000). Hence the issues 1 to 3 are answered in favour of complainant. Order passed accordingly.
In the result, the complaint is allowed directing the opposite party to pay an amount of ` 49,000 (Rupees Forty Nine Thousand only) including cost of the materials and laying charge together with cost of proceedings to the complainant within one month from the date of receipt of this order, failing which complainant is entitled for interest at the rate of 12% from the date of filing the complaint. The complainant is at liberty to execute the order as per the provisions of consumer protection Act.
Dissenting order rendered by M.D.Jessy, Member
From the pleadings in the above case there ought to have raise another issue for consideration, whether the complaint is bad for non-joinder of necessary party. It is admitted by the complainant during cross examination that the opposite party is not the manufacturer of the tiles. He is only dealer. The opposite party specifically pleaded that manufacturer is also a necessary party in the proceedings and the address of the manufacturer was also given in the version. If a product is found to be defective the prime liability is cast upon the manufacturer, though dealer is also jointly and severally liable to compensate for the defect; when there was a specific pleading to implead the manufacturer the complainant would have taken steps to implead the manufacturer. The complainant himself admits that the manufacturer’s name is noted upon the cover containing the tiles. Therefore there is non-joinder of necessary parties in the proceedings.
Regarding issue No.2
It may be true that the opposite party had inspected the house of the complainant for verifying the defects of the tiles if any. Mere non-mentioning of the same would not take as a proof for the defective quality of the tiles purchased by the complainant. The opposite party in their version submitted that only wall tiles were found to have some defect. Therefore the finding to the effect that the entire tiles purchased by the complainant are defective is not having any base at all. The extent of damage sustained to the complainant is also not proved by cogent and convincing evidence. The photographs are having no authenticity. No steps were taken by the complainant to calculate the actual damage and loss sustained him by deputing an expert commissioner. No bill or voucher is seen produced to prove the laying charge and raw material cost. So upon my view the complainant failed to prove the actual damage sustained to him. Forum cannot come to a conclusion regarding loss arbitrary on guess. On the above grounds I am of the view that the above complaint is liable to be dismissed.
Jessy.M.D
Member
Taking into consideration the majority opinion the complaint is allowed and order passed accordingly.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the complainant
A1.Cash bill dt.14.11.09 issued by OP
A2. Copy of the lawyer notice sent to OP
A3. Postal AD card
A4. Photographs
Exhibits for the opposite party:
B1.Copty of the manual of world wide limited warranty and technical
support of Compaq products
Witness examined for the complainant
PW1.Uthaman
Witness examined for the opposite party:
DW1.Rasik.A.V
/forwarded by order/
Senior Superintendent
Consumer Dispute Redressal Forum, Kannur.
