PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of July 2012.
Filed on : 11/05/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.283/2010
Between
Shobha Menon, : Complainant
W/o. Madhavankutty, (By Adv. George Cherian
H.No. 64, Santhi Nagar Karippaparambil Associates,
Colony, Kalamassery. HB-48, Panampilly Nagar,
Kochi-682 036.)
And
1. M/s.Nitco Ltd., : Opposite parties
Madhushila Chambers, (1st O.P. by R.S. KalKura)
No. 50/390, B&C., “Srivathsa” 61/335, Judges Avenue,
Palace Road Jn, Kaloor, Kochi-17”
N.H. Edappally,
Kochi-682 024.
rep. by its Branch Manager.
2. M/s. Chaithanya Granite & Marbles, (2nd O.P. by Adv.Nandakumar
Bye pass, Edappally, N.J.Associates, Thuruthummel
Kochi-24. Buildings, Market road North,
Cochin-682 018)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased 164 boxes first quality Nitco ceramic tiles granite irony colour from the 2nd opposite party which was manufactured by the 1st opposite party at a price of Rs. 95,396.94 to lay the same at her residence. The tile laying work was entrusted with one Stheeni an experienced contractor. While laying the same the complainant noticed disparity in type and batch numbers. The representative of the opposite parties visited the premises of the complainant and agreed to replace the tiles. On 25-05-2009 the complainant received 87 boxes of tiles. The replaced tiles as well lack uniformity. However as the problem of defective tile supplies had already delayed the construction considerably and as monsoon was approaching the complainant had no choice and was forced to lay the substandard tiles even though complainant had paid for the first quality tiles. In the tiles supplied to the complainant subsequently too there are variation in size colour and other deformities. The huge amount invested by the complainant for modification and addition in the existing residential house has all
become futile. The complainant estimates her damages at Rs. 2 lakhs. The complainant is entitled to get the amount from the opposite parties together with Rs. 10,000/- towards costs of the proceedings. This complaint hence.
2. The version of the 1st opposite party is as follows:
The complainant had purchased 164 boxes of Nitco Ceramic tiles granite Ivory colour from the 2nd opposite party. The 1st opposite party sells tiles to the 2nd opposite party who is a dealer and at the time of sale it has been made clear that shade illustration in the shade cards and catalogues may not the exact representation of the colour of the tiles because of limitation of printing process. Size and colour variation are inherent for all those products. The said clause has been exhibited in each carton. The complainant had returned 40 boxes of the tiles stating that they are defective, the 1st opposite party replaced the tiles as a gesture of goodwill. After receipt of the 40 boxes the complainant laid the entire tiles, now she can’t raise any objection against the laid tiles. The complainant has not suffered any loss as claimed by her. There is no deficiency in service on the part of the 1st opposite party complainant is not entitled to get any of the reliefs as claimed for.
3. Despite service of notice of this complaint the 2nd opposite party opted to keep aloof during the proceedings for their own reasons. The complainant was examined as PW1. Exts. A1 and A2 were marked on her side. The witness for the 1st opposite party was examined as DW1 and Exts. B1 and B2 were marked . Expert commissioner’s report was marked as Ext. C1. Heard the counsel for the contesting parties.
4. The only question that comes up for consideration is Whether the complainant is entitled to get a compensation of Rs. 2 lakhs together with Rs. 10,000/- as costs of the proceedings or not?
5. Admittedly on 06-05-2009 the complainant purchased 164 boxes of granite Ivory tiles from the 2nd opposite party at a price of Rs. 95,396.94 evidenced by Ext. A2 invoice dated 06-05-2009. It is not in dispute that the 1st opposite party is the manufacturer of the tiles. According to the complainant while laying the tiles it was found that the colour of the tiles differed and on intimation the opposite parties replaced 87 boxes of tiles on 25-05-2009. It is stated that the replaced tiles as well suffered from the same defect, however she had to lay the tiles for reasons explained in the complaint. She maintains that she is entitled to get a total compensation of Rs. 2,00,000/- and Rs. 10,000/- towards costs of the proceedings.
6. The 1st opposite party contends that they have replaced 40 boxes of tiles as a gesture of goodwill. They argue that at the time of sale the 2nd opposite party has duly intimated the complainant that the shade illustrations in the shade cards and catalogues may not be the exact representation of the colour of the tiles and size and colour variation and inherent for all those products. According to them the said clause has been exhibited in each carton. But nothing is on record to substantiate the above contentions of the 1st opposite party.
7. During evidence at the instance of the complaint an expert commissioner was appointed by this Forum. The 1st opposite party filed objection against the report of the expert commissioner. Though the 1st opposite party had taken steps to summon he commissioner, they could not succeed in their attempt since the expert is abroad. The report of the expert commissioner was marked as Ext. C1 which reads as follows:
“ 1.In several of the tiles laid, it was found that the tiles
are warped; meaning that the surface of one single
title is not plain and therefore the edges of two
adjacent tiles are not straight.
2. While looking at the floor at an angle against light, it could be seen that the joints between tiles are slightly raised from the center portion of the tile, giving rise to a wavy appearance with the centre looking sagged from the edge. .
3. Even though the tiles are of the same design and colour pattern, there was difference in colour tints when two of the adjacent tiles are compared.
4. At several places it was observed that the joint between two tiles were found to be of varying width, meaning that when the two ends meet with each other the center does not do so.
5. There was marked variations in the texture of the design as well. This could be attributed to the variations in colour.
6. The edges of several of the tiles are not orthogonal, meaning the edges are not at 90 degree between each other. Due to this, one joint between two tiles were found to be of varying width. The complainant had in her possession four extra tiles that were closely examined. When placing four tiles to form a bigger square, the tile at any of the four corners had a ply of 1 to 2 millimeters between adjacent edges. This happens when any of the four tiles are out of shape.
All the above discrepancies indicate that there are manufacturing defects in the tiles supplied to the complainant.”
8. The 1st opposite party vehemently and vigorously disputed the findings of the expert commissioner. At the out set the 1st opposite party contended that the expert is not competent in the field of manufacture of ceramic tiles. Though before appointing the expert commissioner we have specifically called upon both sides to file their panel of experts, the 1st opposite party did not file any panel. So at this stage the above contention of the 1st opposite party is unsustainable in law. The 1st opposite party in their objection to Ext. C1 challenged the findings of the expert tooth and nail. However nothing is forthcoming on the part of the 1st opposite party regarding the difference in colour tints when two of the adjacent tiles are compared. Moreover the 1st opposite party could have very well overcome the findings of the expert commissioner in Ext. C1 by adducing evidence by another expert in which they failed. Though the 1st opposite party contented that they have specifically stated the variation that could be in colour and shade on each carton there is nothing before this Forum to prove the same except for verbal submissions.
9. In the first instance of the laying of the tiles the complainant had noticed the variations of the texture and size of the same and had intimated the 1st opposite party of the same. The 1st opposite party after examination agree to replace 40 boxed of fresh tiles and did so. The complainant again raised a plea that the same suffered from the same defects. However she used up the materials for laying in spite of the so called inherent defects. Her plea as to why she had gone to such extend is that the monsoon was fast approaching and that the premises were not in a habitable condition for a long time. A part of the claim is not good at law since an element of vis-major is attracted.
10. The claim for compensation is too tall for the reasons that the complainant has not categorized the expenses she would put this money into or if at how she would do so. Neither is there a plea of mental agony which is considered to be consumer’s unprejudiced claim. In the conspicuous absence of this we are only to hold that the claim for compensation is rightly too tall. However damages to the tune of Rs. 1 lakh is awarded to mitigate the disturbance caused to the complainant and also to help her out in any minor works to be undertaken regarding the floor. Not to mention the above amounts includes the costs of proceedings as well.
11. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay Rs. 1,00,000/- to the complainant for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 31st day July 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Building permit dt. 28-07-2008
A2 : Copy of tax invoice dt. 06-05-2009
C1 : Commission report
Opposite party’s Exhibits :
B1 : Terms and conditions
B2 : Copy of brochure
Depositions:
PW1 : Shobha Menon
DW1 : S. Jagan
