IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 05th day of January, 2022.
Filed on 25.07.2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A.L, LLB (Member)
In
CC/No.204/2018
between
Complainant:- Opposite party:-
Sri.Rajesh R.P M/s St.Francis Clay works
Alias Rajesh Ponnappan Pazhookkara P.O.
S/o Ponnappan Annallur, Trichur District-680731
Now residing at Manish Manzil Rep. by its proprietor Salu,
Eramalloor P.O. St. Francis Clay works
Cherthala-688537 Pazhookkara P.O.
(Adv. V.M.Jacob) Annallur, Trichur District-680731
(Adv. B.Sivadas)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is a resident of Eramalloor and he is the proprietor of M/s Vava Fuels Eramalloor. Opposite party is a manufacturer and supplier of clay tiles and allied materials having their office at Thrissur. For the renovation work of the complainant’s house roofing tiles were required. An agent of the opposite party approached complainant and offered to provide export quality roofing clay tiles. Accordingly complainant and his supervisor visited the factory of the opposite party and placed order for the material- Earthern tiles (Mini roofing) and paid an advance of Rs.10,000/-. Order for total number of 4,400 tiles were placed and the condition was to supply the same at the spot. On 4-7-18 opposite party through lorry No.KL 08-BN 7858 supplied materials worth Rs.1,29,890/- including loading charge and after deducting the advance complainant paid Rs.1,19,890/- to the agent of the opposite party. Complainant had to give Rs.6,000/- as transporting charges and Rs.4,000/- as wages of the headload workers in addition to the cost of the tiles. In the tiles it is printed that the tiles are of export quality and the complainant had parted with money believing the superior quality of the tiles.
2. Opposite party had given a total bill of Rs.18,900/- + Rs.19,530/- as invoice No.109 and 110 dated 04-07-18 only. Though it was assured that they would provide the bills supplied they have not kept their words. Complainant immediately did the roofing work through the employees arranged by Sri.Jayesh on work contract @ Rs.50/- per sq.feet. The work was completed on 15-7-18 and an amount of Rs.1,35,000/- was paid as wages. It was found that the entire tiles in the roof are leaking and water drops are falling down to the ceiling area of the first floor. On 18-7-18 complainant informed the matter to the opposite party who assured that the leaking tiles would be removed at their cost and they would compensate. But till this date opposite parties had not done anything to redress the grievances of the complainant.
3. The house warming ceremony of the complainant was fixed on 17-8-18 and now due to above incident it stands postponed. All the tiles in the roof are leaking and the only remedy is to remove the tiles and to do the roofing work once again with new tiles. It is estimated that for removing the tiles Rs.81,000/- is required and re-roofing would again cost another Rs.1,35,000/-. The cost of new tiles will be Rs.1,30,000/- the transporting charges will be another Rs.12,000/- and loading and unloading charges will be another Rs.4,000/-. Cost of silicon for filling purpose would be Rs.10,000/-.
4. Now the complainant had spent a total amount of Rs.2,54,890/- for the roofing charges and he had to spend Rs.3,72,000/- for re-roofing. Thus the complainant had spent a total amount of Rs.6,26,890/-. Due to the leakage, complainant had to postpone house warming ceremony and it caused much worries and agony. Hence the complaint is filed for a direction to the opposite party to take back the roofing tiles supplied and to pay an amount of Rs.6,26,890/-. Complainant is also claiming an amount of Rs.1,00,000/- as compensation.
5. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable before this Commission. Opposite party is having its office at Thrissur and the entire transaction were within the district of Thrissur. There was no part of transaction at Alappuzha. Since the tiles were purchased for M/s Vava fuels it is a commercial transaction and so this Commission has no jurisdiction.
6. Opposite party is not having any agent. Complainant along with his supervisor reached the company and after ascertaining the quality of tiles placed order. Bill was given to the complainant for the tiles purchased. Complainant has not purchased 4,400 numbers of tiles as stated in the complaint. As per invoice No.109, 840 numbers corner tiles and 1200 roofing tiles and as per invoice No.110, 1500 roof tiles were sold and Rs.19530/- and Rs.18,900/- respectively were collected. Complainant himself hired the vehicle and along with certain other materials tiles were also loaded. There is no practice of spot delivery by this opposite party. The account written in 4th para of the complaint is false and no document was supplied to the complainant. Opposite party give documents only in letter pad or estimate form. There was no occasion to hand over the amount to the agent. In all the tiles export quality is printed and the tiles purchased by the complainant was @ Rs.12/- per tile. There is no practice of selling tiles without bill. The contention that Rs.1,35,000/- was spent @Rs.50/- per sq.feet for laying the tiles is false. Under normal circumstances leakage will not occur to the tiles. There will be admissible leakage and it will be reduced after one year seasoning. To curb the same weather coat painting is required. There is no possibility of leakage occurring in the tiles since it is manufactured at the furnace.
7. On getting the complaint over phone opposite party had sent an expert and he could not find out any leakage. Since there was difference in the distance of reapers there is chance of leakage through the gap. The intention of the complainant is to harass the opposite party and to settle the issue by lowering the reputation. Complainant has not produced the disputed tiles before this Commission for obtaining an expert report. Hence it is prayed that complainant filed with false allegations may be dismissed.
8. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant had purchased 4400 tiles from the opposite party as claimed in the complaint?
- Whether the tiles purchased from the opposite party had leakage as alleged in the complaint?
- Whether the complainant is entitled to realize an amount of Rs.6,26,890/- as prayed in the complaint?
- Whether the complainant is entitled to realize an amount of Rs.1,00,000/- as compensation ?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 to PW4 and Exts.A1 to A7 from the side of the complainant and the oral evidence of RW1 and Ext.B1, B2 and MO1 from the side of opposite party.
10. Point No.1 to 5:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7.
11. PW2 is working as professor in civil engineering at CUSAT. He was appointed as expert in this case. He inspected the tiles and filed reports on 23.3.2020 and 15-2-21. It is marked as Ext.C1 and C2. As per his inspection the tile was having 17.72% water absorption. As per Indian standard code it can be upto 18%. The tiles could not pass breaking load and permeability as stated in the specification. He had collected 32 samples from the house of PW1 and out of the same 6 were examined at the laboratory.
12. PW3 filed an affidavit stating that he had done the laying of roof tiles at the house of the complainant under one Jayesh who was the contractor. During the next rainy season there was leakage from the tiles. Complainant had purchased the tiles from the opposite party and all the tiles contained their name and export quality printing. Complainant was made to believe that this is 1st quality tiles. It is noticed that the tiles are of inferior quality and now all tiles are to be removed.
13. PW4 was the advocate commissioner in this case. On 17-11-18 he had inspected the premises and prepared Ext.C3 report and took C4 series photographs. All the tiles were having the printing St.Francis export quality. All the tiles were soaked in water and tiny water drops were falling from the tiles.
14. RW1 is the opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B1, B2 and MO1.
15. The case advanced by PW1, the complainant is that on 4/7/2018 he purchased 4,400 roof tiles from the opposite party for an amount of Rs.1,29,890/- for laying in his house. After laying the same it was noticed that roof tiles are leaking. Immediately the matter was informed to the opposite party. Initially though opposite party agreed to replace the same he withdrew from the promise and hence the complaint is filed claiming an amount of Rs. 6,26,890/- being the value of tiles, laying charges , re-laying charges and Rs.1,00,000/- as compensation for mental agony. Opposite party filed version contenting that they had only supplied 3540 tiles as per Ext.A5 invoice and it was having superior quality. The allegation that there was leakage was denied. It was also contended that the amount claimed in the complaint is exaggerated and so they are not liable to compensate the complaint. Hence they prayed for the dismissal of the complaint. Complainant got examined as PW1 and Ext.A1 to A7 were marked. As per the order of the Commission PW2 professor of Civil Engineering Department attached to CUSAT inspected the tiles and filed Ext.C1 report and C2 report. The labour who laid the tiles under a contractor was examined as PW3. The Advocate commissioner appointed from this Commission to inspect the tiles initially was examined as PW4 and Ext.C3 commission report and Ext.C4seires photographs were marked. Opposite party was examined as RW1 and Ext.B1 and B2 and one roof tile was marked as MO1. Relying upon the oral evidence of PW1 to 4 coupled with Ext.A1 to A7, the learned counsel appearing for the complainant pointed out that complaint is proved as per law and so complainant is entitled to get a favourable order. Per contra the learned counsel appearing for the opposite party pointed out that the complainant has no consistent case even with regard to the purchase of roof tiles. As per Ext.A5 series bills they had supplied roof tiles for a total amount of Rs.38,430/- only. However complainant had produced Ext.A6 slip without any authenticity and claimed that the total value of goods was Rs. 1,29,890/-. It was also pointed out that PW2 expert who inspected the tiles did not give any notice to the opposite party though it was specifically directed in the commission order. Hence according to the learned counsel appearing for the opposite party the report was prepared behind their back and so it cannot be relied upon. In the circumstances the learned counsel appearing for opposite party prayed for dismissal of the complaint.
16. As discussed earlier the case advanced by PW1, complainant is that he purchased 4,400 roof tiles from the opposite party. Though he has got a case that manager of the opposite party by name Sri. Babu contacted him and canvassed the order, it is denied by the opposite party stating that they had no such an agent for canvassing the order. It is contented that complainant himself visited their factory and after satisfying the quality placed order. Though in cross examination PW1 stated that the such so called Babu had given his visiting card it is not seen produced for the best reason known to the complainant. PW1 has got a case that he had transferred an amount of Rs. 10,000/- as advance to the account of the opposite party. It stands proved as per Ext.A4 statement of account issued from the Federal Bank. From Ext.A4 it is seen that on 2/7/2018 an amount of Rs.10,000/- was transferred into M/s St. Francis clay work which is the opposite party in this case. The case of PW1 is that on 4/7/2018 when the materials were produced the balance amount of Rs.1,19,890/- was given as cash. He is relying upon Ext.A6 slip to prove the transaction. The learned counsel appearing for the opposite party contented that tiles were supplied as per Ext.A5 series bills for a total amount of Rs.38,430/-. It was pointed out that Ext.A6 document was fabricated so as to suit the complaint. It appears that either Ext.A6 is fabricated or it was prepared in connivance with the opposite party so as to evade tax. It is noticed that the total GST paid as Ext.A5series bills is Rs. 1,830/- and the same amount is shown in Ext.A6 also. Either it is fabricated or it was prepared in connivance with the opposite party to evade tax and the commission cannot look into same and accept in evidence. As rightly pointed out by the learned counsel appearing for the opposite party it does not contain the seal or the signature of either the opposite party or his agent. So Ext.A6 cannot be acted upon by this Commission. In said circumstances it can be presumed that PW1 had purchased roof tiles as per Ext.A5 series bills for a total amount of Rs.38,430/- and the opposite party is answerable only for the same.
17. As per Ext.C3 report it is seen that PW4 advocate commissioner had seen about 3250 tiles and it contained printing of St. Francis export quality. It is to be noted that as per oral evidence of PW2 and as per Ext.C1 commission report he had taken samples of only 32 tiles and out to the same six numbers were tested in the lab and report was filed. The contention of the learned counsel appearing for the opposite party is that St. Francis is a common name in Ollur in Trissur and around were the tile factories are situated. To prove the same he relied upon Ext.B1 bill by which RW1 purchased two tile @ of 14 per tile and the total price was Rs.29.40/-. One of tile was produced and marked as Ext.MO1. In MO1 also St. Francis and export quality is printed. By producing Ext.B1 and MO1 it was pointed out by the learned counsel appearing for opposite party that though all the tiles seen at the premises of PW1 had the printing of St.Francis export quality it can be purchased from other factories. From Ext.A5 it is seen that 1200 tiles were sold @ of Rs.12 and from Ext.A5 (a) it is seen that 1500 tiles were sold @ of Rs. 12 per piece. Ext.A5 series are dtd. 4/7/2018. From Ext.B1 it is seen that the price per tile is Rs. 14/-. Since Ext.B1 is dated 18/11/2021 there is possibility of increase of the price since it was after 3 years. The price shown in Ext.A6 for roof tile is Rs.32/- per piece and for ridge tile is @ Rs.20/-. But as per Ext.B1 the price is only about Rs.15/- per tile. So though it was found that all the tiles were having a printing of St.Francis and export quality since it is common name it cannot be gathered that all the tiles were supplied by opposite party. It is to be remembered that according to PW1 he had purchased 4,400 numbers of tiles whereas as per Ext.A5 series bills, the total quantity was 3549 pieces.
18. As per the order of this Commission PW2 Professor in Civil Engineering Department attached to CUSAT university inspected the premises and collected 32 pieces as sample and inspected six of them at their laboratory and issued Ext.C1 report and C2 report. As per Ext.C1 report the tiles had 17.72 % water absorption whereas as per the ISI code it can be upto 18%. However the tiles failed in the breaking load and permeability test. It was not upto the specification prescribed as per ISI standard. So it can be seen that the tiles was of inferior quality. PW4 advocate commissioner had also inspected the premises and prepared Ext.C3 report and Ext.C4 series photographs. PW4 had visited the premises on 17/4/ 2018 and prepared Ext.C3 report and C4 photographs. PW4 reached the spot after a rain and he found that the tiles were soaked in water. On careful examination he had found leakage from the tiles as small drops. So from the evidence of PW2 and PW4 coupled with Ext.C1, C2 and C3 reports it can be seen that the export quality and superior quality claimed by RW1 in the tiles was not actually present.
19. The cross examination of PW1 reveals that he is not a reliable witness. PW1 pretended ignorance regarding the conveyance arranged to PW2 the expert commissioner. However PW2 stated that the conveyance was arranged by PW1. Moreover he has also filed an IA as 285(a)/2021 on 7/10/2021 claiming 50% of expenditure including the amount paid to the commissioner (PW2). PW3 was examined to show that he had laid the tiles under a contractor by name Sri. Jayesh. However said Sri. Jayesh was reported dead. The cross examination of PW3 shows that he is a stock witness of PW1. PW1 admitted that on 4/1/2019 he had put his signature in a document prepared by certain police officers. It is seen that PW3 is an attester to Ext.C3 commission report prepared by PW4 advocate commissioner on 4/1/2019. So the evidence of PW3 can be viewed only with suspicion.
20. At the time of filing the complaint opposite party had contended that this commission has no territorial jurisdiction and so the complaint is not maintainable before this Commission. However as per order dtd. 5/12/2019 it was found by learned predecessors that the complaint is maintainable before this Commission and so there is no need of further probe in to the same since the order has become final. According to PW1 40 sample tiles were taken by PW2 but according to PW2 he had only taken 32 tiles. PW1 claims that he will have to spend an amount of Rs.85,000/- for removing tiles and requires an amount of Rs. 1,35,000/- for laying the same. He has got a further case that an amount of Rs. 1,30,000/- were required as price of new tiles and Rs.16,000/- is required for transporting and loading and unloading charges. Again an amount of Rs.10,000/- is required for purchasing silicon to fill the gaps. However there is no convincing evidence to prove the same. From Ext.A5 series bill it is seen that the total amount is Rs.38,430/- and the total number of tiles purchased is Rs.3540/-. So the contention that he purchased 4,400 tiles for a total amount of Rs.1,29,890/- is highly exaggerated. As discussed earlier Ext.A6 was either fabricated so as to suit the case or it was prepared to evade tax. It is pertinent to note that the tax shown as Rs.1830/- in Ext.A6 is the total tax paid as per Ext.A5 series bills. Regarding the laying charges no acceptable evidence is available except interested oral testimony of PW1. He has not produced any document to show that such amount was paid to the earlier contractor Sri. Jayesh for laying the tiles. PW1 paid Rs. 10,000/- as advance and it is proved by Ext.A4 account statement. Thereafter his case is that on 4/7/2018 he paid Rs.1,19,890/- as liquid money to one Sri. Babu. Admittedly PW1 is the proprietor of M/s Vava fuels which is a retail dealer of M/s Hindustan Petroleum Co. Ltd. So he will be knowing about the transfer of money in business transactions. If PW1 had sent Rs. 10,000/- advance as bank transfer it is highly improbable that he will pay Rs. 1,19,890/- as liquid money. In said circumstances his contention that Rs.1,19,890/- was paid as cash cannot be accepted. As held by the Hon’ble Supreme Court in SGS India Ltd. Vs. Dolphin International Ltd Civil Appeal No.5759 of 2009 dtd. 6/10/2021.
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side.”
21. Here in this case as discussed earlier Ext.A6 will not stand in the eye of law since it is not having any authenticity. So Ext.A5 series only can be relied upon by which PW1 had purchased roof tiles for Rs.38,430/-. As pointed out by the learned counsel appearing for the complainant Rs. 10,000/- given as advance is not seen deducted in Ext.A5 series bills. So PW1 is entitled to claim the said amount along with the amount shown in Ext.A5 series bills. The discussions made above on the basis of oral evidence of PW2 coupled with Ext. C1 and C2 reports it is pellucid that the tiles could not withstand the specifications of ISO standard. The evidence of PW4 advocate commission also shows that at the time of inspection the tiles were soaked in water and there was drops oozing out from the tiles. So PW1 is entitled to get the value of the tiles purchased as per Ext.A5 series bills. For the amount claimed as laying charges there is no acceptable evidence and so we are disallowing the claim.
22. PW1 has got a case that due to the leakage of tiles he had to postpone the house warming ceremony. Definitely if the tiles purchased are leaking one will have mental agony and he will be entitled for compensation for the same. Though PW1 is claiming an amount of Rs.1 lakh as compensation on account of mental agony we are limiting the same to Rs.25,000/-. Thus PW1 is entitled to claim the amount covered by Ext.A5 series bills (Rs. 38,430, Rs. 10,000 given as advance and Rs. 25,000/- as compensation). These points are found accordingly.
23. Point No.6:-
In the result, complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs. 38430/-( amount of Ext.A5 series bills) along with interest @ of 9% from 4/7/2018 till realization from the opposite party.
B) Complainant is allowed to realize an amount of Rs.10,000/-(Ext.A4) from 2/7/2018 along with interest @ of 9% till realization from the opposite parties
C) Complainant is allowed to realize an amount of Rs.25,000/- as compensation from the opposite parties.
D) Complainant is allowed to realize an amount of Rs. 3000/- as cost.
E) MO1 will be returned to RW1 after appeal period.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 5th day of January, 2022.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Rajesh.R.P (Complainant)
PW2 - Job Thomas(Witness)
PW3 - Sajeevan(Witness)
PW4 - Joseph Mathew(Adv. Commissioner)
Ext.A1 - Adhaar Card.
Ext.A2 - Letter dtd.24/3/2010
Ext.A3 - Possession Certificate
Ext.A4 - Statement of Account
Ext.A5 - Invoices dtd. 4/7/2018
Ext.A6 - Bill dtd. 4/7/2018
Ext.A7 - Computerized weighbridge receipt
Ext.C1 - Expert Report
Ext.C2 - Commission Report
Ext.C3 - Commission Report & Mahazor
Ext.C4 series - Photographs
Evidence of the opposite parties:-
RW1 - Xavier Salu(witness)
Ext.B1 - Invoices dtd. 18/11/2021
Ext.B2 - Day Book (St.Francis Clay works)
Ext.B3 - Reminder dtd. 28/12/2019
MO1 - Roof tile.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
