Haryana

Yamunanagar

CC/661/2011

Paramjit Singh S/o Partap Singh - Complainant(s)

Versus

M/s Surya Tiles - Opp.Party(s)

Hitesh Gambhir

09 Mar 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                    Complaint No. 661  of 2011.

                                                                                    Date of institution: 17.6.2011.

                                                                                    Date of decision: 09.03.2016.

Paramjit Singh aged about 39 years son of Shri Partap Singh resident of Village Farakpur District Yamuna Nagar.    

                                                                                                                         …Complainant.

                                    Versus

1. M/S Surya Tiles, Surya Concrete, Surya Laminates, SCO No.59 ( Backside), Madhya Marg, Sector 26, Chandigarh.   
2. Shri Nitin Kumar, Sales Manager, M/s Surya Tiles, Concrete, Surya tiles/ Concrete Laminates SCO no. 59 (Backside), Madhya Marg, Sector 26, Chandigarh.
3. Rajiv Bhateja, Business Promoter of respondent No.1, SCo No.59 ( Backside), Madhya Marg, Sector 26, Chandigarh.
4. P.R. Sales, By-pass Chowk, Jagadhri Road, Yamuna Nagar, through Shri Punnu Ram alias Masterji.  

                                                                                                            …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.Hitresh Gambhir, Advocate, counsel for complainant.

              Respondents already ex-parte.  

 

ORDER

 

1.                     Complainant  Paramjit Singh filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to pay the amount of Rs. 1,60,500/- on account of expenses and cost of tiles incurred by the complainant and also to pay compensation as well as litigation expenses.    

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant was constructing his house No. 340-R, Model Town, Yamuna Nagar and he wanted to use tiles for front elevation of the said house. OPs No.2 & 3 are sales manager/ business promoter of Op No.1 Manufacturer and Op No.4 is distributor/ authorized dealer of OP No.1. When the house was under construction then the OPs No.2 & 4 contacted the complainant at his residence and he presented that the tiles of their company are of best quality, ever lasting in shape, shine, age and there would be no deformity or cracks etc. therein at any stage. On believing the representations of OPs No.2 & 4, the complainant purchased tiles from OP No.4 vide Bill No. 1972 dated 29.1.2011 for a sum of Rs. 49000/-. The complainant, as per instructions of the OPs, used the said tiles for front elevation of his house but few days, thereafter, the tiles started developing cracks and falling on the ground. The complainant contacted the OPs and OPs No.2 and 4 inspected the site of the complainant and assured to get necessary rectification done, but the OPs failed to do the same. Ultimately, the OPs refused to do any needful showing their inability. In this way, the OPs has defrauded the complainant by misrepresenting the facts. The experts have opined that the said tiles are inferior, sub standard and have manufacturing defect and the front elevation cannot be rectified in the present condition. The tiles are to be removed entirely, walls repaired and washed and new tiles of goods quality are required to be used. The complainant has suffered huge financial loss as well as mental agony, pain and suffering due to the deficient in service and unfair trade practice on the part of OPs, besides this, the condition of the front of his house has been deformed due to the fault of the OPs.  Lastly prayed for directing the OPs to make a payment of Rs. 49500/- as cost of tiles, Rs. 46000/- on account of labour shuttering etc. and Rs. 65,000/- for other labour charges for removal of tiles etc. and Rs. 1,00,000/- as compensation on account of mental agony and harassment etc. The complainant has served a legal notice on 20.5.2011 upon the OPs but all in vain. Hence, this complaint.

3.                     Summons were sent to the OPs No.1 to 4 through registered post on 29.6.2011 for the date of 16.8.2011 vide postal receipts No. A4807, A4808, A4805 and A4806 dated 29.06.2011 but none appeared on behalf of OPs No.1 to 4, hence they were proceeded ex-parte vide order dated 16.8.2011.

4.                     To prove his case, complainant  tendered into evidence his affidavit as Annexure CX and documents such as Photo copy of Bill No. 1972 dated 29.1.2011 amounting to Rs. 49000/- as Annexure C-1, Legal Notice dated 20.5.2011 as Annexure C-2, Postal receipts as Annexure C-3 to C-6, Architect report of Lamba & Associates as Annexure C-7 and Bill Annexure C-8, Copy of labour bill issued by Pappu Marble contractor as Annexure C-9, C-10 and C-11, Photographs of the building as Annexure C-12 to C-18 and closed his evidence.

5.                     We have heard the learned counsel for the complainant and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

6.                     The only plea of the complainant is that on the assurance of OPs No.2 & 4 that the tiles are of best quality, ever lasting in shape, shine, age and there would be no deformity and cracks etc. therein at any stage he purchased tiles for a sum of Rs.49000/- vide Bill No. 1972 dated 29.1.2011 but the things were otherwise as the said tiles started developing cracks and falling on the ground as the said tiles were inferior, sub standard and were having manufacturing defect and were falling and due to this the complainant has suffered huge financial loss on various accounts. Learned counsel for the complainant draw our attention towards the Architect Report dated 22.4.2011 (Annexure C-7) wherein the Architect Sanjeev Lamba mentioned that he visited the site on 3.4.2011 for supervision of elevation tiles work and found that the maximum quantity of elevation tiles develop cracks and number of elevation tiles are left their space. It has been further mentioned in the report that complainant used good cement, adhesive for fixing of elevation tiles and very skilled labour but maximum elevations tiles left their space. Learned counsel for the complainant further draw our attention towards bill issued by Papu Marble Contractor as Annexure C-9 to C-11 which are the charges of labour and also referred the photographs Annexure C-12 to C-18 in which tiles of elevations are missing from many places and lastly prayed for acceptance of complaint.

7.                     The Sub Divisional Engineer, Provincial Sub Division No.1, PWD ( B & R) Branch Yamuna Nagar was appointed as local commissioner vide order dated 14.1.2014 by our predecessor with the direction to visit the house of the complainant and to see the factual position of the tiles of the house of complainant and assess the complete  loss suffered by the complainant due to developing cracks in the tiles who submitted his report on 20.3.2014, which is reproduced here as under:-

            In the above mentioned subject & reference, it is submitted that the site was inspected by the undersigned on dated 19.03.2014 and the following observation are made.

1. There are cracks visible in few tiles.
2. Few tiles have fallen down.
3. The loss can’t be assessed because the tiles which developed cracks & which had fallen down are very few in numbers. The tiles fallen down from different places no adjacent tiles have fallen down (Approximately 6-8% area is effective).
4. The reason behind the cracking & falling down can be defect in manufacturing & upto some extent poor workmanship also. The size of the tile being small, require perfect workmanship for placement.
5. Presently the affected are is less can be repaired.

 8.                    After going through the above noted report of the independent Government Officer i.e. Sub Divisional Engineer, Provl. Sub Divn. No.1, PWD (B&R) Branch, Yamuna Nagar, we are of the considered view that complainant might have suffered some financial loss due to the cracks and falling down of the tiles from the front elevation of the house. The arguments advanced by the counsel for the complainant to the extent that complainant has suffered huge amount as mentioned in the complaint as well as bills Annexure C-9 to C-11 are not tenable as the Local Commissioner has specifically mentioned in his report that there was 6-8% area was approximately effected and it can be due to defect in manufacturing and up to some extent poor workmanship also  as size of the tiles being small require perfect workmanship for placement and further local commissioner was of the view that loss can’t be assessed because the tiles which developed cracks and which had fallen down are very few in numbers. So, this Forum is also not in a position to access the actual loss as no cogent evidence has been filed by the complainant and Bills of estimate of labour and charges Annexure C-9 to C-11 are not reflected true picture of expenses and loss.

9.                     Now, question remains that whether tiles in question sold by OP No.4, allegedly manufactured by OP No.1, was carrying any warranty or not and further whether tiles in question were manufactured by OP No.1 and there was any guarantee of cracks in the tiles? To decide these questions, we have minutely perused the copy of bill No. 1972 dated 29.1.2011 (Annexure C-1) issued by Op No.4 but we could not find anywhere mentioned in this bill that tiles in question were under any warranty/ guarantee of manufacturing defect, further, in the bill it has also nowhere been mentioned that tiles in question were manufactured by OP No.1. The complainant has totally failed to convince this Forum that from which document he has alleged that the OPs No.1 to 3 are related and responsible or liable to make the compensation on account of defective tiles. In the bill dated 29.1.2011 (Annexure C-1), it has simply been mentioned that 600 tiles at the rate of 50/- each tiles total amounting to Rs. 30,000/- has been sold by OP No.4 to the complainant but no brand or make has been mentioned in the bill and in the absence of any cogent evidence we are unable to hold that tiles in question were manufactured by OP No.1 i.e. M/s Suriya Tiles and the OPs No.1 to 3 are liable to make the payment. Further as the complainant has not filed any documentary evidence regarding warranty/guarantee, so, we are unable to held that the tiles in question were under the currency of warranty/guarantee. Moreover, the Local Commissioner has specifically mentioned in his report that approximately 6-8% area of the front elevation was effected due to the cracks and tiles were falling down. Further it has been opined that these defects can be due to manufacturing or up to some extent of poor workmanship as the size of the tiles being small, require perfect workmanship for placement, but the complainant has not filed any affidavit of the mason or any expert/qualified engineer under whose supervision the work of the tiles was carried out.

10.                   We have perused the photographs attached with this file as Annexure C-12 to C-18 from which it is evident that some tiles have been fallen down whereas most of the tiles are still in good condition. Counsel for the complainant draw out attention towards the report of Architect Lamba and Associates Annexure C-7 and bills Annexure C-8 to C-11 but from these bills it is nowhere proved that tiles in question were under warranty and there was no defect in the workmanship for placing the tiles in the front elevation. Although, the Local Commissioner i.e. Sub Divisional Engineer, PWD (B & R) Yamuna Nagar has pointed out that cracks and falling down can be due to manufacturing defect but in the absence of any lab report as required under section 13(1)( C) of the Consumer Protection Act, it cannot be said that there was any manufacturing defect in the tiles in question. No affidavit has been filed in support of the bills/estimate issued on different dates by unnamed person on the letter pad of Pappu Marble Contractor, Annexure C-9 to C-11. From the other angle also, if there was any manufacturing defect in the tiles then all the tiles might have been fallen down or cracked whereas as per the report of Local Commissioner only 6-8% area was effected.

11.                   Though in the present complaint, the OPs have neither appeared nor defended the case but it does not give any right to the complainant to take the benefit of this, as it is well settled law that the complainant is to stand on its own legs, without taking the weakness of the opposite parties.

12.                   So, in these circumstances noted above, we are of the considered view that in the absence of any cogent evidence regarding actual loss suffered by the complainant and further the tiles in question were under the currency of warranty and were manufactured by OP No.1 and further there was no negligence in the workmanship for placement of the tiles, we are unable to hold that there is any deficiency in service or unfair trade practice on the part of OPs.

13.                   Resultantly, we have no option except to dismiss the complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.  

Announced: 09.03.2016.

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

 

 

                                                                        (S.C.SHARMA    )

                                                                        MEMBER