SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed by the complainant U/s 12 of Consumer Protection Act 1986 seeking to get an order directing opposite parties to pay an amount of Rs.1,88,297/- for laying new tiles after removal of defective tiles, to pay Rs.1,00,000/- towards compensation for mental agony, to pay Rs.10,000/- towards cost of the proceedings of this case and to pay Rs.50,000/- towards compensation for travelling expenses.

            The nutshell of the complainant’s case is that the complainant is residing in Bangalore along with family.  For settling in native place ie. in Kannur he has constructed a house for residential purpose by availing loan from Karnataka Bank. For the purpose of finishing the flooring work the complainant and his wife went to the 1^st OP shop for purchasing floor tiles.  At that time the staff of 1^st OP has shown the marbonite tiles manufactured by the 2^nd OP.  They assured the complainant and his wife that they were defect free, quality tiles and it will last longer.  Attracted by the description of the tiles the complainant has purchased the marbonite floor tiles from OP No.1 by way of invoice dated 20/10/2018, V No.2116 for a total amount of Rs.1,46,390/-.  For laying the tiles the 1^st OP had arranged a worker and the complainant had entrusted the flooring work to that worker.  The total consideration for the work was fixed as Rs.22,000/- for 1,000 Sq.feet.

            After purchase of this tiles it was delivered after one month.  As there was a specific direction by the staff of the 1^st OP that the boxes containing the tiles must not be opened till the laying of the same the complainant and his wife kept the boxes safely. The tiles were laid by the workers in the 1^st floor 3 bedrooms one hall and balcony rooms and amount of Rs.22,000/- was paid towards the consideration of the work.  The complainant’s wife went to observe the work.  At that time the tiles were covered with dust and a kind of white powder.  When asked the workers replied her that it will be clear after cleaning of the tiles.  As the date of housewarming was fixed on 23/12/2018 the complainant came back to Kannur and house warming was done after finishing the remaining works.  As the complainant has to go back on 25/12/2018, they decided to do the final finishing of the tiles after three months.  There after the complainant came back in the month of March 2019.  After cleaning of the coating they noticed  a white line in the middle of the tiles.  When the bank official  came for inspection they also asked about that white line of the tiles.  The complainant who has built up a home with his hard earned money and by availing loan was completely depressed by that defect in the tiles.  He immediately contacted the 1^st OP and their staff came to visit the house of the complainant.  After inspection they informed that the defect in the tiles were manufacturing defects and they were not liable  for that.  They assured him that it will be informed to the 2^nd OP and the 2^nd OP will decide the action to be taken.  So the complainant also contacted the 2^nd OP.    As demanded by them the complainant sent the photographs of the defective tiles through whatsApp.  One C P Suresh, the staff of the 2^nd OP came to visit the house of the complainant in the month of June 2019.  After inspection of the defective tiles they admitted the manufacturing defect and stated that they will contact him after talking with the company.  After that the complainant contacted the OPs regularly for their reply.    After some negotiation they offered Rs.10,000/- as compensation towards settlement.  The complainant was not ready for that settlement.

The complainant demanded for the replacement of the tiles with the expenses. But the OPs were not ready for such settlement.  The acts of the OPs in supplying defective tiles amounts to deficiency of service  and unfair trade practice from their party.  Hence this complaint.

            After receiving notices, both OPs filed vakalath.  But OP No.1 has not filed version within the stipulated time.  Hence OP No.1 was declared as ex-parte.  OP No.2 filed their written version.  It is contended by OP No.2 that it is admitted that the OP No.1 is the authorized dealer of Ceramic tiles and OP No.2 is the manufacturer of floor and wall tiles.  Prism Johnson Ltd. Formerly H&R Johnson (India).  All the products of the OP No.2 are subjects to strict quality standard.  It is stated that the averment that the total amount of the tiles purchased from OP No.1 is Rs.1,46,390/- and OP No.1 had arranged the worker for laying the tiles and the total cost for the work was fixed to Rs.22,000/- for 1000Sq.ft.etc. are false and baseless and hence denied by this OP.  Further the averment that there was a specific direction by the staff of the OP No.1 that the boxes of tiles must not be opened till the laying is utter false.

Averment of the complaint that, “after the inspection the staff of the OP No.1 informed that the defect in the tiles are manufacturing defects and they were not liable for that, they assured him that it will be informed to the OP No.2 and the OP NO.2 will decide the action to be taken, after inspection Suresh C P the staff of the OP No.2 admitted the manufacturing defect and stated that they will contact him after talking with company after negotiation they offered Rs.10,000/-  as compensation towards settlement,  the complainant demanded for the replacement of the tiles with the expenses, after several telephone calls OP No.2 offered Rs.15,000/- as compensation towards settlement etc. are false and baseless.  It is submitted that the tiles manufactured by the prism Johnson Ltd. are of best quality which is No.1 in the field in its quality hence there will be no problems to the tiles as alleged in the complaint, if any problems are there it will be due to the negligence or ignorance from the side of the labourers who engaged by the complainant for laying the tiles.  If the labourers engaged were skilled in this field definitely there will be no chance or problems as averred by the complainant.  The problems if any may the caused due to the irresponsible act of the unskilled workers of the complainant.  The OPs are always prepared to replace the tiles even after opening the boxes if any problems noted but before laying if any problems are there. Customer had bought the materials in 16/07/2018 and the complaint launched after laying.  Therefore customer has complained after completing fixing the tiles on the floor by workmen engaged by complainant.  The bill reference in the complaint is V No.2116 dated 20/10/2018 for amount of Rs.1,46,390/-

Both designs selected by customer S&P Beinge and Chilly are designer tiles and customer should have complaint quality issues before laying as the reported complaint is visible for a naked eye and any tile layer will report such variations in colour or design at the time of laying as he will be  in a position to match designs while laying.  Therefore the tiles supplied did not have the reported complaints. It is only after laying and due to improper maintenance the complaint has happened as the complainant says that there was huge layer of dust and white powder accumulated on the surface of the laid tiles totally covering the entire surface.  It was very dirty also.  The complaint was made during July 2019 ie almost after 6 months of use.  The white patches on surface after cleaning noticed by complainant is only due to the fact that the white powder layer had thickened by indiscriminate use of either hard chemicals or joint fillers use by the unskilled layers.  Therefore the reported complaint is only due to laying problems.  There is no defieincy in service.  Hence prayed for the dismissal of complaint with compensatory cost.

            While the case is pending, complainant has taken steps to appoint an Advocate commissioner to inspect the site and to produce report.  The petition was allowed and Advocate Pramod K was appointed as Advocate Commissioner.  The advocate commissioner inspected the scheduled house after giving proper notices to complainant and the learned counsel of OPs and filed a detailed report with photographs.  2^nd OP filed objection to the commissioner report.

            At the evidence time complainant has filed his proof affidavit and has been examined as Pw1.  Sales order of OP No.1 dated 20/10/2018 was produced by the complainant and was marked as Ext.A1.  The Advocate commissioner’s report was marked as Ext.C1.  On behalf of OP No.2, Assistant Manager of OP No.2 has filed his proof affidavit and has been examined as Dw1.  Letter of authorization was marked as Ext.B1.   Both witness were subjected to c ross-examination for the rival party.

            After that the learned counsel for complainant filed their written argument note and OP No.2’s learned counsel placed oral argument.

            The question to be decided in this case are 1) Whether the tiles purchased by the complainant from OP No.1 and further OP No.2 is the manufacturer of the disputed tiles?               2)  Whether the tiles are having defects? 3) Whether there was any deficiency of service or unfair trade practice on the part of the OPs 1 and 2? 4)Whether the OPs 1 and 2 can be made liable to pay Rs.1,88,297/-  for laying new tiles after removal of defective tiles  and    5)  Whether OPs can be made liable to pay compensation and cost as mentioned in the complaint for deficiency on service and unfair trade practice.

            Through Ext.A1 complainant proved that the disputed tiles in this case were purchased by him from 1^st OP for the purpose of flooring work of his house worth Rs.1,46,390/- and the manufacturer of the tiles are 2^nd OP.

            Complainant’s allegation is that after laying the tiles purchased from OP No.1, by the workers provided by OP No.1, when it was cleaned, complainant notices a white line in the middle of the tiles and it was seen in all tiles.  Then he immediately informed the matter to the OP.  As per the instruction of OP No.1, he has contacted the 2^nd OP and their staff came to inspect the house of the complainant and admitted that the tiles are having manufacturing defects and after some negotiation, they agreed to pay Rs.10,000/- as compensation.  As the said amount was a meager amount, the complainant was not ready to settle for that amount and after several talks, they enhanced it to Rs.15,000/-.  According to complainant that also not enough to compensate the complainant.

            OP No.2 contended that the tiles manufactured by them are of best quality which is No.1 in the field in its quality hence there will be no problems to the tiles as alleged in the complaint.  It is also contended that if any problems are there it will be due to the negligence or ignorance from the side of the labourers who engaged by the complainant for laying the tiles.  According to OP No.2, if any problems developed it was due to poor workmanship and not due to the quality of tiles supplied by them.  OP further contended that they are always prepared to replace the tiles even after opening the boxes if any problems noted but before laying if any problems were noted.

            Here, the onus was upon the complainant to substantiate his allegation by producing cogent and convincing evidence.  In order to proving the allegation complainant has taken steps to appoint an Advocate commissioner to inspect the complainant’s disputed premises and to file report.  After giving notices to both parties counsel’s Commissioner inspected the site and prepared repot in their presence.

            Advocate commissioner has filed the detailed report with photos.  It is stated by the Advocate commissioner that

A white line with approximate width of 2cm exactly on the middle of the tiles which were laid at 3 bedroom, centre hall and two balconies. Apart from that there are white patches on some other part of two tiles in one bedroom, two tiles in the centre hall and two tiles at one of the balcony.  In one balcony there is white lines only in one of the tiles and there is no such white lines on the remaining tiles of the said balcony.  In the 2^nd bed room also there are white lines at the middle of the tiles on 20 tiles laid therein.  12 tiles laid at the balcony which is attached to the third bedroom.  40 tiles laid in the centre hall.  The white lines were seen exactly on the middle of all tiles laid and it appears like a long white line throughout over the flooring.  It looks shabby and ugly in appearance.  All the tiles laid on the 1^st floor is with brand name S&P Beige.  Wall tiles laid on the kitchen of the house to which there is no complaint or any marks on it.  The description of the wall tiles is S&P chilly white, and S&P brown which are different from the tiles laid on the 1^st floor.

            OP No.2 has filed objection Ext. C1. But OP No.2 neither set aside nor discard the Ext.C1 report by examining the Advocate commissioner.  Hence Ext.C1 can be taken as a genuine and reliable document.

            Thus from Ext.C1, commission report it is evident that in most of the tiles laid in the floor of complainant’s house, there are while line area seen and it looks shabby and ugly.  From the Ext.C1 report it is also evident that the tiles laid on the floor are with brand name S P Brige which means those are manufactured by OP No.2.  Through Ext.A1 it is evident that those items were purchased from 1^st OP.

            From Ext.C1 report complainant substantiated his allegation that the disputed floor tiles purchased from OP No.1 manufactured by OP No.2 are defective.  Advocate commissioner further stated that the executive and counsel appearing for OP No.2 informed that the white line seen over the tiles was due to the use of hard chemicals by the workers which is not recommended by the manufacturer.  But OP failed to substantiate the said contention through any evidence.  OP could have sent the sample of tiles to the appropriate laboratory for the purpose of testing. Thus, in the absence of any corroborative evidence it cannot be said that the white line seen over the tiles as explained by the Advocate Commissioner were developed due to use of hard chemicals by the workers.  Here, complainant alleged that the workers who laid the tiles were arranged by the 1^st OP. Since 1^st OP was ex-parte and not contested the case, we are constrained to believe the allegation of the complainant that the workers were arranged by the 1^st OP.  Moreover, it is pertinent to be noted that the commissioner reported that the wall tiles laid on the kitchen of the house to which there is no complaint or any mark on it.  It is also reported that though the wall tiles were manufacture by OP No.2, which are different from the tiles laid on the floor.  If the workers used hard chemical for cleaning there would have been white lines over the wall tiles also. Hence from the above said fact the OP’s contention about the use of hard chemicals by the workers cannot be believed.

            In view of the above discussion, we are of the view that the complainant has succeeded to substantiate his allegation that the tiles sold by OP No.1 to him,  manufactured by OP No.2 are of defective tiles.

            Here OP No.1 is the dealer of OP No.2 who sold the disputed tiles to the complainant.  Hence OP No.1 cannot wash off his hands after making a sale because the consumer is primarily concerned with the dealer from whom he buys the goods.  Hence both OPs are held liable for the grievance caused to the complainant.

            Here complainant claiming Rs.1,88,297/- to lay new tiles after removal of the defective tiles.  Without replacing the disputed tiles and assessing the expenses for laying new tiles, the amount claimed by complainant for the new tiles and its expenses cannot be allowed.

            In the result, complaint is allowed in part.  Opposite parties are directed to pay Rs.1,46,390/- to complainant.  Opposite parties are further directed to pay Rs.20,000/- as compensation and Rs.5,000/- as cost to the proceedings. Opposite parties 1 and 2  are jointly and severally liable to pay the awarded amount to complainant. Opposite parties shall pay the aforesaid amount within one month from the date of receipt of this order.  Failing which Rs.1,46,390/- carries interst @ 12% per annum from the date of order till realization.  Complainant is at liberty to file execution application against opposite parties for realization of the amount as per the provisions in Consumer Protection Act 2019.

Exts.

A1- Sales Order dated 20/10/2018

C1- Advocate commissioner report

Pw1-Complainant

B1- Letter of authorization

Dw1-Suresh C P -OP No.2

      Sd/                                                                                     Sd/                                                     Sd/

PRESIDENT                                                                  MEMBER                                             MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

                                                                            /Forward by order/

                                                                           Assistant Registrar