Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                   2. The case of the complainant is stated as follows:  The complainant he who purchased “courtyard beautification designer MERMAID 01 RED ULTR 7 MERMAID 18-BLK ULTR CEMENT TILES” from 1^st opposite party, which was produced by the 2^nd opposite party.  The complainant paid an amount of Rs.73,200.69 on 20.11.2010 and Rs.23,107.41 on  02.12.2010 to 1^st opposite party respectively.  At the time of the purchase, the opposite parties assured the quality of colour, finish and strength of these goods to the complainant.  It is contended that the complainant purchased these tiles for the beautification of the courtyard of complainant’s house and the said tiles covered an area of 1500 sq.ft.  It is further contended that shortly after the completion of the work it found that both black and white colour of the tiles being washed away in rain and showed a tarnished look in the sunlight.  According to the complainant, this was happened due to the poor quality and standard of the product, which was supplied by opposite party 1 and 2. On 13.10.2011 the complainant send a demand notice to opposite party for paying a compensation of Rs.2,80,300/- for the loss etc.etc. sustained by the complainant.  The act of the opposite party is comes under the unfair trade practice as defined in C.P. Act.  Hence this complaint for realizing a sum of Rs.2,80,300/- from the opposite parties as compensation, cost, interest etc. etc.

         3. This Forum entertained the complaint and issued notice to opposite parties for their appearance.  Opposite parties 1 and 2 appeared and they filed separate version in this case.

                   4. The version of the 1^st opposite party is as follows:  According to the 1^st opposite party, this case is not maintainable either in law or on fact.  It is contended that the complainant filed this case before this Forum only to make undue profit and only for making troubles to the process of law.  It is further contended that when the opposite parties received the legal notice of the complainant, they approached the complainant and the complainant assured to them that he has no further complaint with regard to the tiles and the complainant does not need any relief from the opposite parties.  According to 1^st opposite party, there is no deficiency in service on their part and the goods supplied to the complainant are standard goods and all other allegations with regard to this issues are also denied.  Therefore, the 1^st opposite party requested to dismiss the complaint with cost to them.

                   5. The 2^nd opposite party also filed their version as follows:  According to them, the complaint is not maintainable either in law or on facts.  This opposite party admitted that the 1^st opposite party is the owner of the Cement Tiles viz. Ultra Tiles.  It is contended that this opposite party supplied good quality tiles to the complainant and denied all other allegation against the opposite party.  According to this opposite party, the changes of the colour of the tiles are natural because the tiles are lying in the courtyard and it would be faded by sunlight.  According to this opposite party, they are not liable to pay any monitory compensation to the complainant and they committed any deficiency as alleged by the complainant.

                   6. On the basis of the petition, versions and records before us, we framed the following issues:

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

                   7. In this case, this Forum dismissed this complaint on 31.07.2013 due to the continuous absence of the complainant before the Forum.  Aggrieved by this order the complainant filed an Appeal before the Hon’ble State Consumer Disputes Redressal Commission as Appeal No.355/14 and the Hon’ble State Commission allowed the Appeal and remanded this case before this Forum for a fresh disposal in accordance with law.  On the basis of this order on 30.09.2015 the complainant and his counsel appeared before this Forum and this Forum again taken this case for a fresh disposal as per the Order of the Hon’ble State Consumer Disputes Redressal Commission.  Even though, the Hon’ble State Commission Order is for the appearance of both sides, opposite party 1 and 2 did not appear before the Forum hence we issued notice to opposite party 1 and 2 on 16.10.2015.  The notice to opposite party 1 served on 12.11.2015 but opposite party 1 did not appear before the Forum hence opposite party 1 set exparte on 12.11.2015 and this Forum direct the complainant to take substitute steps against opposite party 2 by paper publication.  On 23.02.2016 the complainant produced paper publication and even on that date also opposite party 2 was called absent and again the case posted on 09.03.2016 for taking further steps against the opposite party 2.  On 09.03.2016 also the 2^nd opposite party was called absent and this Forum declared exparte against opposite party 2.  On 02.06.2016, the complainant filed a petition for amending the petition and the said petition is numbered as I.A.63/16.  We entertained this petition and issue notice to opposite party 1 and 2 for their appearance.  On 09.08.2016 the counsels of opposite party 1 and 2 appeared before Forum and sought time for settlement of this case in Adalath.  On 25.08.2016, the counsels who represented for the opposite parties submitted that they have no serious objection with regard to I.A.63/16.  Hence it is allowed.  On 09.11.2016, the complainant again filed an amendment petition, which is numbered as I.A.116/16 that also allowed, since there is no serious objection raised from the other side.  On 11.04.2016, the complainant was examined as PW1 and he filed a proof affidavit in his favour.  Though this Forum granted several posting to opposite parties for the cross-examination the opposite parties did not utilize that opportunity and on 04.01.2017 the learned counsel who is appearing for opposite party 2 filed a No objection memo for opposite party 2 before this Forum.  Even though, this Forum has given sufficient time to adduce opposite parties evidence, they did not turn up.  Therefore, on 23.01.2017 we heard the learned counsel who is appearing for the complainant and on that day this Forum suo-moto marked the paper publication, which was produced by the complainant on 23.02.2016 as Ext.C2.

                   8. In order to prove the case of the complainant, complainant he who filed a proof affidavit in lieu of his chief examination and he is examined as PW1.  Ext.A1 to A4 were marked in favour of the complainant.  Ext.A1 is the estimate dated 20.11.2010 for Rs.73,200.69/- issued by the 1^st opposite party to the complainant.  Ext.A2 is the invoice dated 02.12.2010 for Rs.23,107.41/- issued by the 1^st opposite party to the complainant.  Ext.A3 is the demand notice dated 13.10.2011 sent by the complainant to 1^st opposite party.  Ext.A4 series are the acknowledgment cards.  Even though the opposite parties filed versions as stated above, they did not adduce any oral evidence or any evidence on document before us.  As stated earlier, we have given sufficient time for the opposite parties to produce evidence on their side but they failed to do it.

                   9. Point No.1:- When we evaluate the evidence adduced by the parties in this case, it can be seen that the complainant he who purchased tiles from opposite parties for laying in his courtyard for the purpose of beautification.  It is also admitted that the complainant paid a total amount of Rs.96,308/- to opposite party 1 as the price of the goods.  On the basis of this evidence, it can be easily inferred that the complainant is a consumer of opposite parties and the opposite parties are service provider of the complainant.  Hence Point No.1 found in favour of the complainant. 

                   10. Point No.2 & 3:- For the sake of convenience, we would like to consider Point No.2 and 3 together.  When we examine the deposition of PW1 by way of proof affidavit, it can be seen that he purchased Cement Tiles from opposite party 1 by paying an amount of Rs.73,200.69 + Rs.23,107.41 = 96,308.10.  This fact can be proved by Ext.A1 and A2 bills.  It is deposed that the opposite party 1 has given assurance of the colour and quality of the tiles to PW1 at the time of purchase.  It is also deposed that the said tiles were delivered to complainant’s house at Peringanad by opposite party 1 and the complainant laid the said tiles in the courtyard for an extent of 1500 sq. ft.  The main case of the PW1 is that the colour of the tiles were faded as a result of the sunlight and rain.  As a result, the colour of the tiles were faded and it highly affected the total finishing and beauty or sight of the courtyard.  It is also proved that the complainant issued notice to opposite parties on 13.10.2011 and demanded a compensation of Rs.2,80,300/-.  It can be proved by Ext.A3 series.  It is also come out in evidence that the opposite parties received all these demand notice as per the acknowledgment produced by PW1.  This acknowledgment cards are marked as Ext.A4 series in this case.  In this case, a commissioner was appointed to ascertain the details with regard to the deficiency of the tiles and the commissioner filed commission report before this Forum.  The said commission report is marked as Ext.C1 in this case.  As per Ext.C1 report it is seen that the colour of the tiles were faded and few tiles were also seen broken.  According to the commissioner, the present position of the tiles highly affected the beauty or sight of the courtyard of the complainant.  It is true that the opposite parties in this case filed 2 separate versions to the effect that the tiles supplied to the complainant were in high quality and also stated that even though the colour was faded that was not at all a deficiency on the side of opposite parties.  According to the version of opposite party 2, the colour fading of the tiles are happening in a normal way and it is not at all a deficiency or defect of the tiles supplied.

                   11. Even though, the opposite party 1 and 2 filed version as above they did not cross-examine PW1 at the time of trial of this case.  Therefore, the evidence adduced by PW1 through proof affidavit and by Ext.A1 to A4 are unchallengeable as far as opposite party 1 and 2 are concerned.  It is to see that even though the complainant deposed that he had spent an amount of Rs.1,05,492/- for sand, cement, metal etc. no bill or any document were produced from his side to prove this aspect.  As such, we are not in a position to consider the actual price of the above said article, which were used for this construction.

                   12. As discussed earlier, the complainant in this case proved his case successfully and it is found that the opposite parties are liable to the complainant.  When we appreciate the evidence of this case, it is seen that the 1^st opposite party is the dealer of the 2^nd opposite party.  The product is manufactured by 2^nd opposite party. Therefore the opposite party 1 and 2 are jointly and severally liable to the complainant.  Hence we find that the complaint is allowable and Point No.2 and 3 are also found in favour of the complainant.

13. In the result, we pass the following orders:

1.  Opposite parties 1 and 2 are directed to refund the cost of the product  

     Rs.96,308/- + labour charge Rs.53,500/- = Rs.1,49,808/- (Rupees  

     One Lakh Forty Nine Thousand eight hundred and eight only) to the  

     complainant with 10% interest from the date of filing of this complaint 

     i.e., 09/04/2012.

2. The opposite parties 1 and 2 are also directed to pay a compensation of   

    Rs.15,000/- (Rupees Fifteen Thousand only) and a cost of Rs. 3,000/- 

    (Rupees Three Thousand only) to the complainant with 10% interest 

    from the date of order onwards.

    Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of January, 2017.

                                                                                           (Sd/-)

                                                                  P. Satheesh Chandran Nair,

                                                                                        (President)

Smt. Sheela Jacob (Member)                :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:  Rajan Samuel

Exhibits marked on the side of the complainant:

A1 :  Estimate dated 20.11.2010 for Rs.73,200.69/- issued by the 1^st opposite  

        party to the complainant. 

A2 :  Invoice dated 02.12.2010 for Rs.23,107.41/- issued by the 1^st opposite  

        party to the complainant. 

A3 :  Demand notice dated 13.10.2011 sent by the complainant to

        1^st opposite party. 

A4 series :  Acknowledgment cards.

Witness examined on the side of the opposite parties:  Nil

Exhibits marked on the side of the opposite parties:  Nil

Court Exhibits:

C1  :  Commission Report

C2  :  Paper Publication

                                                                                               (By Order)

Copy to:- (1) Rajan Samuel, Pulluvila House, Peringanadu,

                    Pathanamthitta Dist. – 691 552.

2. M/s. Ushus Associates, Dealers in Buildings Materials,

      UP VI/710, Salim Manzil, Ushus Complex,

                    Vadakkevila.P.O.,  Kollam.

3. Area Sales Manager, Ultra Tile Pvt. Ltd., A3, 1^st Floor,

     Future Centre, Van Ross Jn.,

     Thiruvananthapuram – 695 001.

4. Stock File.