This case is coming for final hearing on 03.09.2014 in the presence of Sri E.Srinivasa Rao Advocate for the Complainants and of Sri K.R.K.Ganapathi Advocate for Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.     The brief facts of the Complaint are that the 1^st & 2^nd Complainants are the brothers and the owners of the building and they are intended to construct new building for which they required Ceramic Tiles.  The 1^st Complainant purchased tiles on 31.10.2011 and the product name 197 size in 80 boxes and rate per unit is 205.24 amount of Rs.16,419/- and another product name 1104 size for 110 boxes and rate per unit 205.24 amount of Rs.22,576/-, total amount of Rs.44,650/- under Invoice No.VIZ/610.  The 2^nd Complainant also purchased product 197 size in 200 boxes rate per unit 205.24 amount of Rs.41,048/- and product name quartzo ivory size  30 boxes rate per unit Rs.9,432.30p.s.  The total bill amount is Rs.57,800/- under Invoice No.609 date 31.10.2011.  The Complainant stated that out of said models Quartzo Ivory 30 boxes and 1104 (S) 100 boxes fixed in the bath rooms as well as in kitchens belonging to the Complainants building respectively.  The Opposite party assured that those are good quality and gave assurance that the tiles are very much apt to use in the kitchens as well as bath rooms and the complainants fixed the tiles in the kitchen as well as bath rooms and after fixing the entire tiles they found that the tiles are not in good quality and colour of the tiles are differed from each tile to tile which look very awkward.  The same was informed to the Opposite party and they visited the Complainants’ house, examined and assured that those tiles will be replaced and the Opposite party also took photographs of those tiles.  On 30.11.2011 the Complainant assured by the Opposite party that they will send good quality of tiles in similar model 1104 and quartzo ivory 110 & 197 total worth of Rs.28,275/- while the boxes relating to the same model opened by the workman and the same quality of the tiles are there which are sent earlier on 31.10.2011 are appear in the boxes.  Then, the Complainants approached the Opposite party and requested them to take back the tiles purchased on 30.11.2011 and demanded the Opposite party to replace the earlier tiles.  But the Opposite party is postponing the issue without assigning any reason and they did not take back the goods purchased on 30.11.2011, for these tiles the Complainants did not pay the amount as those are sub-standard quality of tiles and also with manufacturing defects.  The Complainants stated that they spent huge amount nearly Rs.50,000/- to fix the tiles in the kitchen as well as in the bath rooms.  Because of the acts of the Opposite party, the Complainants suffered financial hardship and mental agony.  Hence, this complaint to direct the Opposite party;

a)     to replace the tiles which are fixed in kitchen and bathroom with good quality of tiles or to replace the amount of Rs.22,576/- to the 1^st Complainant and Rs.9,432/- to the 2^nd complainant along with 18% p.a interest.

b)     the Opposite party should take back the tile boxes, consignment dated 30.11.2011 under Invoice No.700 which are unused by the Complainant.

c)     to pay Rs.50,000/- towards damages as they spent towards charges for the workman.

d)     to pay Rs.10,000/- towards compensation besides costs.

2.     On the other hand, the Opposite party filed its counter and denied the allegations mentioned in the Complaint and pleaded that the father of the Complainant is a builder having built two group houses in the name of two sons who are Complainants herein, hence they purchased two number of boxes and had sold away the flats to 3^rd parties and as such the Complainants are not consumers under the Consumer Protection Act, hence, the Complaint is not maintainable.  The other plea of the Opposite party is that the Complainant is not maintainable because of mis-joinder and non-joinder of necessary parties for redressal or adjudication of deficiency in service.  The Opposite party stated that it is only an intermediary trader of the product and it is not manufacturer of the subject products.  The address of this Opposite party is given as M/s Aparna Enterprises represented by its Manager situated at Door No.49-11-20, Lalithanagar, Sankarmattam Road, Visakhapatnam while the bills on which the Complainant’s are relying does contain the address of this Opposite party at Shop No.1, Crystal Commercial Complex, Srinagar, Ramatalkies Road, Visakhapatnam.  The Opposite party stated that the Complainant verified the quality and condition of the tiles before purchase of the same and after satisfying themselves, they purchased the products and they laid down all the tiles if at all they find the tiles are defective in the colour, appearance or make, they should not have laid the same and insisted for either exchange or refund of money which could have been considered by this Opposite party after examining the facts as then, the Opposite party would be in a position to return the same to the manufacturer.  But the Complainant’s after getting laid the tiles now complaining the defects in the tiles without adding the manufacturer as party.  If at all the Complainant finds that the tiles are defective at the time of laying itself, the Complainant would not have ordered for another round of tiles after one month i.e., 30.11.2011 covered by Invoice No.VIZ/700, for this the Complainant neither paid any amount for the same nor returned the goods purchased till date.  The Opposite party stated that there is a condition in the broacher and catalogue “There may be difference in the colours due to firing variations, that size, shade variation is an inherent property of all ceramic/vitrified tiles and cannot be construed as manufacturing defect and that it is advised to see the dry run of the tiles before fixing the tiles and that no claims whatsoever are entertained after fixing of the tiles as per international norms”.  Hence, neither deficiency in service nor un fair trade practice on the part of the Opposite party and it is the Complainant’s fault and mistake, hence the complaint is to be dismissed.

3.     At the time of enquiry, the Complainant filed evidence affidavit, along with documents which are marked as Exhibits A1 to A4.  On the other hand, the Opposite party filed its counter and evidence affidavit, no documents are marked on behalf of the Opposite party.  No written arguments filed by both sides.  Heard both the counsels who reiterated their versions. 

4.     The fact that the 1^st Complainant B. Ravichandra purchased tiles from the Opposite party on 31.10.2011 for total amount of Rs.44,650/- is not in dispute under two produce names one is 197 and another one is 1104(small) as per Ex.A1.  The 2^nd Complainant i.e., B.K.Chaitanya purchased two items on 31.10.2011 for an amount of Rs.57,800/- as per Ex.A2 is also not in dispute.  The version of the Complainant is that in Ex.A.1 the 2^nd produce under 1104 which was purchased by him for an amount of Rs.22,576/- and as per Ex.A2, the 2^nd item i.e., Quartzo Ivory purchased by 2^nd complainant for an amount of Rs.9,432/- are defective ones.  Those tiles were fixed on bathrooms and kitchen of the Complainants and after that they came to know that the tiles are not in good quality and the colours of the tiles are differ from each tile to tile and the same was informed to the opposite party, but they did not respond.  Ex.A3 is the 9 photographs filed by the Complainant regarding the appearance of the tiles which were laid down in bath rooms and kitchens.  Ex.A4 is the CD showing the appearance of tiles.  5.   The version of the Opposite party is that the Complainants’ father is a builder and he constructed two group houses in the name of the Complainants, hence Complainants are not consumers as they sold away the plots to 3^rd parties.  But this plea of the Opposite party is not substantiated by filing any documentary evidence, hence the Forum is of the view that the Complainants are consumers and come under Consumer Protection Act.

6.     The second plea of the Opposite party is maintainability regarding the mis-joinder and non-joinder of necessary parties.  The Opposite party pleaded that he is not a manufacturer and it is only intermediary trader of the products.  But being a dealer, the Opposite party is liable about the quality and quantity of the products what they are selling to the customers and with a fond faith, the customers used to approach the dealers and purchase the products.  Hence, it is a bounden duty of each and every dealer to sell good and quality products to the customers.  The Opposite party took another plea in its counter regarding the address of the Opposite party. The address given by the Complainant in the complaint and in Ex.A1 and Ex.A2 i.e., the bills issued by the Opposite party are differ but the Opposite party admitted about the purchase of tiles by both the Complainants on 30.11.2011 in its counter, hence the Opposite party itself issued the bills where the Complainants purchased the tiles.  The Opposite party’s another plea is that the Complainants have to observe before purchasing the tiles, if there is any defect in them, how he laid down the tiles in the bath rooms and kitchens.  But the version of the complainants’ counsel regarding this point is that the tiles which are laid down, within two months the colour was faded away and slowly the black spots are forming in the tiles which clearly show the manufacturing defect of those tiles and it cannot appear at the time of fixing.  In our view even though defects are not appeared before fixing or laid down the tiles, within two months, the tiles faded away and black spots appeared, hence it is because of the low quality of material tiles. 

7.     The Complainant agreed about the 2^nd consignment on 30.11.2011 to the Opposite party ordering three items for an amount of Rs.28,275/- as per Ex.A5 is not denied by the Opposite party, but argued that the complainants ordered again after one month of the 1^st consignment, if the complainants finds that the 1^st consignment tiles were defective why the 2^nd order was issued by the Complainants.  Moreover, the Complainants neither paid any amount nor return the tiles to the Opposite party and the same was agreed by the Complainants in their complaint and also regarding take back of the tiles purchased on 30.11.2011.  There is one month difference between the 1^st consignment and the 2^nd consignment may be immediately after the receipt of tiles on 1^st consignment, the Complainants not laid down the tiles, hence, the 2^nd consignment was released by the Complainant.

8.     The Forum watched the CD in the system which is filed by the Complainants under Ex.A4 and came to know that the tiles fixed by the Opposite party are defective ones and we find that the colour of the tiles were faded and black spots are there, may be at the time of fixing of the tiles they were in good condition, but within three months from the date of purchase the tiles colour was faded away with some sort of black spots they looking awkward. 

9.     The Opposite party failed to prove that the Complainants not constructed the flats for their own use but for commercial purpose and the complainants sold away the built up flats to 3^rd parties.  However, the Complainants purchased tiles in the month of 31.10.2011 and the Complainants filed the complaint in January, 2012 i.e., on 24.01.2012 i.e., within three months from the date of purchase of tiles.  If the Complainants approached the Forum after one year or other, there will be doubt about the usage of tiles and all, but here in this case, the Complainants approached regarding the defective tiles within three months and requested the Opposite party either to rectify or replace the defective tiles, but they failed to do so.  The plea of the Opposite party regarding the non issuance of any legal notice by the Complainants, the Complainants stated that they approached several times to decide the matter, but the Opposite party is postponing the issue.  Hence, in our view, as the Complainants approached the Forum within three months from the date of purchase and as per the documents filed by the Complainant, we came to conclusion that the tiles were defective ones which are already laid in the bathrooms and kitchens of the Complainants.  Hence, the amount paid by both the Complainants, should refund by the Opposite party with 9% interest from the date of complaint which would be just and proper. 

10.    After spending so much amount, also because of defective tiles the newly constructed house was not appear well and good and causes mental agony and financial hardship to the Complainants.  Hence, compensation of Rs.5,000/- to both the Complainants is awarded and another claim regarding the damages of Rs.50,000/- towards charges of workmen, in our view the Complainants not proved this plea by filing any documents regarding how much amount the workmen charged what is the square feet of the area and where the tiles were laid down etc., hence the Forum not consider this relief. 

11.    Accordingly, this point is answered holding that the Opposite party is liable to pay Rs.22,576/- to the 1^st complainant and Rs.9,432/- to the 2^nd Complainant along with 9% p.a interest from the date of complaint besides compensation and costs. The tiles which are with the Complainants under consignment No.VIZ/700 i.e., Ex.A5 those articles have to return to the Opposite party by the Complainants within one month and should obtaining acknowledgment from the Opposite party.

12.    In the result, the Complaint is allowed directing the Opposite party to pay Rs.22,576/- to the 1^st Complainants and Rs.9,432/- to the 2^nd Complainant along with 9% p.a. interest from 24.01.2012 within three months, failing which to pay the same with 12% p.a. from the date of complaint i.e., 24.01.2012 till the date of realization.  The Opposite party is further directed to pay Rs.5,000/- towards compensation besides costs of Rs.2,000/-.  The Complainants are also directed to hand over tiles which are with the Complainants under Invoice No.VIZ/700 dated 30.11.2011 within one month and obtain acknowledgment from the Opposite party.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 19^th day of September, 2014.

   Sd/-                                                                 Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                        Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party: NIL

   Sd/-                                                                 Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                Visakhapatnam

//VSSKL//