DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Monday the 29^th day of April 2024

CC.539/2013

Complainant

Shahul Hameed,

S/o. Late K.T. Mothi,

“Hazins”, Azhavattom, Mankavu,

Valayanad Amsom and Desom of

Kozhikode Taluk.

(By Adv. Sri. P.N. Sreenivasan, Sri. T.S. Sajith Kumar)

Opposite Parties

1.               Mr. Muhazin, Proprietor,

Tile Store, 5/654-B,

Jyothis Complex, Bye-pass,

Eranhipalam, Calicut - 673006

2.               Malva Mirage Ceramics Pvt. Ltd,

Gate No. 297/1-2, Sahajpur,

Industrial Area, Nandur Village,

Pune, Solarpur Road,

Tal Daund District, Pune - 412202

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 26/02/2013 the complainant purchased different types of vitrified tiles including “Mirage optic copper” (Regal) 600×600 – 4" from the opposite party in connection with the renovation of his residential building.Those tiles laid inside the residential building started developing complaints. Within a couple of months, coloured patches had appeared on the tiles at different places. Subsequently such patches had appeared on almost all the tiles and they are spreading also. Though the matter was informed to the opposite party several times, he had not done anything except saying that he would inspect the spot and do the needful.

3.  The tiles supplied by the opposite party were of inferior quality and that was the reason why coloured patches had formed on the tiles. Flooring looked shabby and ugly and needs to be changed. The complainant had spent more than Rs. 57,000/- towards value of goods, transportation charges and laying charges etc. He will have to spend Rs. 75,000/- for removing the existing floor and laying new tiles. Further, mental strain and agony were caused to him.
4. The complainant issued a lawyer notice to the opposite parties either to replace the defective tiles and /or compensate the loss and damages caused to him in view of the supply of inferior and defective goods by the opposite party. The opposite party sent a reply raising untenable contentions. The tiles were defective and suffered from manufacturing defect. Hence the complaint to direct the opposite party to replace the existing floor done and replace the same with good standard tiles of the choice of the complainant or pay an amount of Rs. 1,00,000/- as loss and damages caused to the complainant and also the cost of the proceedings.
5. The opposite party has resisted the complaint by filing written version wherein he has denied all the allegations and claims made against him in the complaint. The purchase of the vitrified tiles by the complainant from his shop is admitted. But the allegations that the tiles laid started developing complaints within a short period and that within a couple of months coloured patches had appeared on the tiles at different places and subsequently such patches had appeared on almost all the tiles and they are spreading  are totally false and hence denied. It is not correct to say that the opposite party was informed about the defects many a time. The allegation that the tiles supplied were of inferior quality having manufacturing defect is false and hence denied.
6. The complaint is bad for non-joinder of necessary parties since the manufacturer is not impleaded. The tiles supplied to the complainant were of high quality and totally free from defects. The complainant after laying the tiles and on hearing of the opinion of the others is not satisfied in the colour choice he had made at the time of purchasing. So he wants to get the tiles laid replaced with a different colour of his choice at the cost of the opposite party. No loss or damages was occasioned to the complainant due to any act of the opposite party.  None of the prayers is allowable. With the above contentions, the opposite party prays for dismissal of the complaint with costs.
7. On the basis of the contentions in the written version of the first opposite party regarding non-joinder of necessary parties, the manufacturer was impleaded as supplemental second opposite party as per order in IA No. 232/2015. But the supplemental opposite party remained ex-parte.
8. The points that arise for determination in this complaint are;

      1) Whether the tiles supplied to the complainant by the opposite parties were   defective?

    2) Whether there was any unfair trade practice or deficiency of service on   the part of the opposite parties,  as alleged?

                       3) Reliefs and costs.

9. Evidence consists of the oral evidence of PW1 and Exts A1 to A3 on the side of the complainant.  The contesting first opposite party did not adduce any evidence. Ext C1 was also marked.
10. Both sides remained absent and did not advance any arguments in spite of granting ample opportunity. 
11. Points 1 and 2 :    The complainant has approached this Commission with the allegation that the tiles supplied to him by the first opposite party were defective and there was neglect on their part to redress his grievance in this regard. On 26/03/2013 the complainant purchased Mirage Optic Copper (Regal) 600×600 - 4" tiles along with other models of tiles from the shop of the first opposite party paying a total sum of Rs. 53,792/-. The grievance of the complainant is that within a couple of months,  coloured patches had appeared on the tiles laid at different places and the entire floor looked shabby and ugly and needs to be changed. The complainant alleges that though this matter was reported to the seller, no positive action was taken to redress his grievance.
12. In order to substantiate his case, the complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the retail tax invoice dated 26/02/2013, Ext A2 is the copy of the lawyer notice dated 01/07/2013 and Ext A3  is the reply notice dated 24/07/2013.  Ext C1 is the report of the expert.
13. The second opposite party manufacturer did not turn up to file version. The contesting first opposite party has not adduced any evidence. Ext C1 is the report filed by the Assistant Executive Engineer, Buildings Subdivision, Calicut, after inspecting the  spot on 11/08/2016. It is reported in Ext C1 that the tiles in question are laid in the kitchen and prayer room in the ground floor of the residential building of the complainant. It is specifically reported in Ext C1 that white coloured patches and stain marks are seen here and there in the laid tiles. Thus, Ext C1 also supports the case of the complainant that the tiles are defective. The opposite parties have not filed any objection to Ext C1 or let in any evidence. There is no reason to discard or disbelieve Ext C1. The evidence of PW1 coupled with Ext C1 would prove that the Mirage optic copper (Regal) tiles supplied to the complainant were defective. The second opposite party by manufacturing such defective tiles and the first opposite party by selling the said tiles have indulged in unfair trade and business practice and deficiency of service. The act of the first opposite party in not addressing the concerns of the complainant over the tiles further constitutes deficiency of service.
14. PW1 has deposed that the floor of his house looks shabby and ugly and needs to be replaced with new tiles. Ext A1 shows that the price of the tiles in question is 39057.27+13.5%  vat . The complainant has stated that an amount of Rs. 75,000/- has to be spent for removing the existing flooring and laying new tiles. There is no contra evidence to disprove the claim of the complainant.  Undoubtedly, the complainant was put to gross inconvenience, mental agony and stress, for which, he is entitled to be compensated adequately.
15. The opposite parties are to be directed to replace the existing flooring done with the defective tiles supplied by the opposite parties and to replace the same with the tiles of the same description which shall be free from any defect or in the alternative, pay an amount of Rs. 75,000/- as cost of replacement of the tiles. Further the opposite parties are bound to pay a reasonable compensation to the complainant for the mental agony and inconvenience suffered.  Considering the entire facts and circumstances, we are of the view that a sum of Rs. 20,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable.
16. Point No. 3:- In the light of the finding on the above points, the complaint is disposed of as follows;

                 a)  CC.539/2013 is allowed.

b) The opposite parties are hereby directed to replace the existing flooring done with the defective tiles supplied by the opposite parties and to replace the same with new tiles of the same description which shall be free from any defect, or in the alternative, pay a sum of Rs. 75,000/- (Rupees seventy five thousand only) to the complainant towards cost of the such replacement. 

c) The opposite parties are directed to pay a sum of  Rs. 20,000/- (Rupees twenty thousand only) as compensation to the complainant for the mental agony and hardship suffered.

d) The opposite are directed to pay a sum of Rs. 5000/- (Rupees five thousand only) as cost of the proceedings to the complainant.

e)  The liability of the opposite parties shall be joint and several.

f)  The order shall be complied with within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this, the 29^th day of April, 2024.

Date of Filing: 25/11/2013.

                                         Sd/-                                                         Sd/-                                                    Sd/-

                                PRESIDENT                                              MEMBER                                         MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Retail tax invoice dated 26/02/2013.

Ext.A2 – Copy of the lawyer notice dated 01/07/2013.

Ext.A3 – Reply notice dated 24/07/2013.

Exhibits for the Opposite Party

Nil.

Commission Exhibits

Ext C1  - Expert Commission report.

Witnesses for the Complainant

PW1 -  Shahul Hameed, (Complainant)

                                              Sd/-                                                         Sd/-                                                  Sd/-

                                     PRESIDENT                                              MEMBER                                       MEMBER

True Copy,      

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                                                            Assistant Registrar.