DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 28^th day of  June 2024

[                                                                                             

                             Filed on: 15.06.2023

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member

Smt.Sreevidhia.T.N                                                                   Member

C C. No. 390/2023

COMPLAINANT

Anilkumar N.V., Nedukapilly House, Neericode P.O., Alangad, Ernakulam

683511

(Rep. by Adv. K.S. Arundas, 35, DD Oceano Mall, Near Taj Gateway, Marine Drive, Cochin 11)

Vs.

OPPOSITE PARTY

The Proprietor, New Eurocon Interlock Paving Tiles, Airport Road, Near Chalakka Bridge, N. Kuthiyathode, Ernakulam 683594.

(Rep. by Adv. John Joseph, Sabir N.S., Thayil Buildings, Opp. Specialists’

Hospital, KCM Mather Road, Ernakulam North, Kochi 682018)

F I N A L    O  R  D  E  R

Sreevidhia T.N., Member

1. A brief statement of facts of this complaint is as stated below:

The complainant had purchased 940 number of paving tiles from the shop of the opposite party on 19.12.2022.  The complainant paid Rs.22,385/- towards the price of the said product.  At the time of purchasing the product the opposite party assured that tiles are good quality and further informed that the said tiles are manufactured him only.  The complainant had purchased the said product based on the assurance given by the opposite party about the quality of the tiles.  As such, the complainant entrusted the paving work with some local skilled labors, who are having expertise in paving tiles.  As per their advice, the complainant has purchased 300 more tiles from the opposite party on 07.03.2023, since the previously purchased tiles were insufficient in number to cover his entire courtyard.  The complainant paid Rs.12,250/- for this purchase using the online payment option.

Later, while trying to fix the tiles by the said skilled workers, most of the tiles were damaged due to its poor quality or because of its manufacturing defects.  So the same was informed to the opposite party on 08.03.2023.  But there was no response from the part of the opposite party to replace the said tiles.  The above mentioned acts of the opposite parties are unfair trade practices and deficiencies in service.  Selling of inferior quality products and denying after sale service is a deficiency in service and unfair trade practice.  The complainant paid Rs.25,000 for paving the tiles to workers as advance.  The complainant and the workers noticed the poor quality of tiles at the time of fixing the same.  So the entire amount paid by the complainant becomes like a line drawn on water.  The complaint issued a legal notice to the opposite parties on 09.05.2023, stating all these matters.  The opposite parties received the said notice on 16.05.2023 but the complainant has not received any reply till date. The complainant faced much mental agony and financial loss.  So the opposite party is liable to pay an amount of Rs.50,000/- towards compensation for the same.

2. Notice

Notice was issued to the opposite party from this Commission on 13.07.2023.  Notice sent to the opposite parties seen served on 19.07.2023.  Opposite party appeared filed vakkalath and version on 18.11.2023.  Opposite party not filed version within the statutory period. Hence opposite party is set as ex-parte.

3. Evidence.

Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence filed by the complainant which were marked as Exbt.A1 to A4.

Complainant had filed I.A No.1134/2023 to appoint an Expert Commission to inspect the tiles which are paved in the courtyard of the residence of the complainant, purchased from the shop of the opposite party.  I.A1134/2023 allowed. Sri.Antony K.A. Lecturer in Civil Engineer appointed as Expert Commission and the Expert Commissioner filed its report and it is marked as ‘C1’.

Heard.

4. The points taken for consideration in this case are as follows:

1. Is there any consumer relationship between the complainant and the opposite party?
2. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?

3. If so, reliefs and costs?

5. Point Nos. (1) (2) and (3)

For the sake of convenience we have considered point Nos.(1) (2) and (3) together.

          The case of the complainant is that while trying to fix the tiles by the workers, most of the tiles were damaged.  The complainant states that it is because of the poor quality of the tiles or because of the manufacturing defect of the tiles the tiles were damaged.

Exbt.A1 is a copy of the bank transaction statement dated 19.12.2022.  The complainant had paid Rs.22385/- (Rupees Two Thousand Three hundred and eighty five only) to one Jaffer Ibrahim.

Exbt.A2 is a copy of the bill issued by the opposite party to the complainant.

Exbt.A3 is a copy of the bank transaction statement dated 07.03.2023.  The complainant states that since the previously purchased tiles were in sufficient in number to cover the entire courtyard he had purchased tiles worth Rs.12,250/- also.  When trying to fix the tiles by the workers the tiles were damaged due to its poor quality.  The complainant had informed this matter to the opposite party but there was no response from the opposite party.  The complainant had also issued a legal notice to the opposite party on 09.05.2023.  The lawyer notice sent to the opposite party is marked as Exbt.A4.

          The complainant had also filed an application to inspect the quality of the tiles.  The Expert Commissioner filed the report that

1. The front yard of the complainant’s house is paved with cement concrete paving tiles of size 300 mm x 150 mm x50mm with adequate 50 mm thick base cushion made up of 6 mm size stone aggregate.
2. The tiles have got acute angularity at corners and variation in thickness throughout its length. This is a manufacturing defect.
3. The tiles are manufactured with coarse aggregate (grading 12.5 mm,  10 mm,  6 mm) fine aggregate grading (4.75 mm, 2.36 mm, 1.18 mm, 600 micron, 300 micron clay content) and ordinary Portland  cement.  The excessive clay content in fine    aggregate and in adequate curing are the factors lead to the inferior quality of tiles.
4. Out of 1470 tiles 1320 tiles were damaged at corners due to the poor quality and manufacturing defect of the tiles.

The Expert Commissioner also ascertained that the total expenses required for replacing the existing defective tiles with new one with good quality tiles in the courtyard of the complainant as Rs.78,500/-.  The Expert Commissioner also filed the report along with some photographs.  The photographs reveal that the corners of most of the tiles are damaged.

The Expert Commissioner clearly reported that the tiles purchased by the complainant from the opposite party are having manufacturing defects.  As per the Expert Commissioner’s report the complainant had sustained a loss of Rs.78,500/- towards the total expense required for replacing the existing defective tiles.

The complainant had paid 34635/- to one Jaffer Ibrahim as evident from Exbt.A1 and A3.  The complainant states in his complaint that at the time of purchasing the said product the opposite party had assured that the tiles are manufactured by the opposite party himself.  The complainant also states that there is deficiency in service from the part of the opposite party or some defects in the tiles purchased by the complainant from the opposite party.  The complainant affirms in his proof affidavit that Exbt.A2 is a bill issued by the opposite party for Rs.22,385/-.  Exbt.A4 is a copy of the legal notice sent to the opposite party.  The complainant states that the opposite party has not given any reply to the lawyer notice sent by the complainant.  The addressed cover/acknowledgment card of the legal notice is not produced here.  Hence the Commission cannot assume whether the legal notice is served or refused by the opposite party. Exbt.’C1’ is the Commission report filed by the Expert Commissioner.  The Expert Commissioner clearly reported that the tiles are                                                                                                                                  having manufacturing defects. The Expert Commissioner also noted that the tiles were of having poor quality.  The Expert Commissioner also ascertained that the complainant had to spent Rs.78500/- for curing the defects of the paving of tiles with new good quality paving tiles.  Eventhough the Expert Commissioner clearly mentioned that the tiles are having manufacturing defects, the complainant has not produced any evidence to prove that the opposite party is the dealer and manufacturer of the product.

When notice was issued from this Commission, the opposite party accepted notice on 17.07.2023 and filed vakalath.  The vakalath of the opposite party is executed by one Jaffer, Proprietor of New Eurocom Paving Tiles.  The complainant had paid Rs.34635/- to one Jaffer Ibrahim.  Since the vakkalath is filed by Jaffer, (Proprietor of the opposite party) and since a consideration of Rs.34,635/- was paid to Jaffer Ibrahim we assume that there is a consumer relationship between the complainant and the opposite party.

After filing vakalath by opposite party, the matter was referred for mediation, but matter not settled.  Opposite party field version on 18.11.2023 statutory time to file the version of the opposite party expired on 16.08.2023.  opposite party filed their version only on 18.11.2023 and hence the version of the opposite party is not accepted by the Commission.

Based on the above observations made by the Commission the issue Nos. (1) (2) and (3) are found in favour of the complainant.

The complainant has sought the following reliefs in his complaint.

1. To direct the opposite party to return an amount of Rs.34635/- to the complainant towards the price of the tiles with 18% interest till realization.
2. To pay Rs.25000/- which is spend by the complainant for paving the tiles over his courtyard.
3. To pay Rs.25000/- as cost of the proceedings.

The complainant has also stated in his complaint that the opposie party is liable to pay an amount of Rs.50000/- towards compensation for the deficiency in service from their part.

The complainant has not produced any evidence to prove that he had spent Rs.25000/- towards the paving of tiles.  The complainant states that the Exbt.A2 is the bill issued by the opposite party.  We have perused the Exbt.A2 bill.  Manufacturer’s or dealer’s name is not evident form Exbt.A2 bill.  The complainant has not produced any evidence to prove that the opposite party are the manufacturers of the tiles.  The Consumer Protection Act 2019 confirms about the product liability which means the responsibility of a product manufacturer or product seller of any product or service to compensate for any harm caused to the complainant for such defective products manufactured or sold by the deficiency of service thereon.

The complainant states that the tiles are purchased from the opposite party on 19.12.2019.  The Expert Commissioner reported that the tiles are having manufacturing defects.  The manufacturers/sellers are liable to compensate the complainant for the manufacturing defects of the  product purchased by the complainant.  Hence we limit the compensation to the tune of Rs.20000/-.  The complainant is also entitled to get cost of the proceedings from the opposite party.  We fix the cost of proceedings as Rs.10000/-.

The complaint is partly allowed and the following orders are hereby passed.

1. The opposite party shall refund Rs.34,635/- (Rupees Thirty four thousand and six hundred and thirty five only) to the complainant for the deficiency in service  and unfair trade practice from their part in selling the poor quality tiles to the complainant, as report by the Expert Commissioner in ‘C1’ report.
2. The opposite party shall also pay the complainant Rs.20,000/- (Rupees twenty thousand only) as compensation.
3. The opposite party shall also pay the complainant Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings.

The above order shall be complied with by the opposite party within 45 days from the date of acceptance of a copy of this order. If the order is not complied within 45 days the amount ordered (1) above shall attract interest at the rate of 9 % from annum from the date of order till the date of realization.

Pronounced in the open commission on 28^th day of June  2024

Sd/-

                                                                                    Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

Sd/-

                                                                                    V.Ramachandran, Member

                                                                                                Forwarded by Order

                                                                                                Assistant Registrar

APPENDIX

Complainant’s evidence

Exbt.A1 is a copy of the bank transaction statement dated 19.12.2022. 

Exbt.A2 is a copy of the bill issued by the opposite party to the complainant.

Exbt.A3 is a copy of the bank transaction statement dated 07.03.2023.  The Exbt.A4.-lawyer notice sent to the opposite party

Opposite party’s evidence :  nil

Exbt.C1  - Commission Report

Date of dispatch         ::

By Hand  ::                 By Post