By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
The first complainant constructed his house and for the roof tiling purpose he contacted second opposite party and from him, complainant came to know about the details of GAF.ELK,USA,Fibre Glass Shingles Roof Tiles, which is supplying by the first opposite party. The complainant thereafter made enquiry through the internet about the peculiarities of the products and came to know that it is a good quality product with 30 years warranty and made of USA. It is also come to know the first opposite party is the supplier of the products and thereby contacted the first opposite party for the roof tiles and purchased it on 19/05/2011. All the consideration for the tiles were made from the account of the first complainant. But during the supply of roof tiles the first complainant was abroad and so the bill was paid through the second complainant. The second complainant was taking care of tiling work since the complainant was abroad during the relevant period. The complainant was made believe that thereof tile of the first opposite party was with high quality and it is with 30 years guaranty. Only on believing the words of the first opposite party the complainant purchased the product. The complainant paid a total amount of Rs. 1,95,500/- to the first opposite party.
2. The complainants submit that; they used high quality materials for the construction and modification of house. The complainants purchased the high-quality product from the first opposite party with the same purpose. The opposite party unloaded the products at the site of the complainant’s house on 19/05/2011 and the bill amount was paid in the name of second complainant since the first complainant was not in the station at that time. The bill issued by the opposite party bear the endorsement wind resistance warranty, agely resistant, UL 790 ASTM- E 180 Class A, Fire resistant rating, 30 years warranty except force majeures. The work of the tiling was completed by the workers of the first opposite party before 1st July 2011. The housewarming also completed immediately.
3. Unfortunately within 3 years of occupation in the house, it started to fade the colour of roof tiles and also started to disintegrate sand coat from the tiles. The complainant immediately contacted second opposite party and second opposite party in turn contacted the first opposite party and agreed to replace the roof tiles. Thereafter second opposite party contacted the first opposite party several times, but the first opposite party did not heed to the request of the complainant and the second opposite party. Thereafter the second opposite party send email to the first opposite party and also informed the intention to proceed legally. But the first opposite party did not respond properly to the request of the complainant or the second opposite party. Due to the fading of colour of the roof tiles the appearance became shabby one. The complainant spends huge money for the construction of the dream house and also spend huge amount for fitting roof tiles, but at present the public making comments against the work of the complainant. The complainant submits, he is hailing from a decent family and due to the situation, he is suffering from mental agony. The complainant submits that the opposite party supplied duplicate tiles of lesser quality instead of collected cost for the original tiles. The complainant feels that he is required to replace the entire roof tiles and for which he requires at least 10 lakh rupees. Hence the complainant alleges deficiency in service and unfair trade practice against the opposite parties and seeking direction to pay compensation and cost to the complainant.
4. On admission of the complaint notice was issued to the opposite parties and on receipt of notice the opposite parties entered appearance and filed version.
5. The second opposite party entered appearance and represented that he is an unnecessary party in proceedings and there is no claim against him. The complaint also submitted before this Commission that he is not pressing any relief against the second opposite party. The complainant agreed to delete him from the complaint and deleted him from the complaint.
6. The first opposite party specifically denied the entire averments and allegations in the complaint and submitted his case as follows-
The case of the opposite party is that, the second opposite party approached the
first opposite party to purchase the product and no any sort of complaint was received by the first opposite party before filing this complaint either from the complainant or from the second opposite party. None of the parties produced any documents to establish the same. The first opposite party never talked with complainant about the roofing tile and no documents has been produced by the complainant to substantiate his contention. The opposite party submitted that the second opposite party, who is subsequently deleted, had contacted the American company GAF through Emails and realising the facts advised the complainant to visit website of GAF and stands produced documents to prove the same by the complainant itself. The first opposite party alleges that there is collusion between the complainant and second opposite party and insisted the second opposite party to be retained as party in the proceedings.
7. The opposite party deputed technician to verify the allegations of the complainant after filing this complaint before this Commission and it was noticed that there was solar panel fitted over the roof tiles. The movement towards the solar panel in a careless manner through the roof tiles caused some defects to the fibre glass shingles roofing tiles. The opposite party also content the complainant acted as per the instruction of second opposite party and thereby used certain chemical liquid for cleaning the roof tiles and that also caused for fading of tiles. So, the first opposite party is not at all liable for the acts done by the complainant in a negligent manner.
8. The first opposite party submitted that they are only distributors of GAF.ELK Company product fibre glass shingles roofing tiles and any difficulty caused to the complainant due to the use of the product of GAF.ELK Fibre glass shingles roofing tiles the responsibility rest with company and second opposite party. The submission of the opposite party is that GAF.ELK Company is not a party in the proceedings and so the complaint is defective for non-joinder of necessary parties. The first opposite party submitted that the second opposite party is also necessary party in the proceedings and the complaint is bound to proceed against second opposite party and GAF company for realisation of compensation for the financial loss and mental agony caused due to the utilisation of the product supplied by the first opposite party. The first opposite party submitted that they only supplied fibre glass shingle roofing tiles to the second opposite party at Calicut and the rest laying work and other things are all carried out by the second opposite party. The submission of the opposite party is that the entire transaction took place out of the territorial jurisdiction of the Commission and so this Commission have no jurisdiction to entertain the complaint. The prayer of the first opposite party is to dismiss the complaint with cost to the opposite party.
9. The complainant and the first opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext.A1 to A4. Ext.A1 is copy of quotation issued by the first opposite party New Tech International to the second opposite party dated 19/05/2011 for Rs.1,95,500/-, Ext.A2is copy of email communications to the first opposite party dated 10/10/2017,15/10/2010,27/11/2017, 19/10/2010,29/09/2010 (5 Pages), Ext. A3 is series of emails and photographs dated 28/09/2010,12/12/2017, Ext.A4 is Certificate issued by Federal Bank, Nilambur branch to show the transaction with the first opposite party. The opposite party did not file any document. The Advocate commissioner filed report and it is marked as Ext. C1.
10. Heard both sides, perused affidavits and documents. The following points arise for consideration: -
- Whether the complaint hit by jurisdiction?
- Whether there is deficiency in service on the part of opposite party?
- Whether the product is defective one?
- Relief and cost?
11.Point No.1
The first opposite party admitted that, he had supplied the alleged product to the second opposite party who is subsequently deleted by the complainant. The first opposite party denied that the product was supplied at the work site of the complainant. But the case of the complainant is that the product was supplied by the opposite party at the work site and the work also carried out by the workers of the first opposite party. The complainant also submitted that the first opposite party is the authorised dealer of the product of GAF.ELK, USA, Fibre Glass shingles roof tiles, which manufactured from USA and which has got 30 years warranty. The complainant produced Ext. A1 Quotation issued by the opposite party which shows the product namely UL 790/ASTM E 108 Class A Fire Resistance Rating 30 years warranty, except force majeure, for Rs. 1,95,500/-. It also bears description as supply and installation of GAF/ELK, USA, Fibre Glass Shingles roofing tiles. So, from the Ext. A1 it can be seen that the first opposite party is the dealer of the alleged product involved in the complaint and they are doing business of supply and installation of the same and the quotation was given to the second complainant, Mr.Kuttan. So, it will not be proper to hold that the first opposite party supplied the products to the second opposite party as contented by the first opposite party. The document reveals that the product was supplied by the first opposite party to the complainant and installed the same also. Hence part of the transaction took place within the jurisdiction of this Commission and so the question of jurisdiction does not arise, first point answered accordingly.
12.Point No.2 &3
The allegation of the complaint is that the product was offered thirty years warranty but within three years of lying, it was found to start fade the colour and it became shabby one. The complainant initiated to issue an Advocate Commissioner in the matter to report the defects of the tiles and the Commissioner filed report along with photographs and CD of the alleged tiling work. The Commissioner reported that the colour of the all tiles is almost same. The commissioner could not notice shining of the tiles. He has reported that the complainant said to him that there was shining over the tiles while it was laid, but it is fade now. The Commissioner reported that he is not able to report the shining condition of the tile at the time of laying the tiles and complainant failed to produce any piece of tiles which has got shining as contented by the complaint. The Commissioner also reported that the opposite party said that the complainant had washed the tiles using chemicals and as a result of the same fading occurred. But the Commissioner and the opposite party could not state what sort of chemicals was used for washing the tiles. The Commissioner also reported some sand powders at the waterfall area from the roof, but it is stated by the opposite party that it is usual one. The perusal of the report of the Commissioner make it appear that some sort of fading of colour is happened there, but it is not so grievous as alleged by the complainant. The opposite party filed objection on Commissioner’s report stating that the report cannot be accepted as such since the report contains the statements of the complainant as well as the opposite party. According to opposite party what is expected from the report of the commissioner is the exact picture of the visual experience at the spot. So, in short what can be inferred is that some colour fading is there and the entire replacement of the tile is not at all required one. It is also not established the product was defective one or second quality as alleged by the complainant. The submission of the complainant is that he spends huge amount for the construction of the house and also used quality materials as part of the construction work. He also submitted that on impression from the website of the roof tiles as suggested by the second opposite party, he spend substantial amount to purchase the disputed roof tiles from the first opposite party. From the experience of three years itself, he is dissatisfied with the quality of the product of roof tiles, thereby resulted mental agony and hardships to the complainant. The submission of the complaint is that the product has got 30 years warranty and even within three years colour being faded, he naturally apprehends the quality of the products. The complainant is the most suitable persons to state that roof tiling was with shining at the time of laying the same. He is not expected to keep one original piece to show anybody. There is no reason to disbelieve the version of the complainant. The Commissioner also reported that the opposite party alleges the reason for shading of the colour is the using of chemicals over the roof tiles. It is also stated that solar panel work is done over the roof tiles and passage to the same also be a reason for the fading of the shining of roof tiles. In fact, the version of the opposite party as well as the Commissioners report reveals that there is fading of the shining to a limited extend and the same might have resulted mental agony and hardship to the complainant. Hence, we find that the product was with defects and there is deficiency of service on the part of the first opposite party.
13.Point No.4: -
It is already found that the product of the first opposite party has got defects and that resulted fading of the product. Hence Commission holds that the complainant is entitled for a notional amount of compensation and the Commission fix the same as Rs. 50,000/-. The Commission also allows Rs. 5000/- as cost of proceedings.
14. In the light of the above circumstances, we allow the complaint as follows: -
- The first opposite party is directed to pay Rs. 50,000/- (Rupees Fifty thousand only) to the first complainant on account of defective product supplied to the complainant and thereby caused mental agony and hardships to the complainant.
- The first opposite party is directed to pay Rs. 5,000/- (Rupees Five thousand only) as cost of the proceedings to the first complainant.
The first opposite party shall comply this order within one month from the date ofreceipt of copy of this order, filing which, the opposite party is liable to pay interest at the rate of 9% per annum to the first complainant on the above said entire amount till realisation.
Dated this 24thday of September, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A5
Ext.A1 : Copy of quotation issued by the first opposite party New Tech International to
the second opposite party dated 19/05/2011 for Rs. 1,95,500/-.
Ext.A2 : Copy of email communications to the first opposite party dated 10/10/2017,
15/10/2010,27/11/2017, 19/10/2010,29/09/2010 (5 Pages).
Ext.A3 : Series of emails and photographs dated 28/09/2010,12/12/2017.
Ext.A4 : Certificate issued by Federal Bank , Nilambur branch to show the transaction
with the first opposite party.
Witness examined on the side of the opposite party :Nil
Documents marked on the side of the opposite party :Nil
Ext.C1 : Commission report.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
