BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Col. Arvind Singh S/o Lt. Col. Gurdev Singh, R/O A-1-36, First Floor DLF Valley, Amravati, Panchkula.

                                                        ….Complainant

Versus

1.     Nexion International Pvt. Ltd. 1104, Shapath V, S.G.Road,         Ahmedabad, Gujarat-380015 through its authorized representative.

2.     Ram Chander & Sons, SCO No.16, Sector-11, Panchkula, Haryana-    134112 through its authorized representative.

                                                                                     ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member

                        Dr. Suman Singh, Member

For the Parties:   Smt. Kanwaljeet Kaur, Authorised representative of the complainant.

                        Sh. Vineet Sehgal, Advocate for OP No.1 alongwith Sh. Jatinder Singh(Punjab Head).

                        OP No.2 ex-parte vide order dated 22.07.2021.      

                                        ORDER

(Satpal, President)

1.             The brief facts, as alleged, in the present complaint, are, that the complainant had purchased 123 boxes/246 tiles measuring 60cms x 120 cms @175 per sq. ft.(including GST), manufactured by opposite party no.1(hereinafter referred to as OP No.1), from the opposite party no.2(herein after referred to as OP  No.2), who was the authorized dealer of OP No.1(manufacturer); the said tiles were purchased on different dates  starting from March 2018 to July 2018; the bills  were issued in the name of the complainant but the same had got misplaced during the renovation of his flat. It is stated that the officials of OP No.1 had admitted, vide emails and whatsapp, the purchase of the tiles by the complainant from the OP No.2. It is averred that the rate of white marble of good quality as available in the market was @100 per sq.ft., whereas the complainant had bought the tiles @175 per sq.ft. from the OP No.2. It is stated that the salesman as well as company’s website had claimed that the tiles were of superior quality as well as having high level scratch and strain resistance. The complainant had bought four additional boxes in June 2019 for damage replacement. It is stated that the tiles were fixed with due care and with protection sheet  but after a few weeks, the tiles had started deteriorating, while getting subtle marks and scratches all over it, despite the fact that the complainant used the best tiles cleaning liquid/material. It is stated that the oral and written complaints were made to the dealer i.e. OP No.2 to check and replace the tiles but to no avail. The complaint was also lodged with OP No.1 to take necessary action with regard to the deteriorating tiles. The OP No.1 sent a representative to inspect the tiles on 30.09.2019 with some polishing machine but the condition of the tiles remained the same despite polishing and rubbing. Thereafter, the technical person/expert from Surat was deputed by OP No.1 on 09.11.2019, who acknowledged and clearly stated in his report that there was porosity in tiles, which was visible with reflection of 45 degree in whole tiles area. The said technical person also told that the similar case had happened in Delhi. The said expert had also stated that there were very small porous in the tiles. It is stated that the OP No.1 was informed that the mark of liquid spill over all the tiles were clearly visible. Sh. Varun on behalf of the OP No.1, had offered 20 boxes of tiles but the offer was declined and similarly, the offer made by Sh. Jatinder Singh, who was Punjab Zonal Head, for the payment of Rs.50,000/- as goodwill gesture was declined by the complainant. It is stated that the OP No.1 had sold the said tiles of sub-standard quality to the complainant through OP No.2, which has caused huge financial loss as well as immense mental agony and harassment. Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, the OP No.1 appeared through counsel and filed written statement mentioning therein that the OP No.1 is involved in the manufacturing of World Class Tiles by adopting latest techniques and best machinery. It is stated that the same very lot of tiles, against which the present frivolous complaint has been filed by the complainant, was supplied to 43 dealers vide different invoices starting from 0.03.2018 to 06.08.2020 for a total sum of Rs.24,75,398/- but till date, no complaint of any sort qua the present lot of tiles, whatsoever, has been received from any of the dealer or the consumer. It is stated that no expert report has been annexed by the complainant with the complaint to substantiate and corroborate his version with regard to the sub-standard quality of the tiles in question. The complainant has not approached the Commission with clean hands as he has concealed the vital facts, which were just necessary for the proper adjudication of the present complaint. It is submitted that the complainant has not impleaded the contractor, who had fixed the tiles in his; that the said contractor is a necessary party for proper adjudication of the present complaint as he would be in a position to explain the entire process as followed by him while fixing/laying the tiles; thus, the present complaint is liable to the dismissed on the ground of non-joinder of the necessary parties. It is stated that the affixing of the tiles is one of the major factor for customer satisfaction and thus, the impleadment of the contractor, who had laid/fixed the tiles, was a necessary party. It is submitted that the complicated and intricate question of facts and laws are involved in the adjudication of the present complaint, wherein  elaborate evidence, in the shape of examination and cross examination of the witnesses, would be required, which is not permissible under the summary procedure, being adopted under the Consumer Protection Act. It is submitted that each packing of the tiles was having a warranty/ advisory that “CHECK CAREFULLY, claims after installation will not be accepted” whereas the present complaint has been filed after the delay of nearly 26 months from the purchase of the tiles in question; thus, the present complaint is also liable to be dismissed on the ground of delay, laches and have been filed after the expiry of limitation period as prescribed in the Consumer Protection Act.

                On merits,  it  is submitted that a sum of Rs.50,000/- was offered to the complainant by Sh. Jitender Singh, who was Punjab Zonal Head, on behalf of OP No.1 as a goodwill gesture and as per the consumer/customer care policy of OP No.1. It is submitted that the allegations leveled by the complainant with regard to the substandard quality of tiles is false and frivolous and the same is without any basis. It is submitted that the comments as recorded by the technical expert in his report were based upon the issues as raised by the complainant, during his visit to the site and the same, by no means, can be presumed to be any finding of fault in tiles. The submissions made in the preliminary objections have been reiterated and the allegations leveled by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint is liable to be dismissed.

                Notice issued to the OP No.2 through process server received back served but none has appeared on behalf of the OP No.2; thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 22.07.2021.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.1 has tendered affidavit as Annexure R-1/A along with documents Annexure R-1/1 & R-1/2 in evidence and closed the evidence.

                During arguments, the authorized representative of the complainant has placed on record the details of qua the cost of the tiles.

4.             On 30.07.2024, after the case was reserved on 26.07.2024, the learned counsel on behalf of the OP No.1 has placed on record the copy of invoice dated 25.03.2018 vide which 100 boxes of tiles was supplied by the OP No.1 to OP No.2.

5.             During the pendency of the present complaint, an application was moved by the complainant on 10.08.2023, seeking the inspection of the tiles in question, by some Government agency/expert.

6.             After hearing both the parties, the said application dated 10.08.2023 filed by the complainant was allowed vide our order dated 11.12.2023 by directing the XEN, PWD, B & R, Panchkula to depute any officer not below the Sub Divisional Engineer, Provincial Sub Division No.IX, Hr.PWD(B & R) Br. Panchkula(hereinafter referred to SDE, PWD, B & R, Panchkula) to visit the site in person and to carry out the inspection  of the tiles in question, as per scope of inspection, placed on record by the complainant on 11.12.2023.

7.             In compliance of the said order dated 11.12.2023, SDE, PWD, B & R, Panchkula sent the inspection report vide memo no.317 dated 27.05.2024 along with the report of laboratory i.e. Dr.Ghuman and Gupta Geotech Consultants LLP, Mohali(Punjab).

8.             The OP No.1 has disputed the validity of the said inspection report dated 27.05.2024 by filing the objections against the same. .

                The learned counsel on behalf of the OP No.1 contended that the report as submitted by the SDE, PWD, B & R, Panchkula vide memo no.317 dated 27.05.2024 suffers from several legal and factual infirmities, which are discussed as under:-

a)             The first objection as raised by the learned counsel is that the OP No.1 or its representative/advocate was not associated during the site inspection by SDE, PWD, B & R, Panchkula despite the directions issued  by the Commission on 11.12.2023 in this regard.

                The aforesaid objection is not tenable because the inspection was carried out by an independent, impartial and a Government Servant, having wide experience and who had the requisite qualifications. Though, the OP no.1 or its representative was not associated by the SDE, PWD, B & R, Panchkula during the site inspection but the concerned Junior engineer was associated by the SDE, PWD, B & R, Panchkula during the inspection of the tiles as the same is evident from his site inspection report dated 27.05.2024.  The OP No.1 has not alleged any ill will or malice on the part of SDE, PWD, B & R, Panchkula against it (OP No.1). Even otherwise, it is not the case of the OP No.1 that, now, it intends to carry out the inspection of the tiles in question from any other independent agency so as to rebut or controvert the findings as recorded by the SDE(Civil) PWD, B& R, Panchkula in the said inspection report dated  27.05.2024 and thus, the objection raised as above carries no merits in it.   

b)             The next objection as raised by the OP No.1 is that no photographs are attached with the said inspection report dated 27.05.2024.

                This objection deserves outright rejection because the photographs depicting the status of the tiles in the house of the complainant are annexed with the said inspection report dated 27.05.2024.

c)             The last objection is that the inspecting officer/official vide their report dated 27.05.2024 has totally ignored and overlooked the lab test report/result dated 23.05.2024 given by the Laboratory, namely, Dr. Ghuman and Gupta Geotech Consultants LLP, Mohali(Punjab).

                The aforesaid objection is also of no avail to the case of the OP No.1 because the tiles in question were inspected by the SDE, PWD, B & R, Panchkula, who is gazetted officer in Government of Haryana  and possesses the requisite qualification and having wide experience and he was also accompanied by the concerned Junior Engineer during inspection; thus, the observations and findings recorded in the site inspection report cannot be ignored merely on the basis of test report of Dr. Ghuman and Gupta Geotech Consultants LLP, Mohali (Punjab).

9.             We have heard the authorized represented of the complainant as well as the learned counsel for OP No.1 and gone through the entire record available on the file including the written arguments filed by the authorized representative of the complainant as well as the OP No.1, carefully and minutely.

10.            The authorized representative on behalf of the complainant has reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant and contended that the OP no.1 had sold the tiles of sub-standard quality to the complainant through OP No.2. It was argued that the complainant has been facing the problem of spillage liquid marks, forming on the tiles, leaving lasting patches, from the purchase of the tiles in question. It was argued that the tiles in question had porosity problem as observed by the expert of the OP no.1 vide his inspection report Annexure C-1 dated 09.11.2019. It was argued that the OP no.1 has not provided the name of the end users i.e.  the consumers, who had purchased the tiles of the same lot as was sold to the complainant and thus, the plea taken by the OP No.1 that no complaints qua the same lot has been received, carries no merits in it. The authorized representative inviting our attention towards the inspection report dated 27.05.2024 as given by the SDE, PWD, B & R, Panchkula) contended that the tiles as sold by the OP No.1 through OP No.2 to the complainant has got deteriorated due to the sub-standard and inferior quality of the same and thus, the complaint is liable to be accepted by granting the relief as claimed for in the present complaint. 

11.            On the other hand, the learned counsel on behalf of the OP no.1 reiterated the averments as made in the written statement as also in the affidavit (Annexure R-1/A) and contended that there are no merits in the contentions of the complainant as raised in the complaint and thus, the same deserves outright dismissal. The main submissions of the learned counsel are summarized as under:-

1. That the tiles pertaining to the same lot, as was sold to the complainant through OP No.2, was supplied to 43 dealers vide different invoices starting from 05.03.2018 to 06.08.2018 for a total sum of Rs. 54,75,398/- and that no complaint alleging any defects in the tiles like sub-standard quality has been received from any dealers or consumers.
2. That no expert/technical report was annexed with the present complaint, which is necessary for the proper adjudication of the present complaint.
3. That each packing of the tiles was having a warning and advisory to the effect i.e.“Check carefully claims after installation will not be accepted” whereas the present complaint has been filed after a delay of nearly 26 months from the purchase of the tiles in question. It was argued that the tiles in question were purchased in the month of 2018, whereas the present complaint was filed in July 2020 i.e. beyond the prescribed period of limitation; thus, the same is liable to be dismissed on the ground of delay.
4. That the complainant has not impleaded the contractor, who had laid/fixed the tiles in his house, who is a necessary party because he would be in a better position to explain the entire process as followed by him while fixing/laying of tiles.
5. That the complicated and intricate question of disputed facts and laws are involved in the present complaint, wherein the elaborate evidence in the shape of examination and cross examination of the witnesses would be required for adjudication of the present complaint, which is not permissible under the summary procedure being adopted under the Consumer Protection Act;

Concluding the arguments, the learned counsel contended that a sum of Rs.50,000/- was offered to the complainant by Sh.Jitender Singh, who was Punjab Zonal Head as a goodwill gesture  and as per customer care policy of OP No.1 company and the same cannot be construed as an admission of any defects in the tiles in question by the OP No.1; thus, it was prayed that the complaint is liable to be dismissed being frivolous, baseless and meritless.

12.            The aforesaid pleas as taken by the OP No.1 are taken up for discussion in the same seriatim as under:-

1.         The first plea as taken by the OP No.1 is that no such complaint, alleging any defects or leveling any allegations qua the quality of the tiles, was received from any of other 43 dealers or consumers to whom the same lot of tiles was supplied.  

                 The said plea is of no help to the case of OP No.1 because the OP No.1 very cleverly has not provided the list of end users. Moreover, neither the Commission nor the complainant can be supposed to be aware of any complaint, if any, lodged by any other consumers qua the quality of the tiles in question.

2.         The next plea is that no expert report has been annexed with the present complaint.

                This plea is also rejected  because we have the report of expert in the shape of inspection report  dated 09.11.2019(Annexure C-1) of OP No.1, in addition to the site inspection report dated 27.05.2024, placed on record by SDE, PWD, B & R, Panchkula vide memo no.317 dated 27.05.2024. Both the reports i.e. inspection report(Annexure C-1) as well as the site inspection report submitted by SDE, PWD, B & R, Panchkula vide memo no.317 dated 27.05.2024 are in consonance with each other. The expert as sent by the OP No.1 vide his report dated 09.11.2019(Annexure C-1), after checking the tiles has found the dust absorbing problem in the tiles & the same was described  by him as porosity in the  tiles. Similarly, the SDE, PWD, B & R, Panchkula and JE vide site inspection report on 27.05.2024 has found the porosity problem in the tiles in question, which has got deteriorated. For the sake of convenience and clarity, the relevant part of the inspection report is reproduced as under:-

        Visual Inspection(Annexure -2):-

          During the visual inspection at site it is found that:-

1. The floor tiles in question have multiple visible stains visible at an angle of 45 degree.
2. Similarly the entire floor area has got deteriorated over a period of time.
3. It seems that the tiles have a degree of ‘Porosity’ which causes the sinking in of material inside the tiles.
4. A stain removing test was done on the spot using normal household tile cleaner, which could not be got removed.

Conclusion:-

In view of above, it is concluded that the tiles seems to be of inferior quality because of these un-removable stains.

The inspecting team vide said inspection report has categorically stated that the entire floor area, having tiles, has got deteriorated and that the tiles in question seems to be inferior quality because of unremovable stains. The site inspection report dated 09.11.2019 (Annexure C-1) as well as site the inspection report dated 27.05.2024, substantiates and corroborates the averments of the complainant qua the sub-standard quality of the tiles in question. From the bare perusal of several photos as appended with the said site inspection report dated 27.05.2024, the stains on the tiles are clearly visible, which further corroborates and substantiates the contentions  of the complainant  qua the sub standard quality  of the tiles.

(c )           The next plea is that the warning/advisory was given on each packing of the tiles that “Check carefully claims after installation will not be accepted”, is totally wrong and baseless because the defects in the tiles could only be detected or found after the use of the same for sometime after their fixing.

(d)            The next plea taken by the OP no.1 regarding filing of the complaint after the delay of 26 months is of no help to OP No.1 because the complainant has been raising the issue of defects qua the tiles in question since November 2019 as is evident from Annexure C-3 and thus, the complaint was filed within the prescribed period of limitation.

(e)            The next plea as mentioned at serial iv of para no.11 above that the contractor, who had fixed the tiles, has not been impleaded, is also rejected because the complainant has placed on record a certificate issued by Sh. Jai parkash, who vide Annexure C-5 has stated that the tiles were fixed by him carefully and the same were covered with the tiles protection sheet and POP till the end of renovation. He has also stated that the tiles as laid in Balcony area were of different company, which did not show the problem of porosity and scratches.

(f)             The next plea that the issue involved in the present complaint being of complex, complicated and intricate nature, cannot be adjudicated by following the summary procedure, is also rejected because the allegations  leveled by the complainant qua the sub standard  quality  of the tiles can be decided on the basis of documentary evidence available on the file. 

13.            In the light of factual discussion made above, we have reached at the irresistible conclusion that the Ops No.1 & 2  have been deficient,  while selling  the substandard  and inferior quality of the tiles to the complainant, for which, they are liable, jointly and severally, to compensate  him.

14.            In relief, the complainant has claimed the following from the OPs:-

1. Cost of tiles: 1968 sq.ft x 175:                               3,44,400/-

2. Interest: 10% PA simple interest from respective     1,72,200/-  Purchase dates: 

3. Tiles  laying cost: material and labour                     2,50,000/-

4. Tiles changing cost: uprooting, relaying, labour        3,00,000/-

        and material

5. Mental agony: Living with un-cleanable tiles every    1,00,000/-

        Day

6. Malicious money extortion insult and defamation      1,00,000/-

7. Litigation fee                                                          25,000/-

8. Total                                                            Rs.12,91,600/-

15.            As per the discussion made above, it is found that the OPs had sold sub-standard quality of tiles to the complainant, so, the complainant is entitled to the refund of cost of the tiles alongwith interest. As per invoice no.1259 dated 22.03.2018 vide which three boxes of tiles were sold by the OP No.2 to the complainant for a sum of Rs.4,800/- and thus, the cost of one box of tiles comes to Rs.1,600/-. In the present complaint, the complainant has purchased 123 boxes of tiles. By taking the price of one box as Rs.1600/-, then the total cost of 123 boxes of tiles come to Rs.1,96,800/-; thus, the complainant is entitled to the refund of sum of Rs.196800/- qua the price of 123 boxes of tiles.

16.            Further, the complainant has claimed that an expenses of Rs.2,50,000/- was incurred by him on account of labour and material, required in fixing of the tiles, but vide annexure C-5, Sh.Jai Parkash Sharma, who has allegedly carried out the work of fixing of the tiles, has stated that  he had charged a sum of Rs.1,50,000/-. However no receipt qua the said amount is available on the file. In our opinion, a lump-sum compensation amounting to Rs.15,000/- would be just, reasonable and proper on account of expenses, which has been incurred by the complainant on account of installation of the tiles in his house.              

17.            As a sequel to the above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.1 is directed to make the refund of sum of Rs.1,96,800/- to the complainant along with interest @9% per annum(simple interest) w.e.f. 22.03.2018 i.e. the date when the tiles were purchased by the complainant till its realization.
2. The OP No.1 is directed to make the payment of Rs. 15,000/- to the complainant qua installation of tiles in question.
3. The OP No.2 is directed to pay the compensation of Rs.20,000/- to the complainant on account of mental agony and harassment.
4. The OP No.2 is further directed to pay a sum of Rs.5,500/- to the complainant  as litigation charges.         

18.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 19.09.2024

        Dr. Suman Singh                 Dr.Sushma Garg                   Satpal

              Member                              Member                      President

Note: Each and every page of this order has been duly signed by me.

                                               Satpal

                                          President