CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM. Present Sri. Santhosh Kesavanath P. President Smt. Bindhu M. Thomas, Member CC No.245/09 Saturday the 27th day of November, 2010 Petitioner : Dr. Mathew John, Ambooken House, Thellakom PO, Kottayam, Specilaty Dental Clinic, Ettumanoor, Kottayam. (Adv. Rajeev.P.Nair) Vs. Opposite party : 1) Nitco House, Recondo Estate Municipal Asphalt compound, S.K. Ahire Marg, Worli, Mumbai-400 030 (Adv.S.K. Premraj) 2) Nitco Ltd., Floor Tiles Division, Madhushila Chambers No.50/390 B&C, Palace Road Jn, Edappally Ernakulam. 3) Nedumchira Enterprises, S.H. Mount PO, Nagampadam, Kottayam-686 006. (Santhosh Modayil) O R D E R Smt. Bindhu M. Thomas, Member The complainant’s case is as follows:- The complainant had purchased floor tiles from the opposite parties. The complainant is a Doctor by profession and had decided to start a dental clinic at Ettumanoor for earning his livelihood. The complainant had made several enquiries with respect to the floor tiles and as per the representations and advertisements made by the opposite parties, the complainant had decided to purchase the floor tiles from them. The opposite parties had endorsed that their product by name ‘Crema Dune’ is one of the best in quality, durability and colour perfection among floor tiles. The petitioner believed the words of the opposite parties and placed order with the opposite parties for the floor tiles by name ‘Crema Dune’ and opposite parties had promised that they will effect delivery of the tiles at the place of work site and they will also arrange professionals for laying the tiles. Accordingly the petitioner had paid the full price of the tiles, which amounts to Rs.45,064.30/- on 4/5/2009. The opposite parties had supplied tiles at the work place and had also arranged person for laying the same. The entire works for the dental clinic was in progress and person deputed for laying the tiles had completed the laying of the tiles qukickly. After laying the tiles, the labourers washed the same. To the surprise of the petitioner, he had seen that a majority number of tiles differ in texture and colour. There was no resemblance for the said tiles with that of the product by name “Crema Dune”. The petitioner was under the bonafide belief that the opposite parties would only supply the tiles by name “Crema Dune” and the same would be excellent in its out fit. But the entire flooring was so dull on account of the variance and texture of the tiles. Crema Dune tiles do not have any colour difference and are of a particular colour and texture. The said matter was informed to the opposite parties and their representatives inspected the tiles and were convinced of the above said facts. But they did not take any measure to rectify the mistake happened. Hence the complainant filed this complaint alleging deficiency in service and unfair trade practice on the part of opposite parties and claimed Rs. 5000/- as cost of replacing the tiles, Rs. 50,000/- towards compensation for the mental agony, hardship and litigation cost. The opposite parties 1, 2 and 3 entered appearance and filed version together with the following main contentions. 1) Complainant is not a consumer as defined in the Consumer Protection Act. 2) The opposite parties have not deputed any person for laying the tiles. The tiles were laid by the complainant himself by employing workers selected by him. 3) The opposite parties have supplied defect free ‘Crema Dune’ tiles and there was no further variance in texture and shade of the said tiles other than the required or possible variations since it was manufactured under Roto Print techonology, there would be some technical variations. 4) It is specifically printed on the cover of the tiles as instructions No.2, “Before fixing NITCO Porcelor Inviza tiles, lay them out in desired patterns and make sure. The company will bear no liability after the tiles are fixed”. 5) The complaint was due to absolute unawareness of the complainant regarding the above said pattern of tiles. The complainant could have called up and checked with opposite parties when they opened the box while laying which had not been done. 6) There is no unfair trade practice of deficiency in service on the part of opposite parties and the complainant is not entitled under law to get Rs.50,000/-. Hence the opposite parties prayed to dismiss the complaint with costs to them. Points for considerations are i) Whether there is any deficiency in service or unfair trade practice on the part of opposite parties? ii) Reliefs and costs? Evidence consists of affidavit filed by both parties. Exts.A1 to A4 series, Ext.B1 and commission report Ext.C1. Point No.1 Heard the counsels for both sides and perused with the documents. The complainant submitted that believing in the promises of the opposite party that their product by name ‘Crema Dune’ is one of the best in quality, durability and colour efficiency among floor tiles, he placed order for floor tiles by name ‘Crema Dune’. The complainant next submitted that Crema Dune tiles do not have any colour difference but after laying, the entire flooring was so dull on account of the variance and texture of the tiles. Whereas the learned counsel for opposite parties contented that they have supplied the same quality tiles Crema Dune to the complainant and there was no further variance in texture and shade of the said tiles other than the required or possible variations. The learned counsel further submitted that it is specifically printed on the cover of the tiles as clause No.2 “Before fixing NITCO tiles lay them out in desired pattern and make sure about the tiles supplied. The company will bear no liability after the tiles are fixed”. Evidencing the aforesaid submission opposite party produced relevant portion of the carton showing the laying instructions and it was marked as Ext.B1. According to the opposite parties counsel the dull look of the floor may be due to poor workmanship of workers employed by the complainant for laying the tiles. The Ext. B1 contains instructions for laying “Nitco tiles” not Crema Dune which is opted by the complainant. The complainant produced copy of invoice dtd 4/5/09 for Rs. 45064.30/- and it is marked as Ext.A1. As per Ext.A1 the tiles ordered is “18218 Crema Dune”. According to the opposite party the complaint was due to the absolute unawareness of the complainant regarding the patterns of tiles. The complainant filed IA 635/09 for appointing a commissioner to ascertain the matters. The said IA was allowed and the Advocate K. Vinod was appointed as the commissioner. The commissioner filed C1 report and the commissioner reported that the tiles laid in the room were in different colour and that the said colour difference was visible from a distance of 5 meter. The commissioner further reported that 40 tiles were cream in colour, 50 tiles were grey in colour and that it was difficult to ascertain the colour of the remaining tiles as they were seen in different colour shades. The commissioner next reported that the said room had an odd look due to colour difference of the tiles and due to the irregular laying of the tiles. The opposite parties counsel relied on the aforementioned report part and submitted that the alleged complaint happened only due to the irregular laying of the tiles. Eventhough the opposite parties counsel submitted that the alleged colour variance was due to the pattern of tiles selected by the petitioner, nothing is placed on record to prove that the ordered set of tiles “18218 crema dune” are constituted of tiles of different colour. As argued by the opposite parties counsel if the set of tiles produced by the complainant were to be laid in a specific pattern, then the opposite parties ought to have issued the design or pattern for the particular set of tiles at the time of purchase itself. But no such design or pattern is seen given to the complainant. From the facts and circumstances of the case and from the C1 report, we come to the conclusion that the opposite parties failed to supply the ordered type of tiles to the complainant. In our view the act of opposite party in issuing tiles of different colours instead of the ordered Crema Dune is a clear case of deficiency in service. Point No.1 is found accordingly. Point No.2 In view of the findings in point no. 1, the complaint is allowed. The opposite parties will jointly and severally pay Rs.5000/- as compensation for the mental agony and monetory loss suffered by the complainant along with a litigation cost of Rs.3000/-, that includes the bata given by the petitioner to the commissioner. This order will be complied with within one month of receipt of the order failing which the awarded sums will carry interest at the rate of 9% per annum from the date of order till realization. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 27th day of November, 2010. Smt. Bindhu M. Thomas, Member Sd/- Sri. Santhosh Kesavanath P. President Sd/- Appendix Documents of the complainant. Ext.A1-Copy of the retail invoice dtd 4/5/09 Ext.A2-Office copy of the lawyer’s notice dtd. 8/6/09 Ext.A3-Original AD card Ext.A3(a) Original AD card Ext.A3(b) Original AD card Ext.A4-Original postal receipt dtd 8/6/09 Ext.A4(a)postal receipt dtd 8/6/09 Ext.A4(b)postal receipt dtd 8/6/09 Ext.A4(c)postal receipt dtd 8/6/09 Ext.C1-Commission report filed by Adv.K.vinod Documents of the opposite parties. Ext.B1-Portion of the carton showing the laying instructions. By Order, Senior Superintendent. S/5cs | 
