DOF.23.5.2007 DOO.3.9.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 3rd day of September 2010 C.C.No.91/2007 V.V.Purushothaman, Sreepadam, Near Kisan Ground, P.O.Anur, Payyannur 670 332. Complainant 1.P.P.Nazar, Arakkal Traders, Perumba, P.O.Payyuannur. (Rep. by Adv.K.Vinod Raj) 2. P.Asokan, Puthalath House, Nr.Assarikulam, P.O.Annur,Payyannur. (Rep. by Adv.K.V.Ganesan) 3. M/s.Ashik, Exporter Padnakad, Near Nehru College, Kanhangad. Opposite parties O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite parties to pay an amount f Rs.38,987/-as the cost of materials, Rs.62,013/-as compensation with cost. The case of the complainant is that he had purchased Malasian floor ties from 1st opposite party on 4.6.04 for an amount of Rs.29,687/- and the 2nd opposite party had done the laying work. At the time of purchase the 1st opposite party had given assurance that the tiles supplied to him are the superior quality which is imported from Malasia. On 15.1.07 to the utter dismay of the complainant during the late hours in the night he could hear crushing of the tiles and when he rushed to the upstairs portion of the house hearing the sounds he could see the entire flooring was broken into pieces. On the next day he contacted 2nd opposite party and he inspected the site in person and informed that the damages occurred due to the poor quality of the tiles used for laying on the floor. But 1st opposite party told that it happened only due to work man ship. As per the opinion of an expert with respect to damages caused, it was occurred due to the low quality of tiles and poor workmanship and thereafter the complainant approached both opposite parties requesting to compensate the losses, but they are not ready to do so. The complaint had spent an amount of Rs.29, 687/- for the purchase of flooring tiles and spent Rs.5300/- for the laying work and spent Rs.4000/- for cement and other materials used for fixing the tiles. The complaint had suffered so much of mental as well as physical agony and all these were caused due to the negligent work of the opposite party. So the complaint had issued a lawyer notice requesting to pay Rs.1, 00,000/-. The 2nd opposite party issued repay admitting the execution work and denied the liability and 1st opposite party did not issued any reply. Hence the complaint. Upon receiving the notices from the Forum both opposite parties appeared and filed their version. The 1st opposite party filed version admitting that the complainant had purchased Indonesian floor tiles for an amount of Rs.29,687/- and the purchase from the opposite party’s shop are of high quality and the damages if any caused to the tiles was not due to the inferior quality of the tiles supplied by the opposite party. The complaint never informed about the damages. 1st opposite party is not liable for any damages since they have supplied high quality tiles. The 1st opposite party have no connection with 2nd opposite party and the complaint is barred by limitation since it has been filed after 3 years of purchase. More over 1st opposite party had purchase the tiles from Ashike Exporters, near Nehru College, Padannakad, Kanhangad. The 1st opposite party is only a hardware trader and had purchased the tiles in bulk and no body except the complainant had came up with a complaint like this. This alone shows that the complaint is a false one and the above said Ashike Enterprise is a necessary party and hence the complaint is bad for non-joinder of necessary party. The 2nd opposite party also field version admitting that the complainant had purchased tiles and contacted 2nd opposite party to lay the tiles in the complainant’s house and hence he had laid tiles in the complainant’s house. The complainant knows the fact that 2nd opposite party is an expert in laying tiles and doing it for more than 10 years. The 2nd opposite party denies the averments that on 15.1.07, the entire flooring was broken into pieces during night and the complainant contacted 2nd opposite party and 2nd opposite party inspected the spot in person and informed the complainant that the damage occurred due to poor quality of tiles laid on the floor and later on1st opposite party told that it was happened due to poor workmanship and that an expert opined that cracks are due to the low quality of tiles and poor workmanship etc. According to 2nd opposite party the complainant was residing in the house at the time of the work and the complainant entrusted the 2nd opposite party to lay tiles to steps, floor of fist floor and wall of the bath rooms and there is no complaint in the tiles laid by the 2nd opposite party on steps and in the bath rooms. Before laying these tiles the opposite party expressed dissatisfaction to complainant about the qualities of floor tiles. The floor tiles laid in fist floor was Malasian made and if any damage is caused it was not due to poor workmanship. The 2nd opposite party denied the agreement that he had purchased the tiles of Rs.29, 687/- and spent Rs.5300/- for laying work and spent another Rs.4000/- for cement and other material etc. There is no deficiency of service on the part of 2nd opposite party and hence the complaint is liable to be dismissed. As per the contention raised by1st opposite party the 3rd opposite party was imp leaded and issued the notice to 3rd opposite party. But it was returned since he left and the notice to 3rd opposite party was affected through substitute service. He was absent and hence he was set exparte. Later on 1st opposite party also absent and hence he was also called absent and set exparte. Upon the above pleadings the following issues have been raised for consideration. 1. Whether the complaint is barred by limitation? 2. Whether there is any deficiency on the part of opposite parties? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence in this case consists of the oral testimony of PW1 and DW1 and Exts.A1 to A11 and C1. Issue No.1 The 1st opposite party contended that the complaint is barred by limitation since the complaint has been filed after 3 years of purchase. Section 24A of the consumer protection act says that “The District Forum, state Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the state of Madras vs. C.P. Agencies and another which was reported in AIR 1960 SC 1309, the Supreme Court discussed the meaning of cause of action and defined as “Every fact which it would be necessary to prove if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence, which is necessary to prove each fact, but every fact which is necessary to be proved. Everything which if not proved gives the opposite party an immediate right of judgment, must be part of the cause of action”. In Narayana Sivaji vs. Gurunath Gouda, AIR, 1939, Bombay the Bombay High court gave the meaning of cause of action as “A cause of action briefly means right and the infringement of that right”. Where a party has an undoubted right and that right is infringed, a cause of action at once accrues to him. More over in Mukunda Lal Ganguly Vs. Dr.Abhiji Gosh and another which was reported in 1995(I) CPJ 453 the west Bengal State Consumer Disputes Redressal Commission held that even though he complainant had got his certificate of blindness as a handicapped person on 18.2.89, only after the operation held during January 1992, he came to know that he had permanently lost in sight. So cause of action for filing complaint arose during January 1992. So this fact along with section 24 A, the complainant’s claim is not barred by limitation. So the points of jurisdiction and limitation rise from cause of action. So several facts which are necessary constituents of a cause of action may not occur at one and the same time and in such an event complete cause of action arise only when last of such facts occurs. So in this case in hand it is an admitted fact that the complainant had purchased the tiles on 4.6.04 as per Ext.A1 and according to the complainant he heard the crushing sound of tiles of upstairs floor on 15.1.07 and he could see the entire flooring was broken into pieces. More over the DW1 deposed that “15.1.07 ]cm-Xn-¡m-c³ apI-fn-se-s¯-ap-dn-bn s]m«n-t¸mb hnh-c-T-A-dn-bn-¨n-cp¶p. So in our view the complainant had accrued the right on 4.6.04 by purchasing the tiles and his right was infringed on 15.1.07 the date on which the tiles were seen damaged i.e. the date in which she came to know that the tiles or workmanship are defective. So we are of the opinion that since the subject matter of the complainant is damaged tiles, the cause of action rise on 15.1.07 on the date of knowledge that the tiles are damaged and the complaint was filed on 23.5.07 which is within two years. So we are of the opinion that the complaint was filed within time and the first issue is answered in favaour of the complainant. Issue Nos. 2 to 4 The case of the complainant is that he had purchased floor tiles from 1st opposite party and 2nd opposite party had laid the tiles during 2004 and it became damaged during 2007 and hence all the opposite parties are liable to compensate the complainant. In order to prove his case he had produced Exts.A1 to A15 such as bill dated 4.6.04, receipts issued by different workers and bills issued by ABC corporation. Even though opposite party had objected the documents Exts.A2 to A11, the complainant had not taken any steps to prove the same. An expert commissioner also appointed and he had filed his report which was marked as Ext.C1. The 1st opposite party admits that he had supplied the tiles to the complaint and he had purchased the tiles from 3rd opposite party. The 2nd opposite party also admits that he had done the laying work. According to the 2nd opposite party he had done tiles laying work to the 1st floor, varantha, staircase and bathrooms. According to 2nd opposite party, there is no complaint to the work done in Varantha, stair case and bath rooms and he also contended that these works were done using different tiles. But the commissioner has not reported anything about this. As per Ext.A1, he had purchased different types of tiles and according to the complainant he deposed that “floor Hcp size tiles am{X-ta-sh-¨n-«p-f-fp. So from this it is clear that the Malaysian tiles are laid only in the first floor. The Commissioner reported that “the tiles fixed for Bed rooms, Halls and Balcony was made Malaysia” is not a superior quality and its expansion during summer season is more. The maison did not provide enough gaps to allow the expansion because of his ignorance. The 2nd opposite party himself admits that he is a well experienced. Person having twenty years of service in this area. But it does not mean that he is well aware of laying all types of tiles and he has no such case that he is well aware of laying all types of tiles. The DW1 deposed before this Forum that “Tiles]mIp-T-t]mÄ IrX-y-ambn Km¸v sImSp-t¡--Xp-v. Air gap sImSp-¯n-sÃ-¦n hbp k½À±T sImv FIvkv]m³Uv sN¿p-T. cv ssSep-IÄ X½n Km¸v C«n-«mWv sh¨-Xp. Cu Imc-yT I½o-j-WÀ ]cn-tim-[n-¨n-cp-¶p. Even then the commissioner reported that the maison did not provide enough gaps to allow the expansion. So it is clear that even though the 2nd opposite party had given gap it is not sufficient for these types of tiles. The commissioner reported that the expansion of Malaysian tiles laid on the floor of complainant during summer season is more. The complainant contended that, he had purchased the tiles as per the assurance of 1st opposite party that the tiles supplied to him are of superior quality. But there is no evidence before us to disprove this version of the complainant and the commissioner reported that the tiles are not of superior quality. So it is seen that 1st opposite party had supplied the tiles having inferior quality to the complainant with false representation. The 1st opposite party contended that the 3rd opposite party had supplied the tiles to them. But 3rd opposite party was exparte. The 2nd opposite party had challenged the genuinety of the commission report by saying that he had inspected the property without sufficient notice to 2nd opposite party and is against the facts. But DW1 who is 2nd opposite party deposed that “Commission t]mI-T-t]mÄ Rm³ Dm-bn-cp-¶p. I½o-j-W-tdmSv F\n¡v ]d-bm-\p-ff Imc-y-§Ä t_m[n-¸n-Nv=-Nn-cp-¶p. Rm\mtWm lay sNbvXXv F¶p I½o-j-WÀ tNmZn-¨n-cp¶p” . More over Commissioner is an expert person having B. Tech in Civil Engineering. So from this it is seen that the above version of the 2nd opposite party is not correct. So from the above discussion it is seen that there is deficiency of service on the part of all the opposite parties and they are liable for the damage caused to the floor tiles of the complainant and hence they are liable to compensate the complainant. The commissioner reported that Rs.30, 000/- is required as cost of replacement and the complainant is entitled to receive that amount from opposite parties. The complainant is entitled to get Rs.2000/- as compensation and Rs.1000/- as cost of the proceedings and the issues are found in favour of the complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay Rs.30, 000/- (Rupees Thirty thousand only) along with Rs.2000/- (Rupees Two thousand only) as compensation and Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, otherwise the complainant is at liberty to execute the order as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Bills issued by OP A2.Receipt issued by Jithesh .R. A3 to A5.Receipts dt.19.9.08 and 18.9.08 issued by K.Chandran and Sunil.K., N.V.Krishnan A6.Cash bill issued by Dhanasree Hardwares A7.Cash bill dt.11.10.08 A8 & 9.Receipts dt.25.9.08 and 25.10.08 issued by T.Chandran and P.Sarojini A10 & 11.Retail invoice dt.25.9.08, 4. 10.08 issued by ABC Sales Corporation. Exhibits for the opposite parties: Nil Exhibits for the court C1. Commission report. Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties DW1.P.Asokan /forwarded by order/ Senior Superintendent Consumer disputes Redresal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
