By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. The facts of the case bereft of the unnecessary details is that, complainant approached opposite party on 24-5-03 to purchase tiles to lay inside the three bathrooms of his new house which was under construction. Opposite party introduced to him different varieties of tiles which included Sunrise tiles also. That opposite party showed him Sunrise tiles which were available in three types viz., Sunrise Gold, Sunrise Silver and Sunrise Economy with price of Rs.175/-, Rs.80/- and Rs.60/- respectively per packet. Complainant opted for the Sunrise Gold tiles of Rs.175/-. He purchased 12 x 8—2319 design 42 packets of tiles. The price for the same was Rs.7,350/- and complainant paid the amount on same day for which opposite party issued bill. Complainant had also purchased other items necessary in connection with the construction of house on the same day. The next day, the workers started laying the tiles in the bathrooms and complainant who is a School Master went for his duty. When he returned in the evening the laying of tiles on the walls of two bathrooms were almost over. On seeing the tiles he noticed that the tiles did not show the perfection as that he had purchased and that the tiles varied in their appearance from each other. Complainant examined the packets of the used tiles and found that some of the packets were of Sunrise Silver and Sunrise Economy which were of lesser price and lesser quality. Complaint alleges that opposite party has supplied the tiles by mixing lesser quality and lesser price tiles with the good quality tiles he had selected and for which price was paid. He discontinued the work of bath room and approached opposite party who refused to heed to his demand to replace the tiles. Hen e this complaint praying for the replacement of the balance of 19 packet of tiles which is kept with him and for compensation of Rs.10,000/-.<br /> 2. Opposite party filed version admitting that complainant had approached opposite party on 23-5-2003 for the purchase of tiles and that complainant had selected Sunrise Gold tiles. That he has paid the price of the same and bill was issued. The tiles were selected and taken delivery by the complainant himself. The allegation that opposite party has mixed low quality tiles with those selected by complainant is specifically denied. That the com-plaint is liable to be dismissed with costs.<br /> 3. Evidence consists of affidavits filed by complainant and counter affidavit filed by opposite party. Exts.A1 and A2 marked on the side of complainant. No documents marked on the side of opposite party. Ext.C1 is the Commission report.<br /> 4. Points that arise for consideration:-<br /> (i) Whether opposite party has committed any unfair trade practice?<br /> (ii) If so, reliefs and costs. <br /> 5. Point (i):-<br /> Complainant is aggrieved that opposite party supplied him low quality Sunrise Silver and Sunrise Economy tiles instead of Sunrise Gold tiles. It is his case that out of the three varieties of Sunrise tiles introduced to him by opposite party, complainant selected Sunrise Gold. As per his requirement he purchased 42 cartons and the total purchase price of Rs.7,350/- was paid on the same day for which opposite party issued bill. It is also his case that tiles were delivered by opposite party the next day at his house. Complainant contends that after fixing tiles on the walls of two bathrooms he noticed disparity in the quality of the tiles since the appearance did not give the perfection of the tiles selected by him. When he examined the packets he saw that some packets were Sunrise Gold while other packets were Sunrise Silver and Sunrise Economy with Rs.80/- and Rs.60/- M.R.P. Printed upon them. Ext.A1 is the bill issued by opposite party for purchase of tiles. Complaint is resisted by opposite party stating that it was complainant who selected the tiles and the same were taken delivery of by the complainant himself. That opposite party had no occasion to deliver the gods at the complainant's house. In the counter affidavit opposite party attempts to deny the purchase of tiles and in a vague manner denies the claim of complainant to be genuine. It is contended by opposite party that Ext.A1 does not state what are the goods purchased and therefore does not prove that complainant had purchased Sunrise Gold tiles. It is true that Ext.A1 does not show what is the item purchased or it's brand name. The second item quoted in Ext.A1 is as under.<br /> Rate Per Particulars quantity Amount<br /> Rs.175/- 1 12 x 8—2319 42 Rs.7,350/-<br /> It was vehemently argued by counsel for opposite party that Ext.A1 only shows that some items for house construction were purchased and does not prove that the items so purchased are Sunrise Gold tiles. We are unable to accept this argument because it contradicts with the statement in the version of opposite party which is as follows:<br /> “ഹരജിക്കാരന്‍ ഈ എതൃകക്ഷി സ്ഥാപനത്തില്‍ നിന്നും ടൈല്‍സ് എടുക്കാന്‍ വേണ്ടി 24-5-2003-ാ തീയ്യതി വന്നിട്ടുളളതും ഹരജിയില്‍ പ്രസ്താവിച്ചപോലെ ഹരജിക്കാരന്‍ സണ്‍ ൈസ് കംപനിയുടെ ഗോള്‍ഡ് ഇനത്തില്‍പ്പെട്ട െടല്‍സ് തെരഞ്ഞെടുത്തിട്ടുളളതും അയതിനുളള വില ബില്‍ പ്രകാരം തന്നിട്ടുളളതും അന്നുതന്നെ ഹരജിക്കാരന്‍ സെലക്ട് ചെയ്ത അത്രയും സാധനങ്ങള്‍ ഹരജിക്കാരന്‍ നേരിട്ട് കൊണ്ടുപോയിട്ടുളളതുമാണ്. “<br /> Ext.A1 is dated, 24-5-2003. This admission along with Ext.A1 proves that complainant had purchased 42 packets of Sunrise Gold tiles from the shop of opposite party. Ext.A2 is an estimate which clearly shows the purchase of Sunrise tiles. Opposite party denied and disputed Ext.A2 contending that it does not bear the name or seal of opposite party. In general commercial purchases it is a practice for traders to issue such estimates and quotations instead of issuing proper bills. Ext.A2 corroborates the evidence tendered by complainant through affidavit and Ext.A1. We do not find any reason to totally disregard Ext.A2. We conclude that complainant has purchased Sunrise Gold tiles for Rs.7,350/- from opposite party.<br /> 6. It was further urged by counsel for opposite party that the manufacturer has not been impleaded and that manufacturing defect of the tiles has not been established. We find no merit in these arguments. Complainant has no allegation of manufacturing defect of goods. His case is that of defective/deceptive supply of goods; where the goods supplied by opposite party did not conform to the same item specification selected and paid by him. Complainant has affirmed that as soon as the difference of the goods supplied came to his notice he stopped the tile work of the bathrooms. That even now tile work of one bathroom remains unfinished. On application filed by complainant an Advocate Commissioner was appointed to inspect and report. Ext.C1is the commission report. Commissioner had inspected the site on 18-11-2007. This complaint was filed on 15-9-2003 and due to vacancy in the post of President and Member there was no sitting of the Forum till June, 2007. Thus Commissioner inspected the subject matter almost three years after the incident. Commissioner has stated in the report that the work of one bathroom is lying unfinished without fixing any tiles. Tiles have been fixed in two bathrooms. Complainant has also shown to the commissioner the remaining 19 box of tiles. It is reported by Commissioner that these packets are Sunrise Silver and Sunrise Economy with M.R.P. of Rs.80/- and Rs.60/- printed on them. That the tiles fixed in the bathrooms and in these packets had small stone like projections. Counsel for opposite party opposed Ext.C1 contending that Advocate Commissioner is not an expert to report about the defect of tiles. We fully agree with the argument put forward by the counsel for opposite party that Advocate Commissioner is not an expert to report and opine about manufacturing defect of tiles. But in the present case, the scope of Commission was not to report about the manufacturing defect. The Commission was taken to report that the construction/decorative work of the bathroom remains unfinished and that the packets supplied were not Sunrise Gold. Further opposite party did not raise any objection at the time of issuance of the Commission. For these reasons we hold that Ext.C1 is fully reliable and sufficiently proves the consistent case put forward by complainant. From the materials on record and evidence we have no dispute to hold that complainant has established and proved a case in his favour. It is amply proved that opposite party has supplied Sunrise Silver and Sunrise Economy tiles instead of supplying Sunrise Gold tiles only. We find opposite parties have committed unfair trade practice<br /> 7. Point (ii)<br /> Complainant is definitely entitled to be compensated for his grievance. He states that there is a balance of 19packet tiles with him. The price of the 19 packets remaining has to be refunded to the complainant. There is a general duty upon every trader to trade fairly. Fair dealing requires that a trader should not deliberately or unconsciously take advantage of the consumers' ignorance, indigence, lack of experience or unfamiliarity in the goods or services. The unfair trade practice brought out in this case is highly deceptive. In our view, the instant case should not only be a redressal of the grievance to the complainant, but also serve as a message to all traders who indulge in such unfair trade practices. In our opinion this is fit case to impose punitive damages of Rs.10,000/- along with cost of Rs.2,000/-.<br /> 8. In the result we allow the complaint and order the following:-<br /> (i) Opposite party shall refund the price of 19 packets of tiles being Rs.3,325/-<br /> (175 x 19) to the complainant, who on receiving this amount shall return the 19 packet of Sunrise tiles to opposite party.<br /> (ii) Opposite party, in addition to the above amount shall pay punitive damages of Rs.10,000/- (Rupees Ten thousand only) to the complainant along with a sum of Rs.2,000/- (Rupees Two thousand only) being the cost of this litigation.<br /> (iii) The time limit for compliance of this order is fixed as one month from the<br /> date of receipt of copy of this order.<br /> <br /> Dated this 16th day of July, 2008.<br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 and A2<br /> Ext.A1 : Bill dated, 24-5-2003 issued by opposite party to the complainant.<br /> Ext.A2 : Estimate.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> Court document marked : Ext.C1<br /> Ext.C1 : Commission report. <br /> <br /> <br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br />