D.O.F. 10.05.2012

                                            D.O.O. 21.11.2013

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :                President

                   Smt. Sona Jayaraman K.  :               Member

                   Sri. Babu Sebastian         :               Member

Dated this the 21^st day of November, 2013.

C.C.No.148/2012

Ratheesan Ayillyath,

‘Jyothi Nivas’,                                                       :         Complainant

Chittariparamba P.O.

Kannur – 670 650         

1.Proprietor

   Plaza Marbles & Granite

   T.C. Road, Kuthuparamba

   Kannur-670 650

  (Rep. by Adv. Zirajudheen A.K.)                          :         Opposite Parties

2. Regional Manager

    Somany Ceramics Ltd.

    West Hill, Kozhikode – 673 005

   (Rep. by Adv. M. Youseph)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties to pay an amount of Rs.60000 as compensation. 

The case of the complainant in brief is as follows :  Complainant purchased 750 Sq. Ft. tiles from 1^st opposite party on 25.02.2012.  It was manufactured by 2^nd opposite party, Somany Ceramics Ltd.  His relative M.M. Venugopalan also purchased the same brand tiles.  Complainant started his laying work within a few days.  Complainant was on duty on the day of starting work.  Laying work of two rooms were completed when he came back. He noticed edge variation of tiles laid down in the rooms.  After discussion with the workers he informed 1^st opposite party about this.  But they directed him to continue the work and promised that the problem shall be informed to Company.  But complainant contacted the representatives of the Company while the work was going on and one Sivakumar representing the Company inspected his house and realize the actual state of affair.  The work then continue on his direction.  This was further informed to Delhi office of the Company by E-mail and then by Speed Post on 07.03.2012.  But there was no response on the part of neither 1^st opposite party nor 2^nd opposite party.  He sent registered notice again to Regional Office of the Company in Kozhikode.  Even then there was no response, hence this complaint. 

          In response to the notice, 1^st and 2^nd opposite party made appearance and filed version separately denying the main allegations of the complainant.  In brief, 1^st opposite party raised the following contentions accepting the purchase of tiles by the complainant.  1^st opposite party contended in their version that the complainant came to their shop 4 days after the purchase and asked for address of Kozhikode Depot and its E-mail id.  That was given by the opposite party to the complainant.  The allegation of the complainant that his uncle purchased the same brand tiles and returned back the same since it was defective is false.  It was exchanged since the same was not preferred by him ultimately and not because of any defect.  This opposite party has been conducting the business of the tiles of Somany Company for the last several years.  But there was no single incident of returning any piece on the reason of manufacturing defect.  If there is any defect it might have been happened only due to the work of any in experienced labourers who laid down the laying work.  Experienced workers first of all will make right tile ascertaining that there is no edge variation before fastening on to paste.  Hence to dismiss the complaint. 

          2^nd opposite party separately filed version contending as follows :  It is not correct to say that there was edge variation on the tiles purchased by the complainant.  On correcting the complaint of edge variation, the representative of their company inspected the premises and found that the complaint was baseless and false.  They were manufacturing tiles for the last two decades innovative technology and with utmost care and caution.  The complaint of edge variation on the tiles purchased by the complainant is false and baseless.  Complainant informed regarding edge variation long after laying the tiles.  If there was such variation we should have been inform it before laying the tiles.  There is no manufacturing defect.  Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1.    Whether there is any deficiency in service on the part of opposite parties?

2.   Whether the complainant is entitled for the remedy as prayed in the complaint?

3.   Relief and cost.

The evidence consists of oral evidence adduced by PW1 and Ext.A1 to A3 marked on the side of complainant.  No evidence adduced by the opposite parties.

Issues No.1 to 3 :

          The crux of the matter deserving for consideration is to find out the truth whether there is any edge variation on any of the tiles purchased by the complainant from 1^st opposite party which was manufactured by 2^nd opposite party.  It is an admitted fact that complainant purchased tiles from 1^st opposite party which was manufactured by 2^nd opposite party.  The case of the complainant is that there is edge variation to the tiles.  He came to know the fact only after half the tiles were laid down already.  Then the matter was informed to 1^st and 2^nd opposite parties.  1^st opposite party promised to complainant that the subject matter would be informed to 2^nd opposite party.  Company representative of 2^nd opposite party inspected his house but no remedial measures have been taken to solve the grievances of the complainant.  Meanwhile he completed laying work since 1^st opposite party and the representative of the 2^nd opposite party had given direction to proceed the work.

          PW1 deposed in his cross examination that he came to know the problem of edge variation when the laying work had been reached almost half the way.  It was the workers who called him and informed the same. Immediately then the problem was informed to 1^st opposite party.  He is further deposed that work continued with the direction of 1^st opposite party.  PW1 stated thus “ഷോപ്പ്കാരുടെ നിർദ്ദേശ പ്രകാരമാണ് തുടങ്ങിയത്..”. 2^nd opposite party was also informed the same.  It is an admitted fact that 2^nd opposite party was informed of the complaint of tiles.  That is the reason why their representative inspected the house of the complainant.  Complainant has specific case that the representative had realised the problem of edge variation.  But they have not responded afterwards.  In cross examination PW1 deposed further that “OP2വിന്റെ representative വീട്ടിൽ വന്നു പരിശോധന നടത്തിയിരുന്നു. അദ്ദേഹത്തിനു ഈ problem മനസ്സിലായിരുന്നു.”  Though 2^nd opposite party denied this fact opposite party did not adduce any evidence in order to rebut the specific case of the complainant.  Contentions raised in the version cannot be considered as evidence.  Complainant adduced evidence by way of his chief affidavit that representative who had inspected his house clearly understood the actual problem of edge variation to tiles.  At the same time opposite parties did not come forward to adduce evidence to this effect.  Complainant specifically pleaded that one Sivakumar representing the opposite party Company made inspection to his house and understood the problem.  He has adduced evidence to this effect by way of effective evidence.  It is further strengthened the case of the complainant by bringing out the same by cross examination for opposite parties.  It is an admitted fact that opposite party’s representative inspected complainant’s house and also put forward the case that he; the representative had found that the complaint was false and baseless. Opposite party has no explanation why this representative who had inspected the house of the complainant and found the complaint is false and baseless and remained without examining before the Forum.  According to opposite party he is the person who is well aware of the truth but unfortunately  kept away from the Forum.  That is a negative approach knowingly done to prevent the truth from the Forum.  There is no need to disbelieve the complainant.  The affidavit evidence as well as the facts brought out in cross examination strengthened the case of the complainant.  Non examination of representative of 2^nd opposite party is a clear indication that there is truth in the allegations of the complainant.  1^st opposite party also did not come forward to adduce evidence.

          Mere denial is not sufficient to defend the case.  Hence we are of opinion that there is deficiency in service on the part of opposite parties. 

          However, complainant could not place adequate evidence sufficient enough to quantify the damage sustained by the complainant.  None of the labourers were examined before the Forum atleast to place facts regarding their coolie and all.  So also he failed to give evidence  regarding the incident of insufficiency of the finishing work at site.  It would have been successfully supplied by examining atleast a worker and by taking out an Expert Commission for an authoritative report.  In the absence of sufficient evidence it is difficult to access the actual loss sustained by the complainant. 

          Moreover, it has to be taken into account that the complainant was fully aware of the defects at the time when atleast half of the work had been finished.  Then what prompt complainant to allow the rest of the work complete, is also not clear. 

          Complainant has pleaded that it was done since it was so directed by the opposite parties.  Then the question arose what was intended by complainant while proceeding to complete the work.  When it is allowed to complete the laying work, a man of ordinary prudence never expect, in the usual course of dealings, to take out the tiles already laid down again and laying with new one afresh.  If so what is the actual loss sustained by the complainant.  Complainant adduced no evidence to prove the actual loss suffered by him.  In-sufficiency of finishing work of laying tiles could have been well proved by taking out an expert commission and of his report which the complainant did not take care at all.  The evidence available on record is not sufficient enough to quantify the loss sustained by the complainant.  It cannot be also ignored the fact that this is a case wherein half of the work could have been saved from this alleged peril at the will of the complainant.  There is absolutely nothing to presume what prompt complainant to continue the work even after knowing well what the actual defect of the tiles was.  He could have stop the work then and there saving the rest of the materials.

          Under the above facts and circumstances we are of opinion that complainant is entitled to receive only a normal amount of Rs.5000 as compensation together with an amount of Rs.1000 as cost.  Thus issues No.1 to 3 are answered partly in favour of complainant. 

          In the result, complaint is allowed partly directing the opposite parties to pay an amount of Rs.5000 (Rupees Five Thousand only) as compensation and Rs.1000 (Rupees One Thousand only) as cost of this proceedings within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order after 30 days as per the provisions of Consumer Protection Act.

          Dated this the 21^st day of November, 2013.

                           Sd/-                      Sd/-               Sd/-

                       President               Member          Member   

APPENDIX

Exhibits for the Complainant

A1.   Cash bill dated 25.02.2012.

A2.   Postal receipts (2 in number).

A3.   Estimate dated 09.02.2012.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1. Complainant

Witness examined for opposite party

Nil

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT