By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:-
1. The complainant is residing in her house, which is more than 10 years old and there is complaint of leaking during rainy season. So, she decided to lay roof tiles in consultation with the husband, who is working abroad. The complainant was in search of suitable tiles for the same and ultimately reached at the opposite party shop and was convinced from the perusal of brochure issued by the opposite party. The steel grey mat item of tile was suitable for her purpose and placed order for the same. One of the representatives of the opposite party came to her residence and measurement was taken for the tiles. The complainant placed order for “Tamar premium red clay roof tiles “. The steel grey mat tile which she placed order was included roof tile 1300x57 =74100, ridge tile 160x85=13600, hipent tile 5x350=1750, Three-way tile 2x400=800. The quotation was included in addition to tiles, pipe nail and gum. The total value was Rs.101100/-. The opposite party prepared an invoice and the complainant paid Rs.50,000/- in cash through the brother of the complainant. The opposite party without informing the complainant and without arranging place for download the tiles it was brought on 21/11/2018 at the residence of complainant and it was placed at car porch and also on the way to the residence, which caused much inconvenience to the complainant.
2. While the workers who came to lay tiles, they could see the tiles supplied were mixed tiles of branded as well as non-branded. The tiles supplied were not as per the order placed before the opposite parties. The complainant had placed the order on verification of the brochure issued to the complainant. There were no tiles as issued sample to the complainant. Immediately the complainant contacted the opposite party. But the opposite party was passive to the complaint of the complainant. Mean while husband of the complainant came back from the abroad and the husband as well as the complainant contacted the opposite party through telephone as well as directly. The opposite party was least bothered to resolve the issues. The complainant made attempt to contact the first opposite party, the owner of the tiles but the second opposite party obstructed the same. The attitude of opposite party amounts cheating as well as deficiency in service. The complainant failed to carry out tile laying work due to the non-supply of the product as demanded and thereby she suffered huge loss and the opposite parties bound to redress the grievance of the complainant and also liable to pay cost of the proceedings.
3. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed detailed version. The opposite party denied the entire averments and allegations in the complaint and prayed for the dismissal of the complaint.
4. The opposite party submitted that they are not aware of the averments in the complaint that the complainant is residing at Edavanna for the last 10 years and there was defect in construction of her house, that there was leaking during rainy season, that there was even complaint to the electrical wiring, that there was weakness for the wall of the house and the family of the complainant was afraid of the same etc. The opposite party also denied that the husband of the complainant was working aboard, as per his instruction decided to roof tiling, approached for the appropriate tiles before the opposite party, convinced through the explanation and brochure issued by the opposite party, out of four items steel grey mat was demanded by the complainant, one of the representative from the opposite party visited the house of the complainant, measured the area and prepared list of the tiles and thereafter placed orders, as stated in the brochure tamer premium red clay roof tiles were ordered and tiles included item steel grey mat etc.
5. The opposite party submitted that the complainant along with a person, who himself introduced as commission agent of ceramic tiles called Mr. Noushad.K approached the opposite party and placed order for roof tiles. The opposite party had taken steps to measure the roof area of the house of the complainant is correct. The opposite party had supplied roof tiles and materials worth RS.101106 on 21/11/2018 at the residence of the complainant. The complainant had agreed to pay the cost at the time of delivery of tiles. But the complainant instead of remitting the bill amount of tiles requested further time for payment. The opposite party had issued in voice on the same day itself. The articles delivered were selected by the complainant from the opposite party shop and the same was delivered on 21/11/2018. The averment regarding the quotation is not correct according to the opposite party. It is true that the cost fixed was 101100. But the averment that as per understanding between the complainant and opposite parties, the invoice was prepared and on 26/11/2018 rupees 50,000/- was paid as ready cash through the brother of the complainant Mr. Noushad and the opposite party received the same. The opposite parties denied the allegation that without any intimation and allowing time to arrange space for unloading the tiles, they were delivered on 21/11/2018. The tiles and other articles were unloaded in the car porch as well as way to the house are not correct, hence the opposite parties denied. The opposite parties also denied the averment that the workers who undertaken to lay the tile came to the house of the complainant and examined the tiles in the packets and it was found that tiles were with tamer premium red clay roof tiles prints as well as non-printed tiles mixed each other, there was no tiles like shown in the brochure as well as sample pieces provided, contacted the opposite party, but the second opposite party was not care to attend the complaint, during that period husband of the complainant came from abroad and accordingly complainant and her husband jointly contacted the opposite party, but did not solve the issue, the complainant made attempt to contact second opposite party, but the first opposite party prevented the same, the act amounts as deficiency in service as well as cheating.
6. The opposite parties also denied that the opposite party could not provide the articles as ordered by the complainant in the quality and color in time and as a result she could not rectify the defects of her house through laying roof tiles and the opposite parties responsible for the same, the opposite parties bound to pay compensation, the opposite party acted without responsibility, the opposite party issued mixed tiles of branded as well as non branded tiles, the commissioner was appointed to verify the same etc. The opposite party submitted that the complainant had deputed a commissioner but the opposite party is not liable for the defects caused to the house of the complainant. Actually the opposite party demanded the cost of the product and thereby the complainant provoked and decided to teach a lesson the opposite party and thereby the complainant did not lay the tiles and not paid the balance amount to the opposite party .
7. The submission of the opposite party is that the opposite party supplied the articles as ordered on 21/11/2018. But the complainant did not pay the cost of the product but dragged the issue. Thereafter on 26/11/2018, the complainant paid 50,000/- rupees through Mr. Noushad to the opposite party. The opposite party received the money and demanded to pay balance amount of Rs.51,106/-. The opposite party demanded the same several times but the complainant or Mr. Noushad did not pay the amount. Thereafter the opposite party enquired about Mr. Noushad and it was found that he was the brother of the complainant and the opposite party talked with Mr. Noushad strictly to pay the balance amount but thereafter the complainant demanded or raised utter false hood and contradictory statements and tried to provocate the staff of the opposite party shop. There is no bonofides on the part of complainant and as a result the opposite party suggested to return the product and receive back the cost of the product but the complainant was not amenable for the same but made unnecessary contentions.
8. The complainant came to the shop of the opposite party and began to make nuisance by uttering filthy words with the object of making defamation among the customers and thereby pressurized the opposite party and so the opposite party approached the Manjeri Police on 18/12/2018 and filed complaint. The police called the complainant and Mr. Noushad and it was agreed to pay the balance amount to the opposite party and thus the dispute had settled. But the complainant instead of making the payment filed a complaint before the Consumer Disputes Redressal Forum alleging false things. The complainant also claimed that she as an experienced person in filing complaint before the authorities and the opposite party alleged complainant and her brother misusing the legal authorities with malicious intention .
9. In the light of above situation, the opposite party issued lawyer notice demanding compensation of Rs.1,00,000/- for causing defamation to the opposite party. But though the notice received by the complainant, no reply was issued. Notice sent to the Noushad stands returned stating he is at abroad. There after the opposite parties decided to proceed legally for the realization of the due amount. The complainant even though received the tiles as per order without issuing the cost, trying to make inconvenience to the opposite parties and there is no reason for filing this complaint. Hence the prayer is to dismiss the complaint with compensatory cost of the opposite parties.
10. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A7. Ext. A1 is copy of tax invoice dated 21/11/2018 (two pages). Ext. A2 is particulars of ledger account between 01/11/2018 to 04/12/2018. Ext. A3 is brochure KPG roofing’s. Ext. A4 is copy of estimate for Rs.1,01,100/- Ext. A5 is invoice B2C dated 26/04/2019. Ext. A6 is estimate dated 01/05/2019. Ext. A7 is tax invoice dated 01/05/2019. The documents on the side of opposite party marked as Ext. B1 to B5 Ext. B1 is copy of power of attorney (3 pages). Ext. B2 is copy of tax invoice (4 pages) Ext. B3 series lawyer notices dated 25/01/2019 two in number. Ext. B4 is receipt for complaint issued from Manjeri Police station dated 18/01/2019.Ext. B5 is copy of O.S.113/20 of Manjeri Munciff court. Ext. C1 is commissioner’s report.
11. Heard both side, Perused affidavit and documents. The opposite party filed notes of argument also. The following points arise for the consideration.
- Whether there is unfair trade practice and deficiency in service on the part of the opposite parties?
- Relief and cost?
12. Point No.1 & 2
The grievance of the complaint is that she approached opposite party for roof tiles and perusing the brochure and the explanation rendered by the opposite party satisfied complainant and placed order for certain roof tiles. As per contention her order was for tamper premium red color roof tiles. As per order following tiles were included i.e roof tile 1300x57 =74100, ridge tile 160x85=13600, hipent tile 5x350=1750- and three-way tile 2x400=800. It was also included nail, pipe and gum. The total amount as per quotation was Rs.1,01,100/-. The complainant paid 50,000/- rupees on 26/11/2018 to the opposite party through her brother Mr. Noushad. The opposite party delivered the ordered item at her house in the car porch as well as in front her house. Complainant submit that the order was placed on 21/11/2018. Complainant submit that the workers who were authorized to lay tiles examined the packets of the tiles and it was found branded tiles and non-branded tiles are therein the packets. There were no tiles as shown in the brochure and also as shown sample of the tile at the shop. The complainant immediately contacted the opposite parties but they did not act accordingly. The opposite party submitted that the articles delivered were as per the order placed by the complainant and which is evident from commissioner’s report also. The opposite party submit that all the tiles examined by the commissioner has noted that there was print of the brand name of opposite party. Only the ridge tiles were not with print of the opposite party. It was actually not selected by the complainant. The opposite party submitted that the complainant placed order on 21/11/2018 and the same was delivered to the complainant on the day itself. The contention of the opposite parties is that they have never issued sample tiles to the complainant and the roof tiles sample produced by the complainant does not bear seal or name of the opposite party. So the contention of the opposite party is that the complainant collected roof tiles from some were and produced before the commissioner stating that it is the sample issued from the opposite party. The complainant was actually having the copy of the brochure and instead of producing the same before the commissioner, made an attempt to mislead the commissioner producing a roof tile managed from some were else. The opposite party had informed the complainant in the version that they are ready to refund the cost of the tile in case of returning the tiles delivered to the complainant.
13. In this complaint the complainant has not stated properly the day of delivery of the tiles but it is stated that the order was placed on 21/11/2018. The opposite parties submit that the tiles were delivered to the complainant on 21/11/2018. It is also important to note that at what time the workers to lay the tile examined the tiles and noted the defects as stated by the complainant. It is also crucial to not that the complainant could not produce brochure before the Commissioner but at the same time it is seen produced before the Commission. The opposite party has got a contention that they approached several times the complainants for the cost of the tiles but paid only Rs.50,000/- on 26/11/2018 and later they filed a complaint before Manjeri Police on 18/01/2019 and there was a settlement to pay the balance amount within days but instead of complying the understanding filed a complaint before this commission. The opposite party did not produce any document to prove the settlement or understanding. But the affidavit of the complaint totally silent on the contention regarding the payment of cost of the order, complainant before the police and suit before the Munciff Court Manjeri. It is no doubt the duty of the complainant is to approach the authority with clean hands and true facts. The perusal of the affidavit and documents do not appear that the complainant approached this commission with true facts and clean hands. The opposite party produced Ext. B3 and B4 documents to establish their contention. The complainant had not issued reply notice to Ext. B3 document. There is no explanation regarding the reasons behind the complaint Ext.B4 and suppression of Ext. B5 document regarding the pendency of suit for realization of money while filing the affidavit before this commission. So, we do not find merit in the complaint to allow the prayer as in the complaint. Since the matter in dispute is pending before the civil court, the complainant will get opportunity to establish the grievance in detail and so the order in this complaint will not be a bar for furnishing documents and evidence before the civil court. In the absence of sufficient documents and evidence to establish the grievance of the complainant we do hereby dismiss this complaint.
Dated this 10th day of August, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Ni.
Documents marked on the side of the complainant: Ext.A1to A7
Ext.A1: Copy of tax invoice dated 21/11/2018 (two pages).
Ext.A2: Particulars of ledger account between 01/11/2018 to 04/12/2018.
Ext A3: Brochure KPG roofing’s.
Ext A4: Copy of estimate for Rs.1,01,100/-
Ext A5: Invoice B2C dated 26/04/2019.
Ext.A6: Estimate dated 01/05/2019.
Ext.A7: Tax invoice dated 01/05/2019
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B5
Ext.B1: Copy of power of attorney (3 pages).
Ext.B2: Copy of tax invoice (4 pages)
Ext.B3: Series lawyer notices dated 25/01/2019 two in number.
Ext.B4: Receipt for complaint issued from Manjeri Police station dated 18/01/2019.
Ext.B5: Copy of O.S.113/20 of Manjeri Munciff court.
Ext. C1 is commissioner’s report.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
