DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 16^th  day of  August 2012

Present : Smt.Seena H, President

            : Smt. Preetha.G. Nair, Member

            : Smt. Bhanumathi.A.K, Member              Date of filing: 24/06/2011

(C.C.No.99/2011)

Sunitha Mathai,

W/o.Mathai,

Rep.by (agent / father)

Zakkaria,

S/o.Late P.Thomas,

Paradial House, Giri Nagar,

N.S.S.Eng. College Post,

Akathethara, Palakkad - 8                              -        Complainant

(By Adv.K.A.Stanly James)

V/s

1. Proprietor,

   M/s.H&R Johnson (India) Ltd.

   Windsor, C.S.T.Road, Kalina,

   Santacruz (East), Mumbai – 400 098

  (By Adv.E.Krishna Das)

2.Proprietor,

   M/s.Kalliyath Sanitations,

   East Bazar, Tirur,

   Malappuram – 676 101

  (By Adv.E.Krishna Das)

3. Proprietor,

    M/s.Classic Traders,

   36/860(2), Malampuzha Road,

   Olavakkode, Palakkad – 678 002                            -        Opposite parties

   (By Adv.S.Sidharthan)

 O R D E R

By Smt.PREETHA G NAIR, MEMBER

The complainant was constructing a new double storied building having plinth area of 2,987 Sq.ft. The complainant approached the 2^nd opposite party for supply of floor tiles. The 2^nd opposite party is the authorized  dealer of 1^st opposite party for distribution of Johnson tiles and 3^rd opposite party is the local delivery agent of 2^nd opposite party. Then the quality  of tiles were guaranteed by 2^nd opposite party and a catalogue describing in detail with photographs about tiles were also given to the complainant. On 13/10/10 the complainant purchased tiles worth Rs.1,85,000/- from 2^nd opposite party. As per the direction of 2^nd opposite party tiles were delivered by 3^rd opposite party. Tiles were fixed as per the fixing instructions on the cartons of the tiles. The work was completed in the month of February 2011. As a raw material for laying tiles 50 bags of cement and 2 full lorry load of sand was used. The complainant has paid a total sum of Rs.35,844/- to labourers as laying charges.

After few days of completion of laying tiles, complainant was surprised to note considerable colour difference amoung the tiles placed and also a type of fungal infection is found non uniformity  all over the surface of tiles. The 2^nd opposite party has not supplied the first quality tiles as offered and also as displayed in the showroom. The act of opposite parties amounts to deficiency in service and unfair trade practice. Hence the complainant prays an order directing the opposite parties 1 & 2 liable to pay 1) Rs.1,85,000/- as the cost of the tiles and 2) Rs.25,000/- as cost of raw material for laying tiles and 3) Rs.35,844/- towards labour charges for laying tiles and 4) pay Rs.10,000/- as compensation for mental agony.

Opposite parties filed version stating the following contentions. The complainant cannot be represented by an agent without proper authorization and no document is seen produced by the complainant authorizing any agent.  The 1^st opposite party is a well known and reputed manufacturer of wall and floor tiles under the brand name of Johnson tiles. The product is manufactured in Maharashtra. The material by design name is Chestnut and Pine wood cherry under Endura Scratch free design. The Aesthetic Value of ceramic tiles is obtained only through good workmanship. There are specific instructions printed in the box that contain the tiles. For premium quality tiles company given the warranty of replacement provided tiles are dry laid and customer should satisfy  himself regarding the design and quality before fixing the tiles on floor. Once the tiles are laid the 1^st opposite party does not provide any warranty on the products. On receiving the complaint of colour fading by the complainant the service engineer visited the premises and checked the complaint and found out that the colour fading is due to the usage of cleaning solution having high concentration of acids for cleaning the tiles which is clearly warned  in the packing itself. The complainant is bound by the conditions printed in the carton itself and the 1^st opposite party is not at all liable for any loss caused due to the non compliance  of the conditions printed in the carton.

2^nd opposite party stated that the complainant had personally verified the quality of the products. The complainant had brought the tiles from 3^rd opposite party on being fully satisfied about the quality of the tiles.

3^rd Opposite party stated that they have no connection in sale of tiles manufactured by 1^st opposite party. Also 3^rd opposite party admitted that they are the local delivery agent of 2^nd opposite party for the tiles supplied.

1^st opposite party filed additional version stating the following contentions. The building constructed by the complainant is in the nature of lodging and the building is being used as a hostel. Also the building is situated near N.S.S.Engineering College and more than 40 students are residing in the building would go to show that the building is not constructed for personal residence. The complainant would never come under the category of consumer as the building was constructed for commercial purposes.

All opposite parties stated that there is no deficiency in service and unfair trade practice on their part. Hence they prayed that dismiss the complaint with cost.

Complainant and 1^st and 2^nd opposite party filed affidavit. Ext.A1 to A4 marked on the side of the complainant. Ext.B1 marked on the side of 1^st and 2^nd opposite parties. Ext.C1 is the Commission Report filed by the 2^nd commissioner. 1^st Commissioner was examined as CW1.

Matter heard. Complainant and 1^st and 2^nd opposite parties filed argument notes.

Issues to be considered are

1.    Whether complainant is a consumer under the Consumer Protection Act ?

2.    Whether there is any deficiency in service or unfair trade practice on the part of opposite parties ?

3.    If so, what is the relief and cost ?

Issue No.1

According to 1^st and 2^nd opposite parties, the complainant cannot be represented by an agent without proper authorization and no document is seen produced by the  complainant authorizing  any agent. In the complaint mentioned that the complainant is employed at Australia and is residing there with family and authorized her father Sri.Zakkaria as agent to represent her before this Hon’ble Forum. In this case there is a technical defects as raised by the 1^st and 2^nd opposite party that the complaint is filed by the agent and no authorization was filed. Consumer Forum being a benevolent Legislation are not bound by such trivial technicalities. Also complaint filed by the father.  After filing the 2^nd commission report stating that the building constructed by the complainant is in the nature of lodging and the building is being used as a hostel. Further 1^st opposite party stated that the building is being used for commercial purposes and the very plan of the building would go to show that the building is not constructed for personal residence. So the complainant would never come under the category of consumer under the Consumer Protection Act. It is to be noted that the complainant has purchased the tiles not for any resale or for making any profit. The purchase was for laying the tiles in her house and it has no direct nexus with the profit making process. So it can be concluded that the purchase was not for commercial purpose and so the complaint is maintainable.

The Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission in Raipur II 2011 CPJ 89 Amit Jaiswal Vs. Dealers Star Automobiles and Others held that disputes come in the category of consumer dispute can very well be entertained by consumer Forum. In the present case the defects shown in tiles purchased from opposite parties. So this matter also come in the category of consumer disputes.

Hence the complainant is a consumer under the Consumer Protection Act. So the 1^st issue answered in favour of the complainant.

Issue No.2 & 3

Heard both parties and perused relevant documents on record. The complainant first took out a commission and filed commission report. Thereafter the 1^st opposite party filed application to cross examine the commissioner and the same was allowed. In the cross examination the commission deposed that he did not know anything about ceramic technology and not an expert. Then the complainant filed application to set aside the report and appoint another commissioner. Application allowed and the 2^nd commissioner filed report. The 2^nd commissioner filed report dated 9/6/2012 marked as Ext.C1.  The commissioner noted that on the surface of most of the tiles a light white shade has came and also the photographs are attached. Further commissioner mentioned  in C1 that colour changing is depending on quality and type of tile, excessive  use of chemicals may change colour. The opposite parties has not produced evidence to show that there is excessive use of chemicals. The commissioner mentioned that building is being used as hostel and due to bad workmanship colour will not change.

According to 1^st and 2^nd opposite parties, if the instructions in the carton were strictly followed by the complainant,  the present complaint would have never  arised. The commissioner stated that due to bad workmanship the colour will not change.

In the complaint Ext.A2 and Ext.A3 the date of purchase of tiles is 3/10/10. In the affidavit and argument notes complainant mistakenly stated that the date of purchase of tiles was 3/10/2011. The opposite parties had not raised any objection regarding the purchase of tiles.  The complaint filed on 24/6/2011. The 1^st and 2^nd opposite party had not produced evidence to show that there was excessive use of chemicals in the rooms. The 1^st and 2^nd opposite parties stated that on receiving the complaint of colour fading by the complainant, the service engineer visited the premises and found that the colour fading is due to the usage of cleaning solution having high concentration of acids. The service engineer was not examined as a witness by the opposite parties. No documentary evidence produced by the opposite parties to show the usage of high concentration of acids.  Commissioner in the C1 report dated 9/6/2012 stated that colour changing is depending on quality and type of tile. No contradictory evidence produced by the 1^st and 2^nd opposite parties. 3^rd opposite party has not filed affidavit and supporting documents. The 1^st and 2^nd opposite parties had not taken steps to prove that the complainant has not followed the conditions printed in the carton. No relief is claimed against 3^rd opposite party. As per Ext.C1 report dated 9/6/2012 along with the photographs   shows that on the surface of most of tiles a light white shade  has came.

In Ext.A3 mentioned the cost of kitchen sink 37 x 18 x 8” splend is Rs.3,662.60 (Rs.3296.34 + 366.26) But the complainant has not produced evidence to show the defects of  kitchen sink. So we deducted an amount of Rs.3,662.60 from the grand total Rs.1,83,110/- mentioned in Ext.A3. Then the cost of tiles is Rs.1,79,447.40 (Rs.1,83,110 – Rs.3,662.60) round off Rs.1,79,447/-.

In the above discussions we are of the view that there is deficiency in service on the part of 1^st and 2^nd opposite parties. In the result complaint allowed. We direct the 1^st and 2^nd  opposite parties jointly and severally liable to pay the complainant an amount of Rs.1,79,447/- (One lakh seventy nine thousand four hundred and forty seven only) as cost of tiles with 8% interest from the date of filing of the complaint to date of order and pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings.  

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization. 

Pronounced in the open court on this the 16^th  day of August  2012.

             Sd/-

Seena H

President

                                                                                Sd/-

Preetha G Nair

Member

     Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Catalogue book of tiles

Ext.A2 –  Retail Invoice dated 13/10/10 issued by 3^rd opposite party

Ext.A3 –  Credit Bill dated 13/10/10 issued by 3^rd opposite party

Ext.A4 –Certificate issued by Licensed Building Engineer

Exhibits marked on the side of the opposite party

Ext.B1 – Carton in which the 1^st opposite party packs its products.

Commissioner Report

C1 – Mohandas K.A

Commissioner examination

Ext.CW1 – Rejikoshy

Cost Allowed

Rs.5,000/- allowed as cost of proceedings.