APPEAL No. 110/2010JUDGMENT DATED: 28.09.2010 PRESENT:- SMT. VALSALA SARANGADHARAN : MEMBER SHRI. S. CHANDRAMOHAN NAIR : MEMBER APPELLANTS 1. Bell Ceramic Ltd., 1176, Ist Floor, 12th B Main Hall, 2nd stage, Bangalore – 560008 2. Proprietor, Glamour Sanitary Store, 2/3307A, Karikkamkulum (PO),Karaparamba, Calicut. (Rep. by Adv. Sri.T.L. Sree Ram) Vs RESPONDENT Rejidas, S/o Choyikutty, Quarters No.4, Fire Station, Calicut. (Rep. by Adv. Sri. S. Reghukumar) JUDGMENT SMT. VALSALA SARANGADHARAN ; MEMBER The above appeal is preferred from the order dated 23.10.2009 of CDRF, Kozhikode in C.C. 496/03. The complaint was filed by the respondent herein as complainant against the appellants as opposite parties, whereby by the Forum below directed the opposite parties to refund a sum of Rs. 15,390/- along with Rs. 5,000/- as compensation and Rs. 1,000/- as costs to the complainant. The case of the complainant is that he had purchased 107 boxes of first quality Ceramic tiles from the second opposite party for a sum of Rs. 30,495/- When the complainant was out of station, the workers employed by him laid 53 case of tiles in the first floor of his house. At that time they found that almost all the tiles which were laid were defective due to bend and the edges of the tiles were not identical and found as fade. Immediately he contacted the second opposite party and a person who was in charge of second opposite party along with a staff inspected the tiles and convinced about the defects and promised that he would take steps to replace the defective tiles and would give adequate compensation to the complainant. But the opposite party replaced only 53 cases and has failed to replace the defective tiles which were already laid. The remaining 54 cases of tiles amounting to Rs. 15,390/- are with the complainant and those tiles are to be replaced at the expenses of the opposite parties. Failure on their part in doing so amounts to deficiency in service and unfair trade practice and hence he filed the complaint before the Forum below claiming refund of Rs. 15,390/- with 18% interest and Rs. one lakh as compensation and costs. The opposite parties filed version and admitted the purchase of 107 boxes of Ceramic tiles from the second opposite party and denied the allegation that the tiles delivered were defective. They contented that before taking delivery of the tiles the complainant verified and was convinced that the tiles were of first quality and if the complainant had engaged skilled labourers for affixing the tiles the allegation that the edges of the tiles were not identical and defective due to bend would not have arisen. The boxes containing first quality tiles will have FST marking on it. The opposite parties submitted that they had replaced 54 boxes of tiles only because it was not opened and unlaid and not because of any defects as alleged by the complainant. Pleading that there was no negligence or unfair trade practice on their part, they prayed for dismissal of the complaint with cost. We heard the learned counsel for the appellants and respondent/complainant. The learned counsel for the appellants argued before us that the Forum has erred in directing the opposite parties to refund the price of the tiles amounting to Rs. 15,390/- with compensation of Rs. 5,000/- and cost of Rs. 1,000/- as the same is passed without properly appreciating the commission report and the evidence on record. He argued for the position that the Commissioner had not found out any manufacturing defects in the tiles and the observations made by the Commission are about the improper laying of the tiles which cannot be termed as defect in the tiles. He advanced the contention that the Commissioner has found shade variation only in some tiles and the thrust given is only that the edges of the tiles are not even and its line is also not straight. He further submitted before us that the Forum below had gone wrong in allowing the complaint to a greater extent and prayed for seting aside the impugned order passed by the Forum below. On the other hand the learned counsel for the respondent/complainant supported the findings and conclusions arrived at by the Forum below and prayed for the dismissal of the appeal. It is submitted by him that the appellants/opposite parties had not filed any objection to the Commission report and there is nothing illegal or wrong and arriving at the conclusion that the opposite parties had committed deficiency in service and also that the Forum below is justified in directing the opposite parties to refund the price of the tiles with compensation and costs. The learned counsel further submitted that the Forum ought to have allowed the complaint in toto. On hearing the learned counsel for both sides and on perusing the records we find that it is the admitted case of both parties that the complainant had purchased 107 cases of Ist quality ceramic tiles from the second opposite party on payment of Rs. 30,495/- and that the opposite parties have replaced 53 cases and the complainant had laid the remaining tiles in his house. It is also noted that it was after laying the tiles that the complainant found certain defects in the tiles and according to him the value of the said tiles amounting to Rs. 15,390/- has to be refunded by the opposite parties. The learned counsel for the appellants argued that even the commission report is not conclusive proof to show that all the tiles had defects and he advanced the contention that even the commissioner found out line variation and shade variation only in some tiles. It is also his case that the tiles laid by the unskilled labourers engaged by the complainant has resulted in line variation. It can be found that the line variation cannot be attributed to defective tiles. The commissioner observed marginal size variation also in some tiles. It is to be noted that the complainant has not removed the tiles or had replaced the same by new tiles. However the direction of the Forum below to refund the value of the entire tiles which are still in the house of the complainant as back from 2003 cannot be supported. It is also seen that the complainant himself has admitted that the tiles were laid by his employees and if that be so the defects due to uneven laying and the defects that the lines are not straight cannot be attributed to any deficiency of service on the part of the opposite parties. It is also to be found that when the complainant had found the shade variation and size variation he could have stopped laying the tiles in the beginning itself and could have asked for replacement to the opposite parties. However the Commissioner has pointed out certain shade and size variation in the tiles. It is also to be found that the complainant had ordered for first quality tiles itself and the opposite party had also admitted that he has given 1st quality tiles to the complainant. Shade and size variation ought not to have been there in the 1st quality tiles. The opposite parties have also not cared to replace those tiles. Considering all these aspects, we are of the view that the complainant is to be compensated by awarding a compensation of Rs. 10,000/- The costs of Rs. 1,000/- ordered by the Forum below is sustained. In the result, the appeal is allowed in part, there by the appellants/opposite parties are directed to pay a sum of Rs. 10,000/- as compensation along with Rs. 1,000/- as costs which was ordered by the Forum below within 2 months from the date of receipt of copy of this order, failing which the amount of Rs. 10,000/- will carry interest @ 9% per annum from the date of default till the date of realization. As far as the present appeal is concerned there shall be no order as to costs. VALSALA SARANGADHARAN : MEMBER S. CHANDRAMOHAN NAIR : MEMBER | 
