KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM COMMON JUDGMENT IN APPEAL Nos.204/09AND 531/09 JUDGMENT DATED: 30..8..2010 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER APPEAL 204/09 K.P.K.Agencies, Rialto, : APPELLANT Thana, Kannur-12. (By Adv.S.Reghukumar) vs. 1. Mrs.Saraswati Kondoth, : RESPONDENTS W/o D.M.Anoop, Archana, Near Thana.P.O., Kannur-12. (Adv.N.G.Mahesh, Amicuscuriae for R1) 2. City tiles, Ceramic City, Post Dalpuar, Kattwad Road, Near Ahamedabbad, Sabarkantha(Gujarath). APPEAL 531/09 City tiles, : APPELLANT Ceramic City, Post Dalpuar, Kattwad Road, Near Ahamedabbad, Ta.Pratij-383120, Sabarkantha District, Gujarath, India. (By Adv.Shyam Padman) vs. 1. Mrs.Saraswati Kondoth, : RESPONDENTS W/o D.M.Anoop, Archana, Near Thana.P.O., Kannur-670012. (Adv.N.G.Mahesh, Amicuscuriae for R1) 2. K.P.K.Agencies, Rialto, Thana, Kannur-12. JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeals are preferred from the order dated 2nd March 2009 passed by CDRF, Kannur in CC.No.24/07. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in effecting sale of defective ceramic tiles to the complainant. The opposite parties entered appearance and filed written version denying the alleged deficiency in service. Before the Forum below the complainant was examined as PW1, Exts. A1 and A2 documents were also marked on his side. An expert commissioner was deputed by the Forum below and the expert after inspection of the premises of the complainant submitted C1 commission report. Expert commissioner was examined as CW1. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties to pay a sum of Rs.40000/- towards the cost for replacement of tiles and Rs.5000/- as compensation with cost of Rs.1500/-. Aggrieved by the said order, the appeal 204/09 is filed by the 2nd opposite party and the appeal 531/09 is filed by the 1st opposite party/manufacturer of the said tiles. 2. We heard the learned counsel for the appellants in these appeals. They submitted their arguments based on the grounds urged in the memorandum of the present appeal. They relied on C1 expert report and pointed out that there were only colour variations for 3 tiles and difference in level and defects for the corner edges of 7 tiles. He also pointed out the report of the expert stating that there was only hairline crack on one tile. The appellants challenged the impugned order directing payment of Rs.40000/- towards cost for replacing those defective tiles. It is further submitted that the respondent /complainant failed in following the written instructions regarding laying procedure to be followed in laying the ceramic tiles. The appellant in A.531/09, manufacturer of the tiles expressed his readiness and willingness to compensate the complainant by refunding the cost of 11 defective tiles. Thus, the appellants/ opposite parties prayed for setting aside the impugned order passed by the Forum below. 3. The respondent/complainant was absent and he did not engage a counsel of his choice. This Commission was pleased to appoint Advocate Mr.N.G.Mahesh as the amicuscuriae. He submitted his arguments in support of the impugned order passed by the Forum below. It is further submitted that the complainant suffered financial loss and inconvenience on account of the deficiency in service on the part of the opposite parties in selling tiles with colour variations and some defects. Thus, the respondent/complainant prayed for dismissal of these appeals. 4. There is no dispute that the respondent/complainant purchased 276 tiles called rustic tiles on a sale consideration of Rs.46845/-. Ext.A2 invoice issued by the 2nd opposite party/dealer of the tiles would also make it clear that the complainant purchased tiles worth Rs.46845/- which would take in 276 Nos. of rustic tiles and 50 Nos. of another set of tiles and another 4 number of ceramic tiles. It is to be noted that the complaint is only with respect to 276 rustic tiles amounting to Rs.30718.80 with VAT. The C1 expert report and the evidence of the expert as CW1 would make it clear that there were only defects for 11 tiles with respect to colour variations and defective corner edges. The expert commissioner has assessed the cost of those defective tiles at Rs.1496/- with laying cost of Rs.500/-. Thus, the total cost for replacing the defective tile would come to Rs.1996/- . But the Forum below ordered payment of Rs.40,000/- towards cost for replacing those tiles. The aforesaid direction was given by the Forum below by ignoring C1 expert report. Over and above, the Forum below has also awarded compensation of Rs.5000/- with cost of Rs.1500/-. The materials available on record would make it crystal clear that the impugned order passed by the Forum below demands modifications. 5. The complainant as PW1 has admitted the fact that instructions were issued by the 2nd opposite party dealer with respect to the procedure to be followed in laying the tiles. The expert commissioner as CW1 has also deposed that these defects could have been rectified by getting replacement of those defective tiles before the tiles were wet laid. It is also admitted by CW1 that there is the possibility of colour variations in ceramic tiles and those colour variations can be rectified by conducting a trial laying of the tiles but in the present case on hand, the respondent/complainant preferred the complaint regarding the defective nature of the tiles only after those tiles were wet laid. This procedure or method followed by the complainant would show negligence on his part in following the instructions regarding the procedure to be followed for laying the tiles. Thus, it can be concluded that the complainant had also contributed negligence in inviting the inconvenience and financial loss. 6. A perusal of C1 expert report and the evidence of the expert as CW1 would make it clear that the complainant/consumer is only entitled to get compensation of Rs.1996/- from the opposite parties. It is to be noted that there were only 11 defective tiles. But the complainant failed to bring those defective tiles before they were laid. At any rate, the opposite parties(appellants) can not be burdened with the liability to pay the cost of the entire 276 tiles They can not be burdened with the liability to pay the cost for replacing the tiles. This commission is pleased to place reliance on C1 expert report and the oral testimony of the expert as CW1. Thus, the opposite parties 1 and 2 (appellants) can be made liable to pay a sum of Rs.1996/- to get the defective tiles replaced. It is pertinent to note at this juncture that these tiles were purchased on 20.12.06 and the tiles were laid immediately after purchase. There is no materials available on record to show that the complainant/consumer replaced those defective tiles. The available circumstance would make it clear that the complainant has been enjoying those tiles which were laid in his residential building. Considering all these aspects, this commission is pleased to modify the impugned order passed by the forum below and thereby reducing the compensation of Rs.45,000/- ordered by the Forum below to Rs.1996/-. The cost of Rs.1500/- ordered by the Forum below can be treated as reasonable, considering the nature of the evidence adduced by the complainant. so the impugned order is modified accordingly. In the result the above appeals are allowed and thereby the impugned order dated 2.3.2009 passed by CDRF, Kannur in CC.24/07 is modified. The opposite parties 1 and 2(appellants) are directed to pay compensation of Rs.1996/- to the complainant in CC.24/07 on the file of CDRF, Kannur with a cost of Rs.1500/-. As far as the present appeals are concerned, the parties are directed to suffer their respective costs. Advocate Mr.N.G.Mahesh will be paid a sum of Rs.2000/- for the service he rendered in delivering the judgment in these appeals. The aforesaid amount is to be borne out from the legal aid fund of this Commission. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
