ORDER
(Passed on 4 /3/2020)
PER SHRI.ATUL D.ALSI, PRESIDENT.
The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging supply of defective vetrified tiles by the Opposite parties and praying for refund of cost of tiles amounting to Rs.1,24,000/- alongwith compensation and cost of proceeding.
2. The facts in short giving rise to this petition are that the complainant is the Proprietor of Safron Restaurent and is running his restaurant exclusively for earning his livelihood. The complainant wanted to renovate the restaurant to keep it in competition with other restaurents. Hence he purchased Simola Vetrified tiles manufactured by OP No.1 Simola Vetrified Pvt.Ltd. from OP No.2 who is the retailer for Rs.1,24,000/-. The complainant got said tiles installed through his architect and incurred expenses of Rs.1,20,000/- thereon. However, within a short period from installation, the colour of the tiles started to fade and the tiles were damaging. Hence the complainant brought the said fact to the notice of OP Nos.1 & 2 and requested for replacement of tiles. The OP Nos.1 & 2, after initial false assurances, avoided to effect the replacement. Hence the complainant issued legal notice dated 26/7/2018 to both the Ops through Adv.Ravindra Bhagawat, but the same was not complied with by the Ops. Hence, the complainant has filed this complaint.
3. The complaint is admitted and notices were served on the OPs. The OP No.1 and 2 filed their respective replies and thereby denied allegations against them.
4. OP No.1 in its reply submitted that there is no consumable interest between the complainant and OP No.1 as no transaction has taken place in between them. The OP No.1 has not issued any invoice, neither there is any batch number, manufacturing date mentioned on the invoice filed by the complainant on record. Further, the OP No.1 has no concern with OP No.2. Hence the complainant has no locus to file complaint against the OP No.1. However, he has filed the same with ulterior motive and as such the petition deserves to be dismissed with cost.
5. The OP No.2 in its reply admitted that the OP No.1 is the manufacturer of Simola Vetrified tiles which were supplied by OP No.2 to the complainant. The OP No.2 further submitted that right from the installation of tiles itself, the colour of tiles started to fade due to substandard quality of tiles. The OP No.1 is the manufacturer of tiles in question and OP No.2 has no role to play if they are found substandard. On the contrary, due to supply of substandard quality of tiles by OP No.1 the image of the OP No.2 has been lowered in the market. As the OP No.1 is solely responsible for substandard quality of tiles, no liability can be fastened as against answering OP No.2. Hence the complaint may be dismissed as against OP No.2 with cost.
6. Counsel for the complainant argued that the complainant has filed invoice of purchase of vetrified tiles dated 29/3/2017 at Exh.4/1 amounting to Rs.1,24,000/-. The OP No.2 has admitted in its reply that the quality of vetrified tiles supplied to the complainant is substandard. The complainant even issued legal notice to Ops but the same has not been complied. Therefore the petition may be allowed as prayed.
7. Counsel for the OP No.1 argued that there is no relation of Consumer and Seller in between complainant and OP No.1 and there is no evidence of supply of vetrified tiles manufactured by the OP No.1 to the complainant . Hence for want of reliable evidence, the complaint deserves to be dismissed with cost.
8. Counsel for the OP No.2 argued that the OP No.1 is the manufacturer of Simola Vetrified tiles which were supplied by OP No.2 to the complainant as per invoice issued on 29/3/2017 for Rs.1,24,000/- and the OP No.2 is no way concern with the manufacturing defect therein. The OP No.2 further argued that right from the installation of tiles itself, the colour of tiles started to fade due to substandard quality of tiles. The OP No.1 is the manufacturer of tiles in question and OP No.2 has no role to play if they are found substandard. He is just a retailer of tiles and the liability of substandard quality of tiles solely lye on the manufacturer. Hence he prayed for dismissal of the complaint as against OP No.2.
9. We have gone through the complaint, written versions filed by OP No.1 and OP No.2, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.
Points Finding
1. Whether the complainant is a Consumer of OPs? Yes
2. Whether the OP No.1 is liable for supply of defective goods? Yes
3. Whether there is deficiency in service on the part of OP No.2.? No
4. What order ? As per final order..
As to issue No.1
10. The OP No.1 Simola Vetrified Pvt.Ltd. is the manufacturer of Simola Vetrified tiles which were supplied by OP No.2 to the complainant. The complainant has filed invoice of purchase of vetrified tiles dated 29/3/2017 at Exh.4/1 amounting to Rs.1,24,000/-. There is no denial by OP No.1 in respect of manufacturer or other person is shown as manufacturer by adducing evidence on record for the contention raised by OP No.2 in written statement and argument.
Hence the complainant is the Consumer of both the Ops as invisaged U/s 2(1)(d) of the C.P.Act. as a result,the issue is decided accordingly.
As to issue No.2 & 3
11. The complainant has also filed on record at Exh.4/2 photographs of the tiles installed at his restaurant in support of evidence by affidavit to prove his contention that the colour of tiles has faded. The OP No.2 also has admitted in its reply and also in the argument that right from the installation of tiles itself, the colour of tiles started to fade due to its substandard quality and manufacturing defect. The admission by the OP No.2 about substandard quality of tiles can be relied upon as he is engaged in the business of sale of tiles for a considerable time, and by virtue of his experience, he can safely be said to be an expert. Further his admission is corroborated by the photographs of the installed tiles which are filed on record by the complainant. Therefore, it gets substantively proved that the Simola Vetrified tiles manufactured by OP No.1 and sold to the complainant were of substandard quality and had an inherent manufacturing defect therein. However, the OP No.2 being the retailer, cannot be held liable for the transaction as he has nothing to do with the manufacturing of tiles. The complainant has filed on record the Legal notice issued by him to both the Ops. through Adv. Ravindra Bhagawat at Exh.4/2 . Said notice is duly received by the Ops. However, the Op No.1 failed to take corrective steps though the case of substantive defect in tiles has been made out by the complainant. Hence it would be in the interest of justice to direct the OP No.1 manufacturer of tiles to refund the cost of defective Simola Vetrified tiles i.e. Rs.1,24,000/- to the complainant alongwith interest @9% p.a. and further to pay compensation of Rs.10,000/- for mental agony faced by him in addition to cost of proceeding of Rs.10,000/-.
As to issue No.4
12. In view of our observations supra, we pass the following order..
Final order
1. The Complaint is partly allowed.
2. The OP No.1 shall refund the cost of Simona Vetrified Tiles of Rs.1,24,000/- to the complainant alongwith interest @9% p.a. from admission of the petition i.e.8/4/2019 till realization.
3. The OP No.1 shall also pay an amount of Rs.10,000/- to the complainant towards compensation for mental agony and further Rs.10,000/- as cost of complaint.
4. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
