IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 24^th  day of August,  2023

Present: Sri.Manulal.V.S, President

                                                                                 Smt.Bindhu.R, Member

                                                                                Sri.K.M.Anto, Member

CC No. 17/2021 (Filed on 22/01/2021)

 Complainant                                                                       :         Anu Joseph,

                                                                                                          Poovelikkunnel House

                                                                                                          Nariyanani P.O

                                                                                                          Ponkunnam – 686506

                                                                                                          Kottayam.

                                                                                                            (Adv. Anu Joseph)
 

                 Vs

Opposite parties                        :  (1) Simpolo Ceramics,

                                                          Old Ghuntu Road,

                                                          Morbi – 363642

                                                          Gujrat.

                                                  (2)    Simpolo Ceramics,

                                                          33/2380 A-A1 NH Bypass

                                                          Vysali Bus Stop,

                                                          Chakkaraparambu,

                                                          Cochin – 682032

                                                    (3)  George Kaitharan Buildware

                                                          111/825-A, A.M. Road,

                                                          Kuruppampady,

                                                          Ernakulam -683545

                                                          (For Op1-3, Adv. Jobin Mathew)

O R D E R

Sri.Manulal.V.S, President

Case of the complainant is as follows.

The complainant purchased 316 floor tiles with brand name Simpolo Zara Mart1200 x600 and 46 Simpolo Coppers Sahara manufactured by first opposite party from the shop of the third opposite party on 4/6/ 2019. The entire items purchased was delivered at the residential house work site on 4/6/2019. The complainant paid Rs.2,10,457/- towards the price of the  tiles.                                      She purchased the said tiles on the assurance of the third opposite party about its premium quality and induced by the brochure and other advertisement of first and second opposite parties.  She purchased the tiles for laying in the floor of her house and completed the laying in the month of April 2019. After a few months the colour of the tiles started to fade and  patches appeared on the tiles. It is alleged in the complaint that the  tiles displayed in the gallery of the    third opposite party were of good quality and colour but the tiles which were    packed and delivered at the works Site were of inferior quality. As these faulty tiles were laid in the major portion of the building the complainant had suffered a major loss.    The complainant informed the third opposite party about the  defect in the tiles and after repeated demands the representatives of the opposite parties inspected the floor and  promised to replace the tiles  admitting the defect in the product.                          But they have not replaced the tiles. The complainant had altogether spent rupees 3 lakhs including the labour and other material cost for laying the faulty tiles. The opposite parties are liable to compensate the loss incurred by the  complainant. The act of the opposite parties delivering the low-quality tiles after showing premium quality tiles in the showroom amounts to unfair trade practice. hence this complaint is filed by the complainant praying for an order to direct the opposite parties to replace the entire faulty floor tiles with new superior quality tiles on their own expenses or in the alternative to reimburse RS 3 lakh to the complainant and to pay Rs.50,000/- as compensation and Rs.10,000/- as cost of this litigation.

Upon notice from this Commission opposite parties appeared before the commission and filed version contending as follows.

The complainant purchased Simpolo Zara Mart1200x600 and 46 Simpolo Coppers Sahara from the third opposite party. Simpolo ceramics is the manufacturer of wide variety of Premier quality tiles. The complainant   herself had visited the third opposite parties’ shop and had selected the tiles by herself and the same was subsequently delivered at the work site of the complainant.                   The complainant had purchased other tiles manufactured by the first opposite party also vide the same bill. The averment that within a couple of months the colour of the tiles started to fade and there were major colour variations in the floor are false. The complainant purchased 316 pieces of Simpolo Zara Mart1200x 600 floor tiles from the  third opposite party and had purchased 20 pieces of Simpolo Zara Mart1200 x600 from ABC Emporio, another distributor of the first opposite party. The tiles purchased from the opposite parties and of the ABC Emporio are similar tiles from different batches of tiles. Due to the mixing of two batches of tiles paved in the same floor colour variation arise. The colour of the tiles never   fade. There will be slight colour variations between different batches of tiles. The complainant reported colour change hiding the mixing of two batches of tiles and the company as part of customer’s satisfaction and goodwill had inspected the house of the complainant and had convinced the complainant that the colour was not faded and the same was in fact only due to the mixing of different batches of tiles. The  averment that the  opposite parties inspected the residence of the complainant and promised to replace the entire floor tile at opposite parties’ cost are false. The opposite parties deliver premium quality tiles which were selected by the  complainant. There is no deficiency in service or unfair trade practice on the part of the opposite parties.

Complainant filed the proof affidavit in lieu of chief examination and marked exhibit A1 to A9. Expert Commission is examined as Pw1 and C1 Commission report marked through him. Majish who is the Regional Manager of the first opposite party filed proof affidavit  in lieu of chief examination and marked exhibit B1 and B2.

On evaluation of  complaint, version and evidence on record we would like to consider the following points.

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. If so, what are the reliefs

Point No.1 and 2

          For the sake of convenience, we would like to consider point No.1 and 2 together.

There is no dispute on the fact that the complainant had purchased 316 pieces of Simpolo Zara Mart1200x 600 and 46 Simpolo Coppers Sahara manufactured by first opposite party from the shop of third opposite party on 4/6/2019.   It is proved by   exhibit A2 that complainant had paid Rs.2,10,457/-   to the third opposite party being the price of the tiles. The third opposite party delivered the tiles at the work site of the   complainant on 4/6/2019.Thereafter on 16/7/2019 the   complainant had purchase 20 pieces of same tiles from ABC Emporio as per the direction of the  third opposite party vide exhibit A5 bill . According to the  complainant  he  laid the tiles in the month of August 2019 and after a few months the colour of the tiles started to fade and patches appeared on the  tiles. It is alleged in the complaint that the opposite parties delivered the low-quality tiles after showing premium quality tiles in the showroom.

The complaint was resisted by the opposite parties contending that the tiles purchased from the  opposite  parties and from the ABC  Emporio are similar tiles from different batch of tiles and there will be  slight colour variations in different  batches and due to mixing of two batches of tiles paved in this same  floor, colour variation occurred. To prove his case the   complainant filed an application to appoint an expert commissioner to inspect the tiles. K.A. Thomas who is a chartered engineer and approved valuer was appointed as an expert Commissioner in this case and he filed exhibit C1 Commission report. In C1 report the Commissioner reported that there was a colour difference between the tiles supplied by opposite parties against the tiles supplied by ABC Emporio.                   He further reported in C1 that the present colour for the same specifications of tiles supplied by different agencies varies substantially. The Commissioner was examined as PW1. He deposed before the commission that representative of the dealer and manufacturer were present at the time of  inspection. He further deposed before the commission that the defects found in the tiles which were supplied by the 3^rd opposite party. According to him that defect was not colour fading. There are some marks on the tiles which were supplied by the third opposite parties.   He further deposed that the tiles laid down in the areas that cannot be accessible like areas below cupboard and staircase are  also found with some marks.  During the examination it is stated by pw1 that he had found mark on all tiles except 20 numbers of tile which were purchased from ABC Emporium. While examination pw1 stated that opposite party produced concentrated  chlorine solution to apply on the floor and the chemical used  are not to be used as floor cleaner. He deposed that it was written on the bottle of chemical solution that it should not be used in concentrated stage and meant to be used as diluted. While examining, he stated that when the tiles were cleaned with the solution   which was brought by the opposite parties the marks on the tiles became only faded. Exhibit B2 is the brochure produced by the opposite parties.  In exhibits B2 under the heading cleaning and maintenance sub heading general recommendations for Mat materials it is stated that cleaners should be used in  ratio of 1:2. The opposite parties have no case that they had handed over exhibit B2 to the complainant neither at the time of purchasing of the tiles nor at the time of delivery of the tiles.

The expert  Commissioner reported that the  entire house is found clean and that there is no dirt here and the tiles supplied by opposite parties were having manufacturing defect and only remedy is replacement of those tiles.  Qualification and   experience of the expert would show  that he is a qualified Civil Engineer and having the competency to note the defective nature of the   ceramic floor tiles  laid for the residential building of the complainant.  It is to be noted that the aforesaid expert was appointed with due notice to the opposite parties 1 &2.  It is further to be noted that the opposite parties did not file any panel of experts for the appointment as expert.

The expert commissioner in C1 report has categorically reported  the absence of any defects in the other 20 tiles manufactured by the first opposite party and sold by the ABC Emporium.  The aforesaid finding noted by the expert commissioner would give a clear indication that there were defects in the disputed premier quality tiles sold to the complainant and there were no such defects for the other 20 tiles sold to the complainant.  This circumstances would make the case of the complainant more believable and acceptable.

   There is no dispute that the disputed ceramic floor tiles were laid in the residential building owned by the complainant.  It is to be noted that the disputed tiles being premium quality tiles the complainant preferred to lay those premium quality tiles in the house. The expert commissioner has categorically reported that the color/shade variations are distinguishable.  It is also reported that such  color and shade variations are not expected in premium quality tiles.  The opposite parties have got a case that slight shade variations may occur in different batches of tiles. The aforesaid contention made by the opposite parties would make it clear that extensive and distinguishable color/shade variations are not expected   in premium quality tiles.  So, the distinguishable color/shade variations in the disputed premium quality  tiles would make it clear that the opposite parties were deficient in rendering service to the complainant/consumer by selling defective tiles.   The expert commissioner has also reported that the shade/color variations in the disputed premium quality ceramic tiles are easily noticeable by naked eye.  Another important aspect to be noted at this juncture is the date of purchase of the disputed tiles and laying of the said tiles for the floor of the newly constructed residential building of the complainant.  Admittedly, the said tiles were purchased on 4/6/2019. Those tiles were laid during august 2019 itself.  It is only after fixing the defective tiles to the floor, the complainant issued A8 lawyer notice issued on 24-11-2011. Thus, it can be seen that for the last 4 years the complainant is using the defective  aforesaid tiles conveniently.

This circumstance would make it clear that the complainant is familiar with the defective tiles laid in her house. So, the opposite parties are to be made liable to compensate the complainant for the mental agony, inconvenience and discomfort suffered by the complainant.  The opposite parties are also liable and answerable for the deficiency in service on their part in effecting sale of  defective tiles of premium quality.  But, at the same time, the complainant was also negligent in fixing the defective tiles without informing or intimating the opposite parties about the defective nature of those tiles of premium quality. Considering all these aspects, we are of the opinion that purpose will be served by ordering payment of compensation to the complainant for the deficiency in service on the part of the opposite parties. 

      There can be no doubt about the fact that those defective tiles permanently laid in the said newly constructed residential building cannot be removed without causing damage to the tiles.  In other words, by removing those defective tiles definitely, the tiles will be damaged and the same cannot be used for laying.   Considering all the relevant aspects of the case, we are of the view that the opposite parties are to be burdened with the liability to pay compensation of Rs.1,00,000/- to the complainant. 

         In the result, the complaint is allowed partly and we pass the following order.

1. We hereby direct the opposite parties to pay Rs.1,00,000/- (Rupees One lakh only) to the complainant as compensation for mental agony due to the deficiency in service on the part of the opposite parties with cost of Rs.5,000/- (Rupees Five thousand only).

opposite parties are jointly and severely liable to pay the compensation amount within 30 from the receipt of copy of this order, failing in which compensation amount- will carry interest at the rate of 9% per annum from the date of the this order till the date of realization.

        Sri. Manulal.V.S, President             Sd/-

         Smt. Bindhu.R, Member               Sd/-

         Sri. K.M.Anto, Member                   Sd/-

Appendix

Witness from the side of complainant

Pw1 – K.A. Thomas

Exhibits marked from the side of complainant

A1 – Copy of confirmed order dtd.21/03/19 by 3^rd opposite party

A2 – Copy of invoice dtd.13/04/19 by 3^rd opposite party (subject to objection)

A3 – Copy of e-way bill dtd.13/04/19 by 3^rd opposite party

A4 – Copy of invoice dtd.04/06/19 by 3^rd opposite party

A5 –Invoice dtd.16/07/19 by ABC Emporio

A6 –Copy of bills dtd.14/08/19

A7-Power of attorney

A8- Invoice dtd.04/06/19 by 3^rd opposite party

A8(a) Copy of lawyers notice

A9- Postal AD card

A9(a) – Postal AD card

Exhibits marked from the side of opposite party

B1 – Authorisation letter dtd.20/04/2023

B2 – Brochure by Simplo Ceramics (Copos & Granos collection-2019)

Commission Report

C1 – Report submitted by K.A. Thomas, Chartered Engineer and Approved 

       Valuer

C1(a) Photos of floor tile

                                                                                                By Order

                                                                                      Assistant Registrar