IN THE CONSUMER DISPUTES REDRESSAL COMMOSSION, ALAPPUZHA

                     Friday the 25^th  day of  March, 2022

                               Filed on 27.09.2019

Present

1. Sri.S.Santhosh Kumar.BSc. LLB(President)

2. Smt. C.K.Lekhamma. BA,LLB(Member)         

                                                  In         

                                      CC/No.241/2019

                                                     Between

Complainant:-                                                       Opposite parties:-

Sri. Joseph.K.Varghese                               1.       Sri. Vishnu Bhakthan  

 S/o Late K.M.Varghese                                        (MD. New Rajasthan Marbles)

Chinna Thoppil Veettil                                              New Rajasthan Marbles      

 Avalookkunnu.P.O                                               Pulimoodu, Chirayinkeezhil 

 Alappuzha                                                           Trivandrum

(Adv. V. Sureshkumar)                                                                              
                                                                    2.      Sri. Sudheer,                                                         

                     Branch Manager, Cherthala

                      New Rajasthan Marbles

                    S.N. Puram, Kanichukulangra

                    Cherthala, Alappuzha

              (Adv. Anila Peter & Rajani.K.N for Op,1

                   and 2)

          3.       Sri. Sunil Nambair

                   GM Varmora Granito Pvt. Ltd

                    Door, No. 33/1846, 1^st Floor

                   Samuel Sons Building

                   Sobha Road, Chakkara Parambu

                   Palarivattom,Ernakulam-28

          4.       Sri. George T. Gabrial

                   The Proprietor, Ragh Engineering

                   Solutions, Near Thumboly

                   Railway Station, Thumboly.P.o

                    Alappuzha.
 

O R D E R

SMT. C.K.LEKHAMMA(MEMBER)

1. The facts of the complainants case are as follows:-

Complainant had decided to renovating his residential building  and was engaged 4^th opposite party as contractor.  Accordingly on 31/7/2019 and 6/8/2019 the complainant and the 4^th opposite party selected and purchased floor tiles from the 1^st and 2^nd  opposite party. The bills  were issued in the name of 4^th opposite party, the  contractor. The  3^rd opposite party is the manufacturer of tiles and it was distributed by the 1^st opposite party. The said item estimated and shown as  ‘Karara peal’ (8 x 4 area ) and the entire tiles in 1^st  lot having 12 numbers.   As soon as the tiles were laid, its colour started to fade. But the colour of one piece tile including the next lot is still not faded.  The tiles were sold assuring that it is  a premium quality. The matter was informed  directly to the 1^st  and 3^rd opposite party and thereafter complainant continuously  contacted  1^st and 2^nd   opposite party. Representatives of the 1^st opposite party  examined the tiles and confirm the colour change.  But there was  no positive steps from their side.  Complainant had altogether purchased 13 tiles for 32 sq. ft.  area  (PRAVA KARARA PEAL) @ Rs. 170/- each.    The total amount spent for laying the  tiles along with granite slab is Rs.1,72,640/-(One lakh seventy two thousand six hundred and forty only).  Now Rs.30,000/-/-(Rupees thirty thousand only) is required to remove  the said defective tiles.    Not only that the tiles fixed on carboard, wash basin are to be removed and to refix new one, an amount of Rs.50,000/-(Rupees fifty thousand only) will be  required. According to the complainant the act of opposite parties 1 to 3 amounts  to deficiency of service and unfair trade practice.  Hence complaint  is seeking compensation for deficiency in service, the price of the tiles. 

2.  1^st and 2^nd opposite parties filed a version mainly contenting as follows:-

 This complaint was filed suppressing material facts and raising incorrect allegations.  Vitrified tiles do not suffer from any manufacturing defects.  There  is no deficiency of service or unfair trade practice on the part of this opposite party.  There is no transaction between the complainant and the 1^st opposite party.  Complainant has no locus standi to file this complaint.  There is no privity of contract between   the complainant and this opposite parties.  As per records tiles were  purchased by 4^th opposite party on 31/7/2019 and 6/8/2019.    

The complainant never visited their shop. The averment that immediately after the laying  the tiles, its colour became  faded is also false.    It is true that on receipt of the complaint this opposite party had visited the house of the complainant and found that the colour variation is due to the  laying defect. The tiles supplied  are of good quality and have given laying directions to the 4^th opposite party.  This opposite party has given specific direction to the customers that does not  pour chemicals on the tiles.

          The averments that   complainant had spent Rs. 1,72,640/- (One lakh seventy two thousand six hundred and forty only)  for laying the tiles along with granite is false.   The 4^th  opposite party had purchased only 13 tiles from the 1^st opposite party which is used for the  400 sqft area is false.  Rs.30,000/- (Rupees Thirty thousand only) is required for re-fixing the tiles is also false.  Complainant has not suffered any mental agony.  This opposite parties are not liable to compensate the complainant for Rs.1,59,000/-( one lakh fifty nine thousand only). Hence the complaint is to be dismissed.

3.       4^th opposite party filed  version mainly contenting as follows:-

Opposite party No. 4 has under taken the renovation of the   complainant’s house.  At the final stage of work he along with the complainant went to the 1^st opposite party’s shop and selected tiles.

 Unfortunately the tiles purchased by them are suffering from manufacturing defect. It was rightly communicated to 2^nd opposite party and they have examined the same.    Though it was assured to exchange the tiles or refund the purchase money, they failed to do so.  Thereafter taken a decision infavour of the complainant.

4.       On the above pleadings following points were raised for consideration:-

1. Whether the complainant has locus standi to file this complaint?

2.Whether the complainant is entitled to realize an amount of Rs.1,72,640/- being the price of the disputed tiles and price of the granite laying along with the said tiles and its laying expenses from the opposite parties 1 to 3?

3. Whether the complainant is entitled to realize an amount of Rs. 30,000/- being the amount required for removing the tiles, from opposite parties?

4. Whether the complainant is entitled to realize an amount of Rs.50,000/- being the amount required for re-fixing the cardboard, wash basin and other items from the opposite parties?

5. Whether the opposite parties committed deficiency in service.?  If so what the quantum of compensation?

6.  Whether the complainant is entitled to realize an amount of Rs.10,000/- being the rent required from the opposite parties as alleged?

7.  Reliefs and costs?

5.       Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A4 were marked from the side of the complainant.   The expert commissioner was examined as PW2 and commission report was marked Ext.C1.  Rw1 and RW2 were examined from the side of the opposite parties. Thereafter, heard both sides.

6.       Point No.1:-

          Firstly we have to discuss the definition of complainant in Consumer Protection Act.  Sec. 2. (1) (b) defines. “Complainant”

(1) a consumer; or..

(2) xxxx

(3) xxxxx

(4) xxxxx

(5) xxxxx

          Secondly, who is a ‘consumer’. According to Sec.2 (1) (d) (i)  any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

In this case, tiles purchased in the name of RW2, the contractor of the construction work with whom the complainant had entered into an agreement for construction work of his residential building. As per the section it is clearly includes the word ‘user’ that other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment and  includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person.

          In this circumstances the complainant is a user of the goods purchased by the 4^th opposite party from opposite party No.1.  Hence the complainant has every right to file this complaint.  This point is answered accordingly.

7.       Point No. 2 to5:-

PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4  documents.

          RW1 who is the  manager of the 1^st opposite party. He filed an affidavit in tune with the version.  

          RW2 is the  4^th opposite party.  

          RW3 is the  commissioner in this case. On 14/11/2021 he inspected the premises and filed Ext.C1 report.

            The complainant purchased the disputed  tiles through this contractor, 4^th opposite party on 3/7/2019 and 6/8/2019 as per Ext.A2 bills issued by the 1^st opposite party, dealer has not disputed  said bills.  The dispute is with respect  to 13 numbers of tiles purchased by the complainant through the 4^th opposite party. The bills are issued in the name of 4^th opposite party.  The disputed tiles were manufactured by the 3^rd opposite party. The complainant averred that  he purchased the  tiles are of premium quality tiles but the tiles supplied are of inferior quality and those tiles are defective with respect to colour/shade variations and those tiles are having manufacturing defects. 

          The opposite parties 1 and 2 denied the alleged manufacturing defects.  They contended that the alleged defects occurred due to defective laying of the floor tiles.  Further contended that, the complainant failed to follow the laying instructions given by them. Thus, the opposite parties disowned their liability to refund the aforesaid defective tiles and to pay any compensation to the complainant and also denied the alleged deficiency in service. 

     It is to be noted that the 3^rd opposite party, manufacturer appeared before the commission after received notice, thereafter  abstained from the proceedings.

          Expert commissioner was appointed for examination of the disputed tiles. Before the inspection the commissioner , PW2 has given Notice to both sides.

          Both sides did not file objection to the  Ext.C1 report.  The 1^st and 2^nd opposite parties are totally denying Ext.C1 report in their argument notes.   Their objection is that Ext.C1 is not supported with scientific  evaluation. But they failed to adduce sufficient materials to substantiate their part. It is to be noted that neither the opposite parties 1 to 3  file objection to the commission application nor file any  panel of experts for the appointment as expert. Further, after filed Ext.C1 report said opposite parties failed to file objection or take steps to set aside the same.  Thus we are of the opinion that Ext.C1 report cannot be set aside without any cogent reason or ground.           The expert commissioner, PW2 was examined all the relevant aspects of the disputed tiles and pointed out the defects noticed on inspection. The defects reported is that the hair holes appeared in tiles and Ext.A3 photographs are the proofs of the aforesaid defects.   PW2 noticed 13 numbers of tiles were laid in the visiting and  dining hall along with granite, out of  which one of the tiles has not much colour variation than other tiles.    It appears that the afore said tile, having less  discolouration, was purchased on 6/8/2019 and was not purchased along with other 12 tiles. One of the reasons for the defect pointed out by the opposite party is that without considering their  instructions and  the tiles were laid on a black surface is the reason for colour change.  During cross examination of PW2 a question was put forwarded that ‘if white cement is used, there will be no colour difference like this? PW2 answered that  even if white cement is used, it will come out through the hair holes.   The aforesaid defects noticed by PW2 cannot be brushed aside without  valid reasons. Thus Ext.C1 report would give a clear picture about the nature of the defects in the disputed tiles manufactured by the 3^rd opposite party and supplied by the 1^st and 2^nd opposite parties.  It is to be noted that the 3^rd opposite party  has not taken any steps to setaside said report.  Ext.C1 report, made the complainant case more credible  and acceptable.  

           It is not  in dispute that the tiles were laid in visiting hall and dining hall.  RW1 deposed that the defect was informed by the complainant.  Accordingly he visited the premises  of the complainant and examined the same and convinced the defects.  Seemingly the said report is not produced by them and also was not seen that further steps were taken by them to settle the dispute.   Moreover the 3^rd opposite party, manufacturer abstained from the proceedings. Initially 3^rd opposite party appeared before the Commission but did not file version. It appears that 3^rd opposite party failed to prove their part  with cogent evidence. Hence the evidence of the complainant against this opposite party is remained unchallenged.

          It is stated in the complaint that the defective tiles have been laid in the dining and visiting area of the renovated house.  The complainant  and his family are living in that   house.  Undoubtedly, due to the laying of defective tiles the complainant suffered a lot of inconvenience and discomfort.  Therefore  the opposite parties 1 to 3 are made liable to pay compensation  to the complainant for the mental agony, inconvenience and discomfort suffered. Opposite parties 1 to 3 are also liable  and answerable for the deficiency in service on their part in effecting sale of defective tiles.  We are ordering compensation for both the above mentioned heads together.  It is to be noted that the 4^th opposite party being the contractor of the construction work as per Ext.A1 agreement. He has no liability with respect to the defects of the tiles.    PW2 categorically mentioned in Ext.C1 report about the estimate for the removal of the existing tiles and cost of the new flooring on visiting and  dining hall of  the complainant’s building. The amount for buying new tiles is supported as the purchase amount in Ext.A2.  The grand total shown as Rs.1,58,495/-.  (Rupees One lakh fifty eight thousand  four hundred and ninety five only).   In which including the price of new tiles and granite and also for the expenses of refixing the removed items. We found that the said amount is sufficient to meet the grievances of the complainant.   The 3^rd  opposite party manufacturer is liable to pay said amount with interest to the complainant.  The complainant is entitled to get cost of the proceedings from the opposite parties  1 to 3.

8.       Point No. 7:-

 In the result we allow the complaint in part as follows:-

(i)  Opposite party No.3 is directed to pay Rs. 1,58,495/- (Rupees one lakh fifty eight thousand four hundred and ninety five only) being the amount estimated  in Ext.C1 report with interest @ 8% per annum from the date of receipt of this order till realization to the complainant.

(ii)  Opposite parties 1 to 3 are jointly and severally liable to pay Rs.50,000/- (Rupees Fifty thousand only) towards compensation for deficiency in service and mental agony and also directed  to pay Rs.10,000/-(Rupees Ten thousand only)  towards costs of the proceedings  to the complainant.

The order shall be complied within one month from the date of receipt of this order

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the   25^th    day of March, 2022.  

                                                Sd/-Smt. C.K.Lekhamma(Member)

                                        Sd/-Sri.S.Santhosh Kumar(President)

 Appendix:-Evidence of the complainant:-

PW1                    -          Joseph Varghese  (Complainant)

PW2                    -        Dileep Rahman (witness)

Ext.A1                -          Agreement for Civil Work

Ext.A2                -        Cash Receipt

Ext.A3                -        Photograph

Ext.A4                -        Cash Receipts                                    

Evidence of the opposite parties:-             

 RW1                    -        P.K.Sudheer(witness)

 RW2                    -        George T. G(Witness)

 Ext.C1                   -          Commission Report

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Sa/-

Comp.by: