BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 1st March 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.43/2010
(Admitted on 30.01.2010)
Sri Prasanna Education Trust (R),
Registered office at Opposite
Government Hospital,
Belthangady Kasaba Village,
Rep. by its Chairman Managing Trustee,
Sri K. Gangadhara Gowda,
So Iyanna Gowda,
Aged about 58 years,
Rat Opposite Government Hospital,
Belthangady Kasaba Village,
Belthangady Taluk D.K. …….. COMPLAINANT
(Advocate for the Complainant:Sri. Prasad K.S.)
VERSUS
The Authorized Signatory,
Murudeshwar Ceramics Ltd.,
Manufacturer of Naveen Ceremic and
Vetrified Tiles,
Show Room At
Empire Commercial Complex,
M.G. Road,
Mangalore 575 001. ………..OPPOSITE PARTY
(Advocate for the Op.Party: Smt. Manjula N.A.)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant is a Charitable Trust imparting Education represented by Chairman / Managing Trustee is empowered to look after the entire management of the institution. It is stated that, during the course of construction of the building, the representatives of the opposite party approached the complainant that, they are the manufacturers and distributors of ‘Murudeshwara Ceramic and Vitrified Tiles’ which are used for laying on floors. It is stated that, the opposite party has also represented that, the tiles manufactured by them are of ISI standard and are of good quality which is durable and quality, colours will continue intact for long time. By believing the representation of the opposite party and also consulting the Engineers, selected the qualified tiles and colours for completion of flooring work of the ground floor and first floor of the institution. It is stated that, the consulting Engineers, who are qualified in Architect and structural field selected the tiles and placed an order for Ceramic and Vitrified Tiles up to the quantity of 1764 + 604 square meters respectively. Accordingly, the opposite party supplied the Ceramics and Vitrified Tiles and bills were paid through cheques and on some occasions through cash.
It is stated that, on delivery of the tiles, the Trust has laid the tiles to the ground floor, and first floor of the building through qualified layers at the instance of the Consulting Engineers and also the representative of the opposite party. For laying of tiles, needful cement and sand were supplied by the complainant out of his own cost. During the course of laying of tiles, the representatives of the opposite party company were also present and on their instructions and advise in the months of January 2008 the work of laying tiles were completed. On completion of laying of tiles, the complainant has shifted the Class Room, Computer Lab and the College Office and Electrical Lab, Electronic Lab, Chemistry Lab to the said building in order to provide permanent accommodation. After shifting of the same, the vitrified tiles supplied by the opposite party which were laid to the corridor to the extent of 604 square meter commenced to lost its colour and shining day by day due to the substandard, poor quality of the tiles. Further the tiles which were laid in the ground floor and the first floor to the extent of 1764 square meters commenced to broken from time to time. It is stated that, the majority of the tiles were started to broken from the middle in to pieces and severed from the floor despite it has been laid by the qualified technicians and on the advise of Consulting Engineers. It is stated that, the tiles which were laid to the building required to be removed and it has to be restored. The complainant has incurred Rs.4,15,212/- for laying the tiles by engaging qualified layers. It is stated that, the entire tiles supplied by the opposite party laid to the floors of the complainant’s building required to be removed and fresh tiles are to be restored in order to eradicate further problem of routine out break of tiles. The complainant has approached the opposite party and requested to restore the tiles or to refund the amount. But the opposite party representatives visited the building and inspected the outbreak of tiles, but the opposite party turned hostile and delivered 10 box of tiles for its restoration, but not paid any compensation nor refunded the cost of the tiles, laying charges etc., It is stated that, because of the substandard and defective tiles, the complainant suffered huge loss. Hence, the above complaint came to be filed, under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Opposite Party to pay totally a sum of Rs.18,00,637/- towards the monetary loss, compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by R.P.A.D. The opposite party appeared through their counsel and filed version stated that, the opposite party at no point of time sent any representation to the Managing Trustee of the complainant to promote the sale of their product. The consulting engineers of the complainant placed an order, accordingly, the opposite party supplied the tiles to the complainant. The tiles supplied by the opposite party are not defective. It is stated that, the complainant though purchased large number of tiles for large area, but never contacted the opposite party for advise with regard to the laying nor did the complainant take the supervisor of the opposite party to supervise the entire laying process. It is stated that, the entire laying work was carried out at the consulting engineers and the layers. The complainant has not followed the laying instructions pointed on the cartoons of the ceramic tiles. The problems alleged in the complaint have arisen due to poor workmanship and ignoring the simple laying procedures. It is stated that the opposite party had supplied good quality of tiles. There is no manufacturing defect nor there being any deficiency in service and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr. K. Gangadhara Gowda (CW1), Chairman / Managing Trustee of the complainant’s Trust, filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Exs.C1 to C18 were marked for the Complainant as listed in the annexure in detail. One Sri Guruprasad Shetty (RW1) – Area Sales Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex.R1 to R3 were marked for the opposite party as listed in the annexure in detail. One Sri M.S. Nataraj (RW-2), Officer (Civil Division), Polytechnic, Karnataka State Government, has adduced his evidence as a witness before this Forum.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the vitrified and ceramic tiles purchased on respective dates from the Opposite Parties suffers from defect and service rendered by them amounts to deficiency?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii):As per the final order.
REASONS
5. Points No. (i) to (iii):
In the instant case, the facts which are admitted is that the complainant i.e., one Prasanna Education Trust (R) represented by its Chairman, purchased vitrified tiles up to the quantity of 1764 + 604 square meters from the opposite party on 21.12.2007, 24.12.2007, 24.12.2007 as per Exs.C2, C3 & C4. To purchase the above said tiles, the complainant paid in total paid Rs.5,31,054/- to the opposite party.
Now the point in dispute before this Forum is that, the complainant contended that the above said vitrified tiles purchased in order to lay on the floor of the institution. The Complainant engaged a qualified engineers as well as qualified layers of the tiles to lay the tiles on the floor. It is also stated that, while laying the tiles representative of the opposite party also issued instructions and they have taken instructions from the representatives of the opposite party. But the vitrified tiles laid on the corridor to the extent of 604 square meters commenced to lost its colour and shining day by day and the tiles laid in the ground floor to the extent of 1764 square meters commenced to broken from time to time. Thereby, the complainant has incurred huge sums of money for laying tiles up to the tune of Rs.4,15,212/-. It is seriously contended that the tiles sold by the opposite party is not up to the quality and suffers from defect. Hence, came up with this complaint.
On the other hand, the opposite party contended that, the tiles are not defective and those tiles are I.S.I. standard titles. It is contended that, the defects alleged by the Complainant is due to the defect in laying of the tiles and the complainant not followed the instructions on the cartoons of ceramic tiles supplied by the Opposite Party. It is also contended that, there are so many instructions were given on the cartoons of the tiles but the same are not followed by the complainant and also filed an application to send the tiles before the laboratory to test the quality of the tiles and further the spot inspection was conducted and an expert opinion was received in this case.
In order to substantiate the allegations made in the complaint, the complainant filed oral evidence by way of affidavit and produced Ex.C1 to C18 as listed in the annexure. The opposite party also filed oral evidence and examined the expert i.e., RW-2 and produced expert report i.e., Ex.R1 to R3.
On perusal of the oral as well as the documentary evidence available on record, we find that, this is a case, wherein, the complainant came up with the allegations that the tiles purchased by them are defective and it is not up to the quality and thereby he had suffered huge loss and produced certain tiles i.e., M.Os. No.1 to 8. It is a well settled proposition of law that, in a case of defective goods, it is mandate for the District FORA to obtain an expert opinion from the laboratory or from the expert one who is in that field. But in the instant case, the opposite party vehemently contended that, the tiles sold by them are as per the I.S.I. specifications and the quality of the tiles are good standard. The only contention raised by them is that while laying the tiles on the floor the complainant not followed the procedures and also not engaged the expert to lay the tiles, thereby the tiles have come up and broken.
In order to prove the above contention, the opposite party filed an application to appoint one Civil Engineer by name Sri M.S. Nataraj, H.O.D. of Civil Engineering Department, Karnataka Polytechnic, Mangalore. The above engineer appointed as expert to conduct the spot inspection. After conducting the spot inspection, the above engineer filed a detailed report before this FORA i.e.,Ex C18. On perusal of the inspection report dtd.11.05.2010, wherein the engineer observed that, the tiles have been heaved up from the floors and some of the tiles are completely damaged and in some portions damaged tiles are removed and some portions replacement is done with the same company tiles. The very same expert collected the samples of the vitrified tiles and slurry samples and also hardened cement mortar from flooring base of different laboratories. The final observation given by the expert is as follows:- “It is difficult to ascertain whether proper procedure was followed at the time of laying just by mere observation without testing of tiles, it is not possible to declare the defect in the tiles and also observed that no documents available with both the parties about the procedure adopted while laying.”. From the above observation made by the expert, we find that, it is very difficult to ascertain whether the proper procedure was followed at the time of laying of the tiles.
However, apart from the observation of the expert, the laboratory report also produced before us, wherein, there is no observation found interest he report that the tiles sold by the Opposite Parties are defective and substandard. IN the absence of the same, it is very difficult to hold that the vitrified and ceramic tiles sold by the Opposite Party are defective in this case, on the other hand, the Commissioner’s Report as well as the laboratory report and the evidence available on record, it is proved beyond doubt that, the tiles sold by the opposite party in question are not defective. But the procedure adopted while laying tiles on the floor, whether the layers adopted/followed the proper procedure at the time of laying of the tiles on the floor is not forthcoming. When the laying procedure is not proper, then definitely there will be a problem and there is every likelyhood of tiles on the floors are heavingup and breaking. On the other hand, the complainant failed to establish that he had followed the procedure / instructions mentioned on the cartoons of the ceramic tiles supplied. In the absence of the same, it is very hard to believe that the tiles sold by the opposite party are defective and thereby the tiles have broken. It is to be noted that, while purchasing the tiles, the quality of the tiles no doubt important, but at the same time the experienced layers of tiles also very important in a case of like this nature.
In view of the above discussions, we hold that the complainant is miserably failed to establish that the tiles sold by the opposite party are defective and thereby he suffered huge loss as alleged in the complaint. Hence, we find that, there is no merit in the case deserves to be dismissed. No order as to costs.
In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 1st day of March 2012.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri K.Gangadhara Gowda – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – Copy of trust deed and copy of sketch of the building.
Ex C2 – 21.12.2007: Bill/Invoice issued by OP.
Ex C3 – 24.12.2007: Bill/Invoice issued by OP.
Ex C4 – 24.12.2008: Bill/Invoice issued by OP.
Ex C5 – 7.1.2008: Bill/Invoice issued by OP.
Ex C6 - 1.2.2008: Bill/Invoice issued by OP.
Ex C7 – 21.12.2007: Bill for transport charges.
Ex C8 – 1.2.2008: Bill for transport charges.
Ex C9 – 11.2.2008: Payment voucher.
Ex C10 – 11.1.2010: Bill/Invoice issued by OP.
Ex C11 –22.12.2007: Ledger extract of complainant A/c.
Ex C12 – 4.2.2008: Quotation and Bill for laying tiles issued by Nagesh Bhat.
Ex C13 -4.2.2008: Quotation and Bill for laying tiles issued by John Peter.
Ex C14 –23.1.2010: Total area of tiles laid and work payment Report.
Ex C15 – 1.2.2008: The Invoice cum delivery challan issued by OP.
Ex C16 – The package cover of ceramic tiles showing instructions and guidelines for laying of tiles etc.
Ex C17 – Photo graphs of the Court yard of the College (5 in NO’s)
Ex C18 – Expert Commissioner inspection Report
Material Objects:
MO No.1 to 8: Packing of vitrified/ceramic titles.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri Guruprasad Shetty, Area Sales Manager of OP.
Summaned Witness:
RW-2: M.S. Nataraja, Head of the Civil Division, Govt, of Karnataka Polytechnic Mangalore.
Documents produced on behalf of the Opposite Party:
Ex R1: 11.1.2010: True copy of the Invoice No.3047.
Ex.R2: Statement of the complainant.
Ex. R3: Procedure of laying the tile printed in the titles box. 3.3.2011.
Dated:1.3.2012 PRESIDENT
