DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 20^th day of June 2023

C.C.310/2012

Complainant

Joy.K.Lukose

S/o. K.M.Lukose,

Kottakallil, Byepass Road,

Perambra – P.O,

Kozhikode – 673 525.

Opposite Parties

1. The Manager

          Commonwealth Tile Factory,

          Feroke,

          Calicut.

2. Mr. Gopinath

          Executive Director,

          Commonwealth Trust India Ltd.,

          Reg. Office, Vattakandy house,

          Puthiyara –P.O,

          Kozhikode.

          (By Adv.Sri.K.Abdussalam)

      3. The Commonwealth Tile Factory,

           Feroke,

           Kozhikode.

           Rep.by it’s Managers.

           (impleaded by I.A No.53/14)

ORDER

By Smt.PRIYA . S - MEMBER 

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

The complainant is a resident of Perambra. The first opposite party is the Manager of the Commonwealth Tile Factory Feroke. The second opposite party is the Executive Director of Commonwealth Trust India Ltd, Puthiyara, Calicut. The third opposite party is Manager of Commonwealth Tile factory, Feroke, Kozhikode.

3. The complainant had purchased 1,300 tiles of III class from the first opposite party on 05/03/2011 through their authorized dealer one Mr.Soman, ‘Sreemudra’ P.O. Perambra. The tiles were for the purpose of roofing of the upstair portion of complainant’s house. When the complainant discussed with first opposite party about the purpose for which he wants the tiles, first opposite party also made him believe that the III class tiles particularly that of commonwealth factory are very much sufficient for the purpose as the said tiles are of high quality comparing to the other tile factories in Kerala. The opposite party further assured the complainant of the quality of said tiles. It was then the complainant fallen on the words of the first opposite party.

4. The complainant purchased 1,300 tiles of III class suggested by the first opposite party as per proper Bill No.FER/6184/05/03/2011 by paying Rs.26,374.14/- as the total cost of the tiles. But the complainant had to pay altogether Rs. 28,275/- including cost of tiles, loading, packing and transporting charges. Thereafter the complainant paid Rs.650/- for unloading the tiles at the site, the complainant further spent Rs.9,956/- as cost of 38 liters of paint @ Rs.262 per litre and Rs.4,050/- as the labour charge, for painting the tiles. The complainant had to further spent Rs.13,000/- for paving the tiles over the roof (paving charge is Rs.10/tile). But simply because the tiles were purchased from first opposite party for the purpose of paving the roof of his house, by spending, such a substantial amount, he had to suffer substantial loss simply because the tiles were not of good quality but of substandard quality due to the manufacturing defects as well as due to the bad quality of the materials used in manufacturing the tiles.

5. When the rain came the entire tiles started leaking and the rain water oozed in through the tiles.  Apart from that, fungus was spread all over the inner side of the tiles. At the time of the rain it was visible to everybody that the  rain water was oozing down through the tiles, as the entire tiles were leaking. The complainant believes that the first opposite party has cheated him by supplying defective as well as useless tiles which were stacked in the factory, by making the complainant believe that the tiles were of good quality, with ulterior dishonest intention to defraud the complainant thereby to part with him substantial amount of Rs.26,374/- thereby to cause undue gain to opposite parties and undue loss to the complainant.

6. Immediately after the defect on the tiles were detected, the complainant had reported the same to the opposite parties through Mr.Soman, the authorized dealer of the Common Wealth Tile factory. The opposite parties have sent their field executive to inspect the tiles which were paved on the roof of the complainant’s house and were convinced of the fact that the tiles were leaking and of substandard quality, either in manufacture as well as in material used. The opposite parties did not pay any heed to the request of the complainant to substitute the tiles with new defectless tiles.

7. The complainant sent a lawyer notice to the opposite parties  dated 01/03/2012 informing whole facts and also demanding compensation. Though the opposite parties received the notice they even were not ready to substitute the defective tiles with new defectless tiles, nor to compensate the complainant. On the contrary, the opposite parties sent a reply notice through their lawyer dated 27/03/2012 with full of falsehood and untenable allegations and averments. The complainant seeks to direct the opposite parties to pay Rs.80,931/- jointly and severally towards the cost of the tiles, loading, unloading, packing, transporting charges and cost of paint used to paint the tiles, labour  charges for painting and paving the tiles and the amount needed to change the tiles and repairing the truss and the compensation for mental agony and inconveniences caused to the complainant.

8. The first and second opposite party filed their version jointly. The third opposite party filed version independently.

9. According to the first and second opposite parties the complainant is not a consumer as defined under the Consumer Protection Act. The complainant had suppressed the true and real facts from the Forum. The agent from where the complainant has purchased the tiles has not been impleaded as party to the proceedings. There is no direct link in between the complainant and the opposite parties. The complainant had not verified the factory premises at Feroke or had any contact with factory Manager or sales department at the factory premises relating to the purchase of tiles. The allegation as continued in the complaint to the effect that tiles supplied to the complainant was of inferior quality and there is manufacturing defects to the tiles supplied to etc are absolutely incorrect. The opposite parties submit that the complainant in collusion with the said T.Soman of Perambra has filed the complaint to make undue gains. M/s. Common Wealth Trust (India) Ltd is one of the oldest and reputed industrial establishments in Kerala. The company is running various establishments including the tile factory at Feroke. The management is manufacturing tiles by using quality materials especially the claim procured as per the norms and the same is utilized for production of quality tiles. After manufacturing the tiles, the tiles are segregated and classified in to 6 classes. The customers opt for different classes according to their need and requirement and the opposite parties supply the tiles to the customers after fully convincing them about classes and quality. The tiles are displayed on different yards. The purchase made by the opposite parties from the factory premises are reflected from the documents maintained in the factory office. Customers details are also reflected from the bills and vouchers.

10. The opposite parties further submit that Sri.T. Soman whose name is reflected from the complaint had visited opposite party’s premises on 05/03/2011 and he purchased roofing tiles class III, 1,300 numbers. The opposite parties have also given 26 numbers as breakage for 1,300 tiles on the same day.  He had also purchased 700 in number of roofing tiles of class V.  In addition to that, the opposite parties supplied 14 numbers of tiles towards breakage for purchase of class V for 700 in numbers. Sri. T.Soman had brought vehicle No.KL-18-9007 for transportation of tiles purchased by him from the factory on 05/03/2011. It is also pertinent to note that he had loaded class III and class V tiles purchased from the factory in the very same vehicle bearing No KL-18-9007. The opposite parties are once again reiterate that the opposite parties are not aware of the identity of customers. The said T.Soman himself had visited the opposite parties premises and purchased the tiles from the factory premises and probably he in turn supplied the tiles to the complainant. It is abundantly clear that the said T.Soman had supplied class V tiles instead of class III to the complainant.

11. If the tiles are painted by using inferior quality paints, there is every chance for deterioration and corrosion due to the chemical reaction. It is also pertinent to note that the complainant has laid the tiles on uneven surface. The laying of tiles on the truss roof will not be uniform. Hence there is every chance for dent, bent, non-uniformity and there is every chance for leakage through the paint. It is also pertinent to note that  the opposite parties’ authorized representative had visited the premises of the complainant and he could not find any manufacturing defects and he has given a report to the effect that most of the tiles laid on the roof as ‘class V’ and not ‘class III’.  Probably the said Soman might have cheated the complainant.   The complaint is liable to be dismissed.

12. The third opposite party has adopted the very same contentions as stated in the version filed by the 1^st and the 2^nd opposite parties.

13. The points that arise for determination in this complaint are:

1. Whether the complainant is a consumer ?
2. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?
3. Reliefs and costs.

14. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts. A1 to A7 on the side of the complainant and oral evidence of RW1 and Exts.B1 to B3 on the side of the opposite side. Expert Commission was examined as CW1 and Exts.C1 (a), C1 (b) were marked.

15. Both sides filed notes of argument.

16. Point No.1:  According to section 2 (1) (d) of the Consumer Protection Act, 1986 Consumer means any person who buys any goods for consideration which has been paid or promised or under any deferred payment and includes any user of 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 obtain such goods for resale or for any commercial purpose. In this case, the complainant had purchased Rs.26,374.14/- worth tiles from the opposite party vide Bill No. FER/6184 dated 05/03/2011  (marked as Ext A1 document). So there is consideration paid by the complainant. Hence the complainant in this case is a consumer.

17. Point No.2: The complainant had purchased 1,300 tiles of III class from the first opposite party on 05/03/2011 through their authorized agent one Mr.T.Soman. The tiles were for the purpose of roofing the upstair portion of complainant’s house. When the complainant discussed the matter with the first opposite party, the first opposite party believed that the III class tiles particularly that of Common Wealth Factory are very much sufficient for the purpose as the said tiles are of high quality company to the other tile factories in Kerala. The opposite party further assured the complainant of the quality of said tiles. It was thus the complainant had fallen on the words of the first opposite party.

18. The complainant purchased 1,300 tiles of III class suggested by the first opposite party as per proper Bill No.FER/6184 dated 05/03/2011 by paying Rs.26,374.14/- as the total cost of the tiles.  But the complainant had to spent altogether Rs.28,275/- including cost of tiles, loading, packing and transporting charges. Thereafter the complainant paid Rs.650/- for unloading the tiles at the site, the complainant further spent Rs.9,956/- as cost of 38 liters of paint @ Rs.262 per litre and Rs.4,050/- as the labour charge for painting the tiles. The complainant had to further spent Rs.13,000/- for painting the tiles over the roof (paving charge is  Rs.10/tile). But simply because the tiles were purchased from first opposite party for the purpose of paving the roof of the house, by spending a substantial amount he had to suffer substantial loss as simply because the tiles were not of good quality, but of substandard quality due to the manufacturing defects as well as due to bad quality of material used in manufacturing the tiles.

19. When the rain came the entire tiles were started leaking and the rain oozed in through the tiles.  Apart from that the fungus was spread all over the inner side of the tiles.  At the time of rain it was visible to everybody that the entire tiles were leaking.

20. Immediately after the defect on the tiles were detected, the complainant reported the same to both the opposite parties through Mr. Soman, the authorized dealer of the Common Wealth Tile Factory.  The opposite parties have sent Field Executive to inspect the tiles which were paved on the roof of the complainant’s house and were convinced of the fact that, the tiles were leaking and are of substandard quality either in manufacture as well as the materials used.  The opposite party did not pay any heed to the complainant to substitute the tiles with new defectless tiles.

21. The complainant sent a lawyer notice (marked as Ext.A2 document) dated 01/03/2012 informing whole facts and also demanding compensation.  Though the opposite parties received the notice they even were not ready to substitute the defective tiles with new defectless tiles not to compensate the complainant.  On the contrary, the opposite parties sent a reply notice dated 27/03/2012 (marked as Ext.A6 document) with full of falsehood and untenable allegations and averments.

22. As per the work memo of both parties the Expert Commission has jointly inspected the roofing tiles and roofing materials.  The Expert Commission’s findings are as follows:-  “The said building situated in Perambra Panchayath, Ward No.12, House No.26.  The house is two storeyed building.  The ground floor roof was constructed by R.C.C and the first floor roof constructed by roofing tiles.  Common Wealth Company roofing tile were fully used for paving the first floor roof of the building.  At the time of inspection there was no rain so leaking could not be found.  While fungus were found fully inside the tiles.  Oozing out water from the tiles were not seen because at the time of visit there was no rain.  Mr. Joy Lukose paved the same other companies roofing tiles in his shed and that tiles there was no fungus and the quality was good compared to Commonwealth tiles.  The first floor roof was constructed by GI rectangular rafters and purlins with equal spacing and roofing tiles were paved above it properly.  So there is no gap between the tiles.  The roof having enough slope for roofing tiles.  The ridges also paved by the ridge tiles.”

23. The 1^st and the 2^nd opposite parties filed objection to commission report.  The opposite parties raised an objection that the Expert Commission could not be find any leakage at the time of his inspection it is not a rainy season.  But commissioner could find any leakage if by pouring water on the top of the roof.  But he did not even take such an effort to find out the defects as alleged.

24. The complainant has approached this commission with a grievance that the tiles supplied were defective and was found leaking during rainy season and that there was fungus infestation.  Ext C1 is not helpful to the complainant to prove that there was leaking as alleged. The complainant failed to take out the commission during rainy season.  So there is lack of sufficient evidence to conclude that there is leaking.  But Ext C1 proves that there is fungus under the tiles which indicates the substandard quality of the tiles supplied to the complainant.  It is also in evidence that the opposite parties had failed to take any positive steps to redress the grievance of the complainant.  Unfair trade practice and deficiency of service on the side of the opposite parties stands proved.  Though the complainant could not establish that the tiles were leaking, he could prove that there was fungus infestation on the tiles for which he is entitled to be compensated.

25. Considering the entire facts and circumstances of the case, we are of the view that though the complainant is not entitled to get replacement of tiles, he is entitled to get Rs.15,000/- as compensation from the opposite parties.  Complainant is also entitled to get Rs.5,000/- as cost of the proceedings.

26. Point No:3 :- In the light of the findings on the above points, the complaint is disposed of as follows:

1. CC.No.310/2012 is allowed in part.
2. The opposite parties are directed to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) as compensation to the complainant.
3. The opposite parties are directed to pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings to the complainant.
4. The order shall be complied with within 30 days of the receipt of copy of this order.

Pronounced in Open Commission on this, the 20^th day of June,2023.

Date of Filing : 19/07/2012.

                                    Sd/-                                                Sd/-                                            Sd/-

                             PRESIDENT                                    MEMBER                                 MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Bill No.FER/6184 issued from Commonwealth Tile Factory, Feroke.

Ext.A2 – Lawyer notice dated 01/03/2012 sent to opposite parties.

Ext.A3 – Postal recepits 2 nos  obtained for senting lawyer notices to the opposite parties.

Ext.A4 – Acknowledgement card dated 03/03/2012. 

Ext.A5 – Returned lawyer notice with acknowledgement card sent to second opposite party.

Ext.A6 – Reply notice sent by the opposite parties dated 27/03/2012.

Ext.A7 – Bill No.FER/6186 for purchase of straw.

Exhibits for the Opposite Party

Ext.B1 – Copy of Receipt purchased by Mr.Gopalakrishnan.

Ext.B2 – Bill No.FER/6184 issued from Commonwealth Tile Factory, Feroke.

Ext.B3 – Product output classification report.

Commission Exhibits

Ext C1  - Commission report.

Ext C1(a) – Work memo filed on behalf of opposite parties.

Ext C1(b) – Work memo filed by Adv.Krishna Mohan.M.K.

Witnesses for the Complainant

PW1 -  Joy.K.Lukose (Complainant)

PW2 – Soman.T.

Witnesses for the opposite parties 

RW1 – Sreekumar.P.K

Witnesses for the Commission

CW1 – T.P.Jose, Assistant Executive Engineer, Kerala P.W.D(Retd).

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