D.o.F: 11/12/06 D.o.O:15/10/09IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC. 138/06 Dated this, the 15th day of October 2009. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER K.S.Abdul Rasheed, S/o K.S.Abdul Hameed, PO. Keekan , Hosdurg,Kasaragod Dt. Complainant His P.A.Holder M.H.Budan Saheb,, S/o Mohammad Haneef. (B.Ramakrishna Bhat,Adv.Kasaragod) The Manager, Euro India Ceramics Chittari,Kanhangad Po. : Opposite party (Adv.K.K.Prasad Babu,Hosdurg) ORDER SRI.K.T.SIDHIQ: PRESIDENT The case of the complainant in short is that he is employed abroad and he constructed a house and the construction works were supervised by his father-in-law and power of attorney holder ,Sri.Budan Sahib, Sri.Budan Sahib purchased all the materials like flooring tiles, iron, cement, wooden materials etc. The tiles that was laid for the flooring was purchased from the shop of opposite party. At the time of purchase opposite party made the complainant to believe that the tiles purchased were of good quality and have warranty and guarantee. But the tiles lost its original colour and faded and they look very ugly very soon after its laying. On intimation to opposite party the manager of the opposite party inspected the laid tiles and found the averments of the complainant as correct and assured to set right the matter within a week. But nothing was done. Now even if the opposite party agrees to replace the tiles already laid those tiles are to be removed and it may cause damage to the doors, windows, plastering and paintings. The total cost of the tiles purchased were Rs.62,203. 50. The complainant also suffered much mental agony, discomfort and ridicule from their relatives. The total claim of the complainant is Rs.3,00,000/- with interest and cost. 2. Opposite party filed version denying the sale . According to opposite party, they are a well established business group generally sells the branded tiles. If at all the complainant purchased any branded tiles the opposite party is not liable since they are only the dealer and not the manufacturer. The manufacturer is not made a party hence the complainant is bad for non- joinder of necessary party. The documents produced by the complainant as the account ledger of the opposite party is created by the complainant. Hence there is no unfair trade practice on their part and the compliant deserves a dismissal. 3. The power of attorney holder of the complainant examined as PW1 and filed affidavit to substantiate his claim .Exts.A1 to A4 and the experts report marked as Ext.C1. The expert commissioner removed 2 tiles laid in the house of the complainant and produced before the Forum is marked as MO1. On the side of opposite party DW1 examined 4. In view of the conntention of the opposite party that they are only the dealers of tiles and the complaint is bad for non-joinder of necessary parties, complainant take steps to implead the manufacturer as a necessary party. Hence the opposite party was directed to furnish the address of the manufacturer since the complainant could not identity the manufacturer of tiles as the tiles does not disclose the brand name. Accordingly opposite party furnished an address alleged to be the address of the manufacturer of the tiles. Therefore the said addressee was impleaded as a supplemental opposite party. After the consequential amendments, notice was issued to the said opposite party. But inspite of serving the notice on the said of opposite party the notice was returned unserved with the endorsement not known. Again the opposite party was directed to furnish the correct address of the manufacturer but the opposite party did not furnish the address of the manufacturer inspite of availing repeated chances. This would again makes it clear that the tiles supplied to the complainant were of locally manufactured probably at the instance of opposite party himself. 5. An expert commissioner was appointed at the instance of the complainant to inspect the flooring of the house of the complainant to prove that the tiles laid has lost its original colour and the materials supplied by the opposite party is of low quality. Accordingly Sri.Shivasankara M.G a licensed civil engineer was appointed as the expert commission. He filed the expert report. 6. The contention of the opposite party is manifold. According to opposite party they have not sold any tiles to complainant. Ext.A2 series the computer generated ledger account extracts does not belong to them and it is created by the complainant for the purpose of the case. As against this contention the opposite party during cross examination has deposed that he is maintaining accounts and duplicate copy of the bills in respect of the sale transactions and he verified his accounts to know that whether the documents produced by the complainant are true or not and he verified the accounts of the dates 22/3/2006, 27/4/2006,8/5/2006 and 13/5/2006 and there is no reason for the non production of those documents. Opposite party further deposed that the mobile phone number and land phone numbers scribbled on Ext.A2(b) belongs to him. When the complainant producing Exts.A2(a) and A2(b) documents discharged his initial burden to prove that they are issued by the opposite party towards the purchase of tiles it was the duty of the opposite party to rebut the evidence of the complainant by producing the concerned ledgers pertaining to the alleged sale of tiles as mentioned in Ext,A2(a) and Ext.A2(b). The non production of said ledger is fatal as far as this case is concerned. Hence it can be concluded that Ext.A2( a) and A2(b) are issued by opposite party to the complainant towards the sale of tiles in dispute to the complainant. 7. Moreover, the opposite party in his version contended that it is the manufacturer of the tiles who is responsible for the defects. This is quite contrary to his defense of non sale of tiles to the complainant. 8. Though at the instance of the complainant opposite party furnished an address alleged to be that of the manufacturer/supplier of the tiles supplied to the complainant, the notice issued to the said party returned as unknown. This attitude of the opposite party of furnishing a false address alleged to be that of the manufacturer itself speaks volumes about the character and conduct of opposite party. 9. In Ext.C1, the expert has reported that the colour of tiles are changed Ivory to light blackish shade and some tiles changed to light black patches. Totally the floor looks uneven shade. According to the expert , no brand mark or ISI mark is find when he removed two tiles and inspected it. According to him, the tiles are local made rectified tiles. He further reported that if any chemical substances are used to clean the tiles when laying, there is chance of damage to all tiles or there may be change in colour uniformly . But he reported that only the colour of some tiles alternately laid are changed and so there is no chance of defects due to any chemical substances. 10. As per the calculation of the expert commissioner for removing the existing tiles, and replacing it with new tiles and for painting the wall disturbed due to the removal of tiles would require Rs.60,000/-. 11. To sum up the case we have no hesitation to hold that the opposite party committed grave unfair trade practice by selling locally made inferior quality tiles falsely representing that they are high quality and has got guarantee or warranty in colour and quality. Opposite party’s sale amounts to unfair trade practice as envisaged under section 2(1)( r ) of consumer Protection Act. 12. No doubt the complainant would have suffered much mental agony and sufferings due to the laying of sub standard low quality tiles and its subsequent colour fading within a very short span of time of its laying . The complainant is entitled for compensation on that ground. 13. In our country unfortunately our traders and sellers have not developed a tendency to accept the defects in the goods when pointed out by the consumers and not replacing the same without a contest. The tendency of accepting the defects and redressing the grievance of the consumers has to be encouraged if the traders believes that consumer satisfaction is their prime moto. Instead of disputing the undisputed facts the traders or sellers should resolve the matter by replacing or refunding the price of the defective goods. 14. In the case of Ghaziabad Development Authority vs Balbirsingh reported in (2004) 5 SCC 65, the Hon’ble Apex court has held that the Forum is entitled to award not only value of goods or services but also to compensate the consumer for the injustice suffered by him. It was further held that the word compensation may constitute actual loss or expected loss and may extend to compensation for physical , mental or even emotional suffering , insult, injury or loss. Further in this case the opposite party not only replaced the defective tiles or refund its price paid but also forced the complainant to file this complaint to get his grievance redressed. In response to the complaint the opposite party took a stand denying even the sale of tiles. We think this is a fit case to order punitive compensation against the opposite party. The Hon’ble Supreme Court in the case of Charan singh vs Healing Touch Hospital reported in III 2000 CPR 1 (SC) {(2000) 7 SCC 668}, has held that the compensation has to be awarded in an established case which not only serves the purpose of recompensing the individual but which also at the same time aim to bring about a qualitative change in the attitude of service provider. In the result, the complaint is allowed and opposite party is directed to pay Rs.60,000/- to the complainant towards the expenses that would be incurred for the removal of damaged tiles with new tiles and for the allied painting of disturbed wall along with Rs.20,000/- by way of punitive compensation and a cost of Rs. 3500/- within 30 days from the date of receipt of copy of order. Failing which the opposite party is further directed to pay interest @ 9% per annum for Rs.60,000/- from the date of complaint till payment with compensation and cost aforementioned. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1- Copy of building permit A2-series-Account ledger A3-26/9/06Copy of lawyer notice A4-12/10/06-reply notice Ext.C1-18/10/08- commission report PW1- M.H.Budan- P.A.holder of complainant DW1-C.M.Kunhabdulla- Ist opposite party Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /forwarded by order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
