By Smt.  Beena. M, Member :-

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

2. Brief facts of the case are as follows:- The Complainant is a practicing lawyer at Kalpetta in Wayanad district. On 16.05.2017, the Complainant had purchased 74 pieces of EXXRO Portland Steel tiles, measuring 1200 mm x 600 mm for Rs.790/- per piece, from Opposite Party No.1, which is manufactured by Opposite Party No. 2, for laying tiles in the office of the Complainant and his friend Adv. Joseph Zacharias.  The Complainant had also purchased 10 bags of Laticrete Grout having value of Rs. 545.80 per bag, 200 pieces of 6 mm Spacer for Rs. 304 and Resin kit for Rs.2,707/-.  The vat for the above items is at the rate of 14.5%.  Hence the total amount paid by the Complainant was Rs.56,970/- + Rs.5,458 + Rs.304 + Rs. 2,707 + VAT Value (14.5%) Rs.9,489=Rs. 74,928.  A receipt for a sum of Rs. 1,17,000/- is issued by Opposite Party No. 1 on the same date towards the payment of the amount.  Thereafter, the first  Opposite Party delivered the goods on 16.05.2017, but the bill was not given by the driver of the vehicle and told that the bill was missed from him and promised that it would be given immediately.  Thereafter, when the Complainant went to the shop of the First Opposite Party, they told that after a certain period it is not possible to print the bill and so the Complainant had taken a photo of the bill from the computer monitor.    At the time of purchase, the Complainant asked the Opposite Party to supply high quality tiles which are dirt and stain free, as various interior works were to be done and which have to be fixed and erected on the floor of the office.  At that time, the opposite party No.1 assured and made to believe that the tiles are of high quality and free from any defect and is dirt and stains free, if at any dirt or stain happened to be on the tiles that can be removed easily by simply sweeping or wiping.  Again on 26.05.2017, Complainant had purchased another 7 pieces of EXXRO Port Land steel tiles for Rs. 6,220/-.   After 3 weeks of laying tiles, the Complainant noticed that dirt and other foreign articles were getting sticking on the tiles, even though the Complainant tried to clean the same but it was not possible to remove the dirt and stain completely.  On intimation to the First Opposite Party, the representatives of the Opposite Party No. 2 visited the office of the Complainant with one Rineesh and convinced about the defect.  The Opposite Party assured that they would replace the tiles and agreed to bear the entire expenses for the replacement and also would pay compensation for loss.  But the Opposite Party has kept on extending time.  Thereafter, the Complainant had contacted and reminded the Opposite Party, but they had not fulfilled their promise.  Thereafter, the Complainant sent lawyer notice, demanding replacement of tile and to pay compensation.  But the Opposite Party did not reply to the legal notice.  Afterwards, the representatives of the Opposite Party approached and again promised to replace the tiles but has not complied their promise.  The Complainant states that nobody was using footwear inside the office.  The defect of the tiles caused great hardship, inconvenience, loss and mental agony to the Complainant.  Hence, this Complaint.

          3. The Opposite Parties entered appearance and filed version. The First Opposite Party admitted the purchase of EXXRO Portland Steel Tiles and delivery of the goods.  The Opposite Party denied all the allegations stated in the Complaint.  The selection of tiles was made by the Complainant himself with the help of expert after enquiring the specifications of the tiles as given by the 2^nd Opposite Party. The first Opposite Party further stated that they were unaware that where the Complainant had laid the tiles.   The Opposite Party stated that they were unaware about the defect until the legal notice received by them.  After the notice, the first Opposite Party gone to the office of the Complainant and realized that those are manufacturing defects and informed the 2^nd Opposite Party regarding the defect.  According to the 1^st Opposite Party the manufacturer only is responsible for the alleged defect.  The 1^st Opposite Party further stated that they sold out huge quantity of tiles in the same batch, which were purchased by the complainant and no complaints were reported to them and if there is any defect happened only due to the negligence.  They further stated that the defect if any was due to the negligence of inexperienced workers.    Hence the First Opposite Party prayed for dismissal of the Complaint.

4. The Opposite Party No. 2 stated in their version that the Complainant has not availed any service from them and also stated that they have no contact nor has sold any materials to the Complainant.  They are reputed manufacturer of tiles since years and are still having the goodwill in the market regarding the quality of their tiles.  They are providing tiles according to the needs and demands of their retailers throughout the country.  The dealers sell the tiles according to the need of their customers.   They are not aware to whom the dealers have sold the tiles to.  The tiles provided by the Second Opposite Party to the First Opposite Party was sugar coated tiles which are elevation tiles supposed to be fixed on the wall due to its surface texture.  These types of tiles are not floor tiles so cannot be paved on floor especially in heavy traffic areas.  These type of tiles as have a powdered sprinkled like coating on its surface, if paved on floor dust and dirt get accumulated on it.  The First Opposite Party must have communicated the customer about the nature of the tiles, since the Complainant was the direct customer of the First Opposite Party.  At the same time if any customer wants to apply wall tiles on the floor then he won’t get the desired result, for that reason the customer himself is responsible for his act.  According to the Second Opposite Party, the stains were accumulated only because wrong type of tiles was paved on the floor, which is not due to the fault of the Opposite Party.  The Complainant seeing the tile in the 1^st Opposite Party’s show room had purchased it and paved in his office place.  There is no manufacturing defect in the tile, so the Opposite Party is not liable neither to replace nor to pay any compensation to the Complainant. 

         1. Whether there is any deficiency in service from the part of Opposite Parties?

         2. Whether the Complainant is entitled to get any relieves as prayed for?

5. Point No. 1 and 2 ;-  For the sake of convenience, point No.1 and 2 are considered together.

        6. Evidence consists of the oral evidence of the Complainant, who was examined as PW1 and Ext. A1 series, A2 series, A3 and C1 were marked. Regional Sales Manager of 2^nd Opposite Party was examined as OPW1 and Ext. B1was marked.

7. The Complainant alleges manufacturing defect to the tiles purchased from the shop of First Opposite Party.  It is his case that he had purchased 74 pieces of EXXRO Portland Steel tiles for Rs. 790/- per piece.  That along with this he had purchased 10 bags of Laticrete for Rs. 545.80,  200 pieces of 6mm Spacer for Rs. 304 and Resin Kit for Rs. 2,707/-.  On perusal of available documents and evidences produced by the Complainant and Opposite Parties, it is seen that there is no dispute with regard to the purchase of tiles and accessories from the 1^st Opposite Party, which was manufactured by the 2^nd Opposite Party as evidenced by Ext. A2. 

8. In the cross examination of OPW1 i.e the Senior Regional Sale Manager of  2^nd  Opposite Party,  stated that “ ]cm-Xn-bn  ]d-ªn-cn-bv¡p¶  wall  epw     Xd-bnepw       D]-tbm-Kn-bv¡p¶ ssSem-Wv.     Floor   D]-tbm-Kn-¨m {]iv\-§Ä D­m-hn-Ô.  It is clear from the deposition that the  alleged tile can be used in wall  and floor.  From  this  statement of OPW1 itself shows that there has been some defects in the product. OPW1 further deposed that  “Direct  Accumulate  sN¿p¶ Tile   BsW¶v  dealer t¡m customer t\m  tcJ-sbm¶pw   sImSp-¯n-«n-Ô.    Dirt Accumulate  sN¿p¶ Tile   BsW¶v purchaser s\ t_m[-y-s¸-Sp-¯m³ dealer ¡pw I¼-\nbv¡pw _m[-yXbp-s­¶v ]d-ªm icn-bm-Wv”.  This statement of OPW1 shows that the Opposite Parties had not communicated the above details about the tiles to the Complainant.  He has admitted that the Opposite Parties have the responsibility to convince the complaint about the tile,  which shall accumulate dirt.

9. As per the IA 130/2019, Assistant Executive Engineer, PWD Buildings, Sub Division, Kalpetta, submitted Ext. C1 report.  The relevant portion of Ext. C1 is reproduced as under:-

The existing tiles are White Mat finish, vitrified 1200 mm x600 mm size laid by providing epoxy spacers. As these types of tiles are mat in finish and are white & rustic in nature, it will be slightly difficult for the user to maintain it in neat and clean condition.  These types of tiles are more suitable for areas with rare usage than in common areas.  Here, it is used in an office area where publics are regularly using this spaces getting dirty in appearance due to dusts.  The tiles are sugar shiny and non-skid type in nature, the surface cleaning is a laborious task.  There is nothing to disbelieve Ext. C1 report which is given by an expert.  From the Commission report it is evident that the tiles supplied to the Complainant were suffering from inherent manufacturing defect. 

10. In view of the above discussion, we are of the view that the Complainant has succeeded to substantiate his allegation that the tiles sold by Opposite Party No.1 to

him, manufactured by Opposite Party No.2 are defective tiles.

11. Here Opposite Party No.1 is the dealer of Opposite Party No.2 who sold the disputed tiles to the Complainant.  Hence Opposite Party No. 1 cannot escape after making a sale because the consumer is primarily concerned with the dealer from whom he buys the goods.  Therefore, both Opposite Parties are held liable for grievance caused to the Complainant. Here the Complainant claiming Rs.74,928/- as cost of the tiles and Rs. 2,00,000/- being the cost to replace the tile.  Without assessing the expenses for laying new tiles, the amount claimed by Complainant for the new tiles and its expenses cannot be allowed. The Complainant is entitled to get Rs. 74,928/- being cost of the tiles and Rs. 85,500 for replacing the tiles.   

12. In the result, complaint is partly allowed.  The Opposite Party is directed to replace the defective tiles with good quality tile to the satisfaction of the Complainant by bearing the cost of the replacement. On failure to do so, the Opposite Party is directed to pay Rs. 74,928/- (Rupees Seventy Four thousand Nine hundred and  Twenty Eight only) for the cost of the tiles and Rs. 85,500/- (Rupees Eighty Five thousand Five hundred only)  for replacing the tiles. The Opposite Party is also directed to pay          Rs.40,000/- (Rupees Forty thousand only) to the Complainant towards compensation and Rs. 8,000/- (Rupees Eight thousand only) as cost of the proceedings.

The order shall be complied within 30 days from the date of receipt of this order, failing which the whole amount will carry 8% interest per annum from the date of default till realization. 

          Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 6^th   day of November 2023.

          Date of filing:-02.04.2019.

                                                                             PRESIDENT:   Sd/-

                                                                             MEMBER    :   Sd/-

                                                                             MEMBER   :    Sd/

APPENDIX.

Witness for the Complainant:

PW1.           Shaji. T.J                        Complainant.       

Witness for the Opposite Party:

OPW1.        Rajesh. R.                       Marketing.  

Exhibits for the Complainant:

A1 (a)         Letter.

A1(b)          Postal  Receipt.

A2 (a)         Copy of Bill.                 

A2(b)          Copy of Bill.                  dt:26.05.2017.

A3.             Receipt.                          dt:15.05.2017.

C1.              Inspection Report.          dt:07.02.2020.              

Exhibit for the Opposite Party:

B1.              Authorisation Letter.      

                                                                                                PRESIDENT:   Sd/-                                                                                                                                                                                            MEMBER    :   Sd/-

                                                                                                MEMBER    :  Sd/-