T.A Beerankunju Road,

Ernakulam 680 018.

        (Rep. by Adv.K.Vinod Raj)                      Opposite parties                                                         

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay `1,50,000 as compensation.

          The case of the complainant in brief is as follows: The complainant purchased floor tiles for `29,271.58 and paid `820 as charge for transportation. It was laid by a contractor for an amount of `15,000. After one month the colour of the tiles became faded and started to appear ugly scars upon the tiles. This fact was brought to the notice of 1st opposite party but complainant was insulted by him in front of others. It is understood that opposite party is not going to solve the problem. Both opposite parties are jointly and severally liable for supplying the defective tiles.  Hence this complaint.

          Pursuant to the notice opposite parties appeared and filed version the content of which is briefly stated as follows: - The complainant purchased floor tiles – Chatura design from the 1^st opposite party who is the  authorized dealer of 2^nd opposite party. The said tiles are in compliance with the Indian approved standards and subjected various quality tests. Chathura design is one of the fast moving designs in Kerala. Complainant carried out laying work before the completion of civil work. The colour variation has arisen due to cement and its aggregate fallen on tiles which also caused for forming ugly look. It is not because of any defect in tiles. The complaint is liable to be dismissed.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the relief as prayed in

     the complaint?

3. Relief and cost.

The evidence consists of oral evidence of PW1, PW2, Ext.A1, A2, and Ext.C1. No evidence adduced on the side of opposite parties.

Issue Nos.1 to 3

Admittedly complainant purchased floor tiles from 1^st opposite party the authorized dealer of 2^nd opposite party. Complainant’s case is that 1^st opposite party delivered him defective tiles. After one month the colour of the tiles becomes faded and formed ugly look. Opposite party contended that it is not the defects of the tiles but the cement and its aggregates fallen on the tiles that caused for the colour variation. He has also contended that 2^nd opposite party made a thorough inspection on the floor tiles and observed that the ugly look on the tiles are because of sediments from the nearby soil and garden set up on the surface of the tiles.

Commission was taken out and expert commissioner inspected the property in the presence of both parties and submitted report. Sales Manger of the tile manufacturing unit represented opposite parties at the time of inspection. The report of the Commissioner Ext.C1 states that he had found some tiles were in good conditions. Some tiles, which were of lighter shade than its counter parts, showed light shaded spot-marks, not distinguishable at first glance. These spots were not developed due to fungus or due to falling of cement mortar or paint over the tiles. Light variation in colour and light shaded spots are due to the use of tiles from different lots. The expert commissioner concluded her report with the remarks that the light colour and light spots are due to the variance in the amount and quality of the dose of colour-pigment used during the manufacturing process of different lots from which the tiles might have been selected from.

Opposite parties filed objection to the report of the Expert Commissioner stating that the Commissioner ought to have reported that light shaded spot marks on the  tiles is  due to  cement and its aggregates  fallen on the tiles and also  sediments from the nearby soil and garden settled on the surface of the tiles.

          The report of the Expert Commissioner makes clear that light colour and light spots are due to the variance in the amount and quality of the dose of  colour pigment used during the manufacturing process of different lots.

          Complainant adduced evidence by way of chief affidavit in tune with his pleadings. Ext.A1 shows that the piece of the tiles complainant purchased from opposite party is `29,271. Complainant also adduced evidence by affidavit evidence that, including the coolly the price will come to `30,091. He further states that for laying the tiles it was spent `15,000 to his contractor. He further states that after one month colour variation developed and black spots formed on the tiles. Complainant further stated that the matter was reported to 1<sup>st</sup> opposite party but instead of settling the matter opposite party insulted him before others. In cross examination PW1 deposed that “ black scarsD­v F¶ Imc-yT I½o-j-WÀ¡v ImWn-¨p-sIm-Sp-¯n-cp-¶p. AXp report ]d-ªp-Im-Wp-¶nà F¶p ]d-ªm icn-b-Ã. AXp report ]d-ªn-«p­v. Colour variation D­v F¶p ]d-ªn-«p­v”. Ext.C1 makes it clear that some tiles were good and some tiles wee of lighter shades showed light shaded spot-marks. That means if there is no contrary evidence some tiles are defective and the same is manufacturing defect. As per the report Ext.C1 it can be assumed  colour variations also is manufacturing defect since the  basic reason as is pointed out by the commissioner  has been due to variance in the amount and quality  of the dose of colour-pigment used during the manufacturing process. This is an opinion of expert which has not been rebutted by adducing evidence. Hence the report cannot be thrown away. Ext.C1 report clubbed with the oral evidence adduced by complainant it is proved that some of the tiles delivered by the 1<sup>st</sup>  opposite party are defective. Mere contention of opposite party that the defect occurred due to fall of cement mortar etc. has not been supported by any evidence placed by opposite parties. Opposite parties or any of the witness on their side entered in the box to adduce any evidence. In the cross examination complainant deposed that Ipd-hp-ff civil works complete sN¿p-¶-Xn-\p-ap³t]  tiles lay sNbvX-sX-¶pT A§ns\ sN¿p-t¼m-gp-­mb A{i-²-sIm-­mWv tiles\p tase cementDT aäp-`m-K§fpT hogm-\n-S-h-¶Xp F¶p ]d-ªm icn-bà ”. Opposite party could at least enter in box and adduce evidence to this effect. In absence of rebuttal evidence there is nothing to disbelieve complainant when Ext.C1 report states that the colour variation is a manufacturing defect.

It can be seen that colour variation of some tiles were present before laying itself. Complaint could have avoided laying those tiles of varied colour. If that was done the laying amount could have been saved. Changing of tiles now became more difficult since those varied were not excluded from laying.  We are of opinion that since there is manufacturing defect and opposite party is liable to replace the defective tiles. But it cannot be mechanically count and decide in practical sense. Hence in our opinion approximately half of the amount of price of tiles `15,000 and half of the laying expense approximately `7000 will meet the end of justice. Thus opposite parties are liable to pay an amount of `22,000 as compensation and also `1000 as cost of these proceedings. Issues 1 to 3 are found partly in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed partly directing the opposite parties to pay   an amount of `22,000 (Rupees Twenty Two thousand only) as compensation and an amount of `1,000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                Sd/-                      Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1. Bill issued by OP1.

A2. Photographs of defective laid tiles

Exhibits for the opposite parties:

Nil

Witness examined for the complainant

PW1.Complainant

P2.  Sadasivan

Witness examined for the opposite parties: Nil

                           /forwarded by order/

                     Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.