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
Thursday the 30th day of April 2024
CC.166/2021
Complainant
Rajesh. N.P,
S/o. Rarukutty,
Nattiparakkal (HO),
Madavoor. P.O, Narikkuni (Via),
Kozhikode – 673585
( By Adv. Sri. T.K. Shibu)
Opposite Party
The Proprietor,
Standard Tiles Gallery,
K.S. Road, Narikkuni. P.O,
Kozhikode – 673585
( By Adv. Sri. Muhammed Basheer. N.V)
ORDER
By Smt. PRIYA. S - MEMBER
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
- The case of the complainant, in brief, is as follows:
The complainant in connection with completion works of his new residential house, purchased bathroom tiles worth Rs. 28,200/- as per Bill No. 688 dated 26/01/2021 (for Rs. 10,500/-) and Bill No. 2025 dated 11/01/2021 (for Rs.17,700/-) for furnishing works of 2 bathrooms from the opposite party. The complainant also expended Rs. 22,380/- for tiles laying including topping, grinding, slurrying and finishing works, costs, conveyance and labour charge etc. The flooring work of the work area of the house was also done at the cost of Rs. 7,000/- including materials, costs, conveyance and labour charge. A sum of Rs. 50,580/- was expended for the above works by the complainant. The complainant purchased the above mentioned materials from the opposite party on assurance of best quality available in the market, as informed by the opposite party. But after the finishing works and usage for about 2 weeks, the brightness of the tiles began to fade again and again within a short period and it came to be in a state of being blurred. Consequent to it, the complainant had sought replacement of the tiles from the opposite party, along with costs, conveyances and labour charge, which was outrightly rejected by the opposite party, due to which the complainant had been felt cheated, and he came to be a laughing stock before his friends and relatives and hence the flooring tiles is to be replaced immediately, for which, the opposite party is vicariously liable. It is a clear case of deficiency of service and unfair trade practice from the side of the opposite party. The complainant had issued a lawyer notice dated 25/03/2021 calling upon the opposite party and requiring to replace the tiles at the opposite party’s own expense or make refund of Rs. 50,580/- along with compensation of Rs. 50,000/- and Rs.1,500/- as the notice charges together. The notice was received by the opposite party and replied on 13/04/2021 stating that the opposite party is not liable for manufacturing defect of the tiles. The complainant, therefore, demands for a compensation of Rs. 1,02,080/- including the amount spent by the complainant for purchase of tiles laying, including topping, slurrying and finishing works, cost of conveyance , labour charges and for mental agony. Hence this complaint.
- The opposite party filed written version.
- According to the opposite party, the complaint is bad for non-joinder and mis-joinder of parties and the opposite party is only a dealer, not a manufacturer. The complainant had purchased tiles manufactured by Lexotile Ceramic LLP. The details are printed on the boxes of the tiles. The details of instructions were also printed on the boxes for laying and handling the tiles. In addition to the above instructions, the opposite party’s executives also instructed the complainant to engage experienced workers for laying the tiles and to use good quality agent for laying tiles. The manufactures and workers engaged in the tiles laying works were not arrayed as parties. The allegations that the complainant had purchased as per Bill No. 668 dated 26/01/2021 (for Rs. 10,500/-), that the complainant had also expended of Rs. 22,380/- for tiles laying including, grinding, slurrying and finishing works, conveyance costs and labour charges etc. that the flooring work of the work area of the house with measurement was also done at the cost of Rs. 7,000/- including material costs, conveyance and labour etc. that the sum of Rs. 50,580/- was expended for the above works by the complainant, that soon after finishing works and usage at about 2 weeks had been completed, the brightness of the tiles began to fade again and again it came to be in a state of being blurred, that the complainant had been felt cheated, that the flooring tiles is said to be in a state of being replaced immediately for which the opposite party is vicariously liable, that it is a clear case of deficiency of service and unfair trade practice from the side of the opposite party etc. are not proper, correct or sustainable. The complainant does not have any cause of action to institute the above complaint. The reliefs prayed for are not allowable against the opposite party. There is no negligence or deficiency of service on the part of this opposite party. No loss, injury or hardship has been caused or occasioned to the complainant on account of this opposite party, and hence the opposite party is not liable or responsible to pay any compensation. The complainant ought to have engaged experienced workers and should have followed the instructions on the boxes of tiles strictly, without fail. Hence the opposite party prays to dismiss the complaint with compensatory costs.
- The points that arise for determination in this complaint are; 1) Whether there was any deficiency of service or unfair trade practice on the part of the opposite party, as alleged? 2) Reliefs and costs.
- Evidence in this case consists of oral evidence of PW1 and Exts A1 to A5 on the side of the complainant and oral evidence of RW1 on the side of the opposite party.
- Heard the opposite party. The complainant remained absent and did not advance any arguments.
- Point No.1: In order to substantiate the allegation, the complainant got himself examined as PW1, who has deposed in terms of the averments in the complaint in support of the claim. Ext A1 is the Bill No. 2025 dated 11/01/2021 of Standard Tiles Gallery, Ext A2 is the Bill No. 668 dated 26/01/2021 of Standard Tiles Gallery, Ext A3 is the copy of lawyer notice dated 25/03/2021, Ext A4 is the postal receipt dated 25/03/2021 and Ext A5 is the reply notice dated 13/04/2021.
- The partner of the opposite party was examined as RW1 and he has filed proof affidavit and deposed supporting the contentions in the version.
- The complainant is seeking refund of the price of the tiles and the labour charges etc. from the opposite party alleging that the tiles supplied were defective. Compensation to the tune of Rs. 50,000/-is also claimed by the complainant. The specific allegation is that within a fortnight of laying the brightness of the tiles began to fade and it is in a state of being blurred.
- As the complainant is seeking refund of the price, the burden is on the complainant to prove that the tiles were defective as alleged. The only evidence available in this regard is the interested and self serving testimony of PW1, who is none other than the complainant. Apart from the evidence of PW1, not even a single paper has been produced to show that the tiles were defective. No expert evidence is let in by the complainant. The evidence of a ceramic expert is necessary to hold whether the quality of the tiles is defective or not. There is no reliable evidence regarding the cause of such defect alleged, if any. Testing in a competitive laboratory is necessary to ascertain whether the tiles in question suffer from any manufacturing defects or not. In the absence of any such report after testing, it cannot be held that the tiles are defective. In this case, not even a photograph of the alleged defective tiles are made available before this Commission. In these circumstances, we have no hesitation to hold that the complainant could not substantiate the allegation that the tiles sold to him were defective.
- RW1 has asserted before this Commission that the tiles supplied to the complainant were defect free and has denied all the allegations regarding defects in the tiles. But it may be noted that the complainant remained absent and RW1 was not cross examined. Thus the evidence of RW1 stands unchallenged.
- Admittedly, the opposite party is not the manufacturer of the tiles. In Ext A5 reply notice and in the written version, the opposite party had taken a definite contention that the manufacturer is a necessary party to the proceedings. The address of the manufacturer is also furnished by the opposite party in the written version. Considering the nature of the allegations, the manufacturer is a necessary party to the proceedings. But despite the specific contention, the complainant has not taken any steps to implead the manufacturer of the tiles. On this core also, the complaint must fail.
- To sum up, we find that the complainant could not establish and prove that the tiles are having manufacturing defects. There is no proof of any unfair trade practice or deficiency of service on the part of the opposite party and consequently the complaint must fail.
- Point No. 2: In view of finding on the above point, the complainant is not eligible to claim and get any relief as prayed for.
In the result, the complaint is dismissed. However, no order as to costs.
Pronounced in open Commission on this, the 30th day of April 2024.
Date of Filing: 11/10/2021
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PRESIDENT MEMBER MEMBER
APPENDIX
Exhibits for the Complainant :
Ext.A1 – Bill No. 2025 dated 11/01/2021 of Standard Tiles Gallery.
Ext.A2 – Bill No. 668 dated 26/01/2021 of Standard Tiles Gallery.
Ext.A3 – Copy of lawyer notice dated 25/03/2021.
Ext.A4 – Postal receipt dated 25/03/2021.
Ext.A5 – Reply notice dated 13/04/2021.
Exhibits for the Opposite Party
Nil.
Witnesses for the Complainant
PW1 - Rajesh.N.P, (Complainant)
Witnesses for the opposite parties
RW1 – Muhammed Basheer.
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PRESIDENT MEMBER MEMBER
True Copy,
Sd/-
Assistant Registrar.
