By Smt. Beena. M, Member:-

            This is a complaint filed under section 35 of the Consumer Protection Act 2019

            2.  Facts of the case in brief: On 18.10.2021, the Complainant had purchased Marbonite for an amount of Rs.25,900/- from the Opposite Party company for repairing the front porch of his house and the Opposite Party told that the product is of Marbonite Johnson company and assured about the good quality of product and also told that the Opposite Party is fully responsible for any colour variations or damage.  The Opposite Party had given clear assurance that if it happens, it would be replaced.  The said Marbonite were laid on the veranda by the Complainant incurring labour charge of Rs.18,000/-, but the very next day, some spots were seen appeared on the marbonite and it became dirty.  Even though the Complainant informed the matter to the Opposite Party, he said that it is the result of the construction done by the Complainant without providing necessary assistance.  The Complainant sent a notice through a lawyer on 16.11.2021. Though the notice received on 17.11.2021, the Opposite Party have not bothered to change the marbonite till date. The Complainant purchased marbonite from the Opposite Party to keep the house properly clean and tidy as it was the time of his child’s First kurbana.   The Opposite Party made to believe that the product is of good quality to make excessive profit, which is unfair trade practice. Subsequently, the Complainant sent a notice through lawyer asking the Opposite Party to replace the Marbonite, but the Opposite Party did not do it and therefore, the Complainant had to shift her child’s first kurbana preparations to the auditorium. Hence, this Complaint.

3. Notice was served to the Opposite Party, they appeared and filed version.  The Opposite Party admits that the Complainant had purchased the marbonite from the Opposite Party on 18.10.2021 for Rs.25,900/-.  Actually, the Complainant came with expert in marbonite and examined the marbonite of various Companies and selected marbonite of Johnson & Johnson Company and the Opposite Party did not interfere in the selection of the Complainant.  The Complainant, who is clearly aware of the marbonite manufacturing company, has full knowledge of the company and its suppliers, but he did not add the company or the suppliers as a party, so it is not possible to find a suitable solution to the complaint of the Complainant, and the above complaint has the disadvantage of non-joinder of necessary parties.  The marbonite supplied by the Opposite Party to the Complainant has been ascertained by the Complainant at the warehouse of the Opposite Party and the Complainant who admits that there was no complaint until the marbonite was laid.  So, the Complainant must answer for the marks which later appeared on the marbonite, which could only be defects in the laying of the marbonite, and the said defect would have to be examined by an expert, but It has not been done by the Complainant.  No evidence was adduced by the Complainant as to the damage to marbonite and it has to be examined by an expert commissioner.  The use of cheap cement in place of gum used by the Complainant in laying marbonite is the cause of damage to the marbonite.  The Opposite Party denied that the said marbonite was spread on the veranda at a labour charge of Rs.18,000/- to be made and the very next day the marbonite was dirty, which is unbelievable and untrue.  According to the Complainant’s statement itself, the defect in the marbonite laid by the Complainant is only the reason for colour variation in the marbonite.  Therefore, marbonite laying expert is a necessary party to the complaint, otherwise the complaint cannot be resolved clearly.  No complaints have been received from other customers who purchased the same batch of marbonite.  The denied the statement of the Complainant that the Opposite Party misled the quality of marbonite and poor quality marbonite was sold to the Complainant to make exorbitant profit.  The Opposite Party further states that if there are any defects in the application of marbonite, it is only the defect in the method of using cement, glue etc. and  the lack of skill in the work of the person who spread the marbonite can only be the reason for the formation of stains on the marbonite.  Marbonite was purchased from the Opposite Party for the purpose of keeping the house properly as it was the time of the first kurban of the Complainant’s child and the Opposite Party is not responsible for the fact if the marbonite site has defects as shown in the complaint,   it is possible that it was spread without using scientific methods to spread it. Therefore, the Opposite Party prays to dismiss the complaint. 

            4.  Subsequently, the Complainant has filed I.A.470/2022 & I.A.471/2022 to amend the complaint and to implead the manufacture of the product.  After receiving the notice, the Opposite Party No.2 filed version.  The Opposite Party No.2 also stated the same thing stated in the version of Opposite Party No.1.  Further he submitted that all the products are subject to strict quality standards and checks, and no effort is spared to provide high quality world standard tiles to the customers.   It is clearly printed on the boxes that once tiles are fixed on the floor it is with the full satisfaction of the customer and company does not take any responsibility for the complaints raised later.  For fixing the tiles, the instructions have to be followed and the correct proportion /ratio of cement, sand mortar and water have to use and the final result depends upon good workmanship and supervision as well.  All these are highly necessary to obtain the proper and correct finish.  It is also made clear that the company does not accept any liability in case of problems arising out of non-adherence to the tile fixing instructions.  A skilled tile layer follows the instructions printed on the box before fixing on the floor.  Complaint if any, regarding manufacturing defect, should have been made at this juncture and company should definitely have taken necessary action if the grievances was genuine.  The alleged patches of floor shade, if any, could only be on account of improper and negligent laying of the tiles, obviously in violation of the instructions and careless use of tiled area after laying.  The tiles supplied to the Complainant are of high quality and without any manufacturing defect.  The Opposite PartyNo.2 prays to dismiss the Complaint. 

            5.  The Complainant filed proof affidavit & documents produced were marked as Ext.A1 to A5. The expert commissioner examined as PW1 and report marked as Ext.C1.  The Manager of the Opposite PartyNo.1 examined as OPW1 and the Assistant Manager (customer service) of Opposite PartyNo.2 examined as OPW2 and Ext. B1 marked. 

6.  On perusal of complaint and documents the Commission raised the following issues for consideration:-

1. Whether the Complainant has proved any deficiency in service or unfair trade practice on the part of opposite parties.
2. Whether the Complainant is entitled to get any compensation from the Opposite Parties?

7.  The case of the Complainant is that he had purchased the alleged marbonite made by Second Opposite Party through First Opposite Party and the marbonite become defective due to its inferior quality.  Ext. A1 is the bill issued by First Opposite Party for an amount of Rs.25,900/- as the value of marbonite purchased by the Complainant. At the time of examination the OPW2 deposed that ‘’F{]Imcw BWv tile hncnt¡­Xv F¶ hnhcw box  Xs¶bp­v‘’ But the Opposite Party has not produced the box .  The Opposite Party contended that the marbonite are defective due to poor workmanship.  But the expert Commissioner deposed at the time of examination that  ‘’\à coating Dff tile {ZmhI§Ä absorb sNbvXm AXn\v KpWta· Cà F¶v A\pam\n¡mw‘’.  “\à tile BsW¦n XpS¨m Id t]mtI­XmWv.  F´p IdbmWv hoWXv F¶Xns\ B{ibn¨ncn¡pw. KpW\nehmcanÃm¯ tile BsW¦nepw AXn ]nSn¨n«pff Id t]mImXncn¡mw”.   So from the deposition of expert it is evident that the tiles supplied by First Opposite Party were defective.

            8. Moreover  the contention of the Opposite Parties that there are so many reasons to shade the colour of the marbonite due to properly not laying by the labour is not considered, because the workers are always caution and care about laying the marbonite, because they are all professionals in their work.  The Complainant filed photos of the said marbonite clearly shows that there are some shades and it is looking dirty.  The Complainant stated that the marbonite which were laid down, the next day the black spots are forming in the marbonite which clearly show the manufacturing defect of those marbonite and it cannot appear at the time of fixing.  In our view even though defects are not appeared before fixing or laid down the marbonite, the next day white spots appeared, hence it is because of low quality of material marbonite. 

 In the result, the complaint is partly allowed and the Opposite Parties are directed, jointly and severally, to refund the cost of the marbonite i.e., Rs.25,900/- (Rupees Twenty-five Thousand and Nine Hundred Only) with labour charge of Rs.18,000/- (Rupees Eighteen Thousand Only) and to pay Rs.15,000/- (Rupees Fifteen Thousand Only) as compensation for mental agony and Rs.8,000/- (Rupees Eight Thousand Only) as cost of the proceedings.    

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 22^nd day of  March 2024.

Date of Filing:-31.12.2021.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Ravisankar. R. S.                             Assistant Executive Engineer,

PWD.

Witness for the Opposite Parties:-

OPW1.          Aneesh. M.                                       Manager.

OPW2.          C. P. Suresh.                                                Assistant Manager, Customer

Service.

Exhibits for the Complainant:-

A1(Series).   Copy of Tax Invoices( 2 Numbers).

A2.                  Lawyer Notice.                                            Dt:16.11.2021.

A3.                  Acknowledgement Card.

A4(Series).   Email Communications (5 Pages).

A5(Series).   Photographs ( 3 Numbers).

C1.                  Expert Commission Report.                     Dt:06.06.2023.

Exhibits for the Opposite Parties:-

B1.                  Authorization.                                             Dt:07.02.2023.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

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                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

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