BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 19th May 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 334/2015
Complainant/s:
Dr.Mallikarjuna Galagali, Age: Major, Occ: Medical Practitioner, R/o.H.No.15, Sadguru Nilaya, Mahanandi Layout, Leprosy Hospital Road, Old Hubli, Hubli
(By Sri.L.C.Kulkarni, Adv.)
v/s
Respondent/s:
The Proprietor, Mallikarjun Ceramics, Noolvi Building, Behind Jayaprakash Hotel, New Cotton Market, Hubballi 580029.
(By Sri.S.V.Patil, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.38,900/- with interest @12% from the date of purchase till realization i.e. towards cost of the damages, Rs.5,000/- towards compensation for mental agony, to order for cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant in order to fix tiles to his newly constructed house approached the respondent and purchased ceramic tiles under cash bill no.61 dtd.08.05.2014 of worth Rs.38,900/-. The said ceramic tiles are of low quality and unfit for use, after use of the said ceramic tiles the said ceramic tiles starts to decolorize day by day. Hence, complainant subjected to mental agony and also lost money incurred towards labour charges as the complainant repeatedly 3 times fixed the ceramic tiles. Though the complainant reports the same to the respondent, respondent did not responded and complied which amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complainant is not a consumer and complaint is not maintainable as it is not consumer complaint and prays for dismissal of the complaint. Among such other admissions and denials the respondent denied all the complaint averments and puts the complainant to strict proof of the same. Further the answering respondent also denied and disputes subsequently after purchase of the ceramic tiles the complainant approached and in turn the respondent assured complainant that he will replace otherwise refund amount. Further the respondent taken contention that for the first time he came to know of the fact only after the respondent received the complaint copy along with summons issued against him by this forum. Further the answering respondent contended that he is only the dealer, he is unaware of manufactural discrepancy of the tiles as such he has no liability against the claim. Further the answering respondent taken contention that the complaint is bad for non joinder of necessary party and also disputes the allegations made in the complaint and also defects in the tiles as alleged and prays for dismissal of the complaint.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit, relied on documents apart from argument the complainant also filed notes of argument. Heard. Perused the records.
Finding on points is as under.
- Neatively
- Accordingly
- As per order
R E A S O N S
P O I N T S 1 & 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant purchased the ceramic tiles in question from the respondent.
6. Now the question to be determined is, whether the ceramic tiles in question are defective and as such the respondent has committed deficiency in service, if so, for what relief the complainant is entitled.
7. Since the facts have been revealed in detail which requires no repetition.
8. The complainant approached this Forum praying for the reliefs alleging deficiency in service against respondent. The main grievance of the complainant is that ceramic tiles he purchased from respondent are of low quality and as such after fixation of the tiles the ceramic tiles become decolorized and starts fading day by day. When these allegations are made the burden shift on the complainant to establish his case of defects in the material he purchased. The complainant has not produced any expert opinion with regard to establish his case of low quality tiles. The complainant on the insist made by this Forum filed IA seeking permission to obtain expert opinion by mentioning one person. While considering the said IA this Forum perused the name of the expert given by the complainant but except furnishing the name of the expert the complainant did not furnished any details with regard to specialization or expertize of the said person with regard to give scientific opinion with regard to standard of the tiles. For the said IA and name mentioned by the complainant the respondent opposed to appoint the said person contending that the said person does not possess any license or certificates. Under those circumstances this Forum by exercising the rights U/s.13 (c) of CP Act appoint the Executive Engineer, Quality Control, PWP & IWT Dharwad to visit the spot & to inspect the ceramic tiles and to report. But the said Executive Engineer reluctant to accept the commissioner warrant stating that they have no equipment or laboratory to test the same and to give scientific opinion. For that reason and also for the reason the complainant failed to suggest proper person to appoint as expert this Forum could not able to get expert opinion. However in order to meet justice & to arrive merits this Forum visited the spot and inspected the ceramic tiles in the house of the complainant. During the visit it is noticed that there is no such any manufactural defects exhibits in the ceramic tiles.
9. Since the complainant has approached this Forum for reliefs heavy burden lies on the part of the complainant to establish his case. The respondent apart from the contention taken in the pleadings in support of their contention produced the fixing instructions morefully displayed on the ceramic tiles box. Inviting the attention of this Forum to fixing instructions the LC for respondent argued that the complainant has not fixed the tiles in accordance with the instructions given in the box. Following instructions have been displayed in the tiles fixation instructions.
Tiles fixing instruction:
- The final Floated coat of the wall to be tiled should be with wood flat finish and coating should be completed at least two weeks before tilling begins.
- The bedding mix used for fixing the tiles must not contain than three part of sand (100 mesh) to one part of cement by volume.
- The bedding mix should be used within its time limit, mix must be discarded.
- The tile should be immersed in clean water for at least an hour before tilling.
- The tile should be fixed as soon as surface water is disappeared. Variation of size, shade and weight occurred sometimes due to characteristic of clay.
ANY MANUFACTURING IN TILES SHOULD BE BROUGHT TO OUR NOTICE PRIOR TO FIXING
NO CLAIM SHALL BE ENTERTAINED ONCE THE TILES ARE FIXED, MISING OF LIME WITH CEMENT, CARELESS MIXING OR DELIBERATE USE OF RICH MIX WILL LEAD TO WALL TILES FAILURES.
10. By noticing the above instructions the respondent submits the complainant has not followed the instructions strictly and he has not immersed the tiles in the water as required before affixing the same as such defects have been arosed as alleged by the complainant and is not due to manufactural defects. In rebuttal to the contention of the respondent, complainant did not adduced any evidence, neither the complainant did not chosen to examine the mason worker who affixed the tiles before this Forum. If the complainant would have examined the said mason worker it could come out how and in what manner the mason worker affixed the tiles and whether he followed the instructions or not. Hence, in the absence of non-examination of tiles fixer it could not be make out whether the said fixer has followed the instructions or not.
11. That apart, here it is recalled the present complainant had also filed another complaint in CC-333/15 on the file of this forum against one respondent. The proprietor Shiva Enterpreses, Hubballi, claiming similar allegations and reliefs and it is closed as the complainant withdrawn the same on 19.02.2016 as per the complainant’s memo. So, it is to be noted the complainant approached this forum not only making allegations of defective tiles against this respondent but also against the respondent in CC-333/15. So it is to be noted defects not in tiles and defects in affixing the tiles by not following the tiles affixing instructions of manufacturer. Hence, the complainant has failed to establish his case of deficiency in service and also the defects are of manufactural defects and respondent has sold low standard tiles as alleged. Hence, complainant is not entitled for any reliefs.
12. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively and accordingly.
13. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 19th day of May 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
