SMT. RAVI SUSHA: PRESIDENT

Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 alleging deficiency in service on the part of opposite parties in doing negligent work and damaging the tiles of the complainant’s newly constructed house and claiming compensation of Rs.1,00,000/- towards mental agony  for defective work and also Rs.2,32,500/- for laying new tiles after removal of damaged tiles.

            The case of the complainant is that OP 1 is the authorized dealer of ceramic tiles and OP 2 is the authorized dealer of MYK LATICRETE Dazzel Latapoxy Grout floor and wall and OP 3 is the manufacturer of  MYK LATICRETE Dazzel Latapoxy Grout floor and wall.  OP 4 is the skilled worker who had done the lying of tiles in the house of the complainant.  The complainant has constructed a house for residence of her own family, with the financial aid of her son.  At the time of finishing the floor work she has purchased tiles from OP 1 by way of invoices No.UC/584 dated 12/07/2018, UC/585 dated 12/07/2018 and UC/586.  As per UC/584 she purchased vitrified tiles and other accessories for a total amount of Rs.1,08,474/-.  The 4^th OP approached the complainant for getting the flooring work on her house, claiming that he is skilled worker in that field and he had assured that he will do the work with utmost care and perfection.  Believing the words the 4the OP the complainant entrusted the work to him,.  The total consideration of the work was fixed as Rs.54,000/- and tiles were laid in the 1^st floor of the residential building and the work was completed within 10 days.  The complainant purchased the grout manufactured by the 3^rd OP as demanded by the 4^th OP.  It is noticed by the complainant that there were satins all over the floor after completion of laying of the titles.  When asked about the same the 4^th OP stated that it will be cleared after cleaning of the tiles and it can be done only after 45 days.  The 4^th OP assured the complainant that the tiles will be bright and clear after cleaning.  Believing of the words of the 4^th   OP, the complainant given the total amount of Rs.54,000/- to him.  After 45 days the OP 4 tried to clean the tiles with cloth and water.  But the tiles were dirty and completely spoiled and thee were white patches on the floor. The 4the OP stated that it will be clear after the tiles were cleaned using the machine and brought a new machine and tried to clean to surface by polishing the tiles using that machine.  But the tiles became more shabby and dirty and OP 4 stated that the appearance of the tiles was due to manufacturing defect of the Grout.  Another expert worker came to the house and after inspection he opined that these incidents happened only due to the poor workmanship of the 4^th OP.  The complainant gave a police complaint and from the police station the 4^th OP agreed to clear all the defects in his work but after that he told the complainant that he cannot do anything now and the remedy is to fix new tiles after removing the damaged tiles.  Although there was a settlement talk between the complainant and the OPs, the 4^th OP was not ready for compromise.  The complainant needs Rs.2,32,500/- to lay new tiles after removal of the damaged tiles.  The acts of the OPs in doing negligent work and damaging he tiles of the complainant amounts to deficiency of service and unfair trade practice.  Hence this complaint.

            After receiving notices, all the OPs 1 to 4 filed separate version

            OP1 has stated that there is no cause of action against the OP1 as per the averments in the complaint.   It is admitted that the OP 1 is the authorized dealer of floor tiles and other sanitary items.  The OP 1 supplies good quality branded flooring tiles and other items. The OP 1 supplies good quality branded flooring tiles and other items manufactured by known companies to its customers and hence there is no possibilities of any type of damage to the tiles if it is handled or laid properly by an expert worker.  The OP 1 has not supplied any workers for laying of flooring tiles to any of its customers. The OP 1 is only the dealer of the flooring tiles and other sanitary items.  There is no deficiency o f service on the part of this OP as alleged by the complainant and prayed for the dismissal of complaint against him.

OP 2 submitted that this OP is the authorized dealer of MYK LATICRETE Dazzle Latapoxy Grout for floor and wall.  OP2 contended that the defect or damages of the tiles are only due to the mishandling of the tiles by the workers under the 4^th OP and due to the lack of knowledge and improper use of tiles with unknown chemicals and rough substance and pleaded that are not responsible for the said action of OP No.4.This OP cannot be made liable and the above complaint is liable to be dismissed with cost.

OP3 has stated that  2^nd OP is the authorized sub dealer of MYK LATICRETE Dazzle Latapozy grant for floor and wall, 3^rd OP is the manufacturer of MYK LATICRETE Dazzle Latapozy grant for floor and wall.  It is submitted that this OP is having well reputation in manufacturing and supply of grouts and other allied materials having good qualities to the customers in wide range all over Kerala State and its dedicated service resulted high level reputation and goodwill among the public.  As this OP is not responsible for the irresponsible acts of the complainant as well as the 4^th OP and the present complaint was filed with false cause of action on an experimental basis to get unlawful gain, this OP cannot be made liable and the above complaint is liable to be dismissed with cost as against this OP.

OP4 denied all the allegations of the complainant raised against him.  He admitted that he had done the laying work of tiles in the house of complainant and received Rs.54,000/- as charge.  Further submitted he had done the work perfectly without any defect within the stipulated time agreed with the complainant.  OP 4 pleaded that the work has been entrusted to him by knowing his expertism in the said field.  The Latapoxy Grout for floor and walls was selected and purchased by the husband of the complainant himself.   But during cross-examination OP4 admitted that he engaged the work as himself and also the apoxy was purchased by him as per his choice.  He has stated that the tiles can be cleaned with water immediately after the laying work, otherwise, it can be cleaned by using apoxy remover.    OP contended that the damage to the tiles as alleged by the complainant was due to the carelessness of the complainant by using chemical cleaner to the floor for cleaning the tiles.  He has no role in the said damage.  So the above complaint is liable to be dismissed with cost.

 After that complainant and OP4 adduced evidence.  While pending of this complaint, an expert commissioner Mr. Muhammed Faizal M Assistant Engineer PWD was appointed to inspect the complainant’s premises and to prepare report of the floor work, as per the application of the complainant.  The expert commissioner after site inspection filed a report.  The expert commissioner has been examined as Pw2 from the side of complainant and marked the report as Ext.C1.  Complainant son has filed affidavit evidence and marked Ext.A1 to A3.  Pws1 and 2 were subjected to cross-examination by the OPs.  On the side of Ops, OP NO.4 filed affidavit evidence and has been examined as Dw1.  After that the learned counsel for OP1 filed written argument note and the learned counsel of OP 4 made oral argument.

            It is not in dispute that complainant had purchased floor tiles from the shop of OP1 and OP1 is the authorized dealer of ceramic tiles as per invoice dated 12/07/2018 for an amount of Rs.1,08,474/-.  Further complainant had purchased MYK Laticrete Dazzle Latapoxy Grout for floor manufactured by the OP3 as per bill No. A 1057 dated 29/11/2018 from OP2 for an amount of Rs.13,880/-. Further the undisputed fact is that OP No.4 have done the laying work of the tiles at the 1^st floor in the complainant’s house and paid Rs.54,000/- to OP4  by the complainant as labour charge.

            The case of the complainant is that after completion of the laying of the tiles, it was noticed that there were stains all over the floor.  When asked about the same, OP4 stated that it will be cleared after cleaning of the tiles and cleaning can be done only after 45 days.  Complainant submitted that OP4 assured that tiles will be bright and clear after cleaning.  OP4 came to the house on December 2018 and try to clean the tiles with cloth and water.  But tiles were seen dirty and completely spoiled.  There were white patches on the floor.  It is alleged that thereafter OP4 was trying to clean the tiles with a rough object.  But that also has no effect on the tiles and they remain ugly.  After that OP4 brought a new machine and tried to clean the surface by polishing the tiles using that machine.  But the tiles became more shabby and dirty. 

The allegation of the complainant was contested by the OP4 on the ground that he committed no deficiency in service.  OP4 denied all the allegations of the complainant raised against him.  OP4 admitted that he had done the laying work of tiles in the house of complainant and received Rs.54,000/- as charge.  According to OP4 he had done the work perfectly without any defect within the stipulated time agreed with the complainant.  OP 4 pleaded that the work has been entrusted to him by knowing his expertism in the said field and the Latapoxy Grout for floor and walls was selected and purchased by the husband of the complainant himself.   But during cross-examination OP4 admitted that he engaged the work as himself and also the apoxy was purchased by him as per his choice.  He has stated that the tiles can be cleaned with water immediately after the laying work, otherwise, it can be cleaned by using apoxy remover.  OP4 contended that the damage to the tiles as alleged by the complainant was due to the carelessness of the complainant by using chemical cleaner to the floor for cleaning the tiles.  He has no role in the said damage.  During cross-examination of Pw1, by OP4, the witness categorically denied the said version of OP4.  But OP4 failed to prove his said allegation with any expert opinion.

Here, OPs 1 to 3 submitted that no deficiency in service on their part in supplying the items purchased from their shop and no manufacturing defect to the items supplied.  We can reveal from the evidence that complainant also does not have a case that the floor tiles delivered by OP No.1 and the apoxy manufactured by OP NO.3, supplied by OP No.2 has any manufacturing defects or has any deficiency in service on the part of OPs 1 to 3.  OPs 1 to 3 pleaded that the alleged defect or damages of the tiles are only due to the mishandling of the tiles the workers under the 4^th OP and due to the lack of knowledge and improper use of tiles with unknown chemicals and rough substance.  OPs 1 to 3 pleaded that they are not responsible for the said action of OP No.4.

            Complainant also alleged that when she contacted one of her neighbor, who is an expert in doing tiles and floor work, opinioned after inspecting the tiles work in her house that all the incidents happened only due to the poor workmanship of the 4the OP.  This opinion is corroborated with the opinion of the Assistant Engineer appointed by the commission as an expert commissioner.  The commissioner submitted report after inspecting the site.  In the said report (Ext.C1) he has clearly described that the first floor is finished with vitrified tiles and joints filled with apoxy materials.  It is found that at some joints of the tiles in hall and bed rooms in first floor, the surrounding areas of joints are in rough.  These may be due to the non-cleaning of apoxy material which fallen on the tile surface at the time of joint filling as soon as the joint filling is completed.  Normally this is to be cleaned immediately after filling the joints.  Otherwise this will harden quickly and the proper cleaning will be hazardous.  On enquiry with the house owner, it is revealed that the tile worker tried to clean the surface with some materials on another day and this might have cause roughness on the tile surface.

            Expert has reported that apoxy material is to be cleaned immediately after filling the joints. Here OP4 has not examined any of his workers to prove that the apoxy material fall on the tile surface during joining work of the tiles were removed immediately after filling the joints. Further expert opinioned that the surrounding areas of joints are in rough.  Complainant also alleged  that OP4 used rough object for cleaning the tiles.  Though expert was examined and cross-examined as Pw2, he has deposed in tune of his report.  Though, OP4 raised a contention that the expert has not informed him about his inspection.  The expert deposed that he has contacted OP 4 through phone call.  On analyzing the evidence of the expert, there is no reason to disbelieve and to discard the report of expert (Ext.C1) and his evidence.  The expert has reported that the representation of OPs 2 and 3 informed that the worker has not contacted them for the proper cleaning material for removing the apoxy from the tile surface.

            On perusal of exhibits invoice Ext.A1 and A2 we can also see that there was no purchasing of cleaning material for removing the grout.  That clearly indicate that the OP 4 and his workers had not used proper cleaning material for removing the apoxy material fallen on the tile surface at the time of joint filling, immediately after the work.  From the evidence (OP4 admits during his cross-examination) it is revealed that the grout and other items were purchased as per the instruction of OP4 and the items purchased did not include proper floor cleaner.  So we can come to a conclusion that alleged defects or damage in the tiles was due to latches and negligence on the part of OP4 in doing the cleaning work after laying of the tiles at the proper time.  OP4  failed to prove his contention about the manufacturing defect and low quality tiles purchased by the complainant and to the manufacturing defect of the apoxy MYK Laticrete Dazzle Latapoxy Grout purchased from OP2.  OP4 also could not prove that complainant had used chemical for cleaning the tiles after his work.

            In view of the aforesaid facts and circumstances and from the evidence, there is no evidence of deficiency in service or unfair trade practice on the part of OPs 1 to 3.  Hence OP1 to 3 are exempted from the liability.  From the available evidence, we are of the view that there is deficiency in service and negligence on the part of OP4.  Hence OP4 has to compensate the complainant for her monetary loss and mental agony. 

            From the expert commissioner reported that some joints of the tiles in hall and bed rooms in first floor, the surrounding areas of joints are in rough. During examination of expert complainant has not put questions to the witness about the points as stated in her objection.

            In the result considering the facts and circumstances of this case complaint is allowed in part.  Opposite party 4 is directed to pay an amount of Rs.75,000/- for laying new tiles in the hall and bed rooms in 1^st floor after removal of damaged tiles and also to pay Rs.25,000/- towards compensation for mental agony.  OP4 is also directed to pay Rs.10,000/- towards cost of the proceedings of this case.  OP4 shall comply the order within one month after receipt of the certified copy of this order, failing which the amount Rs.75,000+25000 carries interest @7% per annum from the date of order till realization.  Complainant can execute the order by filing execution application against OP4 as per provision of Consumer Protection Act 2019.

Exts

A1- Cash bill dated 12/07/2018 (photo copy-subject to proof)

A2- Cash bill dated 29/11/2018

A3- Copy of complaint given to SHO Iritty (subject to proof)

C1-Commission report

Pw1-Complainant’s son

Pw2- Muhammed Fazil M- witness(expert commissioner) of complainant.

Dw1-OP4

      Sd/                                                                                Sd/                                                         Sd/

PRESIDENT                                                                   MEMBER                                             MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar