KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.756/06
JUDGMENT DATED 18/02/2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
M/s.H & R Johnson (India) Ltd.,
Regd Office at “Windsor”,
7th Floor, CST Road, Kalina,
Santacruz East, Mumbai – 400 098
Branch at Door No.40/937, -- APPELLANT
P.T.Usha Road,
Ernakulam, Cochin – 682 011.
(By Adv.R.Padmaraj)
1. V.C.Thomas,
S/0 Sri.Chummar , Municipal Staff
Courters – 4, Behind Civil Station,
Palakkad.
2. The Proprietor, -- RESPONDENTS Cement House, 31/799
Market Road, Palakkad.
(R1 By Adv.P.Ramachandran Nair)
JUDGMENT
SRI.M.V.VISWANATHAN,JUDIIAL MEMBER
The appellant was the second opposite party and respondents 1 & 2 were the complainant and the first opposite party in OP.67/05 on the file of CDRF, Palakkad. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in effecting sale of premium quality ceramic tiles to the complainant for a sum of Rs.28,942.85. The opposite parties entered appearance and filed written version denying the alleged deficiency in service on their part. They contented that there was no defect for the ceramic tiles supplied to the complainant and the minor shade variation happened due to the defective laying of the tiles without following the laying instructions. Thus, the opposite parties prayed for dismissal of the complaint.
2. Before the Forum below, Exts.A1 to A3 and B1 documents were marked on the side of the parties to the complaint in OP.67/05. At the instance of the complainant, an expert commissioner was deputed and the report filed by the expert commissioner was marked as Ext.C1. Both the complainant and the opposite parties 1 & 2 filed proof affidavits in support of their respective pleadings. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th June 2006, directing the opposite parties 1 & 2 to rectify the defective ceramic tiles of premium quality at the cost of the opposite parties. The opposite parties were also made liable to pay compensation of Rs.50,000/- in the event of the default to rectify the defective ceramic tiles of premium quality and to pay interest at the rate of 6% per annum from the date of the order till realization. They are also made liable to pay cost of Rs.1,000/- to the complainant. They were made jointly and severely liable to comply with the order passed by the forum below. Aggrieved by the said order, the present appeal is filed by the second opposite party therein.
3. When this appeal was taken up for final hearing, there was no representation for respondents 1 and 2. We heard the learned counsel for the appellant/second opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. It is further submitted that the Forum below did not permit the second opposite party (appellant) to cross examine the complainant and that the Forum below dismissed the application filed as IA.251/05 seeking an opportunity to cross examine the complaint. He also challenged the correctness of C1 commission report filed by the expert commissioner. It is submitted that the Forum below failed to consider the objection filed by the second opposite party to C1 commission report. Thus, the appellant/second opposite party prayed for setting aside the impugned order passed by the Forum below.
4. There is no dispute that the complainant (first respondent in the appeal) purchased 3 types of ceramic tiles for a total consideration of Rs.28,942.84. Ext.A3 (1) is the bill issued by the first opposite party/dealer for sale of the aforesaid ceramic tiles. The said bill is dated 9.2.05 The first opposite party/dealer the Proprietor, Cement House, Palakkad has not disputed Ext.A3 (1) bill dated 9.2.05. Admittedly, there is no dispute with respect to the other 2 types of tiles purchased by the complainant from the first opposite party/dealer. The dispute is with respect to 280 numbers of tiles purchased by the complainant for a sum of Rs.15,458.80. The disputed ceramic tiles were manufactured by the second opposite party M/s. H & R Johnson (India) Limited (appellant herein). There is also no dispute that the disputed tiles are of premium qualityceramic tiles manufactured by the appellant/second opposite party and sold by the first opposite party (second respondent). It is the case of the complainant that the aforesaid premium quality ceramic tiles manufactured by the second opposite party and supplied by the first opposite party are of inferior quality and those tiles were defective with respect to color/shade variations and those tiles were having manufacturing defects such as pattern of design variations and that the aforesaid defects could be noticed after fixing the said ceramic tiles on the floor of the complainant’s newly constructed building.
5. The opposite parties denied the alleged manufacturing defects. They contended that the alleged defects occurred due to defective laying of the floor tiles. It is further contended that the complainant failed to follow the laying instructions specifically indicated on each box of the ceramic tiles. Thus, the opposite parties disowned their liability to replace the aforesaid defective ceramic tiles of premium quality and to pay any compensation to the complainant. In effect, they denied the alleged deficiency in service.
6. The complainant filed a petition for appointment of an expert commissioner to report about the defective nature of the ceramic tiles laid on the floors of his dining room, living room and sit out. The Forum below allowed the said petition for appointment of an expert commissioner. Thereby Mr.K.K.Babu, BSC Engg; M.E Department of Civil Engineering, NSS College of Engineering, Palakkad was appointed as the expert. The qualification and experience of the expert would show that he is a qualified Civil Engineer and having the competency to note the defective nature of the ceramic floor tiles laid for the residential building of the complainant. It is to be noted that the aforesaid expert was appointed with due notice to the opposite parties 1 & 2. It is further to be noted that the opposite parties did not file any panel of experts for the appointment as expert. Thus, C1 commission report cannot be set aside without any cogent reason or ground.
7. The Forum below cannot be found fault with in relying on C1 expert report. It is to be noted that appellant/second opposite party filed objection to the commission report. But the said objection to the commission report cannot be accepted without any supporting material. The mere fact that the expert commissioner noticed variations in surface finish and that he reported the undulations are ranging from 2mm to 5mm cannot be taken as a ground to hold that the expert commissioner is biased. It is to be noted that the expert commissioner examined all the relevant aspects of the ceramic tiles and he pointed out the defects noticed on inspection. The aforesaid defects or the nature of the defects noticed by the expert commissioner cannot be brushed aside without any valid reason. It is pertinent to note at this juncture that the opposite parties have not taken any steps to get the expert commissioner examined or cross examined in this case. It is also be to be noted that the appellant/second opposite party filed IA.251/05 seeking permission of the Forum below for cross examination of the complainant. But the second opposite party did not file any petition for examination of the expert commissioner and to substantiate the alleged reason for setting aside the expert report. On the other hand, C1 expert report submitted by the expert commissioner would give a clear picture about the nature of the defects in the ceramic tiles manufactured by the appellant/second opposite party and supplied by the first opposite party (second respondent herein)
8. The mere fact that the Forum below dismissd the IA.251/05 filed by the second opposite party cannot be taken as a ground to hold that sufficient opportunity was not given to the second opposite party to substantiate its case as contended in its written version. The Forum below has given valid reason or ground for not allowing the aforesaid interlocutory application filed for cross examining the complainant. It is to be noted that the proceedings before the agencies constituted under the Consumer Protection Act are summary in nature. The Forum below was of the view that the parties to the consumer complaint can submit questionnaire to the other side and on the basis of the aforesaid answers given to the questionnaire can be considered for disposal of the complaint in a just and proper manner. The Forum below was also of the view that by submitting questionnaire and getting answers to the questions is sufficient for disposal of a consumer complaint in a summary proceeding. It is also to be noted that both the complainant and opposite parties submitted questionnaire and the parties filed answers to the said questionnaire. Thus, the submission of questions and answers would serve the purpose of examination in- chief and cross examination to some extent. It is also to be noted that parties have also filed proof affidavits in support of their case. The mere fact that the petition filed as IA.251/05 was dismissed cannot be taken as a ground to hold that the appellant/second opposite party was denied the opportunity to defend its case as contended in the written version.
9. The expert commissioner in C1 expert report has categorically reported the absence of any defects in the other 2 types of ceramic tiles manufactured by the appellant/second opposite party and supplied by the second respondent/first opposite party dealer. The aforesaid finding noted by the expert commissioner would give a clear indication that there were defects in the disputed premier quality ceramic tiles sold to the complainant and there were no such defects for the other 2 types of ceramic tiles sold to the complainant. This circumstance would make the case of the complainant more believable and acceptable.
10. There is no dispute that the disputed ceramic floor tiles were laid in the living room, Dinning room and sit out of the building owned by the complainant. It is to be noted that the disputed tiles being premium quality tiles the complainant/consumer preferred to lay those premium quality tiles in the main and prominent places in the building ie; in the living room, dinning room and sit out. The expert commissioner has categorically reported that the color/shade variations are distinguishable. It is also reported that such color and shade variations are not expected in premium quality ceramic tiles. The opposite parties have got a case that slight shade variations may occur in ceramic tiles.
11. The aforesaid contention made by the opposite parties would make it clear that extensive and distinguishable color/shade variations are not expected in premium quality ceramic tiles. It is pertinent to note at this juncture, that price of premium quality ceramic tiles is much higher than the other 2 types of ceramic tiles. It is also to be noted that there were no defects for the low quality ceramic tiles which are cheaper than premium quality of ceramic tiles. So, the distinguishable color/shade variations in the disputed premium quality ceramic tiles would make it clear that the opposite parties were deficient in rendering service to the complainant/consumer by selling defective tiles by stating the same as premium quality tiles.
12. The expert commissioner has also reported that the shade/color variations in the disputed premium quality ceramic tiles are easily noticeable by naked eye. He also reported about the existence of variations in surface finish. He also measured the undulations in the aforesaid premium quality ceramic tiles with respect to the variations in surface finish. At the same time there were no such defects or variations in the other 2 low quality tiles. It is further to be noted that the opposite parties have no case that there was no variations in service finish. But, their case is that the complainant had no such case of variations in surface finish and that the expert commissioner reported the aforesaid defect of variations in surface finish. There is no whisper in the written version or in the proof affidavit filed by the opposite parties that the report submitted by the expert commissioner regarding the existence of variations in surface finish is false or that there is no such existence of variations in surface finish. In the absence of any such contention forthcoming from the side of the opposite parties especially, the second opposite party it can only be concluded that there was the defect or variations in surface finish for the premium quality ceramic tiles which were sold to the complainant. Thus, the Forum below can be justified in relying on C1 expert report and coming to the conclusion that the opposite parties committed deficiency in service by selling defective tiles to the complainant (first respondent in the appeal). Therefore, we have no hesitation to uphold the finding of the Forum below that there was deficiency in service on the part of the opposite parties 1 & 2 in effecting sale of defective ceramic tiles (premium quality) to the complainant.
13. The first respondent/complainant has got a case that the tiles supplied by the first opposite party (second respondent) were laid by the workmen provided by the dealer/the first opposite party. But the aforesaid case of the complainant has been disputed by opposite parties 1 & 2. There is nothing on record to support the case of the complainant that the tiles were laid by the workers provided by the first opposite party. The complainant has categorically admitted that the wages for the workers were given by the complainant himself. There is no case for the complainant that the laying work was supervised by the first opposite party or the agents of the second opposite party manufacturer. So, it can only be concluded that the laying of the tiles were done at the risk and cost of the complainant. If that be so, the opposite parties cannot be found fault with in laying the tiles.
14. The opposite parties have got a definite case that the defects in the tiles occurred only due to the failure to follow the laying instructions provided on the boxes of the ceramic tiles. They have also got a case that before fixing the floor tiles, the complainant was expected to have dry lay of the tiles and only after getting satisfaction of the color combination and pattern the tiles ought to have been fixed. The aforesaid contentions adopted by the opposite parties have some importance. In the present case on hand, the complainant/consumer laid the defective tiles by fixing the same to the floor of his living room, Dinning room and sit out. Had there been any complaint for the complainant with respect to the color variations or other defects in the tiles, he could have very well brought that fact to the notice of opposite parties. The complainant/consumer could have avoided laying of the tiles permanently by fixing the same to the floor. Admittedly, the complainant fixed those defective tiles to the floor instead of having dry laying of the tiles. It is rather impossible to remove the fixed tiles without causing damage to the tiles. In that respect the complainant/consumer was at fault. It is pertinent to note at this juncture that the complainant/consumer did not make any complaint to the opposite parties before fixing the tiles to the floor. This circumstance would give a clear indication that the complainant/consumer was also negligent to some extent.
15. Another important aspect to be noted at this juncture is the date of purchase of the disputed tiles and laying of the said tiles for the floor of the newly constructed residential building of the complainant. Admittedly, the said tiles were purchased on 9.2.05. Those tiles were laid during February 2005 itself. It is only after fixing the defective tiles to the floor, the complainant issued A1 lawyer notice dated 1st March 2005. It is to be noted that the complainant/consumer shifted his residence to the newly constructed residential building. This fact can be seen from the affidavit sworn to by the complainant. The chief affidavit was filed by the complainant on 7th October 2005. The address given in the said chief affidavit is that of the address of the newly constructed building at Mythri Nagar, Chakkanthara, Palakkad. This would give a clear indication that the complainant is residing in the very same residential building where the defective tiles are laid. The opposite parties have got a definite case that the complainant is enjoying/using the floor where the defective tiles are laid. Thus, it can be seen that for the last 6 years the complainant/consumer is using the defective aforesaid tiles conveniently; but the Forum below has not considered the aforesaid relevant aspect of the case.
16. By the impugned order, the Forum below has directed the opposite parties to rectify the defective ceramic tiles of premium quality at the cost of the opposite parties and in the event of default they are made jointly and severely liable to pay compensation of Rs.50,000/- to the complainant with interest at the rate of 6% per annum from the date of the impugned order till realization and a cost of Rs.1,000/-. It is to be noted that the sale of the defective ceramic tiles of premium quality was effected on 9.2.05 and the said premium quality ceramic tiles were laid in the living room, dinning room and sit out of the complainant by 13.2.05. Admittedly, the complainant is residing in the aforesaid newly constructed building. It is true, that the complainant has not stated the date on which he shifted his residence to the new residential building. But the chief affidavit filed by the complainant on 7th October 2005 would make it clear that the complainant is residing in the newly constructed building at least from October 2005. If that be so, it can very safely be concluded that for the last 6 years, the complainant is using the aforesaid defective premium quality ceramic tiles which were laid for the living room, dinning room and sit out of the newly constructed building. This circumstance would make it clear that the complainant is accustomed with the defective tiles laid in his living room, dinning room and sit out. There can be no doubt that the complainant has suffered the inconvenience and discomfort on account of those defective ceramic tiles laid in the living room, dinning room and sit out of the newly constructed building. So, the opposite parties are to be made liable to compensate the complainant for the mental agony, inconvenience and discomfort suffered by the complainant. The opposite parties are also liable and answerable for the deficiency in service on their part in effecting sale of defective ceramic tiles of premium quality. But, at the same time, the complainant/consumer was also negligent in fixing the defective ceramic tiles without informing or intimating the opposite parties about the defective nature of those ceramic tiles of premium quality. We have already pointed out the failure on the part of the complainant/consumer in dry laying those defective tiles and informing the opposite parties about the defective nature of those tiles before fixing and laying the tiles permanently in the complainant’s newly constructed building. Considering all these aspects, this Commission is satisfied to modify the impugned order passed by the Forum below directing replacement of the defective ceramic tiles of premium quality. The purpose will be served by ordering payment of compensation to the complainant for the deficiency in service on the part of the opposite parties 1 & 2.
17. The cost of the ceramic tiles of premium quality would come to Rs.15,448.80. The aforesaid tiles have already laid permanently in the living room, dinning room and sit out of the newly constructed building and the complainant is residing in the said newly constructed residential building for the last 6 years. There can be no doubt about the fact that those defective ceramic tiles permanently laid in the said newly constructed residential building cannot be removed without causing damage to the tiles. In other words, by removing those defective tiles definitely, the tiles will be damaged and the same cannot be used for laying. The removal of the tiles without causing damage became impossible only because of the failure of the complainant/consumer in dry laying the tiles. Considering all the relevant aspects of the case this Commission is of the view that the opposite parties 1 & 2 are to be burdened with the liability to pay compensation of Rs.10,000/- to the complainant/consumer. The aforesaid sum of Rs.10,000/- will also carry interest at the rate of 6% per annum from the date of the impugned order (30.6.06) passed by the Forum below in OP.No.67/05. The Forum below can be justified in awarding cost of Rs.1,000/- to the complainant. The impugned order passed by the Forum below is modified to that extent.
In the result, the appeal is allowed partly. The impugned order dated 30.6.06 passed by CDRF, Palakkad in OP.No.67/05 is modified as indicated above. Thereby the second respondent/first opposite party and the appellant/second opposite party are made jointly and severely liable to pay Rs.10,000/- as compensation to the first respondent/complainant with cost of Rs.1,000/-. The aforesaid compensation of Rs.10,000/- will carry interest at the rate of 6% per annum from 30.6.06 (the date of the impugned order) till the date of realization. The finding of the forum below regarding deficiency in service on the part of the opposite parties 1 & 2 is upheld. But, the direction given the opposite parties to rectify the defective ceramic tiles of premium quality at the cost of the opposite parties is set aside. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. The appellant and the second respondent (opposite parties 1 & 2 in OP.67/05) are directed to comply with the direction in this judgment within one month from the date of receipt of copy of this judgment, failing which the first respondent/complainant will be at liberty to get this order executed as provided under the provisions of the Consumer Protection Act.
M.V.VISWANATHAN -- JUDICIAL MEMBER
VALSALA SARANGADHARAN -- MEMBER
M.K.ABDULLA SONA -- MEMBER
