State Consumer Disputes Redressal Commission
George Chrisostom, Grace Estate vs Susmith Koroth Area Sales Manager on 6 December, 2010
Daily Order
First Appeal No. A/09/639 (Arisen out of Order Dated 16/10/2009 in Case No. CC 115/08 of District Malappuram) George Christom Vs. Susmith Koroth BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: Dated : 06 Dec 2010 ORDER Remanded back to CDRF on 12/01/2011
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 639/2009
JUDGMENT DATED: 6.12.2010
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
George Chrisostom, Grace Estate, :APPELLANT
Kandamthottukara,
Amarambalam.P.O., 679332.
(By Adv.M.P.Gangadharan and
Adv.S.Reghukumar)
Vs.
1. Susmith Koroth Area Sales Manager, :RESPONDENTS
Kohinoor Vetrified and Floor Tiles,
VRN Ceramics Ltd., Door No.1/1770-C.
Exhibition Road,
West Hill, Calicut-673005.
2. VRN Ceramics Ltd., At & Po.Dalpur,
Kutwad Road, N.H.No.8,Nr.Himathnagar,
Ta Prantig, Di,Sabarkantha,
Gujarat, India.
3. VRN Ceramics Ltd.,C.P.1/405,
Puthuvayalil Shopping Complex,
Ground Floor, Muttam, Aluva,
Ernakulam District, Pin-683106.
4. Gijithomas, Marble Gallery,
Chandakkunnu, Ooty Road,
Nilambur.
(By Adv.Manu Roy, Counsel for R2 to R4)
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The appellant was the complainant and the respondents 1 to 4 were the opposite parties in CC.115/08 on the file of CDRF, Malappuram. The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 to 4 in effecting sale of floor tiles to the complainant. The complainant claimed a total of Rs.1,98,868/- by way of compensation on the ground of deficiency of service and unfair trade practice.
2. Before the Forum below opposite parties 1 to 4 entered appearance and filed joint written version denying the alleged deficiency in service. They also challenged the maintainability of the complaint as the issue involved in the complaint is to be considered by a Civil Court. They denied the alleged purchase of tiles by the complainant and requested for dismissal of the complaint.
3. Before the Forum below Ext.A1 to A11 documents were produced and marked on the side of the complainant. No oral evidence was adduced by the complainant. But he filed proof affidavit in lieu of examination in chief. The 2nd opposite party filed proof affidavit in support of the contentions adopted by the opposite parties. No evidence was adduced from the side of the opposite parties. At the instance of the complainant an expert Commissioner was appointed along with an Advocate commissioner. The reports filed by the commissioners have been marked as C1 and C2. ON an appreciation of the evidence on record, the Forum below passed the impugned order dated 16..10..2009 dismissing the complaint in CC.115/08. It is against the said order the present appeal is preferred.
4. When this appeal was taken up for final hearing, the learned counsel for the respondents 2 to 4 (opposite parties 2 to 4) submitted that he has filed arguments notes on behalf of respondents 2 to 4. He has not submitted any more arguments. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He challenged the finding of the Forum below by relying on Ext.A4 printed receipt issued by the 4th opposite party, the dealer of the floor tiles and submitted that the Forum below cannot be justified in finding that the complainant failed to prove his case of purchase of tiles from the opposite parties. It is further submitted that Ext.A1 letter issued by the Vikar, St.Paul CSI Church Pullenchery, Nilambur would support the case of the complainant that the complainant purchased the tiles for laying the same in the aforesaid church. He also pointed out the recitals in the objection to the commission report filed by the 3rd opposite party stating that "the blame shall not be put on the shoulders of the opposite parties as they have not supplied the entire quantity of tiles, but only a few boxes which have been mixed with other tiles purchased from elsewhere" as evident from the complaint and from the commissioners report. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below and to allow the complaint in CC.115/08
5. The points that arise for consideration are:
1) Whether the appellant/complainant has succeeded in establishing his case regarding purchase of floor tiles from the respondents/opposite parties?
2) whether there occurred any deficiency in service on the part of the opposite parties in effecting sale of floor tiles to the complainant?
3) Whether the Forum below can be justified in dismissing the complaint in CC.115/08?
6. Points 1 to 3:-
The case of the appellant/complainant is that he purchased floor tiles from the 4th opposite party M/s Marble Gallery, Chandakunnu, Ootty road, Nilambur on a consideration of Rs.98832/- and that the said floor tiles were purchased for laying the same at St.Paul CSI church, Pullenchery, Nilambur. It is also the case of the appellant/complainant that he purchased two qualities of floor tiles namely Kohinoor tiles of VRN Cyramics Ltd. And Lexus tiles manufactured by M/s Lexus. It is also the case of the complainant that he purchased both the above qualities of tiles from the 4th opposite party M/s Marble Gallery, Chandakunnu, Nilambur. The complainant alleged deficiency of service and unfair trade practice on the part of opposite parties in effecting sale of Kohinoor floor tiles manufactured by VRN Ceramics Ltd. The 1st opposite party is the area sales manager of VRN Ceramics Ltd; the 2nd opposite party is the manufacturer of Khinoor tiles namely VRN Ceramics Ltd., Gujarat and that the 3rd opposite party is the branch of the 2nd opposite party VRN Ceramics Ltd. And that the 4th opposite party is the dealer of the 2nd opposite party at chandakunnu, Nilambur.
7. The opposite parties filed joint written version before the Forum below. They challenged the jurisdiction and also the very maintainability of the complaint preferred as CC.115/08. It is to be noted that the case of the complainant is that he purchased the floor tiles namely Kohinoor tiles manufactured by 2nd opposite party and sold by the 4th opposite party dealer. The complainant alleged sale of defective tiles by the opposite parties and thereby alleged deficiency in service and unfair trade practice. The aforesaid pleadings would show that the complainant purchased floor tiles and that the opposite parties effected sale of floor tiles. If that be so, complaint as filed is to be treated as maintainable. The Forum below has the jurisdiction to entertain the dispute based on deficiency in service and unfair trade practice in effecting sale of a product namely floor tiles.
8. The contention of the opposite parties that the dispute is to be decided by a civil court can not be allowed. It is be noted that all disputes being considered by the agencies constituted under the Consumer Protection Act are of civil nature. The fact that the dispute is of civil nature can not be a ground to relegate the parties to Civil Court. It is to be borne in mind that disputes involved in a consumer complaint will be that of civil nature. The disputes or issues involved in consumer complaints can very wellbe considered by the agencies constituted under the Consumer Protection Act, 1986. So, on that count also the complaint in CC.115/08 is to be considered by the Consumer Forum like the CDRF, Malappuram. This Commission have no hesitation to hold that the complaint in CC.115/08 is maintainable and that the Consumer Forum has rightly entertained the dispute involved in CC.115/08.
9. The forum below dismissed the complaint in CC.115/08 on the finding that the complainant failed to prove his case regarding purchase of tiles from the opposite parties. Ext.A4 is the printed receipt issued by 4th opposite party/dealer namely; Marble Gallery, Chandakunnu, Ootty road, Nilambur. It is signed by the authorized signatory of 4th opposite party. But A4 receipt was produced from the side of he complainant along with the written complaint. The recitals in A4 receipt would show that the complainant Mr.George Chrisostom paid Rs.98832 towards the cost of tiles. It is to be noted that Ext.A4 printed receipt signed by authorized signatory of 4th opposite party has not been disputed or challenged. The complainant in his proof affidavit has also averred about the issuance of Ext.A4 receipt by M/s Marble Gallery. It is also stated that the complainant purchased floor tiles valued at Rs.98832/- and the said tiles were purchased from the 4th opposite party M/s Marble Gallery Chandakunnu. The aforesaid case of the complainant regarding purchase of the tiles and acceptance of A4 printed receipt is not disputed by the 4th opposite party. It is pertinent to note that 4th opposite party has not filed any proof affidavit denying or disputing the genuineness and correctness of A4 receipt. It is also to be noted that in the joint written version filed by the opposite parties there is no denial of issuance of A4 receipt by 4th opposite party. There is also no challenge in the written version regarding A4 printed receipt which was produced by the complainant along with his written complaint.
10. It is very interesting to note that the Forum below had also considered the relevancy of A4 receipt produced by the complainant. But, ultimately the Forum below did not place any reliance on A4 receipt. The aforesaid failure or omission on the part of the Forum below is to be considered as a serious one. The Forum below cannot be justified in not relying on A4 receipt produced by the complainant. A4 receipt and affidavit filed by the complainant are sufficient enough to hold that the complainant purchased floor tiles from 4th opposite party M/s Marble Gallery, Chandakunnu, Nilambur and he obtained A4 cash receipt from 4th opposite party. It is to be noted that opposite parties 1 to 4 filed a joint written version. They have no case that 4th opposite party is not the dealer of the tiles manufactured by VRN Ceramics Ltd. The available evidence on record would show that the complainant purchased floor tiles from the opposite parties. The finding of the Forum below that the complainant failed to prove his case regarding purchase of floor tiles from the opposite parties can not be upheld. The facts and circumstances and materials on record would show that the appellant/complainant purchased floor tiles from the opposite parties. So, this Commission have no hesitation to set aside the aforesaid finding made by the Forum below.
11. The Forum below has also entered a finding that the complainant failed to prove his case that he purchased the tiles for his own use. It is to be noted that the opposite parties admitted in their written version that some tiles were purchased by St.Paul CSI Church, Nilambur. Ext.A1 is the letter issued by Vicar of the aforesaid St.Paul CSI Church, Pullanchery, Nilambur. Ext.A1 letter would make it clear that the aforesaid church building including entire furniture and electrification is a donation to the church by Mr.and Mrs.George Chrisostom, Grace estate, Malappuram District. Ext.A1 letter dated 8th May, 2008 would show that the aforesaid church building was donated by the complainant along with his wife. It would also show that the said church building was furnished by the donors Mr.and Mrs George Chrisostom. Ext.A1 letter is sufficient enough to establish that the complainant incurred expenses to furnish the said church including the floor tiles laid therein.
12. Another important aspect to be noted at this juncture is the failure on the part of opposite parties to substantiate their case that the floor tiles were purchased by the church and not by the complainant. Had there been purchase of floor tiles by the St.Paul Church, Nilambur there would be necessary documents with the opposite parties especially; 4th opposite party. Opposite parties have not produced any scrap of paper to substantiate their case that the tiles were purchased by St.PaulChurch, Pullenchery, Nilambur. On the other hand, Ext.A1 letter issued by the Vicar of the very same church would make it abundantly clear that the aforesaid church building with all the furniture and electrification was donated by the complainant along with his wife. The finding of the Forum below that the complainant failed to prove his case regarding purchase of tiles cannot be believed or accepted. The contention of the opposite parties that the complainant did not purchase the floor tiles from them cannot be believed for a moment. Thus, the facts, circumstances and evidence available on record would only show that the complainant in effect purchased floor tiles from the opposite parties.
13. Ext.C1 and C2 reports filed by the Advocate commissioner and the expert commissioner would show that the tiles laid on the floor of the St.Pauls Church Pullenchery, Nilambur are having defects and it is practically impossible to replace the defective tiles alone. The expert has also reported about the expenses for replacing the defective tiles. Report filed expert commissioner would show a total of Rs.100186/- is required to replace the defective tiles. It is true that the aforesaid expense of Rs.100186/- is inclusive of replacing the granite tiles and other tiles purchased by the complainant for laying on the floor of the said church. Admittedly, the granite tiles and some other tiles were purchased by the complainant not from the opposite parties. The Forum below has not made any attempt in calculating the actual expense required for replacing the defective tiles which were sold by the opposite parties. So, the impugned order passed by the Forum below is liable to be setaside and the matter is to be remitted back to the Forum below for fresh consideration and disposal of the same on merits. The parties to the complaint in CC.115/08 are to be given one more opportunity to adduce evidence in support of their respective pleadings regarding the quantum of compensation required for replacing the defective tiles which were sold by the opposite parties. It is also to be borne in mind that the complainant is not entitled to get the entire cost of replacement calculated by the expert commissioner because of the fact that some of the defective tiles were not sold by the opposite parties. The mere fact that in Ext.A4 receipt there is some variation regarding the date of purchase cannot be taken as material, in the light of the admission made by the opposite parties regarding sale of floor tiles for the aforesaid church namely; St.Paul CSI church Pullenchery, Nilambur. This Commission have no hesitation to set aside the impugned order passed by the Forum below. These points are answered accordingly.
13. In the result the appeal is allowed to the extent that the impugned order dated 16.10.09 passed by the CDRF, Malappuram in CC.115/08 is setaside and the matter is remanded to the Forum below for fresh consideration and disposal of the same on merits. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
The parties to this appeal are directed to appear before the Forum below. On 12.1.2011.
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SMT.VALSALA SARANGADHARAN : MEMBER
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[ Sri.M.V.VISWANATHAN] PRESIDING MEMBER