State Consumer Disputes Redressal Commission
Lavish Electricals And Sanitaries vs Jos on 20 February, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM First Appeal No. A/15/914 ( Date of Filing : 08 Dec 2015 ) (Arisen out of Order Dated 30/07/2015 in Case No. cc/923/2008 of District Trissur) 1. LAVISH ELECTRICALS AND SANITARIES DOOR NO XXV/134/2, MANNADIAR LANE THRISSUR ...........Appellant(s) Versus 1. JOS MALIYEKKAL OUSEPH KANJIRATHODE KANJIRATHODE LANE IRINJALAKKUDA THRISSUR 2. MANAGING DIRECTOR M/S SCORPIO TILES PRIVATE LIMITED 15/571 K P ROAD ADOOR P O 691523 ...........Respondent(s) BEFORE: HON'BLE MR. SRI.T.S.P.MOOSATH PRESIDING MEMBER SMT.BEENAKUMARI.A MEMBER SRI.RADHAKRISHNAN.K.R MEMBER For the Appellant: For the Respondent: Dated : 20 Feb 2020 Final Order / Judgement KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL No. 914/2015 JUDGMENT DATED: 20.02.2020 (Against the Order in C.C. 923/2008 of CDRF, Thrissur) PRESENT : SRI.T.S.P. MOOSATH : JUDICIAL MEMBER SRI. RANJIT. R : MEMBER SMT. BEENA KUMARY. A : MEMBER APPELLANT: Lavish Electricals and Sanitaries, Door No. XXV/134/2, Mannadiar Lane, Thrissur, represented by its Power of Attorney Holder V.V. Joseph. (By Advs. A. Rajagopalan & Narayan. R) Vs. RESPONDENTS: Jos, S/o Maliyekkal Ouseph, Kanjirathode Lane, Irinjalakuda, Thrissur District. (By Adv. Abdulla N.M.) Managing Director, M/s Scorpio Tiles Pvt. Ltd., 15/571, K.P. Road, Adoor P.O, Pathanamthitta-691 523. JUDGMENT
SMT. BEENA KUMARY. A : MEMBER The appellant is the 1st opposite party in C.C. No. 923/2008 on the file of Consumer Disputes Redressal Forum, Thrissur and the respondents are the complainant and 2nd opposite party respectively.
2. The case of the complainant before the Forum was that the complainant had purchased different varieties of floor tiles, manufactured by the 2nd opposite party, from the 1st opposite party, vide bill No. 9729 dated 16.08.2008 for Rs. 14,550/- and bill No. 9730 for Rs. 32,550/-. At the time of placing order for the tiles, the complainant had told the 1st opposite party that the tiles should be of first quality and should be of various measurements and colour. The opposite party had realized the cost of first quality tiles from the complainant and also transported the tiles to the complainant's premises. However, when the mason opened the tile packets for laying them, it was found that the tiles, as per bill No. 9730, were third quality tiles. When this was informed to the 1st opposite party, and requested for replacement by good quality tiles, the Assistant Manager and sales representative of the 2nd opposite party company came and examined the tiles. After this, they commented that if ever any defects are found after laying them, compensation will be paid for the same. When the tiles were laid, it was found that the tiles were of different measurement and thickness and hence it was impossible to lay them uniformly. Moreover when washed with water, there occurred certain discolouring to the tiles. When the complainant informed the fact to the 1st opposite party, there was no response. Accordingly, a lawyer notice was sent on 14.11.2008, which was returned unaccepted. Since the action of the opposite parties amounts to unfair trade practice and deficiency in service, the complaint filed with prayer for ordering, either to provide first quality tiles to be laid by the opposite parties, by removing the tiles presently laid or for reimbursement of Rs. 85,000/- incurred to the complainant along with compensation and cost.
3. Opposite parties filed version contending that the tiles were manufactured by the 2nd opposite party and the 1st opposite party is only the dealer. There is only one quality of tiles and not first quality, second quality and third quality, as alleged. The tiles confirm to Indian standard specification for cement concrete flooring tiles and therefore maintain the high quality as specified in the brochure. The tiles manufactured by the 2nd opposite party were sent by them to the College of Engineering, Thiruvananthapuram for assessing the quality. The College of Engineering, Thiruvananthapuram confirms the high quality of the tiles. The representative of the opposite party, who inspected complainant's premises, found that the tiles were not laid as per the specification and as per the direction contained in the printed direction issued by the manufacturing firm, for laying the tiles. The workmanship was very poor and proper tools were not used for tamping. Since the tiles supplied were best in quality, the allegations that they were defective and substandard in quality are denied. The opposite party cannot be held responsible for any damage due to unscientific laying of tiles. The amount of damages claimed is without any basis, excessive and not allowable. There is no deficiency in service on the part of the opposite parties and hence the complaint be dismissed with cost.
4. The complainant was examined as PW1 and marked Exts. P1 to P3 documents on his side. From the side of opposite parties the Managing Director of the 2nd opposite party was examined as RW1 and marked Exts. R1 to R4 documents. Another witness was also examined from the side of opposite parties as RW2. Commission report was marked as Ext. C1.
5. The District Forum found deficiency in service and unfair trade practice from the side of opposite party on the basis of Ext. C1 report and allowed the complaint and directed the 1st opposite party to pay Rs. 85,000/- to the complainant towards labour cost to be incurred for removing the already laid defective tiles, for purchasing fresh tiles and also towards the costs of the metal, sand, cement and labour for laying fresh tiles, within one month from the date of receipt of the order. In addition, an amount of Rs. 3,000/- as compensation was awarded. Aggrieved by the impugned order the 1st opposite party filed this appeal.
6. The main contentions raised by the appellant are that the order passed by the District Forum is against the law and facts and evidence adduced in the complaint. The Forum did not give opportunity to the appellant to adduce more evidence to prove and substantiate the contentions raised in the version. The District Forum has committed great error in allowing the complaint on the basis of Ext. C1 commission report. The observation of the Forum that 'it does not feel that a more expert commissioner is needed to report the matter which even a common man could understand with his naked eyes" is fully erroneous and perverse. The District Forum ought to have found that the complainant had neither disputed nor challenged Ext. R4 test report. Therefore the Forum ought not to have discarded Ext. R4 test report issued by a competent authority.
7. We heard both sides and perused the entire records. The main allegation raised against the tiles is that they were substandard in quality and without any uniformity in size, sides and measurement. The appellant argued that the tiles are superior quality, confirming to Indian standard specification and unscientific laying using inexperienced workers against the direction contained in the brochure and printed directions are the reasons for creating the feeling of inferior quality for which the opposite parties are not responsible. As per Ext. C1 report the tiles are not in same quality, some tiles are shown as bright and some others are fade and not in size, so impossible to lay them uniformly. The commissioner further stated that when the tiles were washed with water discolouration occurred on certain tiles. The appellant argued that the commissioner is not an expert, she is an advocate. The District Forum found that there was no need to appoint an expert to report the matter, even a common man could understand with his naked eyes.
8. The appellant argued that the District Forum has not given any importance to Ext. R4 test report and the respondent/complainant had not challenged the Ext. R4 test report. The opposite parties argued that they had sent the tiles to the College of Engineering, Thiruvananthapuram for getting an opinion regarding its quality, that after conducting necessary tests, they had certified that the tiles manufactured by the 2nd opposite party are high quality tiles, that the tiles supplied to the complainant were of best quality, that the complainant had not laid the tiles as per the specification and directions contained in the leaflet and brochure issued by the 2nd opposite party that the workmanship was very poor and the tools used for laying the tiles were also not proper. Hence they argued that there is no deficiency in service and unfair trade practice on the side of opposite parties.
9. We perused the entire records on file and heard the arguments of the learned counsels. The complainant himself admitted that when the tiles box was opened he had seen that the tiles were defective and he argued that he had informed the matter to the opposite parties immediately and the opposite parties agreed that they will compensate the complainant if the tiles became fade. That argument of the complainant is not believable, it is the duty of the complainant to demand the opposite party to replace the defective sub standard quality of tiles. But he did not do so and had laid the tiles. And he demanded the price of the tiles and the labour cost to be incurred for removing the defective tiles laid and for purchasing fresh tiles and also towards the cost of the metal, sand, cement and labour for laying fresh tiles. The District Forum allowed the reliefs. The complainant not produced any document regarding the cost of removal of tiles or laying fresh tiles.
10. In our view the complainant is not entitled to get the cost of removing the already laid tiles and the cost of laying fresh tiles. It is the duty of the complainant to demand replacement of the tiles when he found that those were defective. The attitude of the complainant in laying defective tiles itself is unwarranted. Hence he is not entitled to get the cost of relaying of the tiles. So the order passed by the District Forum is to be modified.
In the result, the appeal is partly allowed, the Order passed by the District Forum is modified that the appellant and 2nd respondent is directed to pay Rs. 32,550/- the cost of the tiles to the 1st respondent/complainant and also to pay Rs. 5,000/- as compensation and costs to the 1st respondent/complainant. Time for compliance is one month from the date of receipt of this judgment.
T.S.P. MOOSATH : JUDICIAL MEMBER RANJIT. R : MEMBER BEENA KUMARY. A : MEMBER jb [HON'BLE MR. SRI.T.S.P.MOOSATH] PRESIDING MEMBER [ SMT.BEENAKUMARI.A] MEMBER [ SRI.RADHAKRISHNAN.K.R] MEMBER