IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of November, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 161/2018 (Filed on 31-07-2018)
Complainants : (1) Trustee,
St. John’s Dayara Church,
Chingavanam P.O.,
Nattakom Village,
Kottayam.
(2) Secretary,
St. John’s Dayara Church,
Chingavanam P.O.,
Nattakom Village,
Kottayam.
(Adv. Kuruvila Thomas)
Vs.
Opposite parties : (1) Cera Sanitary Wares Ltd.
Represented by Senior Manager,
Cera Sanitary Wares,
Marine Drive, Kochi.
(Adv. Rajesh Rajagopala Pillai)
(2) Proprietor,
Modona Marbles & Granites,
M.C. Road, Pakkil P.O.
Pallom, Nattakom village.
Kottayam.
(Adv. Kuruvilla Varghese)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
First complainant is the trustee and second complainant is the secretary of the St.John’s Dayara Church, Chnngavana. First opposite party is the manufacturer of Cera Vitrified tiles and the second opposite party is the dealer of the first opposite party. On 27-9-2017, first complainant purchased 600x600 E G 663A/T101018 cera verified tiles for paving an area of 9005.50 sq feet of the church parish hall named K.T.Thomas Memorial Hall, Chingavanam at the rate of Rs.33.50 per sq.ft from the second opposite party by paying Rs.3,01,500/-. While laying down, it was found that the quality of tiles given are very poor. Decolourisation of the tiles was noticed by the complainant at the time of paving and the matter was immediately reported to the second opposite party. The second opposite party after inspecting the site reported this to the first opposite party. Thereafter, both of them inspected the site and convinced the defect. After that they suggested another filler to be used for laying the tiles. The complainants thus completed the work by using that filler, but could not solve the problem. It is averred in the complaint that the decolorization was caused due to the poor quality tiles supplied by the opposite parties which occurred due to manufacturing defect. According to the complainant loss of Rs.8,35,950/- was incurred to them due to the defect of the tiles . It is further averred in the complaint that the parish hall is to be closed for at least one and half months to replace the tiles and thereby there is a loss of income of Rs.2,40,000/- to the complainant towards the rent. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.8,35,950/- as compensation and Rs.2,40,000 for loss for the future income along with the cost of this litigation.
Upon notice opposite parties appeared before the commission and filed separate version.
Version of the first opposite party is as follows:
The complaint is not maintainable in law. A trust cannot file a complaint under the provisions of the consumer protection act. The first opposite party has supplied good quality tiles with uniform colour. The complainant has inspected and was satisfied with the product and placed order for purchase. As soon as complaint was received from the complainant, a representative of the first opposite party was sent to the site and observed that the workmen employed by the complainant were using adhesive and fillers of inferior quality and the colour of the said adhesives and fillers were in fact damaging the natural shades of the tiles. The representative advised the complainant to use good quality adhesives and filler. It is also noted that the mason or workmen did not show good workmen ship and as a result damage has been caused to the colour. The alleged defects of cracks are due to poor workmanship. The opposite parties have given clear instruction for the usage of tiles and how it to be sticked to the floor. The defects were not due to the manufacturing defect but the defects appeared are due to poor workmanship. The damages claimed are exorbitant and the first opposite party is not liable to pay the amounts claimed.
Second opposite party filed version contenting as follows:
The tiles purchased by the complainant are of good quality and is not having manufacturing defect. The tiles purchased by the complainant are ‘non-Nano’ tiles. For laying these types of tiles, experienced and skilled workers are needed. The gaps between the tiles have to be filled by appoxy. Further, the surface of the tiles have to be cleaned within two hours of fixing with acid. The inexperienced and unskilled workers used Black oxide instead of appoxy to fill the gaps between the tiles. Black oxide is never recommended for filling up the gaps of non -nano tiles. The decolourization was due to the poor workmanship of the workers engaged by the complainant.
Evidence part of this case consists of deposition of Pw1 to Pw3 and exhibit A1 to A12 from the side of the complainant and deposition of the Dw1 and exhibit B1 and B2 from the side of the opposite parties.
On evaluation of complaint version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and cost?
Point number 1
There is no dispute on the fact that on 27-9-2017, first complainant purchased 600x600 E G 663A/T101018 cera verified tiles for paving an area of 9005.50 sq feet of the church parish hall named K.T.Thomas Memorial Hall, Chingavanam at the rate of Rs.33.50/- per sq.ft from the second opposite party by paying Rs. 3,01,500 vide exhibit A1 Tax invoice. The first opposite party contended that the complaint is not maintainable on the ground that a trust is not a consumer or complainant under the provisions of the consumer protection act. The first opposite party relied on decision of the Hon’ble supreme court in Prathibha Pratisthan and ors vs Manager, Canara Bank and ors which is reported in 2017 supreme (SC) 221. Exhibit A11 is the by-law of the Malankara Syrian Kanananya Samudayam. On perusal of exhibit A11 we can see that in chapter 2 of exhibit A11 defines the “ Pally Edavaka”. Section 5 of exhibit A11 says that for the administration of the church there shall be a Vicar, Sahayapattakkaran, Semmasan, Kapyar, Kaikkaran ,Secrtary, Edvakayogam, and Nirvahaka samithy. On mere reading of Exhibit A11 we can see that the St. John’s Dayara church Chingavanam is not governed by the trust deed which are registered under the Trust act but governed under an independent constitution. . The first opposite party did not adduce any evidence to show that St. John’s Dayara church Chingavanam is governed under the trust deed. Therefore we are of the opinion that the complaint is maintainable under the consumer protection act and point number one is answered in favour of the complainant.
Point number 2 and 3.
According to the complainant the tiles, which were sold by the opposite party, is inferior quality and the decolorization was caused due to manufacturing defect It is also an undisputed fact that after receiving the tiles complainant had started laying the said tiles on the floor in the month of Decembor 2017. Exhibit A2 proves that the complainant had spent Rs.2,95,000/- as labour charge for laying the tiles. Exhibit A3 series is the tax invoices for Rs.53,000/- which was spent by the complainant for the purchase of the cement and fillers used for laying the tiles.
The complaint was regarding the tiles developing decolorization and surface getting damaged. . Complaint is resisted by first opposite party stating that the damages to the tiles and decolorization was caused due to poor workmanship and by using adhesive and fillers of inferior quality. According to the opposite parties their representative advised the complainant to use good quality adhesives and filler. It is also contended that the mason or workmen did not show good workmanship and as a result damage has been caused to the colour.
Clause 8 of exhibit B2 cover of the tiles gives instruction for the usage of tiles and how it to be laid to the floor. Clause 8 of B2 states that “once the tiles are laid, allow 3-4 days for curing. After this fill the joints with good quality grout sealeant, 15 minutes after filling remove the excess sealeant with damp sponge and polish the tile with soften dry cloth to get a clean surface.”
During the cross examination Pw1 who is the first complainant deposed that they had purchased the filler from the opposite party. However on perusal of exhibit A3 series we cannot see that the complainant had purchased any filler materials from the Marian agencies. He further deposed that the filler was donated by one of his friends. The complainant did not disclose the name and description of the filler which was used by them.
Dw1 deposed that the adhesive of branded company would cost of Rs.15/- per kilograme. It is pertinent to note that the complainant neither in the complaint nor in the proof affidavits of witnesses disclosed the name and description of the adhesive.
The complainant produced the Exhibit A12 series voucher after the closing of evidence of both the parties. They did not state the reason for non-disclosure of the name of the adhesive which were used by them during the course of the evidence. Thus we are not inclined to consider exhibit A12 series vouchers.
Nowhere in the complaint have the number of cartons or number of tiles purchased been mentioned. It is pertinent to note that in exhibit A4 lawyers notice it is stated that out of the goods only 10 cartons were of good quality and in the balance tiles decolorization is seen while laying down. Moreover as per exhibit a4 the tiles were laid down by the workers sent by the second opposite party. But Pw1 deposed that the tiles were laid down by one Sam Varkey and he is not deputed by the second opposite party.
Though the complainant alleged the defects are due to manufacturing defect they did not take any steps to get the tiles inspeced with a scientific examination to prove the same. There is no expert opinion regarding whether the defects were inherent manufacturing defect of the tiles. Without an expert opinion we cannot hold that the tiles which were sold to the complainant by the opposite parties have inherent manufacturing defect.
Counsel for the complainant could not explain why the tiles were found defective on opening of the boxes they were not sent for replacement. The Counsel could not also explain as to why the damage and spots came to notice only after the tiles were laid on the floor. . If the tiles were found defective or damaged then why did the complainants continue to lay down the tiles without pointing out the defects and also without asking for replacement.
In Exhibit B2 the first opposite party , had clearly indicated that on every carton of tiles it has been very clearly stated that the company will bear no liability after the tiles are fixed. Further, as per the instructions on the tile cartons it was very clearly stated that before fixing of the tiles they must be laid out in the desired pattern and if the customer is not satisfied with the tiles for any reasons relating to the size or shades variation then the same can be replaced by the Company before fixing but once the tiles are fixed the company bears no liability. In the present case it is an undisputed fact that the complainant complained after more than 3 months of the purchase in September 2017 and they could not prove beyond doubt that the damage was not due to poor maintenance or rough usage. It has also nowhere been mentioned that out of the total number of tiles purchased how many were received defective/ damaged. Further, instead of replacing the damaged tiles the complainants for reasons not on record seeking the cost of replacement of the entire flooring. As discussed, complainants have failed to prove that the tiles procured by them were defective and not damaged thereafter. In view of the above, the complaint is dismissed.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – A. Markose
Pw2 – Abraham Philipose
Pw3- Sachariakutty P. Abraham
Pw4 – N.C. Philip
Witness from the side of opposite party
Dw1 – Harish E.
Exhibits marked from the side of complainant
A1 – Invoice dtd.27-09-17 by 2nd opposite party
A2 – Copy of payment details for Rs.2,95,000/-
A3 series – invoices from Mariya’s Agencies (10 nos.)
A4 – Lawyers notice dtd.21-02-18 to opposite parties
A5 series- Photos of tiles (4 nos.)
A6 –CD
A7 – Yearly report for the year 2016-17 of Dayara Church, Chingavanam
A8- Yearly report for the year 2016-17 of Dayara Church, Chingavanam
A9-Committee minutes dtd.15-02-18
A10- Minutes dtd.31-07-18
A11- Constitution of Malankara Suriani Knanaya Samudaya.
A12 series –vouchers (3 nos.)
Exhibits marked from the side of opposite party3
B1 – Photographs with CD
B2 – Instruction given on cover of tile
By Order
Sd/-
Assistant Registrar
