KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 339/2014

JUDGMENT DATED: 07.02.2020

(Against the Order in C.C. 358/2012 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. K.R. RADHAKRISHNAN                                        : MEMBER

APPELLANTS:

1. Somany Ceramics Ltd., Kassar 124507, Dist. Jhaggar, Bahadurgarth, Haryana, India.

2. Aiswarya Marbles & Flooring, Gurukripa, 31/986-C, Chettichira, S.C Bose Road, Vyttila, Kochi-682 019.

                                  (By Adv. B. Premnath)

                                                Vs.

RESPONDENT:

Jaison Sebastian, Peechattu House, Nellimattom P.O, Kothamangalam-686 693.

                                      (By Adv. Tom Joseph)

JUDGMENT

SMT. BEENA KUMARY. A : MEMBER

The appellants are the opposite parties in C.C. No. 358/2012 on the file of Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as the District Forum for short) and the respondent is the complainant.

2.  Facts of the case are as follows: The complainant purchased 1230 Nos. of Real wood pine floor tiles from the 2^nd opposite party for Rs. 78,560/- for laying it in his newly built up house. The 1^stopposite party is the manufacturer of the tiles. After laying the tiles, the complainant noticed colour changes in some of the tiles. Instead of supplying entire real wood pine colour tiles, they supplied some tiles having different colours, thereby the appearance of the floor is ugly. The act of the opposite parties in supplying tiles having different colours amounts to deficiency in service. The complainant spent Rs. 97,000/- towards laying charges alone.  In order to replace the tiles that were laid, he had to spend Rs. 2,00,000/-.  He paid Rs. 78,500/- towards the price of the tiles. Altogether he is entitled to get              Rs. 3,75,000/- from the opposites parties. Hence he filed the complaint before the District Forum.

3. The version filed by the opposite party is as follows: The complaint is not maintainable in the Forum. The opposite parties denied that tiles having different colours were supplied to the complainant and that the appearance of the floor is ugly. The tiles are of the same pattern and design. There is no colour change, variation and there is no disparity in its appearance. The tiles manufactured by them conforms to the quality requirements of Group B1 a EN 176, ISO 13006: 13630 & IS 15622 : 2006. It has been notified on the carton itself that any defect in it has to be brought to the notice of the opposite parties before laying them, the opposite parties are prompt in replacing the tiles in all cases where such a demand has been made prior to laying. After laying he had not raised any grievance for a long period. The amounts claimed by the complainant are not liable to be paid by the opposite parties and the complaint is liable to be dismissed.

4. No oral evidence was adduced by both the parties.  Ext. A1 and C1 documents are marked on the side of the complainant.

5.  The District Forum found that as per Ext. A1 invoice the complainant had purchased 1230 Nos. Real wood pine floor tiles from the 2^nd opposite party for    Rs. 78,560/- for paving it in his newly built up house.  The 1^st opposite party is the manufacturer and the 2^nd opposite party is its dealer.  The grievance of the complainant is that instead of entire pine colour tiles the opposite party supplied some tiles having different colour and low quality, thereby the appearance of the floor is ugly.  He had spent Rs. 97,000/- towards laying charges and Rs. 78,000/- towards its price.  The opposite parties denied all the allegations in the complaint.  On the basis of evidence and commissioner’s report the District Forum allowed the complaint and ordered the opposite parties to pay Rs. 1,11,000/- for repairing the tiles and allowed Rs. 15,000/- towards costs.  Aggrieved by the impugned order opposite parties have filed this appeal. 

6.  The appellants have stated that the commissioner had clearly reported that different batches of tiles with different colours were purchased by the respondent from the appellants and those were not laid in order.  The respondent has suppressed the said fact in the complaint filed by him.  The commissioner further reported that there will be variations in colour when the tiles are from two batches and that slight variation in colour may occur for each batch as separate mixing is done for each batches at the time of manufacturing in the factory.  This shows that there is no deficiency on the part of the appellants and it is the act of the respondent in filing the complaint which has to be deprecated.  The expert commissioner in his report clearly pointed out that as the tiles are not laid in order it gives an impression that the tiles are of second quality because of the colour variation and it cannot be replaced without disturbing the nearby tiles.  Therefore the respondent by his own act has caused damage to him and the appellants are not liable for any damage sustained by the respondent.  The expert commissioner has only said that it gives an impression that the tiles are of second quality.  There is no definite finding by him regarding any manufacturing defects in the tiles.  The District Forum mechanically accepted the report of the expert commissioner without analyzing its content properly.  Had it been properly appreciated the District Forum would certainly have dismissed the complaint for not having any cause of action against the appellants.     

7.  In this case commission report is marked as Ext. C1.  In Ext. C1 report the commissioner stated that there is colour change of the tiles visible, one light shade and another comparatively dark shade but of same design.  The colour variation of the tiles laid on the floor can be easily distinguished by any person. The commissioner has not conducted any scientific test to ascertain the quality of the tiles.  The complainant himself had chosen the tiles for his own use.  Complainant could definitely have understood the colour variation of the tiles at the time of opening the tile boxes.  Had the complainant informed the matter to the opposite party before laying the tiles they would have replaced the tiles, definitely.  At the time of arguments the learned counsel for the respondent argued that the appellant never made any demand for the replacement of the tiles. 

8.  The commissioner has filed a statement for the charge required for removing and relaying the new tiles on the floor as Rs. 1,11,000/-.  But no evidence has been produced to prove that work was done.

9.  In these circumstances we find that there is irresponsibility from the side of complainant also.  As a consumer he has some responsibility to select the items carefully.  The complainant himself admitted that he had paid Rs. 78,500/- for the purchase of tiles and he also admitted that half of the tiles are good in quality.  The complainant found that the tiles were defective before laying it.  Then he ought not to have laid the tiles.  He ought to have demanded for replacement of the defective tiles.   

From the above mentioned discussion we find that the complainant is entitled to get only half of the total purchase price i.e; Rs. 39,250/-. 

In the result, the appeal is partly allowed.  The Order passed by the District Forum in C.C. No. 358/2012 is modified as follows:

The appellants/opposite parties are directed to pay jointly and severally      Rs. 39,250/- to the respondent/complainant and also to pay Rs. 10,000/- as compensation and costs within one month from the date of receipt of this judgment. 

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                     T.S.P. MOOSATH    : JUDICIAL MEMBER

                                                                                              BEENA KUMARY. A         : MEMBER

                        K.R. RADHAKRISHNAN  : MEMBER

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