Haryana

Karnal

CC/216/2021

Zile Singh - Complainant(s)

Versus

M/s Om Marbles - Opp.Party(s)

Vijay Kamboj

19 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.216 of 2021

                                                        Date of instt 13.04.2021

                                                        Date of Decision: 19.11.2024

 

Zile Singh son of Shri Nathi Ram, resident of village Badar Pur, Tehsil Indri, District Karnal. Mobile no.94161-27411.

 

                                                                        …….Complainant.

                                              Versus

 

1. M/s Om Marbles, shop no.101, Gali no.12,Mangal Pur Chowk, R.K. Puram, Kunjpura Road, Karnal, through its proprietor/partner/Manager.
2. M/s H &R Johnson India, 305, Luxmi Niwas Apartments, Ameerpet, Hydrabad-500016, through its Authorized Signatory/Managing Director/Manager.
3. M/s H &R Johnson India, 7^th floor Windsor, CST Road, Kalina, Santacruz (East), Mumbai-400098, through its authorized signatory/Managing Director/Manager.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Vijay Kamboj, counsel for the complainant.

    Shri Arun Chopra, counsel for the OP No.1.

    Shri Naveen Sharma, counsel for the OPs no.2 & 3.

                   

                     (Neeru Agarwal, Member)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs no.2 and 3 are the manufacturer of floor tiles while the OP no.1 is the authorized dealer/retailer of the OPs no.2 and 3. The complainant is resident of village Badarpur Tehsil Indri, District Karnal and he is constructing a residential house in land measuring 2 Kanal situated in village Badarpur, Tehsil Indri, District Karnal. The covered area of the house of the complainant is 3500 sq. feet and thus the complainant had spent huge amount on the construction of this house. Complainant approached the OP no.1 at Karnal for purchasing the floor tiles and OP no.1 stated that M/s H&R Johnson India is a renowned company in manufacturing of floor tiles and is manufacturer of good quality floor tiles and advised the complainant to purchase the floor tiles and other items manufactured by the OPs no.2 and 3. On the assurance given by OP no.1 that the tiles manufactured by the OPs no.2 and 3 is of very good quality, the complainant purchased floor tiles measuring 75 boxes bearing brand name Onyx Serenis PO-Premium bearing HSN Code 6907 at the rate of 1908.05 per box i.e. for Rs.1,43,103/- exclusive 18% GST. The complainant also purchased 45 boxes of floor tiles with brand name SEREN OMYX Com PO bearing HSN Code 6907 at the rate of Rs.1425.00 per box i.e. for Rs.64125/- exclusive 18% GST. Besides the floor tiles, the complainant also purchased various other material from OP no.1, vide bill/invoice no.291 dated 20.03.2021. After purchasing the aforesaid goods/floor tiles, complainant erected the tiles in middle area of floor. However, when the Meson started cutting the said floor tiles, the complainant surprised to know that all the tiles cracked and broken into pieces. In this way  20 boxes have completely been damaged. Complainant made the complaint on toll free number of OPs no.2 and 3 and on the complaint of complainant, surveyor/Technical Expert namely Naveen Kumar Arya and Shri Yogender Tyagi representative of the OPs visited the site on 31.03.2021 and in their presence, the tiles being tried to cut, however, met with same result since on cutting, tiles were backing cracked and they admitted the defects and went to the extent that in the entire lot, there is complaint of manufacturing defect and they had also received same complaints from some other consumers also and thus the representatives of OPs have observed that the product bearing a manufacturing defect which had occurred due to temperature fluctuation at the time of manufacturing. Thereafter, the representative of OPs prepared a ‘complaint visit report’ wherein they observed that ‘at cutting time it found normal crack’. At the same time, the representative of OP also sought the comments of the complainant and the complainant reported that Shri Naveen Arya and Shri Yogender Tyagi visited the site, cut the tiles and found cracking and admitted that the tiles bearing the manufacturing defects. OP No.1 and representative of OPs assured the complainant that they would compensate the complainant by replacing the balance unused stock and also compensate in all respect i.e. costs of the tiles already used and costs of construction i.e. material and labour charges. Thereafter, OP no.1 asked the complainant to use the commercial tiles for remaining area and complainant used commercial brand in the remaining area. After erecting the said tiles, complainant observed that the quality of the commercial tiles is also very poor since it bears scratches as and when even a light hard surface i.e. plastic chair is dragged on the floor and thus it will damaged within a short time and will have no shining in future due to scratches. The complainant again approached the OPs and brought the said defect into its knowledge and requested for taking necessary action, but OP no.1 is not giving any heed towards the request of complainant and even OP no.1 stopped to attend the telephonic call of the complainant. The product of the OPs is of very poor quality and bearing the manufacturing defects and as such complainant is entitled to seek compensation towards the costs of material and the wages incurred by the complainant on installation of floor tiles and also compensation on account of metal pain and sufferings but OPs refused to do so. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to pay a sum of Rs.4,00,000/- towards the costs of material, costs of construction material and wages since the complainant suffered this loss on account of supply of poor quality product bearing a manufacturing defect, to pay Rs.50,000/- as compensation on account of mental pain, agony and harassment and Rs.33000/- as litigation expenses.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that the complainant himself had sent a whatsapp message from his mobile number to the OP no.1 on his mobile giving the details of amount and written the balance amount of Rs.14,966/- is due towards the OP. The said whatsapp message was sent by the complainant to the OP on 05.10.2021. It is admitted fact that the OPs no.2 and 3 are the manufacturer of floor tiles while OP no.1 is the authorized dealer/retailer of the OPs no.2 and 3. The complainant purchased floor tiles measuring 75 boxes @ 1908.05 per box i.e. for Rs.1,43,103/- exclusive 18% GST. The complainant also purchased 45 boxes of floor tiles with brand name SEREN ONYX Com PO bearing HSN Code 6907 at the rate of Rs.1425/- per box i.e. for Rs.64125/- exclusive 18% GST. Beside the floor tiles, the complainant also purchased various other material from the OP no.1, vide bill/invoice no.291 dated 20.03.2021. It is further pleaded that OPs no.2 and 3 made detailed investigation of the product purchased by the complainant and they observed that the issue was genuine and therefore, it was decided that the tiles which were cracked during cutting will be compensated to the complainant. Further, the complainant segregated the correct material and only uses the fresh material at site, thereafter, all the cracked material was returned to the OP. All the issues of the complainant were resolved as he was not only compensated by the OP but all the left over material was also lifted from the site. The complainant was not charged with freight of the new boxes of the product that was supplied to the complainant and nor the complainant was charged for lifting of the cracked or unused material from the site. OP has replaced the 20 boxes free of cost. At the instance, OP no.1 demanded credit note from the OPS no.2 and 3 of Rs.1,35,206/- against the losses which was borne by the OP. The detail of which is as under:-

1.     Free of cost premium material i.e. 20 boxes X Rs.1802.74 per box=Rs.36,055/-.

2.     Damaged returned (premium material) i.e. 27 boxes x Rs.1802.74 per box= Rs.48,674/-.

3.     Damaged commercial material i.e. 13 boxes x Rs.985/- per box= Rs.12805/-.

4.     Transportation charges to take back damaged material plus labour charges Rs.18,000/-.

5.     Primary fright of 47 boxes from factory Rs.8000/-.

6.     Full and final settlement with the complainant Rs.20,000/-.

Total Rs.1,43,534/-, this is the total amount which has been borne by the OP during these transactions. The OPs no.2 and 3 have given a credit note of Rs.1,35,206/- against the above detailed transactions.  It is pertinent to mention here that there was amicable settlement between the complainant and the OP and complainant was duly compensated by the OP and OP returned an amount of Rs.20,000/- cash against the cost paid by the complainant to OP no.1 and against complete bill settlement for the entire invoice and for broken material lifted from the place of complainant. The OP also spent Rs.18000/- for lifting the broken material and labour charges in lieu of the final settlement with the complainant. The final settlement with the complainant is also admitted in the whatsapp message on 10.05.2021, whereby complainant has admitted in the said message that Rs.14,966/- is due against the OP and said message is written with his handwriting. Thereafter, the amount of Rs.20,000/- was given by the OP to the complainant against the complete final settlement. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             OPs no.2 and 3 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant purchased 75 boxes of 07VM(800x1600mm)-2SERENIS ONYX PO-P-D-08 tiles through OP no.1, who is one of the dealer of the OPs. The said product purchased by the complainant is a well-established product in the market and over a period of years the OPs is supplying it to various customers across India. The complainant registered a service request on 26.03.2021. On receipt of complaint, OPs immediately deputed one of its experienced service engineer Mr. Anadi Shankar to physically inspect and verify the nature and condition of the product supplied to the complainant. After inspection of the site on 27.03.2021, it was observed by the investigating service engineer that tiles were cracking at the time of cutting. The issue was immediately escalated to the plant. The plant person, Mr. Naveen Kumar Arya visited the site on 31.03.2021 and inspected the product. The inspecting team of OPs prepared a complaint Visit Report dated 31.03.2021 after inspecting the product supplied to the complainant. After the detailed investigation, the OPs observed that the issue was genuine and therefore, it was decided that the tiles which were cracked during cutting will be compensated to the complainant. Further, complainant segregated the cracked material and only used the fresh material at site, thereafter, all the cracked material was returned to OP no.1. All the issues of the complainant was resolved as he was not only compensated by OP no.1 but all the left over material was also lifted from the site. The OPs have not charged the freight charges of the new boxes of the products and also not charged the lifting charges of the cracked or unused material from the site. The OPs have replaced the defective material and a credit note of Rs.1,35,206/- was given  to the OP no.1 and deposited in the bank account of OP no.1 and same is evident from the sales return invoice dated 26.06.2021. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, affidavit of Parmod Ex.CW1/B, copy of bill/invoice dated 20.03.2021 Ex.C1, copy of report dated 31.03.2021 Ex.C2 and closed the evidence on 25.05.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Manish Chopra, proprietor Ex.OP1/A, screen shot of whatsapp messages Ex.OP1/1 and closed the evidence on 13.12.2023 by suffering separate statement.

7.             Learned counsel for the OPs no.2 and 3 has tendered into evidence affidavit of Yogendra Tyagi Ex.OP2/A, authority letter Ex.OP2/1, copy of complaint visit report Ex.OP2/2, copy of sale return voucher Ex.OP2/3, copy of sales return invoice Ex.OP2/4 and closed the evidence on 29.04.2024 by suffering separate statement.

8.             We have heard the learned counsel for the parties and perused the case file carefully and also gone through the evidence led by the parties.

9.             Learned counsel for the complainant, while reiterating the contents of complaint has vehemently argued that complainant purchased floor tiles from OP no.1. During the cutting of floor tiles for erecting the same cracked and broken into pieces and 20 boxes have completely the damaged. Complainant complained to the OPs. The expert of the OPs visited the site and observed that the tiles were having manufacturing defect. Complainant suffered a loss for a tune of Rs.4,00,000/-. Complainant approached the OPs for making the payment of the said loss but OPs flatly refused to pay the said amount and lastly prayed for allowing the complainat.

10.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that on receipt of the complaint, the expert of the OPs checked the site and complainant was compensated on account of defected tiles. Complainant himself sent whatsapp message with regard to settle of the claim and nothing is due against the OPs, rather complainant has not paid the remaining payment of the tiles and lastly prayed for dismissal of the complaint.

11.           Learned counsel for the OPs no.2 and 3, while reiterating the contents of written version, has vehemently argued that on receipt of complaint, OPs immediately deputed its experienced service engineer to physical inspect and verify the nature and condition of the product supplied to the complainant. During the inspection, it was observed by the investigating service engineer that tiles were cracking at the time of cutting. All the defected tiles were replaced and OPs transferred Rs.1,35,206/- in the account of OP no.1 and matter has been settled between the OPs and complainant and nothing is due against the OPs and lastly prayed for dismissal of the complaint.

12.           We have duly considered the rival contentions of the parties.

13.           Complainant purchased the floor tiles from the OP no.1, manufactured by the OPs No.2 and 3. On receipt of complaint, the service engineer of the OPs Mr. Anandi Shankar inspected the site and observed that tiles were cracking at the time of cutting.  The OPs (manufacturer) have already transferred the cost of the defected tiles in the account of OP no.1.

14.           It is evident from the whatsapp messages Ex.OP1/1 that matter has already been settled between the parties. The said messages have been sent by the complainant to the OP no.1. As per  said messages only Rs.14,966/- was balance qua the OP no.1 and OP no.1 has specifically stated that he has paid the said amount in cash to the complainant. Complainant has claimed of Rs.4,00,000/-, which is not justified when the matter has already been settled between the parties. It appears present complaint has been only filed in order to extort the money from the OPs and nothing else.

15.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
Dated:19.11.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal.

                   ( Neeru Agarwal)            (Sarvjeet Kaur)

                      Member                        Member