IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 5th day of January, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 112/2020 (Filed on 17/08/2020)
Complainant : Issac Sebastian, S/o Sebastian Issac,
Aged 55 years, Kadavil House
Valiyakulam bhagom, I.E.Nagar P.O
Chethippuzha Village, Changanassery
Taluk, Kottayam District.
(Adv.K Madhavanpillai)
Vs
Opposite parties : 1. P and N Ceramics (Pan marketing)
Pandarakalam Buildings, Kumaranalloor
Junction, Pin- 686 016, Kottayam District
Represented by its Managing Partner
Joy Paul, P and N Ceramics (Pan marketing)
Pandarakalam buildings, Kumaranalloor Junction, Pin-686 016,
Kottayam District.
2. Joy Paul, P and N Ceramics
(Pan marketing) Pandarakalam buildings,
Kumaranalloor Junction, Pin-686 016, Kottayam District.
(Adv.John Joseph Vettikad)
3. RAK Ceramics India Pvt.Ltd.
Thiruvananthapuram represented by its
Sales Manager, Saravana Kumar, RAK
Ceramics India Pvt Ltd, Thiruvananthapuram, Pin-695 035.
(Adv.Georgekutty K.A)
O R D E R
Smt.Bindhu.R, Member
The Complaint is filed under section 12 of the Consumer Protection Act 1986.
The brief complaint is as follows: The complainant has purchased certain floor tiles from the 1st opposite party which is in the ownership of the 2nd opposite party. The complainant selected RAK BOTTICHINO CLASSIC” tiles which were displayed in the opposite party 1 shop and as per the advice of the architect placed an order of 67 tiles of 180 x90 sizes and placed order for the same along with certain other goods on 22/05/2020.
Thereafter the representatives of the opposite parties delivered tiles as per invoice no GS-989 in the site and the complainant made the payment. Later the workmen who laid the tiles informed the complainant that the last three tiles showed colour difference and the complainant himself visited the site and understood that the tiles which were delivered by the opposite parties were not the tiles for which he had placed order. Only 3 tiles were of the kind out of which two were damaged too. The complainant had to spend Rs.55,000/- for laying the tiles against his will. The complainant approached the 1st opposite party only because of their goodwill but the negligent act of the opposite parties caused huge loss and mental agony to him. On 22/05/2020 the complainant informed the opposite parties about this and one representative of the opposite party visited the site and found that the complaint was genuine. He admitted that it had happened so as the batch was changed mistakenly. The complainant had to remove the said tiles and lay new tiles spending big amount.
Though the complainant has caused a legal notice to the opposite parties, they sent a reply notice stating false and childish reasons but no action was taken to redress the complaint of the complainant. Hence the complaint is filed for compensation for the damages caused to the complainant due to the deficiency in service of the opposite parties.
Upon notice the opposite parties appeared. The opposite parties 1 and 2 filed joint version and opposite party no 3 filed separate version.
The 1st and 2nd opposite parties contended that admittedly the complainant visited their showroom on 22-05-2020 and selected floor tiles of RAK Maximus Bottichino Classic of 900 x 1800 size. The complainant selected the said tiles along with other items for the purpose of laying it at his residence at Changanassery. The 1st and 2nd opposite parties issued invoice no GS- 989 dated 03-06-2020 towards the purchase of the aforementioned floor tiles and delivered the same on the same day at his residence. The complainant acknowledged the receipt of the materials in full satisfaction. On 04-06-2020 the representative of the opposite parties 1 and 2 enquired about the identity of the floor tiles supplied over phone. No complaint was received and more items
were purchased by the complainant thereafter. About one and a half months later the complainant had informed that he had laid almost all the floor tiles except three tiles stating that there was slight shade difference and 2 floor tiles were damaged. Opposite parties 1 and 2 informed the 3rd opposite party about the complaint and sent a representative to the complainant to inspect the site. The representative reported that the tiles laid in the site were “RAK maximus Bottichino classic of 900 x 1800 sizes which confirms that the tiles laid were the tiles ordered. He also reported that 3 tiles were of different batch and two were damaged. The 1st and 2nd opposite parties informed the complainant that the 3 floor tiles could be replaced free of cost. But the complainant demanded the replacement of the entire floor tiles.
The complainant had got ample opportunity to check the tiles at the time of delivery or at least at the time of laying. At the time of delivery, he could have rejected the same. Moreover, the tiles supplied to him were kept with him more than 1½ months. But at no point of time he made a complaint to the opposite parties. As the complainant had not used all the opportunities, he could not claim the expenses for laying and compensation subsequently upon an after thought. The opposite parties sent a reply notice to the complainant informing that the customer had given orders for RAK Maximus Bottichino classic of 900 x 1800 size and the said floor tiles were laid by the complainant at his residence. Though the opposite parties assured to give refund of the two damaged tiles, the complainant was not amenable. The complainant is threatening the opposite parties by making adverse publicity about the opposite parties in social media etc. The complainant has not approached the commission with clean hands. Hence the complaint is liable to be dismissed.
The 3rd opposite party also filed version. The 3rd opposite party also contended that the complainant had kept the tiles for 1 ½ months before laying but no complaints were raised at that time or at the time of delivery. The three damaged tiles were replaced as a matter of good gesture by the opposite parties. No manufacturing defect is alleged. On inspection of the site the opposite parties understand that the tiles laid were of the same brand which was ordered by the complainant. The 3rd opposite party is not liable to pay any refund or compensation to the complainant as there was no deficiency of service on the part of the 3rd opposite party.
The complainant has deposed himself as PW1 and documents were marked as Exhibit A1 to A8. The Advocate Commissioner was examined as PW2 and the commission reports were marked as Exhibits C1 and C2 along with photographs C1 (a) and CD as C1 (b), subject to objection. The opposite party 3 deposed through one Sharavana Kumar, the Sales Manager of opposite party 3.
After considering all the pleadings and evidence, we frame the issues as whether the complainant has established a clear deficiency on the part of the opposite parties and if so what are the reliefs the complainant is entitled to.
1. The complainant’s case is that he had purchased 33.5 boxes (67 nos) of floor tiles of 180x900 size of RAK Maximus Bottichino classic from the opposite parties seeing the display in the 1st opposite party’s showroom on
22-05-2020. But only after laying 64 tiles, the workers realized that the laid tiles and the balance 3 tiles had colour variation. The opposite parties contended that the complainant ought to have reported the complaint as and when he opened the box instead he had complained only after one and a half months later.
2. The complainant has produced the Exhibit A2 bill vide which he had purchased the said tiles of 1800x900 RAK Bottichino Classic 33.5 boxes for a total amount of Rs.1,37,880.64/-. In A2 bill it is specifically stated that “Sales return will be accepted only in boxes, if returned within 3 months of bill date.”
3. The complainant after one and a half month from purchasing of the said tiles laid them in his house with his labourers. Only after laying the 64 tiles out of the 67, the labourers noticed that the laid tiles were different from the balance tiles. Though the complainant claims to be an NRI, he was in Kerala at the time of the tile work. So the principle of Caveat emptor applies as he should be vigilant about the products he purchased at the time of usage. The complainant has deposed that as there was the warning that the products would be taken in return only if returned with boxes and if he had opened the boxes he could not return the tiles. This is not a justifiable answer. The complainant ought to have checked the quality, quantity, and colour of the tiles as and when the first box was opened. Omission of the complainant to do this does not confer the liability of deficiency of service upon the opposite party.
4. The opposite parties have replied to Exhibit A4 notice stating that they had supplied the same product as ordered by the complainant and of same size. On 25/07/2020, the same day of the receipt of the complaint one representative of the first opposite party visited the site and found that there was a slight change in the colour of the tiles laid and not layed. They have agreed that minor shade variation was seen in the two sets of tiles. As per S.5 of The Sale of Goods Act, At common law the legal effect of a sale by sample was as if the seller had in express terms warranted that the goods sold should answer the description of a small parcel exhibited at the time of the sale and that as a general rule the purchaser may reject the commodity if it does not correspond with the sample, but as in other like cases, not after he has accepted the goods or dealt with them as his own.”
5. Here the complainant has failed to bring out through the commissioner that the item displayed was not the items delivered. There is no solid proof for the change happened in the delivered items. But as the DW1 deposed that he has issued B1 letter to the 1st opposite party. There is a slight colour variation between the laid tiles and un laid tiles. In B1 letter the DW1 has admitted that there is a variation. “All the tiles will have variation from one batch to another and it is for your reference” as deposed by DW1, who is the representative of the 3rd opposite party, manufacturer. The 3rd opposite party has not technically proved that it is natural that the tiles manufactured would be varying from batch to batch. If it was so, the 3rd opposite party should have warned its dealers that for getting a particular colour and design, they should sell a particular batch to one customer. The batches should not mix up. The opposite party 3 has not produced any evidence that they had given such instruction to their dealers.
6. DW1 has admitted that shade variation is inherent on the manufacturing of tiles and the precautions to be taken by the customers to minimize its visual effects. He further falsely deposed that it is printed on the box of every tile. But on a thorough scrutiny it is seen that no such warning is seen written on the B2 cover.
7. Moreover, the 3rd opposite party has stated in the version that their representative who visited the complainant’s site reported that the 3 unlaid tiles had colour variation and two out of them were damaged. They informed the complainant that they could replace the 3 tiles. So this is an admission that the colour of the tiles purchased by the complainant was different from what he ordered and the two were damaged also.
8. The complainant though alleges that the tiles supplied were different from the tiles ordered, he had to inform the opposite party in the beginning of laying. If he had attended the laying and verified the tiles, he could have realized the change occurred. The maxim caveat emptor applies. He being a buyer ought to have been more vigilant about the quality of the product bought by him. Had he informed the opposite party in the beginning itself, the opposite party had had minimum loss.
After considering all the above discussed facts and evidence we allow the complaint in part vide the following order:
1. The opposite parties are directed to give Rs.1,37,880/-jointly and severally to the complainant with interest @6%p.a. from 03.06.20 till realization.
2. The opposite parties are directed to give Rs.50,000/- jointly and severally towards compensation.
Order shall be complied within 30days from the date of receipt of this order failing which the compensation amount shall carry 9%interest till realization.
Pronounced in the Open Commission on this the 5th day of January,2023.
Smt.Bindhu.R, Member sd/-
Sri.Manulal.V.S, President sd/-
Sri.K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Land tax receipt dated 08/04/2019 issued by Chethippuzha Village Officer.
A2- Invoice dated 03/06/2020 issued from P and N ceramics (Pan marketing).
A3- Carbon copy of quotation dated 22/05/2020 issued from P and N ceramics (Pan marketing)
A4- Office copy of advocate notice dated 07/08/2020
A5- Postal receipt dated 07/08/2020
A6- Postal acknowledgment card dated 08/08/2020.
A7- Reply notice dated 10/08/2020.
A8- Internet payment receipt dated 23/08/2018.
Witness examined from the side of complainant
PW1- Issac Sebastian , Kadavil House, I.E.Nagar P.O, Changanassery.
PW2- Amalu Mohan, Lalattuthazhathel House, Thiruvanchoor P.O, Kottayam.
Exhibits marked from the side of opposite parties
B1- Copy of the email communication dated 10/08/2020
B2- Box of RAK Maximus Bottichino Classic
By Order
sd/-
Assistant Registrar
