IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 14th day of February, 2020.
Filed on 20-10-2017
Present
- Smt. Sholy P.R, B.A.L,LLB (President-in-charge)
- Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.284/2017
between
Complainant:- Opposite party:-
Sri.Ratheesh O.R Sri.Swaminathan Subramaniyan
S/o Remesan, S/o Suprabha, Anakkandathi
Ooraliveli, Kanjikuzhi Panchayath Ward Kanjikuzhi Panchayath Ward-11
Muhamma P.O, Alappuzha Muhamma P.O.
Alappuzha
(By Adv.V.N.Kiran Lal)
O R D E R
SMT.SHOLY P.R (PRESIDENT-IN-CHARGE)
This case is based on a consumer complaint u/s 12 of the CP Act.
The averments in the complaint in short are as follows:-
The opposite party approached the complainant who was working as CPO and made him to believe that the opposite party would lay tiles more efficiently than others do. The opposite party is also agreed to carry out the work at the rate of 64/Sq.ft. , the complainant agreed for the same and the opposite party started his work on 5/5/2017 by leveling the ground. On 18/5/17 the opposite party executed an agreement and on the next day itself the opposite party started the work of laying tiles and completed work on 15/7/17. Complainant was paying the cost of materials and labour charges for the laying tiles from time to time when the charges were calculated as per the agreed rate. The complainant had to pay Rs. 1,06,471/- as the total square feet of tiles laid was Rs. 1663.61/-. But the opposite party in the mean time received the amount of Rs. 1,07,300/- from the complainant time to time. The opposite party has obtained the excess amount of Rs.829/- from the complainant and he has not returned the excess amount received. It is further alleged that after laying tiles when vibrator motor was worked due to that several tiles were broken. Though the opposite party promise to replace broken tiles he did not do so. It appears the colour of the tiles faded during raining. On close verification it was revealed that the tiles spread on his courtyard, were nearly painted externally. The same was informed to the opposite party, who brought 2 trumps and painted the whole tiles. The tiles were laid improperly without giving sufficient slop hence water remains in the car porch without flowing off. The tiles are of inferior quality. The tiles are to be manufactured by mixing the colour in advance. But colour was painted after manufacturing it hence there is manufacturing defect. The complainant entrusted the work by believing that the tiles would remain unharmed for about 50 years. The opposite party due to obtain unjust enrichment and purchased cheaper tiles having manufacturing defect and laid the courtyard of the complainant. Hence there is deficiency in service on the part of the opposite party. As the discolorisation of the tiles on several places create ocquired situation and the same has caused mental agony to the complainant and his family members. The opposite party is a neighbour and complainant is of the view that the opposite party is having sufficient experience in laying tiles and therefore he entrusted the work to the opposite party. In the circumstances the complainant prays to allow him to realize Rs.1,07,300/- with interest at the rate of 9% per annum from 15/7/2017 from the opposite party. That the complainant further prays to award compensation to the tune of Rs. 2,25,000/- for the mental agony sustained by the complainant and also realize costs of the proceedings.
2. In response the notice the opposite party entered appearance and resisted the complaint by filing version raising the following contentions.
The opposite party is engaged in laying inter lock tiles and other allied work for the last several years without informal complaints by considering the track record of the opposite party. The complainant requested the opposite party to take up the work for laying complainant’s premises. The opposite party never used low quality interlock tiles. As it is the matter of fact that tiles are not painted but polished after the same are being manufactured and processed. The claim of the complainant that tiles are being cast on blending colours with cement grout is absolutely wrong. The opposite party informed the complainant that the tile to be used are externally polished types. Very exceptionally tiles made of coloured grout are used only on demand by the party and cost of the tiles would twice or thrice than the tiles laid in complainant’s premises. The opposite party explained the particulars of both types of tiles to the complainant and the usual tiles are relatively cheaper at the rate of Rs.64/sqft. Normally the material rift made develop and same point when the vibrating motor is mounted on the surface of the tiles laid and in such event after using motor for the couple of rounds or more. The fissures if any are reinforced and consolidated. However in the case of the tiles paved the complainant’s premises the polish of the tiles got scratched neither by reason of the poor quality nor for the same was painted as alleged by the complainant. In order to stabilize the complainant’s courtyard the opposite party instructed the complainant to spread gravel. But the complainant in order to save cost spread common soil arranged from somewhere else instead of gravel. As a result when the vibrator was mounted the tiles lost its symmetry and proportion and got dented due to its unsteady ground work using loose soil. The opposite party was very much prepared to get the tile surface polished once again and the complainant initially agreed to re polished the said tiles and accordingly the opposite party brought a barrel of polish however as in after thought the complainant changed his stand and filed present complaint. The opposite party is not the manufacturer of the tiles spread in the complainant’s premises. The tiles paved at the premises supplied by Mr.Manoj Kaprakkat, Cheranelloor who is running a manufacturing unit of the interlock tiles for several years. The said Manoj is one of the complainant’s friends and tiles were actually ordered from Manoj with the knowledge rather insistence on the part of the complainant. But the complainant willfully not made the said Manoj as a party to the complainant with ulterior motives. The actual person answerable is the manufacturer of the tiles in question the complainant ought to have colluded with Manoj and instituted the instant complaint only to harass and humiliate the opposite party. The complainant is bad for non joinder of necessary party. The claim of the complainant that opposite party owes a balance of Rs.829 is incorrect as per the calculations an amount of Rs. 829/- was actually due to complainant but in exchange of the same the opposite party had left 50 feet of boulder fragments that costs Rs. 2400/- at the rate of Rs.48/sqft. Actually the complainant is liable to pay balance amount to the opposite party. When the opposite party demanded the excess amount the complainant threatened the opposite party by using his authority and power as a police man and the allegation that opposite party has threatened complaint is incorrect. The opposite party is not committed any deficiency in service and he has carried out the work properly. There is no cause of action for the complainant nor the complainant is entitled to get relief sought for the complaint.
3. In view of the above pleadings the points that arose the consideration are:-
1. Whether there is any deficiency in service on the part of the opposite party in laying tiles at the courtyard of the complainant?
2. Whether the complainant is entitled to get back the amount of Rs. 1,07,300/- paid to the opposite party with interest as claimed?
3. Whether the complainant is entitled to get compensation from the opposite party if so what would be the quantum of compensation?
4. Reliefs and Costs?
4. Evidence on the side of the complainant consists of oral evidence of PW1 and Ext.A1 and A2 series subject proof documents. The evidence on the side of the opposite party has been examined as RW1. The commission has been examined as CW1 and got marked commission report and photographs as C1series.
Both sides are filed notes of arguments. Heard both sides.
5. Point No.1 to 3
For avoiding repetition of discussion of matters these 3 points are considered together. The specific case of the complainant is that he availed the service of the opposite party to lay tiles in his courtyard. The further case of the complaint is that the opposite party approached him and made him to believe that the opposite party would lay tiles more efficiently than others do. It is also an admitted facts that on 18.05.2017 the opposite party executed an agreement to carry out the work at the rate of Rs.64 per sq.ft as agreed by both parties and completed the same on 15.07.2017 and entire amount as per the agreement with an excess of Rs.829/- has been paid and admittedly which was received by the opposite party for total work of 1663.61 sq.ft. After completing the work it is found deficiency on the part of the opposite party when vibrator motor has worked for finishing the same. It is seen from the terms of Ext.A1 that the materials for the work was being unloaded by the opposite party and the only responsibility of the complaint is to pay the price of the materials. Ext.C1 series and deposition of CW1 clearly envisages that the tiles laid in the courtyard of the complainant is low quality as considered as the rate mentioned in Ext.A1 agreement. And in the witness box on question put by Forum also CW1 affirmed that it is the duty of the contractor / worker to stabilize the basement before laying the tiles on the ground. Generally it is true that by usual practice he is expected to know its technical aspects for the method of consolidation and its laying. More over the contention of the opposite party regarding the material for using consolidation is disproved by Ext.C1 that it is used gravel for consolidation. In Ext.C1 is also reported that the tiles used in the courtyard of the complainant is coloured after its manufacturing and also ascertain that those tiles are much inferior quality. In Ext.C1, CW1 reported that the thickness of gravel on basement is 33 cm, 35cm etc, but consolidation is low and thereby the tiles were broken in some places. Ext.C1 also ascertain that the level of laying tiles in south of car porch is 1.2 cm higher than level of car porch and 1cm higher in front of the house. It will causes storage of water in the car porch during raining without flow off.
6. Even though the opposite party contented that the tiles were purchased by the complainant himself from the manufacturer who is none other than one of the complainant’s friends, he could not proved the same by cogent evidence. Here in this case the oral evidence of the complainant and CW1 and Ext.C1 series documents would indicate that the tiles which are laying in the courtyard of the complainant by the opposite party is defective and the opposite party has not replaced the same. In the circumstance it is crystal clear that there is deficiency in service on the part of the opposite party in laying tiles at the courtyard of the complainant. If at all any defect is noticed at the time of laying the tiles it is duty of the opposite party contractor to rectify the same. In the circumstances the complainant is entitled to get the expenses met by him to the tune of Rs.1,07,300/- (Rupees one lakhs seven thousand and three hundred only) on that count with interest. The complainant has also sought for compensation for the mental agony and financial loss. It is also brought out in evidence that the complainant has sustained mental agony due to the defective work done by the opposite party after receiving the excess amount to the tune of Rs.829/- from the agreed amount in Ext.A1. Hence the complainant is entitled to get compensation for mental agony also. In the view of the facts and circumstances we are of the opinion that the complainant is entitled to get Rs.20,000/- (Rupees twenty thousand only) as compensation for mental agony and Rs.5,000/- (Rupees five thousand only) as cost of the proceedings. These 3 points answered accordingly.
7. Point No.4
In the result the complaint stands allowed in the following terms:-
- Opposite party is directed to return Rs.1,07,300/- to the complainant with interest at the rate of 9% per annum from the date of complaint till its realization.
- The opposite party is directed to pay Rs.20,000/- as compensation for the mental agony suffered by the complainant.
- The opposite party is also directed to pay Rs.5,000/- as cost of the proceedings.
- The opposite party is directed to comply with the above directions within 30 days from the date of receiving a copy of this order, failing which the complainant is at liberty to recover Rs.1,07,300 + 20,000 with interest at the rate of 12% per annum from the date of complaint till realization with cost of Rs.5,000/- from the opposite party and from his assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 14th day of February, 2020.
Sd/-Smt. Sholy P.R (President-in-charge) :
Sd/-Smt.C.K.Lekhamma (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Ratheesh O.R (Witness)
Ext.A1 - Qutation for inter lock work
Ext.A2 - CD containing voice record of complainant & opposite party
CW1 - C.M.George (Court Witness)
Ext.C1 series - Commission Report and Photographs
Evidence of the opposite parties:-
RW1 - Swaminathan Subrahmanyan (Witness)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
