PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

                  Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Saturday the 30^th day of April 2022

          C.C.87/2020

Complainant

        Prasoon.P

Padikkath House

Vattoli Bazar (P.O)

Balussery

Kozhikode – 673 612

Opposite Parties

1. The Proprietor

Tile Gate

Kozhikode Road

Balussery Mukku

Kozhikode – 673 612

2. The Managing Director

Pidilite Industries Limited
Construction Chemical Division

Ramakrishna Mandir Road

P.B. No. – 17411, Andheri East

Mumbai -400 059

        By Sri. P.C. PAULACHEN – PRESIDENT 

           This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant purchased clay tiles for fixing on the outer walls of his house paying Rs.24,000/-.  The adhesive for fixing the clay tiles is produced by the second opposite party.  The first opposite party is the dealer of such tile adhesive produced by the second opposite party.  The name of the adhesive is ROFF-TO2.  The worker doing the tile work called Madhu, contacted the marketing staff of the second opposite party over telephone and enquired about the details of the adhesive for fixing the clay tiles.  As per the direction of Madhu, the complainant visited the shop of the first opposite party for purchasing the said adhesive.  Madhu instructed the staff of the shop over telephone to give the tile adhesive advised by the company representative.  The complainant also informed the first opposite party that what he wanted was the adhesive suitable for outdoor tile application.  Accordingly, the product was sold to the complainant by the first opposite party as per bill dated 01/03/2018.  

3.  Thereafter the work of fixing of the clay tiles was done.  But after few days, when it rained, the clay tiles began to fall down one after another from the wall.  This was intimated to Sri. Madhu, who in turn, informed the company representative.  Accordingly, the company representative visited the spot and after inspection it was realised that the adhesive supplied to the complainant by the first opposite party was meant for fixing tiles indoors and not outdoors and this was discussed with the first opposite party in the presence of the complaint.  The first opposite party admitted that it was a mistake committed by his sales man.  The first opposite party came to the spot and agreed to fix the tiles afresh during summer season.  Day by day the tiles began to fall down one after another and damaged. After repeated requests during summer season, the first opposite party in order to start the work, entrusted five bags of ROFF-TO2 to the complainant free of cost and he kept the same in his house.  But after 5 or 6 days, the same were taken back by the first opposite party.   But thereafter nothing was heard from the opposite parties.  The complainant had to spent nearly Rs.20,000/- for fixing the tiles in addition to other expenses.  New tiles have to be procured.  The complainant has sustained huge monetary loss and mental agony on account of the unfair trade practice on the part of the opposite parties.  Hence the complaint to direct the opposite parties to carry out the work as agreed or to pay the cost of such work with compensation of Rs.50,000/- for the mental agony and hardship suffered by the complainant.

4.     The opposite parties failed to appear before this Commission in spite of receipt of notice. Hence the opposite parties were set ex-parte.

5. The points that arise for determination in this case are :

1. Whether there was any deficiency in service or unfair trade practice on the  part of the opposite parties ?
2. Reliefs and costs.

6. The  complainant was examined as PW1.  Exts A1 to   A3 and A4 series  were marked.
7.      Heard .

8.       Point No.1 –  For the same grievance, the complainant had earlier  filed a complaint as CC 138/2019 before this Commission.  The said complaint was allowed to be withdrawn with liberty to the complainant to file fresh complaint-vide order dated 28/10/2019.  Thereafter the present complaint was filed before this Commission.

9. The complainant has approached this Commission with a prayer to direct the opposite parties to carry out the work of fixing  clay tiles on the outer wall of his house as promised or to pay the cost of the same along with compensation of Rs.50,000/- for the mental agony and hardship suffered by him on account of the unfair trade practice committed by them.

10. The grievance of the complainant is that the tile adhesive sold to him by the first opposite party was a different one than what he had asked for.  The specific allegation is that instead of supplying the tile adhesive suitable for fixing clay tiles outdoor, the adhesive meant for indoor application was supplied to him and as a result, almost all the tiles fixed have fallen down during the rainy season and damaged. 
11. In order to substantiate his case, the complainant, who was examined as PW1, has  deposed in terms of the averments in the complaint and  in support of the claim. It is averred in the affidavit of PW1 that the product supplied to him was a different one than what he wanted to purchase and this was caused by the negligence of the sales man of the first opposite party.  PW1 has asserted that the opposite parties did not keep their promise to fix the tiles afresh at their cost.   Ext. A1 is the bill for Rs.23,925/- for having purchased the clay tiles.  Ext.A2 is the bill issued by the first opposite party for having purchased tile adhesive. Ext.A3 is the product catalogue of ROFF Tile and Stone Fixing Solutions and Ext. A4 series are the bills issued by the first opposite party.
12. The evidence of PW1 stands unchallenged.  The opposite parties did not turn up to give their version. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. The complainant’s case against the first opposite parties stands proved through the testimony of PW1 and Exts A1 to A3 and Ext A4 series documents.   Deficiency of service and unfair trade practice on the part of the first opposite party stands proved.
13. As already stated, the specific allegation of the complainant is against the first opposite party, who is the dealer. The allegation is that the dealer sold him a different product than what he demanded.  So the dealer alone is responsible for this.  The second opposite party had no role in the said sale and hence entitled to be exonerated. 

13. Undoubtedly, the act of the first opposite party has resulted in monetary loss and mental agony to the complainant. The first opposite party is liable to carry out clay tile fixing work as agreed by him or pay the cost of carrying out such work to the complainant. In addition to that, he is bound to compensate the complainant adequately for the mental agony and hardship suffered. Considering the entire facts and circumstances of the case, we are of the view that a sum of Rs.5,000/- will be reasonable  compensation in  this regard.

14.    Point No.2 :  In the light of the finding on the above point, the complaint is disposed of as follows:

1. CC 87/2020 is allowed in part.
2.  The first opposite party is hereby directed to carry out the work of  fixing clay tiles on the outer walls of the house of the complainant free of cost or in the alternative, pay a sum of Rs.35,000/- (Rupees thirty five thousand only) to the complainant towards cost of such work.
3. The first opposite party is directed to pay a sum of Rs.5,000/-(Rupees five thousand only) to the complainant as compensation for mental agony and hardship suffered.  
4. The second opposite party is exonerated.
5.  The order shall be complied with within 30 days of the receipt of copy of this order.
6. No order as to costs. 

Pronounced in open Commission on this the30^stday of April 2022.

Date of Filing: 10/03/2020

APPENDIX

Exhibits for the Complainant :

Ext. A1 – Bill

Ext. A2 – Bill

Ext. A3 – Product catalogue of ROFF Tile and Stone Fixing Solutions

Ext. A4 (a) – Bill

Ext. A4 (b) – Bill

Ext. A4 (c) – Bill

Ext. A4 (d) – Bill

Exhibits for the Opposite Party

Nil

Witnesses for the Complainant

PW 1 – Prasoon. P - (Complainant)

Witnesses for the opposite parties

Nil

                                                                                       Sd/-

                                                                                   PRESIDENT 

                                                                                       Sd/-

                                                                                    MEMBER   

                                                                          Forwarded/By Order

                                                                             Assistant Registar