published in http://164.100.72.12/ncdrcrep/judgement/00130923152011103RP40472006html1.htm
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION No. 4047 of 2006
(From the order dated 12.10.2006 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Appeal no. 741 of 2006)
1. M/s H & R Johnson (India) Ltd.
Rajehas, 3rd Floor, Coroner of Main Avenue
V P Road, Santacruz (West)
Mumbai 400 054
2. The Director
H & R Johnson (India) Ltd.
Rajehas, 3rd Floor, Coroner of Main Avenue
V P Road, Santacruz (West)
Mumbai 400 054
3. The Manager Petitioners
H & R Johnson (India) Ltd.,
Industrial Area no. 2
Dewas, Madhya Pradesh
4. The Sales Executive
H & R Johnson (India) Ltd.,
105, Hariprupa Complex
Near City Gold Cinema
Ashram Road. Ahmedabad 380 009
Versus
1. Lourdes Society Snehanjali Girls Hostel
Opp. Megh Mayur Apartments
Athwa Lines, Surat
2. M Soledad Rubie, Treasurer/ Secretary
Opp. Megh Mayur Apartments Respondents
Athwa Lines, Surat
3. K Sathapatyakamal Tiles
5/363 Buranpuri Bhagol, Surat
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner Mr Sudhir K Makkar, Advocate with
Mr Nitish Kumar, Advocate and
Mr D Kumar, Advocate
For the Respondent Mr N M Varghese, Advocate
Pronounced on 23rd September 2013
ORDER
REKHA GUPTA
Revision petition no. 4047 of 2006 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the judgment and order dated 12.10.2006 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (‘the State Commission’) in First Appeal no. 741 of 2006.
The brief facts of the case as per the complaint of the respondent no. 1 and 2/ complainant no. 1 and 2 are as follows:
Respondent no. 1 is a Girls Hostel namely Lourdes Society and the said Society registered under Society Registration Act, vide society Registration no.Guj/ 525/ Surat and also registered under Trust Act vide its Trust Registration no. F/ 430/ Surat.
The respondent had purchased the dirty shade in 30 x 30 ivory floor glazed tiles from petitioner no. 5 who is a local agent of petitioner no. 1 -companythrough its Sales Department of petitioner no. 4. The said goods of tiles were delivered by petitioner no. 3 to the respondent. The particulars of goods of tiles which purchased by respondent are as under:
S No.
|
Date
|
Invoice no.
|
Bill/ D O no.
|
Amount in Rs.
|
1.
|
02.02.2000
|
006932
|
6811
|
1,12,480/-
|
2.
|
18.02.2000
|
007283
|
7164
|
1,04,000/-
|
3.
|
02.03.2000
|
07643
|
7522
|
93,933/-
|
4.
|
24.03.2000
|
8107
|
808
|
1,17,166/-
|
5.
|
06.03.2001
|
8810
|
8187
|
42,000/-
|
TOTAL
|
4,69,579/-
|
At the time of purchasing the above mentioned goods of tiles, the petitioner company had also given a guarantee of quality of goods of tiles and as per the guarantee given by the petitioner no. 1 company. After purchasing the said tiles from the petitioner company, the respondent had started affixing the said tiles on flooring by using material and spend the labour charges. After fixing the said goods of tiles within a year, the said tiles fixed on 1st and 2nd floor of the respondent Hostel premises started developing white spots and the glazed surface of the tiles was damaged. Thereafter, the respondent has written letters on September 01, 23.05.2002 and on 28.06.2002 to Sales Executive of petitioner no. 4 bearing bill no. 6811, 7522 and 8008 of goods of tiles dated 02.02.2000, 02.03.2000 and 24.03.2000 with regard to the defective, inferior quality of tiles which had developed white spots and damage to the glazed surface. The petitioner no. 5/OP No. 5 who is the local agent of opponent company and the Sales of the said goods of titles “ K Sthapatya – Kamal Tiles” also visited their site and verified the tiles and they also agreed with respondent regarding defective quality of glazed tiles supplied by petitioner company as the defect started appearing on glazed surface of first floor and second floor of respondent premises. The petitioner company did not give proper attention and have not taken any action to solve the complaint regarding dirty shade in 30x30 ivory floor tiles. The petitioner company has not even given any reply to the said letters and also not given any response and taken subsequent action regarding those letters. The respondent had contacted the licenciate and registered architect Mr J MVimawala who is a local architect interior designer for estimation of removing of old flooring tiles and application of new flooring material. The said architect and interior designer also issued certificate regarding estimation of the substandard and inferior quality of first/ second flooring tiles and application of New Flooring Material total damaged including material plus labour (Rs.1,20,745.92+ 31,952.60+ 61,950.60+ 1,94,418.36 = 3,99,077.37 plus octroi and transport charges Rs.28,635/-. Total amount of Rs.4,27,712.37 as damages).
Thereafter the respondent has given a legal notice on dated 12.08.2002 to petitioner, by registered post AD for recovery of said amount Rs.4,27,712.37with interest at the rate of 24% per annum. The said notice was received by petitioner no. 4 on 14.08.2002, petitioner no. 2 on behalf of petitioner no. 1 company on 16.08.2002 and petitioner no. 3 on dated 17.08.2002, but after receiving the said notice by petitioners they have not given any reply to the said notice and also did not comply with the said notice, therefore, the respondent preferred to file the petition/complaint for recovery of an amount of Rs.4,29,712.67 paise from the petitioners.
The respondents’ hence asked for the following reliefs:
* The Hon’ble Court may be pleased to allow the present complaint and be ordered to petitioner that the goods of tiles which purchased by the respondent from the petitioner which are defective, the good quality tiles be given instead of damaged good tiles to respondent otherwise the Hon’ble Court be passed to order for damages worth Rs.4,27,712.37 along with interest at the rate of 24% per annum to respondent.
* This Hon’ble Court may be pleased to pass an order to opponents for damages and mental harassment to the respondent for Rs.5,000/-.
* This Hon’ble Court may be pleased to pass an order for expenses of this complaint for Rs.10,000/- to respondent from the petitioner.
* This Hon’ble Court be ordered to pay to the respondent suitable and just amount of compensation evaluating the facts and circumstances of this case.
In response, the petitioners who were opposite parties no. 1 to 4 have taken preliminary objections and stated that at the outset, that the aforesaid complaint is not maintainable under the provisions of the Consumer Protection Act, 1986. The respondents have not brought on record the correct facts of the case, that the present dispute between the respondent and the petitioners is basically a commercial dispute not falling within the specific parameters of the said act.
The respondent laid the tiles after purchasing the same from the petitioners. The respondents appointed their own labour to lay the tiles.
The respondent had written a letter on 01.09.2001. In response to the respondent’s letter the petitioner had sent their representative Mr D Naik who visited the respondents place and brought back one floor tile and tested it in the petitioner’s laboratory. A letter dated 09.10.2001 along with the lab report was sent to the respondent which clearly stated that after all the relevant tests had been carried out it was found that the tiles were as per the EN/IS specification and there was no defect in the tiles.
After verifying the sample tile in the laboratory it was very clear that there was no defect in the product. It is, therefore, obvious that there was a defect in laying the tiles or some other reasons other than defect in the tiles which may have led to the complaint.
While agreeing with the details given regarding the tiles purchased, they pointed out that there was no shade called as dirty shade which the respondent has referred to at various places in his complaint. The tiles in question are Glazed Floor Tiles of Ivory Colour.
Petitioners denied that they had never given such guarantee as described in paragraph 4 of the complaint. In fact on every carton of the petitioner’s tiles it was very clearly stated that “the company shall bear no liability after the tiles are fixed”. As per the instructions on the tile cartons it was made very clear that before fixing of the tiles they must be laid out in the desired pattern and if the customer was not satisfied with the tiles for any reason relating to size or shade variation then the same could be replaced by the Company before fixing but once the tiles were fixed the company would bear no liability. In the present case the complaint arose after more than a year, this was a long duration during which the tiles may not have been properly maintained apart from the possibility that there was a defect in laying the tiles due to which the complaint may have arisen.
The petitioners again denied that the respondents are not consumers and as such thus this Hon’ble Forum has no jurisdiction to decide this dispute.
In regard to the same as to whether the respondents were ‘consumers’ under the Consumer Protection Act, 1986, the District Consumer DisputesRedressal Forum, Surat (‘the District Forum’) vide order dated 31.12.2005 stated that with regard to issue as to whether the complainant could be defined as Consumer under Consumer Protection Act, 1986 that “the undisputed facts about transaction between let us first resolve the dispute as to whether the respondent is a consumer or not. As per the provisions of C P Act, particularly definition of consumer, where a person hires or avails any service for commercial purpose for any commercial purpose is not a consumer. It is not in dispute that respondents are running girls hostel in the name of respondent no. 1, commercial purpose is also explained under the provisions of the Act. So far as activities of respondents are concerned, they are running girls hostel and receive fees from the students. The respondents are not carrying out commercial activities. Purchase of goods namely tiles are for the purpose of their hostel and it cannot be said that tiles is subject matter of their business. Whenever any person purchases goods for carrying out business for commercial or for livelihood then only question regarding purchase of goods or availing any service from trader or professional arises. The respondents are not carrying (not readable) of purchase from the petitioners. Otherwise also hostel premises can be constructed and there is no direct relation between commercial activity. Therefore, the defence of petitioners that respondents are carrying on business activities and thereby, respondents are not consumer is not acceptable. Hence, we hold that respondents are consumer of petitioners and defence of petitioner is rejected”.
The State Commission vide order dated 12.10.2006 while dealing with the submissions advanced by the learned counsel for the appellant/ petitioner as to whether the original complainants were consumers within the meaning of Consumer Protection Act, 1986 in as much as the respondents had purchased tiles for the ladies hostel which was for commercial purpose held that:
“In this regard, reliance has been placed on a decision in the case of M/s Kusum Hotels Private Limited vs M/s Neycer India Limited reported in 1993 (3) CPR P 405 by the honourable National Commission, the complainant was a hotel and the tiles were purchased by the hotel for commercial purpose since the activity of the hotel would be to run the business to earn profit. In our opinion, this judgment would not be applicable to the facts of the present case for the simple reason that the complainant trust purchased the tiles and got them fitted in the ladies hostel wherein the accommodation was provided to the girl students receiving education in the educational institution. Charges, if any, for accommodation in the hostel would not be for any profit making but would be for maintaining the hostel. Thus, the complainant cannot be regarded as a commercial establishment and therefore, the principle enunciated in the aforesaid judgment of the National Commission cannot have applicability to the facts of the present case and we therefore, negative the contention of Mr Kapadia on this score”.
Hence, both the Fora below have held that the respondent nos.1 and 2 were consumers of petitioners and the defence of the petitioner was rejected.
With regard to merits of the case the District Forum depended largely on the letters written by the respondent nos. 1 and 2 to the petitioners and the letter issued by the technical executive, the report of J M Vimawala, Architect as also the report of local commissioner dated 21.09.2006 and allowed the complaint. They observed as follows:
“The petitioners have produced letter issued by Technical Executive stating that their representative Mr Naik had visited the premises of the respondent and had taken on sample of tile as specimen for testing from the floor and test was carried out in lab. The petitioners have also produced test certificate. The petitioners have also produced letter dated 23/01/2003 wherein complaint regarding defect in tiles have been carried out. Test report produced on behalf of the petitioners is required to be considered in detail. There are same specifications and test results are taken into account. Some of the items are not in consonance with EN/IS specification. Not only this, but the respondents have relied on certificate of architect Mr Vimawala wherein he has stated that he has assessed and surveyed tiles. He has also opined that there is manufacturing defects in tiles and he has also taken into account prescribed specification on which the petitioners have relied. It is specifically mentioned that actual estimate of damage come to Rs.3,99,077.37 as cost of flooring tiles supplied by petitioners. Respondents have also relied on the report of Court Commissioner appointed by this forum. He has submitted his report on the basis of this forum’s order. If we peruse the said report dated 21.09.2004, it is specifically stated therein that he had personally visited the site and inspected the damages. He has mentioned that installed ceramic tiles in rooms and partly in toilet blocks seem damaged due to their poor absorbance and chemical resistance. The black patches seen on the tiles are also due to weak absorbance. He has further stated that passage tiles are still in good condition and no damage is found. However, quality of tiles in rooms is poor. Further, he has stated that petitions performed test only on one and half tiles, whereas IS Codes prescribe the same test to be performed with five numbers of tiles. The Court Commissioner has also submitted photographs of tiles with his report. On the basis of these facts, it is clearly goes to show that the petitioners have supplied tiles which had manufacturing defects and guarantee given by petitioners to respondents. Therefore, the respondents are able to prove that tiles are defective and thereby the petitioners have failed to provide proper service to the respondents and there is deficiency in service on the part of the respondents by not replacing the defective goods or by refunding the price thereof. Report the Court Commissioner shows that tiles had manufacturing defect. Therefore, it could be definitely believe that petitioners are carrying on unfair trade practice and therefore, the petitioners are liable and responsible for supplying defective goods to the respondents.
Respondents have claimed damages worth Rs.4,27,012.37. This claims appear to have been assessed on the basis of report of the architect Mr Vimawala. But the petitioners are able to show that they have used tiles in their premises since the day they fixed the same in their premises or after 06.03.2001. Considering the period of use of tiles, it would not be just and fair to refund the whole amount as by removing the tiles fixed in floors, the petitioners would not get back them in good condition. If forum orders that petitioners should pay amount claimed by respondents considering that tiles fixed in premises should be returned to the petitioners would not serve the purpose. Therefore, the petitioners are not liable to pay whole amount damages to the respondent.
The respondent is not able to show how much tiles are defective. Considering these facts, respondents would be sufficiently compensated if total amount of Rs.2 lakh is given towards defective tiles along with mental agony harassment etc., and including cost of present proceedings. The total sum granted as above is fixed keeping in mind the fact that respondents are still using defective tiles in their premises. The respondents did not say any where that because of defects in tiles, they have removed and replaced new tiles by purchasing the same from another trader. This fact would definitely go in favour of petitioners for the purpose of quantifying total amount of damages, compensation and cost of present proceedings. Accordingly, in the absence of any sufficient and proper defence on behalf of petitioners, the present complaint is required to be allowed partly. We have taken into consideration all the documents contentions taken on behalf of petitioners and nothing is found in favour of petitioners. The respondents have also claimed interest @ 24% per annum but it is very excessive as present rate of interest is required to be taken into account. We therefore, grant interest @ 9% per annum the above amount and pass the following order:
The present complaint filed by the respondent is hereby partly allowed. All the petitioners are jointly and severally held liable to pay to the respondents Rs.2 lakh as damages, compensation towards defective tiles supplied by petitioners along with compensation towards mental harassment and cost of present proceedings with interest @ 9% per annum from the date of complaint i.e., from 30.10.2002 till its recovery to the respondents”.
Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State Commission. The State Commission while rejecting the appeal observed that:
“Considering the prima facie merit in the appeal it is not much in dispute that the respondent trust purchased vitrified tiles and got the same fitted on the floor of the hostel including rooms as well as passages in the hostel. It is suggested from the evidence on record that most of the tiles fitted in the hostel premises developed black spots and therefore, the complaint. The officer of the petitioner company sent its personnel to visit the site and he took samples for laboratory testing. Copy of the laboratory test report is to be found at page 27. Remarks at the bottom of the report says that the tiles are as per IS specifications and it has been hoped that some strong chemical is used on the surface which reacted. Thus, the report does not suggest any definite finding that some strong chemical was used but it is only hoped that some strong chemical may have been used. If any chemical was used, then, in that case, when the chemical came in contact with the tiles, all the tiles would be affected, but here some of the tile are affected and some are not. When a chemical is used, it is uniformly used in the entire room / premises. Letter page 76 suggests that as far as the dirty shade in the tiles is concerned, it should not happed normally as the tiles of the petitioner company are acid and alkali resistant. It is common experience that acid/ alkali is used for cleaning tiles. It is also suggested that the black spots which developed on the tiles at the time of personal visit of the officer disappeared after sometime but again in 10-15 minutes the black spots were visible and therefore, the officer of the petitioner company was unable to convince the respondent.
It is submitted by Mr Kapadia that it is not proved as to how many tiles were defective which showed black spots. Even if a single tile shows black spot, then the entire tiles fitted in the room/ passage would be required to be replaced. Simply because 10-15 or particular number of tiles are found to have developed black spots would not mean that only those numbers of tiles are required to be replaced because there should be uniformity in the tiles fitted in the premises or on a particular floor or building. One of the submissions advanced by Mr Kapadia is that it is not proved that the tiles are defective as per definition of Section 2 (f) of the Consumer Protection Act. To this, reference may be made to the letter of the petitioner company, copy whereof is produced on page 78. Reading of the same suggest that most of the tiles fitted were found to have developed black spots which were noticed during the personal visit of the officer of the petitioner company. This in our opinion provides answer to the submission of Mr Kapadia on this score.
It is submitted by Mr Kapadia that in the order awarding Rs.2,00,000/- by way of compensation, the element of mental agony is also included. It is true that the amount of Rs.2,00,000/- is awarded as damages/ compensation towards defective tiles supplied by the petitioner along with compensation towards mental harassment and cost of the present proceedings. Under none of the heads, the amount has been specifically or distinctly mentioned. It is the quantified amount which has been awarded which includes cost also. Under the circumstances, it cannot be said what amount is quantified for mental agony. That, however, by itself would not suggest that other components would not assume any importance. The beneficiaries of the tiles were the students occupying the rooms and they also must have undergone mental annoyance because of the black spots which they would see day in and day out. Considering all these, the amount has been quantified at Rs.2,00,000/- and we do not find any substance in this submission of Mr Kapadia.
Thus, it appears that there is defect in most of the tiles purchased by the respondent trust and fitted. In this prima facie view of the matter, we do not find any merit in the appeal and there is no question involved requiring consideration in the appeal. In our opinion, the appeal is devoid of prima facie merit and therefore, liable to be rejected at the admission stage”.
Hence the present revision petition.
The main grounds for the revision petition are:
· The Hon’ble Forum has erred in placing reliance upon the report of the Court Commissioner dated 21.09.2004. The said report is purported to be signed by Mr Mahesh Nagecha, Project Coordinator, SADC, Faculty of Architecture, SCET, Surat. No qualification of the said person is stated in the report. The report is not of testing the tile for any defect but is only a report of visual inspection. In fact the said report states that the tiles of the passage are in good condition. This in fact gives credence of what is stated in the test report of the company that some strong chemicals might have been used on the glazed surface of the tiles which might have reacted causing white patches on the tile. The Commissioner’s report also does not dispute the correctness of the test certificate issued by the petitioner company, however, only states that the test is conducted on one and half tiles whereas IS code prescribed test to be performed on five number of tiles. The said observation test is required to be performed on the five number of tiles as per IS code is also false. The Commissioner’s report does not prove that the tiles were defective.
· The Hon’ble Forum erred in not placing reliance upon the test certificate produced by the petitioner company in respect of the test conducted by it at its laboratory on the tile sample. The petitioner company has modern tiles testing facilities at its laboratory. The correctness of the test certificate has not been impugned by the respondents. The Forum ought to have held that the tiles were not containing any manufacturing defect.
· The Hon’ble Forum failed to appreciate that the estimate given by the Architect Mr Jimmish M Vimawala states that the tiles were damaged. It does not state that the tiles were defective.
· The Hon’ble Forum has erred in holding that the petitioners have supplied tiles contrary to the guarantee given by them. The petitioner had given no guarantee or warranty in respect of the tiles supplied by them. The record of the complainant does not bear out that the petitioners had given such guarantee to the respondents. Such observation of the Forum is extraneous to the record of the complaint.
· The State Commission failed to appreciate the ratio of decision in the case of M/s Kusum Hotel Pvt Ltd., vs M/s Nicer India Ltd., reported in 1993 33 CPR 405 and failed to appreciate that the respondent is not a consumer within the meaning of the provisions of the Consumer Protection Act, 1986 in as much as the respondent had purchased the tiles and fitted it in the ladies hostel for commercial purpose. Hence, the ratio of the judgment in M/s Kusum HotelPvt. Ltd., would squarely be applicable in the facts and circumstances of the present case. The State Commission erred in upholding the judgment of the District Forum while holding that the tiles were defective on the basis of the test report submitted by the complainant without recording any expert evidence in respect of the said finding. Without any evidence being placed on record by the complainant except the test record by the complainant except the test report, the learned State Commission erred in upholding the judgment of the District Forum. Even otherwise, the judgment of the State Commission was contrary to the principles of natural justice. Moreover, in the facts and circumstances of the present case it was appropriate for the State Commission to set aside the judgment of the District Forum.
· The State Commission lost sight of the fact that the District Forum has no jurisdiction to award a huge sum as compensation without any corroborative evidence to substantiate the estimated loss suffered by the respondent, particularly in view of the principles of law as laid by the Hon’ble Supreme Court of India in a case reported as 1995 (1) CPJ (1) SC by this Commission in (ii) 1995 (CPJ) 183 National Commission that compensation can only be awarded for actual loss suffered due to the negligence of the opposite party and both the loss suffered as well as the negligence has to be proved by corroborative evidence by the complainant.
· The State Commission committed a grave error while upholding the judgment of the District Forum awarding an amount of Rs.2 lakhs as damages/ compensation for defective tiles along with compensation towards mental harassment and cost of the proceedings which was awarded in the absence of any material on record to substantiate the contention in this regard made by the complainant.
· The State Commission failed to appreciate that it was not proved that the tiles were defective as per the definition of Section 2F of the Consumer Protection Act and hence, the State Commission erred while upholding the judgment of the District Forum whereby an amount of Rs.2 lakh was awarded as damages/ compensation for defective tiles supplied by the petitioner.
· The State Commission failed to appreciate that the amount of Rs. 2 lakh awarded towards damages/ compensation towards defective tiles supplied by the petitioners and mental harassment and cost of the present proceedings awarded by the District Forum was excessive in view of the fact that the total amount spent by the respondent towards purchase of the tiles was only Rs.4,69,579/-.
· The State Commission failed to interpret Section 2F of the Consumer Protection Act and Section 14 (1) (d) of the Consumer Protection Act while upholding the compensation of Rs.2.00 lakh awarded by the District Forum without assessing the actual loss suffered by the respondent and ascertaining whether the same was due to any negligence on the part of the opposite party or whether the compensation could be awarded for the losses suffered due to the negligence of the opposite party whereas it was imperative to ascertain both the negligence and defective supply by the opposite party before awarding any amount by way of compensation.
· The Hon’ble Forum has also categorically observed that the petitioners are still using the defective tiles in their premises. The aforesaid facts clearly point out that the complaint is filed with an oblique motive of exacting money as much as possible from the petitioners. The respondents have been using the tiles for about a period of five years and they have not found the need to changes the tiles. In the said facts, the compensation of Rs. 2.00 lakh is unjustified and excessive.
· The Hon’ble Forum failed to appreciate that the petitioners were not called upon to replace the defective tiles before filing the complaint. As is borne out from the notice dated 12.08.2002 issued on behalf of the respondents, the respondents were not interested in getting the defective tiles replaced but were only interested in extracting the maximum amount of money from the petitioners. The Forum also erred in awarding the compensation of Rs.2.00 lakh rather than getting the defective tiles replaced.
· The Hon’ble Forum erred in awarding compensation to the respondents on account of mental agony and harassment. The tiles have been purchased by the respondent society which is a juristic personality and incapable of undergoing mental agony and harassment.
We have heard the counsels for the petitioners and the respondents and carefully gone through the record.
Counsel for the respondent filed registration certificate dated 24.07.1996 issued by the Assistant Charity Commissioner, Surat to the respondent no. 1 Society as also Memorandum of Association of M/s Lourdes Society. Counsel for the parties confirmed that these documents had not been filed before the District Forum hence, they are not being taken on record.
It is an undisputed fact that the respondent nos. 1 and 2 - Society has purchased tiles from the petitioner for girls hostel namely Lourdes Society. It is seen from the paragraph three of the complaint that most of the tiles were purchased in February and March 2000. Nowhere in the complaint have the number of cartoons or number of tiles purchased been mentioned. It is also an undisputed fact that after receiving the tiles the respondent had started laying the said tiles on the floor in the year 2000-2001. The first complaint, however, was sent to the petitioner in September 2001 and thereafter vide letters dated 23.05.2002 and 28.06.2002. The complaint was regarding the tiles developing white spots and glazed surface getting damaged. To support their complaint, the respondent contacted the registered Architect Mr. J M Vimawala, who is the local architect and interior designer for an estimate for removing the old flooring tiles and application of new flooring material. As per the estimate of Shri Vimawala, Architect, the total cost would come to Rs.3,99,077/-. Shri Vimawala, has annexed the “Actual quantity of flooring damaged as per site”. He has nowhere mentioned that the tiles were defective – only damaged. Hence, this report cannot be relied upon to prove that the tiles received were received defective. The report of Shri Vimawala does not also establish that what were the total number of tiles procured and laid on the floor and the number of tiles found defective.
As mentioned earlier the District Forum had appointed a Court Commissioner. The petitioners have submitted, as one of the grounds of appeal, that nowhere has the qualification of the person been given by the Court Commissioner in his report. It is also clear from the Court Commissioner’s report is that it based on observation and visual inspection and not on any standard method laid down by the Bureau of Indian Standards (BIS). Counsel for the respondents today confirmed that all tiles used for flooring in the hostel were from the same source. Hence, in view of the same the counsel failed to explain observation of the Court Commissioner, Shri Mahesh Nagecha, that “some tiles were damaged due to poor absorbance and chemical resistance. Black patches seen on the tiles are also due to its weak absorbance. Premises also have ceramic tiles with different pattern in the passages outside the rooms and both are maintained simultaneously with the same cleaning agent, yet the passage tiles are still in good condition and they have remained stainless and have shown no damage even after extensive use. This fact strengthens the assumptions that the quality of tiles in the rooms is poor”. If all the tiles were bought from the same source there is no explanation as to why only some tiles were found damaged in the toilets and rooms while those in the passages were still found in good condition. Further, nowhere has the Court Commissioner spoken about any defect in the tiles, he has only noted that some tiles were found damaged. He mentions the presence of black patches whereas the complaint mentions white spots.
The Court Commissioner has dismissed the test results of the damaged tiles stating that the company has performed the tests only on one and a half tiles, whereas IS codes prescribe the same test to be performed with five numbers of tiles even though the Court Commissioner himself has given his conclusions based only on observation and visual inspection.
As per the test results submitted by the petitioner the tiles passed the test as per the standard methodology - BIS. In their letter to respondent no. 1 they have clearly stated that “our representative Mr D Naik visited your place and had brought one floor tile for our laboratory testing. As far as the dirty shade in the tile is concerned, it should not happen normally as our tiles are acid and alkali resistant. Yet we tested the tile for by cleaning it with acid and alkali and found that these have no effect on the glaze surface. We test the tiles for acid and alkali resistance regularly in our lab and find no effect on the glaze surface. We have done other test also as per IS specification and the test certificate”.
They have also enclosed the test certificate which reads as under:
“Tile is passed in all respect as per IS specification. Hope that some strong chemicals has been used on the Glaze Surface which reacted”.
Counsel for the respondent could not explain why the tiles were found defective on opening of the boxes they were not sent for replacement. The Counsel could not also explain as to why the damage and spots came to notice only after the tiles were laid on the floor and after more than 17/18 months of purchase.
As is seen from the complaint that the tiles were purchased over a period of one year from February 2000 to March 2001, in five consignments. The tiles were also being laid parallel during the year. If the tiles were found defective or damaged then why did the petitioners/ complainants continue to procure the tiles from the same source without pointing out the defects and also without asking for replacement.
With the regard to the plea of the petitioner that the respondent cannot be construed as consumer as per Consumer Protection Act, 1986, the counsel for the respondents failed to prove that the girls hostels was not being used for commercial purpose and confirm that they were not taking charges from the inmates.
It is not known on what facts/ basis the District Forum came to the conclusion that the complainants were not carrying ‘commercial activities’.
It is also not known on what basis the State Commission came to the conclusion that
“the complainant trust purchased the tiles and got them fitted in the floor of the hostel, wherein accommodation was provided to the girl students receiving education in the educational institutions. Charges, if any for accommodation in the hostel would not be for any profit making but would be for maintain the hostel”.
The respondent/complainant has nowhere in their complaint mentioned as to what are the fees being charged/ taken from the inmates of the hostel.
As such we hold that respondents/ complainants have not been able to establish beyond doubt that they are consumers as per the definition in the Consumer Protection Act, 1986.
Hence, we are of the view that the complaint is not maintainable.
Even for a moment if it is accepted that the complaint is maintainable, as discussed, respondents 1 and 2 have failed to prove that the tiles procured by them in the year 2000 and 2001 were defective and not damaged thereafter.
The petitioner, in their reply before the District Forum, had clearly indicated that on every carton of tiles it has been very clearly stated that
‘the company will bear no liability after the tiles are fixed’.
Further, as per the instructions on the tile cartons it was very clearly stated that before fixing of the tiles they must be laid out in the desired pattern and if the customer is not satisfied with the tiles for any reasons relating to the size or shades variation then the same can be replaced by the Company before fixing but once the tiles are fixed the company bears no liability.
In the present case it is an undisputed fact that the respondent/complainant complained after more than 17/18 months of the first purchase in February 2000 and they could not prove beyond doubt that the damage was not due to poor maintenance or rough usage.
It has also nowhere been mentioned that out of the total number of tiles purchased how many were received defective/ damaged.
Further, instead of replacing the damaged tiles the respondents for reasons not on record seeking the cost of replacement of the entire flooring.
In view of the above, the revision petition is allowed and the orders of the Fora below are set aside and the complaint is dismissed with cost of Rs.20,000/-
Respondent is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ within four weeks from today.
In case the respondent fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 15th November, 2013 for compliance.
Sd/-
..………………………………
[ V B Gupta, J.]
Sd/-
………………………………..
[Rekha Gupta]
Satish
