BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Wednesday the 7th day of December, 2005.
CD No.102/2005
J.Ramesh, S/o. Ramalingam,
Plot No. 1, Gayatri Estate, Kurnool.
. . . Complainant
-Vs-
1. The Chief Executive Officer,
Vijaya Krishna Granites PvtLtd, Bellary, Karnataka State,
2. The Manager, Krishna Tiles and Monuments
Manufacturers of Granites Tiles Monuments, Guggirati area, Bangalore Road, Bellary, Karnataka State.
. . . Opposite parties
This complaint coming on 6.12.2005 for arguments in the presence of Sri
P.Siva Sudarshan, Advocate, Kurnool for complainant and Sri M.D.V.Jogaiah Sarma, Advocate, Kurnool for opposite parties No.1 and No.2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Sri. K.V.H.Prasad, Hon’ble President)
1. This CD case of the complainant is filed under section 11 and 12 of CP Act seeking direction on the opposite party for refund of the amount of Rs.3,18,986/- with interest from the date of purchase of the material i.e. 2000 Square feets raw silk random slabs, Rs.10,000/- as compensation for suffered mental agony and cost of the complaint alleging the purchase of 2000 Square feets of raw silk random slabs of different sizes from the opposite party No.1 through the agent of opposite party No.2 on 1-11-2001 for Rs.3,18,986/- and its utilization for the flooring of his newly constructed house in Gayathri Estates, Kurnool and the said flooring colour faded developing ugly fungus patches and telling open to show of the said building and the non responsive conduct of the opposite parties inspite of bringing the said fact to the notice through their agent and also by a registered notice dated 17-12-2004 and a legal notice dated 9-3-2005 and the said development to the said flooring stone was due to defect in it as observed by the experts in the said field on inspection of complainants house and therefore allege the liability of the opposite parties to make good of the loss sustained by the complainant at the said defect of material.
2. In pursuance of the notice of this forum as to this case of the complainant the opposite parties made their appearance filing their written version denying complaint averments and requiring its strict proof alleging development to said flooring if any may be due to improper laying and improper maintenance, denying themselves as any manufactures of said flooring stone supplied, alleging them as mere processors of the raw stone by polishing and the purchase of stone worth Rs.84,080/-only on 1-11-2002 by the complainant at Ballery and not at Kurnool through any agent of them none the less any material worth Rs.3,18,986/- and further questioning the very territorial jurisdiction to this Forum alleging the occurrence of said sale transaction at Ballery and not at Kurnool and there by seeking the dismissal of compliant with costs for want of bonafidies of cause of action.
3. In substantiation of the contention on record while the complainant’s side has relied upon documentary record in Ex.A1 to A7, besides to his self sworn affidavit in reiteration of his case and replies exchanged to the interrogatories, the opposite party’s side has made reliance on documentary record in Ex.B1, besides to its sworn affidavit in reiteration of its defense and the replies exchanged to the interrogatories.
4. Hence, the point for consideration is whether the complainant has made out its case of any deficiency on the part of the opposite parties, in the material supplied and thereby any of their liability to the claim made by the complainant.
5. The Ex.A1 is alleged by complainant as estimation issued to him by the opposite party on 18-9-2001. The perusal of it no where suggests that it was issued by the opposite parties nor there is any admission from the opposite parties as to it in their reply to the interrogatories caused by the complainant. Nor the Ex.A1 bears any particulars as to the person who prepared it and the later’s privy to the opposite party. In the absence of any cogent material linking Ex.A1 to the opposite parties there appears any relevancy of Ex.A1 to the case of the complainant especially when the written version of the opposite parties allege purchase of flooring stone worth Rs.84,080/- only and invoice in exhibit B1 also consistently reflects the same.
6. The Ex.A3 is the legal notice dated 9-3-2005 alleged to have been caused at the instructions of the complainant to the opposite parties 1 and 2 and the Ex.A4, A5 are the postal receipts for sending notices and the acknowledgement along with the acknowledgements of said notice by the opposite parties. The said notice alleges on approach of one - Mr.K.Kamal, sales representative of opposite party No.1, the order for supply of 2000 Sq.feets of raw silk random slabs was booked and the opposite party No.1 has collected Rs.3,18,986/- including therein Rs.9,404/- as tax and Rs.5,000/- towards transport charges for supply of the said purchased quantity on 1-11-2001 in vehicle bearing No.AP02-V-0339 without furnishing C-Form and original bill. But, inspite of denial of said averments both in written version and reply notice of the opposite parties, the complainant did not place any such cogent material record in support of its contention as to purchase of 2000 Sq.feets quantity of material for the said price and also as to the alleged taxes and freight changes except alleging in the reply to interrogatories question No.1 as to mere availability of invoice for Rs.3,18,986/-. Therefore the Ex.A3 remains short of bonafidies and their by remains worth of any consideration in support of complainants case.
7. The notice in Ex.A3 and the complaint averments and the sworn affidavit of the complainant alleges the placing of order for supply of the said flooring material of 2000 Sq. feets through K.Kamal agent of the opposite party No.1. inspite of denial of said fact by the opposite party the said fact was not proved by the complainant by placing the affidavit said K.Kamal. Nor did the complainant’s side has placed any cogent material as to the delivery of the material by the opposite parties at Kurnool. Hence, in the absence of any such material as to alleged booking of order for supply of said flooring material at Kurnool through the said agent of opposite party No.1, there remains any bonafidies in said averments and to believe the commencement of any part of cause of action at Kurnool to sue the opposite parties especially when the opposite parties allege the said purchase transaction at Ballery and jurisdiction to Bellary forum only to entertain any grievances in this regard.
8. The learned counsel for the complainant takes reference to a decision of Hon’ble West Bengal State Consumer Disputes Redressal Commission at Culcutta in M/s Genesis Tele Communications Ltd., V/s M/s K.K. Enterprise reported in III (1993) CPJ-1438-wherein the territorial jurisdiction of Culcutta – the place of installation of machinery – is held inspite of purchase of said machine at Delhi. But in the said case the appellant himself installed machine at Culcutta even though the sale was made at Delhi and in the present case no role of the opposite parties was established either as to the delivery of said flooring material or its installation by the opposite parties to the house of the complainant, the rationale of Supara stated decision has any relevant application to the present facts of the case.
9. Another decision relied by the learned counsel for the complainant is of the Hon’ble State Consumer Disputes Redressal Commission, Delhi in Lancers convent V/s M/s Source One office Automation Private Ltd., reported in II (1993) CPJ-1357, wherein the jurisdiction of Delhi was recognized even though as per contract the courts at Bombay only shall have exclusive jurisdiction. In the said case the said jurisdiction of Delhi was held as the partners are having office in Delhi. But in the present case no cogent material is placed by the complainant’s side to say of existence of the opposite parties office in Kurnool or atleast their agency or working agent for the said transaction of purchased material. Hence, the supara stated decision remains of any relevancy or its application to the present set of facts of the complainant’s case.
10. Hence, the case of the complainant is remaining beyond the territorial jurisdiction of this forum for entertaining the complainant’s grievances.
11. Section 13 (1) C of Consumer Protection Act prescribes the procedure where the complaint alleges a defect in goods which cannot be determined without proper analysis or test of the said goods. Under said section the said defective material is to be sent to analysis and test by an approved laboratory for ascertaining the defect with which said goods is suffering. But in the present case no such resort was made to the statutory help and on the other hand the certificate in E.A7 was placed in the service along with the affidavit of said person who issued said certificate. The said certificate in Ex.A7 which dates 18-2-2002 and the affidavit of issuer said certificate no where makes out the tests analysis the said goods was put to arrive at conclusion that the said defect was on account of improper use of chemicals while processing the raw material of that particular lot. Nor is clear of that chemicals which might have been improperly used while processing of the said stone. Nor his sworn affidavit furnishes any such material to the satisfaction to believe the soundness in said reason or of his capacity and experience and technical qualifications to hold any such tests analysis to arrive at any conclusion, as to the defects in said goods. Hence when the worth of the said Ex.A7 and the supporting affidavit of the issuer of said certificate remains so doubtful, the omission on the part of the opposite party to interrogate the said affidavit which who issued said Ex.A7, leaves any credit of said material in favour of the complainant.
12. The alleged purchase of said flooring material dates to 1-11-2001 as per Ex.B1 as no other invoice as to purchase of said flooring material is made available. The defect in said material was said to have been found six months there after to purchase and there by dates the cause of action on finding said defect to First May 2002. On said cause of action of the defect in said flooring material the complainant as aggrieved consumer as to knock the doors of law and its remedial agency within two years as per the statutory limitations prescribed under section 24 A of Consumer Protection Act. But this complaint has been filed in this forum on 14-6-2005 i.e. about three years one month after to the alleged noticing of defect in said flooring material. Hence prima-facie the case of complainant remains to have been filed after expiry prescribed period of limitation.
13. The learned counsel submits as the complainant has made several representations to the opposite parties and also notices dated 17-12-2004 and legal notice dated 9-3-2005 and the opposite parties agent also visited and inspected the said state of affairs to the said flooring on account of said defects the case of the complainant is not suffering with any limitations. In the absence of any clear details as to the representation of the complainant to the opposite parties as to the said defects, prior to alleged notices dated 17-12-2004 and 9-3-2005 and in the absence of placing any such alleged notice of 17-12-2004 on the record, the mere placing of notice dated 9-3-2005 (Ex.A3) which was in point of time beyond the prescribed time of limitations, does not come to the rescue of the complainant in saving limitation to this case especially when the visit to the opposite parties offices and sending legal notices after the period of limitation would not extend the limitation period as per the decision of Hon’ble Delhi State Consumer Disputes Redressal Commission laid down in M.S.Manorama Vij V/s Swathantra Lands and Finance Private Ltd., reported in II (2003) CPJ-558. Hence in the circumstances stated above the case of the complainant is suffering for want of limitation as not being filled either within the limitation period or after obtaining permission condoning the said delay.
14. The Ex.A7 indicates the defect in flooring material to the ground floor. Neither the material of the sworn affidavit of the complainant or the complaint averments nor the Ex.A7 or the affidavit of the issuer of Ex.A7 indicates the area of the ground floor material in Sq. feets to known the quantum of said flooring material which exhibited defect out of the total quantity of flooring material purchased by the complainant. Hence in the absence of any such cogent material the claim of the complainant for the entire alleged cost of flooring material i.e. Rs.3,18,986/-, remains not only unreasonable but also malafide especially when his alleged purchase of said material forgoing said sum of Rs.3,18,986/- is not substantiated by any cogent material and the bonafidies of Ex.B1 invoice for Rs.84,080/- was not contradicted properly by the complainant.
15. The decision of Hon’ble Delhi State Consumer Disputes Redressal Commission held in Satyam floors V/s Vijayalakshmi transport company reported in IV (2005) CPJ-333 is placed to say the defective goods leading to substandard flooring held as deficiency in service and there by the liability of the opposite parties to refund the cost of the flooring along with costs. But the said decision bears any relevance for its appreciation in this case when the defect in goods and sustandardness of the flooring was not established satisfactorily in this case vide discussions made in supara pares.
16. Hence, in conclusion of the above discussions there being any bonafidies in the alleged purchase on said flooring material investing Rs.3,18,986/- and alleged defect and any territorial jurisdiction to this forum to entertain the grievances of the complainant and also any limitation to the case of the complainant, the claim of the complainant against the opposite parties is not remaining maintainable and so the case of the complainant is dismissed with costs.
Dictation to Stenographer, transcriber by him, corrected and pronounced by us in the open court this the 7th day of December, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant Nil For the opposite parties: Nil
List of Exhibits Marked for the complainant:
Ex A.1 Estimation, dt 18.9.2001.
Ex A.2 Original (3) three photos along with negatives.
Ex A.3 Office copy of legal notice, dt 9.3.2005 to opposite parties.
Ex A.4 Acknowledgement (Postal).
Ex A.5 Postal Acknowledgement and receipt.
Ex A.6 Original reply notice of opposite party No.2, dt 22.3.2005.
Ex A.7 Certificate, dt 18.5.2005 issued by P. Ranganatha Reddy, Housing
Licenced Architect.
List of Exhibits Marked for the opposite parties:
Ex B.1 Invoice of Krishna Tiles and Monuments Bellary of Rs.84,080/-.
PRESIDENT
MEMBER MEMBER
Copy to:-
- Sri P. Siva Sudarshan, Advocate, Kurnool.
- Sri M.D.V. Jogaiah Sarma, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on:
