<br /> This is a complaint filed under Section 12 of the Consumer Protection Act for getting an order directing the opposite party to pay a sum of Rs 2,01,657/- as compensation and cost of this proceedings.<br /> The case of the complainant in brief are as follows. The complainant approached the first opposite party on 16.11.1998 to enquire about marbles and granites for the flooring work of his newly constructed house. The opposite party No.2 introduced himself as the partner of the shop and furnished a quotation showing the price of the marble and granite and required labour charge for laying work. The opposite party No.2 visited complainant’s house on 23.11.98 and measured the floor area.<br /> The complainant was asked to select the marbles from the shop of second opposite party” Royal Marbles” on 29.11.98. It was assured that Macrana Pink Marble would have been on stock in his shop at that time. The complainant visited the shop on 29.11.98. The opposite party no.3 who was present there himself introduced as one of the partners and told him that second opposite party has already informed him about his requirements estimated by opposite party No.2. As per the estimate complainant required 850 sq. feet of granite and 600 sq. feet Macrana Pink Marbles. He promised to complete the work within one month by deputing expert Rajastan workers. He further informed that if a sum of Rs 5000/- was paid as advance on that day the best slabs out of stock scheduled to reach in his shop on 30.11.99 could be supplied to the complainant. After confirming the arrival of stock 1.12.98 complainant reached in the shop at about 11 a.m. The opposite party No.2 and 4 were there in the shop then. But opposite party NO.4 went out of the shop promising to come immediately. When complainant offered to see the slabs , second oppoaite party told him slabs could be selected and measured soon after opposite party No.4 come back. In the meantime, second opposite party borrowed a sum of Rs 15,000/- from the complainant to settle the account with the driver who brought the marbles from Rajastan. The opposite party No.4 hasnot been returned though the complainant waited there till 4.30 p.m. Then the complainant went out for a walk for about 2 hours and when he returned back to the shop the second opposite party informed him that the Manager has already reached and marble and granite had actually been loaded. The complainant could see the lorry infront of him almost ready to start with the load. When complainant protested for not giving opportunity to inspect and verify the marbles and granites loaded, second opposite party assured him that his Manager would accompany the lorry and he would be able to verify and measure at the time of unloading. Accordingly complainant also boarded the lorry and when lorry reached to the new house of the complainant loadsheding was started. It was darkness and complainant requested not to unload till the loadsheding was over. But both the workers and the Manager were not amenable . They unloaded those items with the help of emergency lamp. The opposite party NO.4 did not wait for verification or measurement saying that it can be done later. The complainant thus was not able to verify the marbles and granites even at the time of unloading. The complainant went to the shop next day and expressed his displeasure over the manner in which they dealt with the affairs . But the opposite parties were profusely showered with assurances and offers. The opposite party assured that if on measurement after laying any deficit was found the same would be cured by the opposite party and also told to avoid using of granite at the floor since there is possibility of causing scratches in the passage of time and persuaded to replace with marble itself. Believing the words of opposite party it was agreed by the complainant. The marble supplied by the opposite party is a sub standard and low quality. There are cracks all over each and every slabs of marbles. When the complainant complained about the crack on the marble slab, opposite party consoled the complainant by saying that it is the veins on Macrana Marble and the opposite party assured that those veins would be disappear on polishing. The complainant believed the words of opposite party. Thereafter one Raghunatha Sarma , a worker sent by the opposite party laid slabs in the kitchen and collected an amount of Rs 1500/-. The workers of opposite parties have laid broken pieces of marbles and chips in some part of the floor as against oral agreement. When it was asked the opposite party pacified telling that it was an excellent work better than quality marbles. When the polish work was over the cracks on the marbles were quite visible. The workmanship was very poor. The opposite parties have already collected a sum of Rs 1. 08,789/- as cost of the marbles, Rs 8,568/- as cost of the granite and Rs 47,300/- as labour charges ie; altogether Rs 1,64,657/-. After deducting the amount of Rs 1500/- paid to Raghunatha Sarma , the balance amount comes to Rs 1,63,157/-. The granite pieces have been laid around the pillars in an ugly manner causing risk of its fall at any time. One granite piece fell down at the time of washing pillar because of the poor workmanship. The complainant has to replace the entire marble and granite to rectify the defect. For laying fresh marbles and granite the complainant has to purchase cement worth Rs 8500/- and require an amount not less than Rs 5000/- to remove the ugly chips work done. The opposite party has shown excess area and appropriated huge amount. The conduct of the opposite party is an unfair trade practice and deficiency in service . Because of this the complainant suffered much mental pain which the complainant has estimated in terms of money as a sum of Rs 25,000/- as compensation. The complainant is also entitled to get the amount required for removing the floor and purchasing the white cement for reflooring. Thus the complainant is entitled to get a total sum of Rs 2,01,657 as compensation.<br /> Notices were issued to opposite parties calling upon to file version. Opposite parties 1 and 2 served. Notices to opposite parties 3 & 4 have returned unserved with an Endorsement “ Not Known” and “Out of India”. Thereafter notices were given by publication. The opposite parties 1 to 4 did not turn up and subsequently opposite parties 1 to 4 declared exparte. Later an expert was appointed to assess the loss sustained by the complainant. The expert after inspecting the house of the complainant filed a report . Then the complainant adduced evidence as PW1 and Ext. P1 to P8 marked on the side of the complainant. Once an order was passed and subsequently E.P. filed. A certificate was issued for recovering the decree amount. <br /> A writ petition was filed by opposite parties 2 to 4 and the Hon: High Court was pleased to allow the petition to give opportunity to the parties to adduce evidence. Thus complaint restored setting aside the exparte order.<br /> Notices issued to both parties. Both parties appeared. Version filed by opposite parties 1 & 2 and opposite parties 3 & 4 remained absent.<br /> <br /> The opposite parties 1 & 2 filed version contending the following .The newly constructed house is not in the name of complainant and hence the complainant is not a consumer as defined by the Act and hence it is liable to be dismissed. The opposite party admits that the complainant visited the first opposite party and obtained quotation for the marble and granite and also for labour charges for laying the marble. The opposite party further contends that at that time the complainant informed the opposite party that the house is constructing for his son. The opposite party admits that opposite parties 2 and 4 came to the complainant’s house and measured the floor . The opposite party denies the averments of complainant regarding the arrival of complainant in the opposite party’s shop, receipt of Rs 15000/- by the opposite party No.2 after made believe the complainant that the amount was required to be paid to the lorry driver, the complainant was not shown marble, the marble and granite had already been loaded and seen infront of the shop almost ready to start etc. The averments that the item loaded without giving opportunity to complainant to inspect the items and that opposite party No.2 said his Manager would accompany the lorry and complainant can inspect and verifythe measurement when the items are unloaded are absolutely false and denied by the opposite party.The averments regarding load sheding, displeasure, profusely showering assurance, replacement of granite with marble, sub standard marble supplied , poor quality , cracks all over each and every slabs of marble, consoled when complained describing the cracks as veins on Macrana Marble and assurance that those veins would disappear by polishing and denied by opposite party as it is created story and false. The averments that opposite party orally agreed to floor the remaining areas with marble and also for covering the pillars using granite instead of flooring the entire area using the marble, using of broken pieces of marble, chips work had been done, pacifying by make believing that it was excellent work than quality marble etc are false and denied by the opposite party. The opposite party further contended that the complainant was convinced about the quality of different varieties of the marble stone and the complainant was pleased with Marcana Pink Marble. In this variety also there are classifications based on its cost. The complainant selected lower range of Marcana Pink Marble. Eventhough the selected item is lower in range from that variety, its quality is good. The complainant selected the marble slabs from the outlet of opposite party in the day time. . The opposite party contended that complainant’s selection was made after verifying its quality . The amount shown in the quotation is not the real rate and it is only an estimate. It is also contended that the opposite party issued valid cash receipt for the purchase . Marble supplied to complainant was without any defect. The opposite party also contended that the workmanship of opposite party was very good. At the time of purchase or after its laying, no complaint was made regarding its quality or workmanship. If any cracks appeared in the flooring , that was after completion of the polishing work and that was due to the misusing and mishandling of the complainant. The calculation of compensation is on imaginary ground without any basis. The opposite party submits that after receiving lawyer notice opposite party no.2 approached the complainant and enquired about the same. So no reply sent. The opposite party also submits that they are one of the leading and flourishing establishment in this field. There are people in the same field who got illwill in the present position of these opposite parties. The opposite party suspect some among them are behind the complainant. The complainant is not entitled for any relief. There is no fraud and negligence on the part of the opposite party.<br /> On the above pleadings the following issues were framed for consideration.<br /> 1. Whether the complainant is a consumer and the complaint is maintainable?<br /> 2. Whether there is any deficiency on the part of the opposite party?<br /> 3. Whether the complainant is entitled for the relief as prayed in the complaint?<br /> 4. Relief and cost.<br /> The evidence consists of oral testimony of complainant as PW1 and Exts. P1 to P8 marked on the side of the complainant, the oral testimony of DW1, the evidence adduced by expert as CW1 and documentary evidence of report of the Expert marked as Ext.C1.<br /> ISSUE No.1.<br /> The opposite party contended that complainant is not a consumer and the complaint is liable to be dismissed. The opposite party points out that at the time the complainant visited the first opposite party, complainant informed the opposite party that the house is constructing for his son. The opposite parties admit that they have issued valid receipt for the purchase. It can be seen that Exts. P3 to P7 are bills issued by opposite party to complainant in the name of Ahamed, the comlplainant. Opposite party has no case that those bills are not issued by them. Ext.A1 quotation is also seen issued in the name of K.N.Ahamed. All the payments to opposite party were also seen made by the complainant. The entire transaction with respect to the marble, granite and its laying were between the complainant and the opposite party.Son of the complainant never took part in any of the transactions at any point of time with the opposite party. The very mode of dealings itself stands best proof to say that the complainant is a consumer. The case of opposite party is that the newly constructed house is not in the name of the complainant and hence the complainant is not a consumer and complaint is not maintainable. The Hon: Supreme Court in the Spring Meadows Hospital and Anr Vs. Harjot Ahulwalia through K.S.Ahulwalia and Anr(1998) IV Supreme Court Cases 39 observes “ The Act gives a comprehensive definition that consumer who is the principal beneficiary of the legislation but at the same time in view to the comprehensive definition of the term “Consumer” even a member of the family cannot be denied the status of Consumer under the Act and any action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there is no privity of contract. Hence the complainant herein is undoubtedly a consumer and complaint is maintainable. It is also to be noted here that when the question “<br /> <br /> Put to the mouth of PW1,the complainant’s definite answer was “ “. The very next question was “ <br /> <br /> That only means opposite party’s case is that house belong to comlainant’s son. Here it is definite that the house either belongs to the complainant or to his son, the complainant is succeeded in keeping the status of a Consumer in accordance with the definition of the Consumer under Section 2(1)(d) of Consumer Protection Act. The issue No.1 thus answered in favour of the complainant.<br /> ISSUE Nos. 2 to 4: <br /> The complainant produced Exts. P1 to P8 documents to prove his case . Ext.P1 is the lawyer notice sent to opposite party. Exts. P2 to P7 are bills issued by the opposite party to the complainant. Ext.P8 is the quotation dated 29.11.98 issued by the opposite party to the complainant. The case of the complainant is that marble and granite supplied by opposite party were defective and qualitatively sub standard having cracks. The opposite party denied it strongly. In the cross examination PW1, the complainant, answered that he has purchased marble believing the words of the opposite party that it is to be good . It has also come in cross that complainant was not present at the time of loading and so complainant was very much dissatisfied. It was unloaded in the night with the help of an emergency lamp. Defects was seen even before laying but complainant was told that it was only veins and not cracks. The complainant categorically stated in cross examination that he has allowed to lay marble believing the above said words of opposite party only. He stated that there was crack after polish work. Again he was told that workers would come and make it alright. While going through the evidence it can be seen that the opposite party undertook to supply fine quality marble and granite and also to provide expert workers for laying it.<br /> The report and evidence of the Expert appointed in this case is very relevant and material to decide the case. The report Ext.C1filed by the Expert appointed in this case shows that out of the total area 1425 sq.ft. marble, only 1233 sq.ft is laid with marble slabs. 192 sq.ft broken marble pieces with mosaic chips is laid in passage and work area . He opined that this work cannot be considered as marble work. The report pointed out that there was visible Hair line cracks on some of the marble slab laid. The report also shows that when compared to the cost paid for the marble ie; Rs 109/- per sq.ft., the marble laid is of a lower quality and granite pre polished slabs are laid on columns vertically was not done properly. Slabs are not fixed properly. In the cross examination of Expert he has categorically stated that he has no relation with the complainant. He stated that he knows about the work and he is a degree holder of Bachelor of Engineering. He also stated that it is not correct to say that notice was not issued before inspection. The Expert specifically stated in cross examination that he could see visible hair line cracks . Expert also made it clear, in the cross examination , that when crack is seen that single one alone cannot be changed. That means the slabs upon which cracks are seen alone cannot be separated and removed. He has also stated it is not correct to say that the opposite party was not present at the time of his inspection because of non-issuance of notice. In the cross examination he assured that the approximate cost of marble will come about Rs 1,56,750 and Rs 9,120 for granite. The expert also made it clear that he has seen hair line cracks in many places here and there. There is no reason to disbelieve the expert .<br /> The opposite party in cross examination admitted that it was middle quality marble issued to complainant . He does not know whether cracks will develop after laying in case where clean marble, free from cracks are used for laying. He also assured that he did not read Ext.C1 report. He also answered that he is not ready to take out Commission to show that there is no cracks. He stated that to see cracks before polish one should look at after pouring water over it. He is not able to say whether the bills were given by him or not. He is also not sure whether there is any document existing for comparison to make sure of its issuance. He does not know whether quotation have been given or not. He admits that he had inspected the house for the purpose of measurement for issuing quotation. He does not know what is the coolie for sq. ft.. He cannot say whether it is Rs 18 or not. He was not able to answer without reference whether they have realized Rs 20/- per sq.ft. He could not say the total square area for which they realized the amount. DW1 stated that he does not know whether opposite parties were entrusted to lay broken laying or not. DW1 even not remember whether such chips work or broken laying work was performed or not. It is admitted that opposite parties were received notice but not replied only because he assured the complainant to repair the shaken granite pieces. DW1 was not also aware how much amount is required for an area of 1233 sq.ft. for laying after replacement of the earlier. His answer is that he can say only after referring the price list. He does not know the laying charge . He was not remembering whether site was inspected at the time of laying work whereas , he has admitted that if any mistake is done by the workers the whole liability lies upon the opposite party. In the reexamination DW1 stated that there are Macrana Marble worth Rs 32 to Rs 1000/-.<br /> The analysis of the evidence oral and documentary undoubtedly reveals that the opposite party supplied inferior quality materials to complainant for construction. The workers engaged was also seen not skilled enough to complete the work neatly. In the cross examination DW1 answered that no reply was sent for the lawyer notice because of the reason that assurance was given to repair the shaken granite pieces . It means opposite party admits that there was deficiency in the work done . The report of the Expert, Ext.C1, and his oral evidence corroborated the case of the complainant that out of the total area of 1425 sq.ft. the opposite parties have laid marble only an area of 1233 sq.ft. ie; less 192 sq. ft. promised to do. It has also come out in evidence that the remaining area of 192 sq.ft.are covered with laying of broken pieces of marble and mosaic chips. Ext. C1 shows that work done in this 192 sq. ft. requires only a cost of Rs 25 per sq. ft.The calculation statement submitted by the Expert clearly shows that the total area of marble slab is 1425 sq.ft. He has calculated a sum of Rs 1,56,750 required for removing and replacing with superior quality marble and polish (1425 x Rs 110 per sq.ft = Rs 1,56,750) for removing and replacing total granite repolished slabs area of 96 sq.ft with good quality marble and laying the expert calculation is 96 x Rs 95 per sq.ft ie; Rs 9120. The Expert report Ext.C1 with calculation and his oral evidence need not be disbelieved. It proves the case of the complainant. In the light of above discussion of evidence we are of opinion that opposite parties have played unfair trade practice and deficiency in service. The opposite parties are liable to replace marble and granite work. Hence in the interest of justice we are inclined to held the opposite parties liable to pay a sum of Rs 1, 65, 870/- to the complainant for replacing marble and granite work. It has also to be taken into account that the complainant has suffered much mental agony. Therefore the complainant is entitled for compensation of an amount of Rs 5000/-. The complainant is also entitled for an amount of Rs 2000/- as cost of this proceedings. Thus issues 2 to 4 are answered in favour of the complainant and order passed accordingly.<br /> In the result, the comlaint is allowed directing the opposite parties to pay a sum of Rs 1, 65,870 for the cost of replacing marble and granite work and also Rs 5000/- as compensation together with a sum of Rs 2000/- as cost of this proceedings within one month from the receipt of this order failing which the complainant is allowed to execute the order against the opposite parties.<br /> <br /> Sd/-MEMBER Sd/- MEMBER Sd/- PRESIDENT<br /> APPENDIX<br /> Exhibits for the complainant<br /> P1. Copy of the lawyer notice sent to opposite party dt. 2.2.2000<br /> P2. Quotation dt. 8.1.99 issued by opposite party<br /> P3. Bill dt. 9.12.98 issued by opposite party<br /> P4. Bill sr. 9.12.98 issued by the opposite party<br /> P5. Bill dt 1.10.98 issued by the opposite party.<br /> P6. Bill dt. 1.12.98 issued by the opposite party<br /> P7. Bill dt. 1.12.98 issued by the opposite party.<br /> P8. Quotation dt. 29.11.98 issued by the opposite party<br /> Exhibits for the opposite party – NIL<br /> Exhibit for the court<br /> C1. Commission report submitted by V.K. Musthafa.<br /> Witness examined for the complainant<br /> PW1. Complainant<br /> Witness examined for the opposite party<br /> DW1. Rafeek.K.<br /> Witness examined for the Court<br /> CW1.V.K.Musthafa.<br /> Forwarded/by order <br /> SENIOR SUPERINTENDENT<br /> <br />