IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 6^th day of  October  2009

OP.No.183/2004

Smt.N.Narayani,

Rtd.Village Officer,

Nelliyat House,                                             Complainant

Kannothumchal.

(Rep.by  M.K.Associates)

1. M.P.Gangadharan,

   TajMarble Industries,

   Idathil Ambalam,

   P.O.Nettur.

(Rep. by Adv.m.P.Vinayaraj)

2.The Proprietor,

   Taj TRraders,

   NH17, Near Dharma dam Bridge,                            opposite parties

   P.O.Nettur,Thalassery.

3.C.C.Valsraj,

   High Plus Informatics,

   IIIrd floor, K.P.T.Tower,

   South Bazar, Kannur 2.

(Rep. by Adv.T.V.Haridasan)

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to pay a sum of Rs.1, 18,440/- to the complainant with interest at 12% with cost of these proceedings.

            The case of the complainant in brief is as follows: the complainant purchased marbles worth Rs.46, 740/- from second opposite party on 8.3.1999. The amount was paid on different dates. 2^nd opposite party issued a chit showing the details of purchase and issued a bill bearing number 207 dt.8.3.1999. It will show that 43 mtr. Marble slabs at the rate of Rs.325/- for Rs.15, 372/- was purchased by the complainant. Though full bill was demanded opposite party did not issue it saying that there is accounting problem. 1^st opposite party was present at the time of purchase. He also represented that 2^nd opposite party is the sister concern of his establishment. He also gave his visiting card to the complainant to take her into confidence. Therefore the complainant believed that the 2^nd opposite party establishment belongs to the 1^st opposite party. Complainant purchased the marble on the inducement of opposite parties 1 and 3 who undertook the polishing work. The1st opposite party has assured that incase of forming cracks or fading of colour they will replace the entire marbles purchased by her. That is why complainant purchased marbles from 2^nd opposite party. At the time of purchasing marbles the construction work was under progress and no electric connection was obtained. Laying of marble by3rd opposite party was done by using generator and he received Rs.11, 000/- as coli. Thereafter when electric connection was obtained the 3^rd opposite party started mirror polishing work. The said polishing work was started on 8.7.2003 and the work was completed on 4.10.2003. When polishing work was under progress cracks were seen in the marble and it was shown to 3^rd opposite party. Then the 2^nd opposite party introduced a person to complainant as the son of the 1^st opposite arty and he examined the marble and stated that there was no defect in the marble and the cracks if any found on the marble are natural one and it will disappear after mirror polishing and asked the 3^rd opposite party to continue the polishing work. But after mirror polishing the cracks were seen more visible and the colour appeared to be different in different parts. The defects occurred because the marble was of poor quality and sub standard. 3^rd opposite party filled the cracks with white cement in order to conceal the cracks to same 1^st opposite party.  The 3^rd opposite party has received Rs.9, 700/- being the charge of mirror polishing. Thus he received a total amount of Rs.20, 700/- towards the charge of polishing. Complainant spent Rs.10, 000/- towards freight of the carriage vehicle, loading and unloading charge and the cost of the cement. The marble purchased from the 2^nd opposite party were laid in the conspicuous part of the house by which the house looks very ugly and visitors oftenmake comments that cause  mental agony and pain. The opposite parties are liable to compensate the complainant. Complainant approached opposite parties several occasions to replace the defective marbles. Lawyer notice issued to opposite parties 1 and 3. Opposite parties 1 sent a reply stating false allegations that the 1^st opposite party has no transaction with the complainant and she is a stranger. Hence M/s.Taj Traders who issued the cash bill is arrayed as the second opposite party in the above complaint.

            Pursuant to the notice opposite party on entered appearance and filed version. Notice repeated to opposite parties 2 and 3 but there was no response. Both opposite parties 2 and 3 declared exparte since they were absent even after publication. Subsequently exparte order against 3^rd opposite party set aside and  3^rd opposite party also field version. 2^nd opposite   party remained exparte.

            The brief case of the 1^st opposite party is as follows; this opposite party was not present in the shop of 2^nd opposite party when complainant purchased the marble. It is not 1^st opposite party’s sister concern. 1^st opposite party has not given any visiting card to complainant. There was no inducement on his part and no assurance was given to complainant. 1^st opposite party has not sold any marble item to complainant. 1^st opposite party has not introduced his son to complainant. He has not tried to make him believe that the marbles were of superior quality and free from defects. No assurance was given to replace incase of defects by this opposite party. Complainant is a stranger to 1^st opposite party and an unnecessary party. Hence to dismiss the complaint.

            3^rd opposite party filed version contending as follow: This opposite party has no connection with the opposite parties 1 and 2. He has also no connection with the purchase of marble and its dealings. He is not aware where from complainant purchased the marbles. It is not correct to say that complainant purchased marbles on the inducement of this opposite party. He was not present at the time of purchasing the marbles. It is true that he has undertaken the polishing work of the complainant. There was no deficiency in service on his part. He has not done the laying work and he is not able to say anything with regard to electricity connection. The polishing work which was carried out in the year 2003 the supply of electricity was taken from the neighboring house. It is incorrect to say that his opposite party has filled white cements in the cracks to save 1^st opposite party by concealing the cracks. The polishing work was entrusted to this opposite party after 4 years of lying. The complainant roughly used the surface by storing many items such as coconut etc. further all the carpentry work was done from the surface causing heavy damages to the marble slabs and floor. This opposite party has not tried to make believes the complainant that the marbles are superior quality and free from defects. He has not given any assurance to replace the marble. This opposite party is not liable to any compensation. Hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

1. Whether 1^st opposite party has any relation with 2^nd opposite party?

2. Whether there is any deficiency on the part of opposite parties?

3. Whether the complainant is entitled for any remedy as prayed in the complaint?

4. Relief and cost.

            The evidence consists of the oral testimony of PW1, DW1, DW2 and documentary evidence Exts.A1 to A7.

Issue No. 1

            Complainant’s case is that he has purchased marbles worth Rs.46, 740/- from the 2^nd opposite party on 8.3.1999. At the time of purchase Sri.M.P.Gangadhran, the first opposite party was present in the shop and represented to complainant that it is the sister concern of his establishment. He purchased the marble as induced by opposite parties 1 and 3. Opposite parties 1 and 3 stated that the marble was free from defects and opposite party assured to replace the entire marbles incase of forming cracks or fading of colour. The laying work of the marble was done by the  3^rd opposite party. Since the contractor work of the house was only progressing in the absence of electric connection laying work was done by using generator. 3^rd opposite party received Rs.11, 000/- from the complainant. Mirror polishing work was started after getting the electric connection. It was started on 8.7.03 and the work was completed on 4.10.03. When the polishing work was in progress the cracks were appeared visible and the colour appeared to be different in different part.

            The 2^nd opposite party  who was the real seller of the marbles remained absent and exparte to proceeding. Opposite parties 1 and 3 contested the matter. 1at opposite party contended that the shop of 2^nd opposite party was not the sister concern of 1^st opposite party. She was not present in the shop of the 2^nd opposite party when complainant purchased the marble. He further contended that he has not induced complainant to purchase the marble and not given any assurance to replace it. It is also contended that he has not sold the marble items to the complainant and he is an unnecessary party. 3^rd opposite party contended that he has no relation with the purchase of marble and he has not stated marbles are free from defects. It is his contention that he was not present at the time of purchase or known the parties. 3^rd opposite party admits that he has  undertaken the polishing work of the complainant in the year 2003 as introduced by the brother of the complainant. It is contended that he has not done the laying work of marble. He has also stated that at the time of doing polishing work in the year 2003 the electricity connection was taken from neighboring house. It is also contended that the polishing work was entrusted to him after 4 years of lying and he has no business to canvas or instigate complainant or conceal the defects.

            The complainant filed chief affidavit in tune with his pleadings in complaint. It is stated that the marble supplied by opposite parties 1 and 2 for laying the floor of her house have inherent manufacturing defects. The marble was laid and polished by 3^rd opposite party. Both opposite parties 1 and 3 were present together with the complainant in the shop of 2^nd opposite party when the marble was purchased. So also opposite parties 1 and 3 filed affidavit in lieu of evidence in tune with their pleadings.

            As per pleadings the complainant purchase marbles from the 2^nd opposite party. Ext.A1 proves that the Taj Traders issued a bill for marble slabs for Rs.15372/-. Hence it is proved that the complainant purchased marble from 2nd  opposite party for a grand total of Rs.15372/-. It was pleaded by the complainant that she had purchased marble for Rs.46, 740/-. But the reliable document that she has produced is Ext.a1 bill only. She has also produced a chit but it has not bear any signature or date. This chit cannot be considered as a reliable document. At least it should bear the date, seal and signature with out which it cannot be taken into account as a reliable document.

            Complainant’s case is that though she has purchased the marbles from 2^nd opposite party the purchase made through opposite parties 1 and 2. It is also her case that 2^nd opposite party is a sister concern of 1^st opposite party. Complainant in her chief affidavit stated that there are two shops resembling the same name and type of business. Both the establishments were situated in the same locality. Complainant also stated that 1^st opposite party is the father of 2^nd opposite party.  The case of 1^st opposite party is that “c­m-T-F-XnÀI-£n-bpsS tjm-¸n 1mT FXnÀI£n D­m-bn-cp-¶n-Ã. H¶mT FXnÀI-£n-bpsS ktlm-Z-c-Øm-]-\-aà c­mT FXnÀI-£n-bpsS Øm]-\T. He has also stated in his chief affidavit that “H¶mT FXnÀI-£n¡v c­p-T-aq-¶pT FXnÀI-£n-I-fp-ambn bmsXmcp _Ô-hp-anà “` His presence in the shop at the time when complainant purchased the marble and his relation with2nd opposite party is totally denied. In the cross examination 1^st opposite party deposed that “Taj Traders  F¶ Øm]-\-T-F-hnsS ØnXn-sN-¿p-¶p-F-¶-dn-bn-Ã……. . . . . . Fsâ a¡ÄPn-jm-Zv. PnXn³ F¶n-h-cm-Wv.  “He further deposed that “Taj marble Industries  Fsâ t]cn-em-bn-cp-¶p. Taj Traders  BcpsS Øm]-\-am-sW-¶-dn-bn-Ã….  .. .marblesâA-hØ Fs´-¶pA-dn-bn-Ã. . .   “Taj traders and Taj marble ktlm-Z-c-Øm-]-\-§-fm-sW-¶p-]-d-ªm icn-b-Ã. . . .Taj  F¶ t]cn CS-¯n-e-T-]-eT {]tZ-i¯v aäv Øm]-\-§-fnà “.  In the cross examination 1^st opposite party has admitted that the telephone number 2341353 is the Telephone number of Taj marble Industries, Thalassery. He deposed that ‘phone number 2341353 F¶Xv   Taj marble Industries, Thalassery  bnep-ff Øm]-\-¯nse \T-]-dm-Wv.   If that be so this is a relevant piece of evidence to assume that Taj Marble Industries and Taj Traders are sister concerns. 1^st opposite party has no explanation how and why the telephone number of his establishment printed on the receipt of Taj Traders appeared in the bill Ext.A1 issued by2nd opposite party. This alone is sufficient enough to establish the relation of opposite parties 1 and 2. 2^nd opposite party if not a sister concern there is no possibility for the appearance of that telephone number in Ext.A1 receipt. Hence there is no doubt 1^st opposite party is related to 2^nd opposite party and 2^nd opposite party is the sister concern of 1^st opposite party. Thus issue No.1 is found in favour of complainant

.Issue No. 2 to 4

            DW2 the 3^rd opposite party in his cross examination deposed that]cm-Xn-¡m-cn-bpsS ho«n C«  marble low quality Bbn-cp¶p. He has also deposed “polish  sNbvX tijT minor cracks sXfnªp I­n-cp¶p. The report of the Commissioner also states that the marble slabs were defective. The commission report says that “ The material used are substandard, broken slabs with colour stains and slabs of mixed variety….” 3^rd opposite party is  an apt person in this matter to say the position of marble since he is the person who had carried on the polish work. It is he who has done the polish work says that the marble laid in the house of complainant is low quality. He has also stated that the cracks are very much clear after mirror polish. Hence the available evidence clearly reveals that the marbles were defective. There is inadequacy in the quality of marble and thereby deficiency on the part of opposite parties 1 and 2. Complainant could not succeeded in supplying adequate evidence to prove that 3^rd opposite party was performed the laying work though it is an admitted fact that the polishing work had been performed by him. Hence we are of opinion that opposite parties 1 and 2 are liable for the deficiency.

            Complainant has produced Ext.a1 which shows that he has purchased marble slabs for Rs.15372/- Ext.A1 proves the price of the marble slabs. The paper chit which carries no seal date or signature cannot be taken as a dependable document. But it can be assumed there will be expense of some additional purchase of different other materials also which is required for laying and polishing work.

            In the light of the above discussion and the evidence on record we are of opinion that the complainant is entitled to get a total compensation of Rs.20, 000/- including cost. Hence the issues 2 to 4 are found in favour of complainant and order passed accordingly.

            In the result, the complaint is allowed partly directing opposite parties 1 and 2 to pay a sum of Rs.20, 000/-(Rupees Twenty thousand only) as compensation to complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order against opposite parties 1 and 2 as per the provisions of Consumer protection act.

                                    Sd/-                             Sd/-                         Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1 & A2..Bill dt.8.3.99 issued by OP

A3.Copy of the lawyer notice sent to OP

A4 & A5.Postal AD cards

A6.Reply notice

A7. Name slips

Witness examined for the complainant

PW1.Complainant                                                        forwarded  by order/

witness examined for the opposite parties

DW1.C.C.Valsarajan                                                  

DW2M.P.Gangadhran                                                  Senior Superintendent

Consumer Disputes Redressal Forum, Kannur