KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.739/04 JUDGMENT DATED 3.3.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Baby Ambatt, Managing Partner, -- APPELLANT R.B.Trading Corporation, Pulamkandiyil Vellimadukunnu P.O Kozhikode-12. (By Adv.K.V.Sabu) Vs. C.Velayudhan, S/0 Appu, Chalikkara House, Makkada.P.O, -- RESPONDENT Kakkodi Via, Chelapram, Kozhikode – 17. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is directed against the order dated 23rd July 2004 of CDRF, Kozhikode in OP.453/01. The complaint therein was filed by the respondent herein alleging deficiency in service on the part of the appellant in the sale of marble and also in laying the said marble slabs in the house owned by the respondent. Thereby the complaint in OP.453/01 was filed claiming replacement of the defective marble slabs with first quality Macrana pink slabs or to refund Rs.65,000/- paid by the complainant with compensation of Rs.40,000/- for the loss and mental agonies suffered by the complainant. The opposite party therein (appellant) filed written version denying the alleged deficiency in service. He contended that the marble slabs were supplied and delivered at the premises of the complainant (respondent) as ordered by him and that the marble slabs were laid under the supervision of the complainant/consumer and there was no defect in laying the marble slabs. It was further contended that the complaint is filed to avoid payment of the balance consideration of Rs.23,000/- due to the opposite party from the complainant. Thus, the opposite party prayed for dismissal of the complaint in OP.453/01. 2. Before the forum below, the complainant was examined as PW1 and the opposite party was examined as RW1. Exts A1 to A5 documents were marked on the side of the complainant and B1 document on the side of the opposite party. The Commission Report filed by Adv.A Devanand was marked as Ext.C1. On an appreciation of the evidence on record, the forum below passed the impugned order allowing the complaint and thereby directing the opposite party to pay compensation of Rs.10,000/- with cost of Rs.500/- to the complainant. Aggrieved by the impugned order passed by the forum below, the present appeal is filed by the opposite party therein. 3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the marble slabs were selected by the respondent/complainant and sale of the marble slabs was effected as per the order placed by the respondent/complainant. It is further submitted that the marble slabs were laid under the supervision and control of the respondent/complainant and that the complainant had no complaint regarding the workmanship in laying the marble slabs and that the delay in filing the complaint itself would show that the complaint was filed to avoid payment of the balance consideration of Rs.23,000/- due to the appellant/opposite party from the respondent/complainant. He also placed reliance on C1 commission report and submitted that the Advocate Commissioner could not point out any deficiency in service on the part of the appellant/opposite party in effecting the sale and also in laying the marble slab in the house of the respondent/complainant. He also relied on the testimonies of PW1 and RW1 and argued for the position that there is nothing on record to substantiate the case of the respondent/complainant regarding deficiency in service. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the forum below. 4. The appellant/opposite party has also produced photo copies of the judgments in AS.No.27/05 on the file of Sub Court, Kozhikode and in the second Appeal RSA No.1031/08 of the Hon.High Court of Kerala and submitted that the suit filed by the appellant/opposite party for realization of the balance sale consideration of Rs.23,000/- was allowed by the appellate courts. Thereby, the appellant/opposite party prayed for acceptance of those documents at this appellate stage. 5. The points that arise for consideration are;- 1. Whether the respondent/complainant had succeeded in establishing the alleged deficiency in service on the part of the appellant/opposite party in effecting the sale of marble slabs and in laying the marble slabs at the premises of the respondent/complainant? 2. Whether the forum below can be justified in awarding compensation of Rs.10,000/- with cost of Rs.500/- to the complainant in OP.453/01? 6. POINTS 1 & 2:- There is no dispute that the respondent/complainant purchased 1050 Sq.Ft Macrana Pink Marble slab from the appellant/opposite party and by virtue of the aforesaid purchase the appellant/opposite party supplied 1050 sq.ft. Macrana Pink marble slabs. Admittedly the total consideration for the marble slabs including laying charges was fixed at Rs.65,000/-. The purchase was on 9.10.2000 and the same was delivered at the premises of the respondent/complainant. It is the definite case of the respondent/complainant that he paid the entire sale consideration of Rs.65,000/- to the appellant/opposite party. But, the appellant/opposite party would contend that a total of Rs.42,000/- was paid and that the respondent/complainant is liable to pay the balance sale consideration of Rs.23,000/-. Ext.A5 series of receipts issued by the appellant/opposite party would give an indication that the respondent/complainant had only paid Rs.42,000/- and that balance of Rs.23,000/- was due to the appellant/opposite party towards the sale consideration. 7. The appellant/opposite party had filed a suit as OS.No.575/02 before the Munsiff Court, Kozhikode and the same was decreed by the Munsiff Court, Kozhikode. The respondent herein who was the defendant in OS.575/02 preferred an appeal from the judgment and decree in OS.575/02. The aforesaid appeal was numbered as AS.27/05 on the file of the principle Sub Court, Kozhikode and the said appeal was dismissed vide judgment dated 17.12.07 in AS 27/05. The respondent herein preferred the second appeal as RSA No.1031/08 before the Hon.High Court of Kerala and the same was also dismissed confirming the judgments and decrees passed by the lower courts. Thus, the appellant/opposite party has succeeded in establishing his case that balance sale consideration of Rs.23,000/- was due from the respondent/complainant. The appellant herein produced copy of the judgment in AS.27/05 and RSA 1031/08. The aforesaid judgments were pronounced after the institution of the present appeal. So, this Commission can very well take judicial notice of those judgments. This Commission is pleased to rely on those documents produced by the appellant at this appellate stage. No harm, inconvenience or prejudice will be caused to the respondent/complainant in relying on those judgments. Thus, it can very safely be concluded that the appellant/opposite party is entitled to get the balance sale consideration o Rs.23,000/- from the respondent/complainant. 8. The definite case of the respondent/complainant is that the appellant/opposite party supplied low quality Macrana Pink marble slabs. The complainant as PW1 has also deposed about the low quality marble slabs supplied by the appellant/opposite party. The complainant had also produced photographs of those slabs with negatives. Ext. A3 series of photographs with negatives would show that there were colour variations in the marble slabs supplied by the appellant/opposite party. An Advocate Commissioner was deputed from the forum below and the Advocate Commissioner after conducting local inspection submitted C1 Commission report. A perusal of C1 commission report would also make it clear that there were colour variations for the marble slabs supplied by the appellant/opposite party. The commissioner has also reported about some black and white patches on the said marble slabs laid in the house of the respondent/complainant. He has also reported about existence of some dots and other colour variations in the marble floor of the house of the complainant. Admittedly, the complainant purchased Macrana pink marble slabs from the opposite party and that the opposite party was expected to supply Macrana pink marble slabs. C1 commission report would give a clear indication that there are so many varieties of Macrana pink marble and there are also price variations. The colour variations and other patches and dots found on the marble slabs which were supplied by the appellant/opposite party would give an indication that he supplied low quality Macrana pink marble slabs. No other expert opinion is required to ascertain the colour variations and other patches and dots on the marble slabs. It is true that the Advocate Commissioner is not an expert in determining or assessing the quality of the marble slabs. But, even a layman could note the colour variations and other patches. No reasonable explanation is forthcoming from the side of the opposite party for the aforesaid colour variations, patches and dots. 9. The opposite party was examined as RW1. He categorically admitted that he had no occasion to verify and ascertain the quality of the marble slabs supplied to the complainant. He could not give a reasonable and acceptable explanation for the colour variations and the patches and dots found on the narble slabs laid in the house of the complainant. So, it can very safely be concluded that the appellant/opposite party supplied low quality Macrana pink marble slabs to the complainant. The aforesaid action on the part of the opposite party would amount to deficiency in service. 10. The respondent/complainant has also alleged defective laying of the marble slabs. Ext.C1 commission report would support the case of the respondent/complainant to some extent. The Advocate commissioner in his C1 commission report has categorically reported that laying of the marble slabs in the drawing room of the house was not up to the standard. The Advocate Commissioner could point out defective laying of the marble slabs in the drawing room. He further reported that the laying of the marble slabs in the drawing room was defective and the defective laying could be noticed by a mere look. The mere fact that the respondent/complainant was present at the time of laying the marble slabs and the laying works were done under his supervision cannot be taken as a ground to hold that the appellant/opposite party had no role in laying the marble slabs in a just and proper manner. It is to be noted that the respondent/complainant is not an expert in laying marble slabs. Only because of his lack of knowledge and experience the laying work was entrusted with the appellant/opposite party who agreed to lay the marble slabs. The evidence of RW1 would show that he entrusted the laying work with somebody else and he never cared to supervise the laying work. Commission report would also make it clear that the laying work was defective. So, there was deficiency in service on the part of the appellant/opposite party in laying the marble slabs. 11. The forum below considered the relevant fact that even now the respondent/complainant is using the very floor with the marble slabs laid by the appellant/opposite party. It is also noticed that there will be considerable loss and damage to the marble slabs if the same are removed. Considering all those aspects, the forum below dis-allowed the claim of the complainant to get defective marble slabs replaced by new marble slabs. Considering all the relevant aspect of the case, the forum below ordered compensation of Rs.10,000/- with cost of Rs.500/- to the complainant. So, the impugned order passed by the forum below based on the deficiency of service on the part of the opposite party can be up-held. In fact, the forum below had taken a lenient view while awarding compensation of Rs.10,000/- to the complainant. Considering the gravity and nature of deficiency in service on the part of the opposite party the compensation of Rs.10,000 ordered by the forum below is very much reasonable. At any rate, the compensation of Rs.10,000/- ordered by the forum below is not on the higher side. 12.The case of the appellant/opposite party that the complaint in OP.453/01 was filed for avoiding payment of the balance sale consideration of Rs.23,000/- cannot be believed or accepted. It is to be noted that the appellant/opposite party issued the lawyer notice demanding the balance consideration of Rs.23,000/- only on 10.8.01. But, even prior to the A4 lawyer notice, the complainant had issued lawyer notice to the opposite party alleging deficiency in service on the part of the opposite party in supplying low quality marble slabs and defective laying of the marble slabs. Ext.A2 is the reply notice sent by the opposite party on 1.6.01. The materials available record would also make it clear that there was deficiency in service on the part of the opposite party in effecting sale of the marble slabs and also in laying the marble slabs in the house of the complainant. Thus, in all respects, the impugned order dated 23.7.04 passed by CDRF, Kozhikode in OP 453/01 is liable to be upheld. We do not find any sustainable ground to interfere with the impugned order passed by the forum below. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order passed by the forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER S/L | 
