DOF.22.4.2005 DOO.15.9.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 15th day of September 2010 C.C.No.108/2005 P.V.Padmanabhan, ‘Anjali’ Ramatheru, Pallikkunnu.P.O. Complainant (Rep. by Adv.Deepa Chandran) Etta Sathyan, ‘Etta House,’ Behind Milma Diary, Podikundu, P.O.Pallikkunu. Opposite party (Rep. by Adv. P.V. Abhayakumar) 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, 50,000/- as damages with interest and cost. The complainant’s case in brief is as follows: Complainant entrusted the flooring work to the opposite party. On 3.9.2000 complainant purchased marble slabs worth Rs.33, 000/-. Opposite party opined that the said slab were not suitable for front varanta.So complainant returned 7.5.16x3 slabs and purchased MCS 81 X 45 X 4 slabs having Rs.60/- per sq.feet. But opposite party cut the slab again in to pieces and paved in the varanta without getting the original design. In the bed room also it was paved in an irregular manner without considering the design or the flow of grains on the marble. The marbles were also paved in the stair case step in such a manner making the step irregular on account of uneven and irregular plastering of cement before the pavement. The boarder line of the wall was also not tally with the design of the floor. More over, opposite party collected Rs.16/- per sq.ft. though it was fixed Rs.7/- at the time of entrustment of the work. Altogether the opposite party has collected a sum of Rs.24, 000/- as labour charges for a total area of 1000 sq. ft. and issued a receipt for the same at the time of settling the account. Polishing work was done by him through another worker and then it was found that the opposite party has paved the marble in an irregular and negligent manner without taking care of the design. Thus the entire marbles looks awkward ugly without having roper design of the flow of grains. The opposite party has cut the marble slabs and made it in to pieces without any basis not considering the flow of grains on the marble and paved without designing it properly. Now the entire marbles has to be removed and lay again fixing the design with flow of grain. Complainant also collected an amount of Rs.4, 708/- under the head of polishing charge saying that he has done some polishing work on stair case steps and border line of rooms. Complainant forced to believe it since complainant was not at station prior to the flooring work as he was met with an accident and under treatment. After finishing polishing work the complainant contacted opposite party and informed about the facts. The opposite party agreed to settle the matter but did not. Complainant sent lawyer notice for damages on 14.3.2005. Opposite party sent notice with baseless. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version contending that he had undertaken marble work of the complainant’s house fixing a rate as Rs.8/-. Opposite party never collected Rs.16/- per sq.feet. It is false that the opposite party has done the polish work of the floor. It was done by another person. The opposite party has done the pavement of marbles, some plastering and other small works of late rite stone. The complainant had purchased marbles in his own style and design and required to pave the same as directed. Even though the opposite party has conducted the work the complainant had interfered in the work suggesting different style. The entire work done by the opposite party is under the direction of the complainant. The design and style is suggested by the later himself. If any defect is made or design is changed definitely it can be rectified at the time of the pavement itself. In fact all allegations are made only after the request of the opposite party to pay the balance amount of wages. The opposite party has done pavement of marbles, plastering and paving of late rite stone work cost Rs.12,600/- but complainant has paid only Rs.4200/- and Rs.8,400/- is still in balance to be paid to the opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed? 3. Relief and cost. The evidence consists of the oral testimony of PW1, DW1, Exts.A1 to A6 and Ext.C1. Issue Nos. 1 to 3 It can be seen that the case of the complainant is that the flooring work of his newly built house was entrusted to opposite party for laying marble slabs. Admittedly opposite party is a marble worker His main complaint is that the entire laying work in Varantha, bedroom, stair case etc. looks awkward, ugly without having proper design of the grains. Opposite party contended that he had done pavement of marbles some plastering and other small work of laterite stone. Opposite party further contended that complainant had purchased marble of his own choice and he interfered in the work suggesting different stages. The contention of opposite party that he had done pavement of marble some plastering and other small work of laterite stone has not been specifically denied by complainant. That means opposite party has not only done the work of laying of marble but also some other work. Hence the nature of work that the opposite party has done reveals that he is a coolly worker. From the very outset complainant stated that he returned 3 slabs of marbles since the opposite party opined that the said slabs were not suitable for front varantha. Thus the question of suitability of marble starts from the very beginning. It can also be seen that there was no complaint till the laying of slabs were completed. Admittedly the marble slabs were purchased by complainant as his own choice. Expert commission was appointed out of the panel of complainant. He submitted Ext.C1 report. Complainant filed objection to the report of the expert commissioner contented that the expert has failed to mention the exact details of the mismatches in the concerned rooms. He further contended that commissioner had used the word minor mismatch in spite of there is major irregularities in laying of the marble slabs. Complainant filed proof affidavit in lieu of chief examination in tune with his pleadings. It is alleged that though new slabs were purchased it was layed in Varantha by cutting in to pieces different from original design. The laying in bed room also was not in proper way. Since the laying of slabs on the steps of staircase was not in sequence it caused difference in height and size. Laying of the boarder of the floor also was not in match with the design. The laying as such looks awkward. Ext.A4 series photographs of floor also produced to substantiate the allegation of complainant. Ext.A1 is the lawyer notice calling upon to pay a sum of Rs.1, 50,000/- as damages. Opposite party also filed proof affidavit in lieu of chief examinations stating that he is only a coolly worker doing work according to direction of persons who called to do work. He has done laying work of the marble which was purchased by the complainant and some other works of laterite stone. He states that he is not having engineering knowledge in measurement and calculation as an expert and the same is known to complainant. He further stated that he has done work in accordance with the direction of the complainant. He has also stated that complainant is a night watchman and will be available in house during day time. Opposite party has also taken the contention that complainant has not paid the balance amount of his coolly. In the cross examination complainant deposed that opposite party is a coolly worker. He has also stated that it is not correct to say that he has done the work of laterite stone. He has done plastering and some other works. To a specific questions complainant has deposed that before starting the laying work he has not shown to opposite party any design that was prepared by an architect. He has further deposed “ Fsâ \nÀt±-i-{]-Im-cT BWv design sh¨-Xv. Marble IqSn tNcp-T-t]m-gmWv design Dm-Ip-¶X. Rm³ hm§n-s¡m-Sp¯ amÀ_n-fnsâ Unssk³ {]Im-cT sh¡m-\mWv \nÀt±-in-¨-Xv“. If it is so complainant could have directed the opposite party to do the work as he wanted. The expert commissioner in his report Ext.C1 stated that marble slabs used in the rooms are of same type and that of varanada flooring is with different colour and grain. On verification it is noticed that size of majority marble slabs used are of size 1.20 meter X 2.03, 2.6m. x 0.80 m, 2.06 x 1.00 m on a detailed inspection it is felt that laying and polishing work of the marble flooring done in the house occupied by the complainant is generally in order and satisfactory except for minor mismatch in the flow of grains in the marble flooring in the bed rooms, drawing room and front varanda. Ext.C1 further states that even for an attempt to set right the flow of grains in order, concerned slabs are to be removed from position and to be re-laid. In the process there is every possibility of causing damages to the already laid marble slabs, which cannot be reused. Expert commissioner opinioned that rectification to correct the mismatch in grains is not possible at this stage with the available material. In his opinion it should have been pointed out by the complainant while laying and got rectified before polishing. According to commissioner variations in the size of the marble slabs used also adds to the possibility of mismatch in the flow of grains. The expert report makes it clear that there is minor mismatch in the laying of marble slabs. As is stated by commissioner the rectification to correct the mismatch in grains is not practically possible. Anyhow commissioner has reported on the basis of detailed inspection that he felt that the work of marble flooring done in the house occupied by the complainant is generally in order and satisfactory. Opposite party deposed in cross examination thus:” Marble design {]Im-cT sNbvX-Xv Rm\m-Wv. ]cm-Xn-¡m-csâ \nÀt±-i-{]-Im-c-amWv sNbvX-Xv. ]cm-Xn-¡m-c³ ]d-ª-{]-Im-cT sNbvXm Unssk³ icn-bm-Inà F¶p-]-d-ªn-cp-¶p. AXv {]iv\-aà F¶p ]cm-Xn-¡m-c³ ]d-bp-I-bp-m-bn. “Complainant also in his cross examination deposed that the laying was done as per his direction thus: Fsâ \nÀt±-i-{]-Im-c-amWv Unssk³ sh¨-Xv. However, complainant was present and involved in the laying work. That being the position it is correct to suggest as Expert Commissioner stated that it should have been pointed out by the complainant while laying the slabs. Hence it is clear the carelessness or absence of vigilance on the part of complainant caused to contribute the deficiency of mismatch in the laying marble slabs. It has come in evidence that the opposite party is not a qualified expert in building construction. He was called to do the work knowing well that he is not an expert. In this case complainant should be more vigilant. It cannot be said in the absence of a written agreement that there was a perfect understanding with respect to what is to be done in the laying of marble so as to get a perfectly matching design with flow of grains. Purchase of slabs however has done by complainant. So it is not possible to make any comment upon suitability of selection how far helpful to get the expected degree of full match of design with flow of grains. Thus it can be rightly conclude that the degree of negligence on the part of complainant equalize the degree of mismatch in the flow of grains in the marble flooring. In view of the above discussion we are of opinion that complainant failed to establish his case casting liability upon the opposite party and thus issues 1 to 3 are found against complainant. In the result the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the lawyer notice sent to OP A2.Postal receipt A3.Postal AD A4.Photograph of the flooring A5.Cash bill issued from Has Marbles. A6.Receipt ( for wages)issued by OP Exhibits for the opposite party: Nil Exhibits for the court C1.Commission report Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.A.Sathyan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
