BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.386 of 2015
Date of institution: 04.08.2015
Date of Decision: 26.05.2016
Anil Gupta son of Late Des Raj Gupta, resident of # 180, Ward No.7, Bassi Pathana, District Fatehgarh Sahib.
……..Complainant
Versus
1. Jai Mata Marble & Granites, Lakhnaur, Tehsil and District SAS Nagar, Mohali through Subhash.
2. Subhash c/o Jai Mata Marble & Granites, Lakhnaur, Tehsil and District SAS Nagar, Mohali.
3. Brajesh (Munshi) c/o Jai Mata Marble & Granites, Lakhnaur, Tehsil and District SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vijay Kumar, counsel for the complainant.
Shri G.S. Bhatti, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
- Pay him Rs.3,292/- with interest @ 12% per annum from 04.08.2014 till realisation.
- To pay him Rs.50,000/- as compensation.
(c) to pay to him Rs.8,800/- as costs of unwanted litigation.
The complainant purchased 400 sq. ft. Kota Marble which is also called as Madona Marble in the shape of 2’x 2 ‘ from OP No.1 through OP No.2 @ Rs.45/- per sq. ft. for Rs.18,800/- on 04.08.2014. 100 pieces of marble having size of 2’x 2’ were to be delivered to the complainant by the OPs. The complainant paid an amount of Rs.18,800/- in cash alongwith VAT to the tune of Rs.2,574/-. The OPs had assured the complainant that the marble would be delivered to the complainant on the same day. Accordingly the marble was delivered to the complainant through Tempo bearing No.PB-12-H-8386 vide bill dated 04.08.2014. In the bill the OPs had mentioned the rate of marble as Rs.18/- per sq. ft. and it was also mentioned that the marble was 350 sq. ft. instead of 400 sq. ft. The complainant contacted the OPs about the rate and measurement of marble. OP No.2 assured the complainant that on measurement the marble would be 400 sq. ft. and regarding rate it was stated that it is a rough bill sent by them just to save the VAT. OP No.2 assured that the exact bill with exact size will be issued soon. After few days the Mason of the complainant informed him that the marble was of different size and each piece was about 22”x22” instead of 24”x24” due to which the total measurement of the marble came to 336 sq. ft. instead of 400 sq. ft. On contacting the OPs, OP No.2 and 3 assured that less marble would be delivered on the next visit of the complainant. The complainant visited the OPs on 21.08.2014 for purchasing other marble items. The complainant asked the OPs to deliver the short marble measuring 64 sq. ft. and 32 feet more marble of same quality at the same rate with slate title of 10 sq. ft. The OPs refused to give him the short delivered marble and constrained the complainant to buy 96 feet marble. The complainant having no option paid an amount of Rs.4320/- to OP No.1 and 2 for purchasing 96 sq. feet marble of same quality at the rate of Rs.45/- sq. ft. The OPs had also charged VAT @ 14.30% from the complainant. The complainant also asked for the correct bill but the OPs assured that the exact bill of earlier marble will be delivered to him. However, on 21.08.2014 the OP only delivered the marble but had not delivered the bill of exact price of marble purchased on 04.08.2014.Thereafter the complainant visited the OPs many times regarding delivery of short marble measuring 64 sq. ft. and issuance of exact bill but every time OP No.1 and 2 made false excuses and returned the complainant empty handed. Ultimately OP No.2 assured the complainant to refund the amount of 64 sq. ft. marble with VAT to him before 31.01.2015. However, on 31.01.2015 OP No.2 flatly refused to return the cost of 64 sq. ft. marble with VAT. The complainant then got issued legal notice on the OPs by seeking refund of Rs.2880/- i.e. the cost of 64 sq. ft. marble alongwith VAT of Rs.412/- but till date the amount has not been refunded to him. Thus, with these allegations the complainant has filed the present complaint.
2. The OPs in the written statement have pleaded that the complainant never demanded Madona stone from the OPs and they are not only seller of Madona quality marble in the market of Mohali as the said quality of marble is lying in 7-8 shops in the market of Mohali. The Kota stone is not called as Madona. There is no quality of Kota Marble and Madona Marble in the market but actually the same is called Kota Stone and Madona Stone. The OPs never sold 100 pieces of madona marble in the shape of 2 x 2 feet to the complainant. Rather the OPs have sold 104 pieces of Kota stone in the shape of 22 inch x 22 inch (350 sq. ft.) to the complainant @ Rs.18/- per feet. Vide bill dated 04.08.2014 for Rs.7200/-. The OPs have also sold 12 pieces (96 feet) of kota stone to the complainant in the shape of 2 feet x 4 feet (big piece/thapi) and 100 feet slate tile @ Rs.24/- per feet. On 21.08.2014. The complainant had not paid Rs.18,000/- @ Rs.45/- per sq. ft. on 04.08.2014. The complainant never demanded marble and never made any complaint about short delivery of marble. The complainant is not entitled to cost of 64 sq. ft. marble with VAT from the OPs as there is no deficiency in service on their part. The complainant has made a false story just to create false evidence. Denying any deficiency in service and unfair trade practice, the OPs have sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-4.
4. Evidence of the OPs consists of affidavit of Subhash Ex.OP-2/1 and copy of bill Ex.OP-2/2.
5. We have heard learned counsel for the parties and have gone through the written arguments filed by them.
6. The disputed question raised in the present complaint is regarding supply of under sized marble as compared to the actual size of marble at the time of purchase. As per the complainant he has purchased 100 pieces of 2’x2’ size of marble from the OPs 04.08.2014 and paid a sum of Rs.18,800/- including VAT whereas upon delivery of the goods through tempo No.PB-12-H-8386 the complainant has received wrong and false bill mentioning the rate of said marble @ Rs.18/- per sq. ft. and instead of 400 sq. ft. marble, the bill has mentioned 350 sq. ft. marble as is evident from bill No.579 dated 04.08.2014 Ex.C-2 which the complainant has received through the transporter while taking delivery of the goods from the OPs. Further upon verification the size of the marble was found to be less by 2”. Thus in the whole transaction the OPs have indulged into unfair trade practice by issuing false and wrong bill mentioning less rate per sq.ft., less quantity of marble and short size of the marble.
7. The OPs have denied all these allegations though has admitted having sold the marble to the complainant as per Ex.C-1 and C-2. The complainant has not produced any evidence to show the payment of Rs.18,000/- made to the OPs against the bill dated 04.08.2014. On the contrary the total amount shown in both the bills i.e., Ex.C-1 Rs.7681/- and Ex.C-2 Rs.7200/- when summed up together does not come to the total sum of Rs.18,000/-. The mere allegation without any supporting evidence is of no help to the complainant.
8. Regarding short supply of stocks the conjoint reading of Ex.C-1 and C-2 shows that as per Ex.C-1 96 ft. Kota stone and as per Ex.C-2 350 sq. ft. kota stone has been supplied by the OPs. The total sum of pieces of comes to 446 feet. Whereas the complainant has pleaded that he has purchased 400 sq. ft. kota stone. Thus the plea of short supply of kota stone again is not supported by evidence. Rather Ex.C-1 and C-2 when read together prove supply of delivery of 446 sq. ft. kota stone to the complainant.
9. The next issue i.e. short size of the kota stone by 2”. In this regard, the stocks were delivered to the complainant on 04.08.2014 and 21.08.2014 as per complainant’s own version and admission. He has come to know about the short size after 10 days when the stocks were in his possession. There is no evidence of the Mason who has noticed the short size of the marble. Thus, in the absence of any cogent evidence the plea of short size of the supplied marble is not tenable.
10. The complainant has miserably failed to support his contentions raised in the complaint on all accounts and it seems that the complaint is frivolous and vexatious without any substance in the same and is, therefore, dismissed with cost of Rs.10,000/- as per Section 26 of the Consumer Protection Act. The cost so levied on the complainant be paid in the Legal Aid Account of this Forum within a period of 30 days from the date of receipt of certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
May 26, 2016. Sd/-
(Mrs. Madhu P. Singh)
President
I don’t agree and give dissent view.
Sd/-
(Amrinder Singh Sidhu)
Member
I don’t agree and give dissent view.
Sd/-
(Mrs. R.K. Aulakh)
Member
Anil Gupta Vs.Jai Mata Marble & Others.
Dissent view of Members Decided on: 26.05.2016
We don’t agree with the order of the Ld. President of this Forum on the point “it seems that the complaint is frivolous and vexatious without any substance in the same and is, therefore, dismissed with cost of Rs.10,000/- as per Section 26 of the Consumer Protection Act. The cost so levied on the complainant be paid in the Legal Aid Account of this Forum within a period of 30 days from the date of receipt of certified copy of this order.”
We don’t agree with cost of Rs.10,000/- levied upon the complainant because Ld. President has imposed this cost just on the basis of presumption as she herself writes that “it seems that the complaint is frivolous and vexatious…..” Cost cannot be imposed if complaint seems to be frivolous and vexatious but if it is found that it is frivolous and vexatious complaint. Rather complaint seems to be genuine but complainant cannot prove it on record to the satisfaction of this Bench. In view of the above mentioned discussion, we don’t agree with order of Ld. President of this Forum on the point that complaint is dismissed with costs of Rs.10,000/-. We agree with the rest of the order of the Ld. President of this Forum.
Pronounced.
May 26, 2016.
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
