CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the  30^th  day of November, 2016

PRESENT  : SMT. SHINY.P.R, PRESIDENT                           Date of filing: 15/05/2015

                  : SMT.SUMA K.P, MEMBER

                  : SRI. V.P.ANANTHA NARAYANAN, MEMBER

CC/68/2015

  P.S.Pradeep,

  S/o. P.A.Sukumaran,

  House No. 18/202, behind the civil station,              :      Complainant

  Kallekkad, Palakkad.

  Rep.By P.G. Sunitha, W/o.P.S.Pradeep.

  (By Adv.R.Venu & Sachindas.P)

                                                                                                                                                                                      Vs

Jayaprakash,

S/o. Koochu, Pandanpadam House,                           :     Opposite party

 Edathara (Po), Parali, Palakkad Taluk.

Pin-678611.

(By Adv. T.U.ShaikhAbdulla)

                                                O R D E R

By Smt. Suma K.P. Member

          The case of the complainant is that, he had ordered for supply of baked bricks for the construction of a residential house to the opposite party. The opposite party agreed to supply 20,000 bricks @Rs.4.40/brick which amounts to Rs. 88,000/- (Rupees Eighty Eight Thousand Only) at their construction site. As per the terms, the complainant paid Rs.88,000/- (Rupees Eighty Eight Thousand Only) in advance on 18/03/2015 to the opposite party. Since the amount was paid in advance, the opposite party unloaded 20,000 bricks in tipper of 10 loads on 19/03/2015 of RKS brand, and piled and heaped up the bricks in a careless manner. In the process of unloading the tipper by mechanical means just like unloading sand and metal, a lot of bricks were broken and caused nuisance to the complainant by blocking the way to the house construction site. The Opposite party had not even cared to satisfy the quantity of bricks to the complainant. The complainant had begun the construction of the wall of his house on 03/04/2015. The masons working at the sites informed the complainant that the bricks are dissolving in the water, when it was kept for wetting before construction. The working masons had also warned that, if this bricks are used for the construction, it is dangerous for the life of the dwellers of the house. Hence the house construction was stopped immediately. On 04/04/2015 the complainant had informed the opposite party over phone. The opposite party had assured that the problem will be solved immediately. On the basis of the assurance, the complainant waited but there was no response from the opposite party to rectify the problem. The complainant reminded the opposite party on 07/04/2015 and again he assured that the problem will be solved on the next day. The complainant contacted opposite party on several occasions and due to the pressure of the complainant, the opposite party had visited the complainant’s house construction site on 09/04/2015. The complainant showed the inferior quality of the brick and pathetic condition of dissolving the bricks in the water, soaked the bricks for wetting before the construction work. The opposite party had realized the problem and agreed to replace the problematic lot of bricks with a new lot within a week and returned. Since there was no move on the side of the opposite party to replace the bricks the complainant again contacted over phone. On 16/04/2015 a tipper lorry with some loading and unloading workers came to the complainant’s construction site and told that they were sent by the opposite party to pick up the bricks. The complainant showed the bricks that are to be picked up to the workers.   On seeing the pathetic condition of the bricks that were dissolved in the rain, they told that this cannot be loaded in the tipper, since the bricks are in the soil form. They left without picking up in the bricks. On the next day complainant informed the fact to the opposite party and also informed that loading and unloading workers returned due to the pathetic condition of the bricks, the opposite party became furious and had told the complainant that he is not ready to replace the inferior quality of bricks or to return the price of Rs.88,000/-. Due to the above act of opposite party, the complainant was forced to purchase 16,000 bricks at a higher price of Rs.5.15/brick. The complainant’s house construction was also delayed by three months. The price of the building materials and labour charges etc was increased. Hence the complainant had approached before the forum seeking an order directing the opposite parties to pay Rs.1,80,400/- for the deficiency of service on the part of the opposite party.

          The notice was served to the opposite party for appearance. Opposite party entered appearance through counsel and filed version contending the following.

The opposite party denies the entire allegations in the complaint and had stated that he had not supplied any bricks to the complainant. He had appeared before the Forum just because he had received notice  from the Forum and had asked to file version as per the notice. The father’s name mentioned in the complaint is also wrong. There was no dealings between the opposite party and the complainant as stated in the complaint. The opposite party had not received any amount from the complainant and he is not aware of the construction of residential house of the complainant. Complainant had never telephoned to the opposite party as stated in the complaint. The bricks manufactured by the opposite party is of high standard and it never melts as stated in the complaint.  The bricks are loaded from the work site usually by the labourers of  the opposite party. Some customers usually transport bricks in tippers so as to avoid the loading charges paid to the labourers. In such cases  there is a possibility of breaking of bricks  upto 75 nos. per tipper loads.  This complainant  might have used tipper lorry so as to avoid unloading charges which might have caused the breaking of bricks.  Even then there is no possibility of damages as stated in the complaint.   The opposite party never used to supply bricks at the work site. The opposite party had never seen the complainant. The bricks mentioned in the complaint branded as “R.K.S.” might have been manufactured by this opposite party.  The opposite party not responsible for the damages caused due to the negligent unloading. The opposite party had never visited the work site of the complainant. Opposite party is not liable to pay any amount as compensation towards the complainant. Hence the complaint had to be dismissed.

          Along with the complaint complainant had filed an emergent application for appointment of an advocate commissioner to inspect the work site and the nature of the bricks therein.  Application was allowed and an advocate commissioner inspected the property and filed a detailed report.  Complainant filed chief affidavit. Ext.A1 to A7 was marked from the part of the complainant. Commissioner report was marked as Ext.C1. Complainant filed application as IA 368 of 2015 to amend the complaint. IA was allowed and amendment was carried out. Opposite party also filed proof affidavit along with application to cross examine the complainant. Application was allowed and complainant’s wife who is the authorized agent was examined as PW1.Complainant produced sample of the bricks which was marked as MO1 & MO2. Complainant had also filed application for cross examination of opposite party. Opposite party was cross examined as DW1.  Evidence was closed. Matter was heard.

Issues that arise for consideration

1. Whether there is any deficiency of service on the part of opposite party?

2. If so, what is the relief and cost entitled to the complainant?

Issues 1 & 2

          According to the opposite party he had not delivered any bricks to the work site of the complainant and had also denied the payment of advance amount of Rs.88,000/-.   The complainant had alleged that the opposite party had introduced him as in his pet name “Kannan” and accordingly notice was issued from the Forum in the said name which was promptly delivered to the opposite party whose real name was Jayaprakash. As per the contention of the opposite party in their version compliant was amended accordingly. Opposite party had admitted his mobile no. as 9497160234 which was alleged by the complainant. During cross examination the opposite party had deposed that he had stopped the brick business during the year 2014. This fact was not pleaded in the version or in the chief affidavit filed from his part.  He had also admitted during cross examination that. “Rm³ Hcp hÀjw RKS F¶p t]cpff sN¦Ãv Nqf h¨n«p­v.” Rm³ IÃp sImSp¡pt¼mÄ temUv Ibäpt¼mÄ Xs¶ ]Ww hm§pw.(page 2 of the cross examination line 25).  Opposite party had also admitted that his mobile number is 9497160234.  The complainant had filed Ext.A6 series and opposite party had not denied those documents. Opposite party during cross examination had deposed that sN¦Ãv hym]mc¯n\p _n D­v.  kpamÀ 100 t]À¡v IÃv hnän«p­mIpw.  B hnäXn\p _n _p¡v FgpXnh¨n«p­v.  _n _p¡v ssIbn Ds­¦n lmPcm¡mw.  KGST bn cPnÌÀ sNbvXn«p­v.  SmIvkv AS¨Xnsâ tcJ lmPcm¡mw.(cross exam. Page 2 line 6) But no such bill book or sales tax returns filed are not produced before the Forum by the opposite party. From the above it can be inferred that opposite party is not in the habit of issuing any bills to anybody, in the course of brick business. In the light of the above statement we infer that the opposite party had received an amount of Rs.88,000/- towards the price of 20,000/ bricks.

          When MO1 was shown to the opposite party, Cu MO1 FtâXÃ. du­v ko kvamÄ seäÀ BWv.  du­v koepw kvamÄ seädpw Bb kvs]knsa³ Fsâ ASp¯nÃ.  But in the version filed by the opposite party he had stated that RKS branded bricks might have been manufactured by opposite party and during cross examination he had admitted that. Rm³ Hcp hÀjw RKS F¶p t]cpff sN¦Ãv Nqf h¨n«p­v.

          Since the opposite party had admitted that his brand is in round seal using small letters he ought to have produced the same sample to prove his case. But no such evidence was produced from the part of the opposite party.

          According to section 101 of Indian evidence act whoever desires any court to give judgement as to any legal right or liablilty depend on the existence of facts which he asserts, must prove that those facts exists. when a person is bound to prove the existance of any facts it is said that the burden of proof lies on that person. In this particular case opposite party has admitted that he had done the business of manufacturing bricks branded RKS in round seal and small letter.  He might have produced a particular sample before the Forum so as to deny that the MO1 produced was not manufactured by him. So as to prove the case of the complainant the complainant had taken out an advocate commission to prove that the bricks were damaged before the construction.  The commissioner had inspected the site and filed a report stating that bricks lying infront of the proposed site were seen melted and was flowing through the rain water H¶p c­v sN¦Ãv FSp¯pt\m¡nbt¸mÄ AXp s]mSnbp¶ AhØbnembncp¶p. ]cmXn¡p ImcWambn¯oÀ¶ FÃm IÃnepw RKS F¶p tcJs¸Sp¯nbn«p­v.  GItZiw 1500 Hmfw F®w 12 aoäÀ AIsebmbn Iq«nbncn¡p¶p.  `n¯nbpsS 7 sse³ RKS F¶p tcJs¸Sp¯nbn«pff sN¦ÃpIÄ D]tbmKn¨mWv \nÀ½n¨n«pffXv.  AXn\p apIfnte¡p thsd RKS F¶p tcJs¸Sp¯m¯ sN¦ÃmWv D]tbmKn¨ncn¡p¶Xv.  B Ggp sse³ IÃp hyàambn Xncn¨dnbm³ km[n¡p¶p­v.  aäp sN¦Ãns\ At]£n¨v Cu IÃpIfpsS \ndw amdnbXpw ]cp]cp¯ {]Xet¯mSpIqSnbXpw icnbmb BIrXn CÃm¯XpamWv.  GItZiw 4000 t¯mfw RKS F¶p tcJs¸Sp¯nb IÃpIÄ Cu 7 \neIÄ ]Wnbp¶Xn\p D]tbmKn¨n«p­v.

          From the above statement and evidences produced before the Forum, it is clear that the opposite party had manufactured and supplied RKS brand bricks to the complainant and had received an amount of Rs.88000/-towards price of 20000/bricks.  The opposite party had also not filed any objections to the advocate commissioner’s report. The case of the opposite party is that he had no acquaintance with complainant(para 23 of notes filed by complainant)  prudent man initiating legal action against an unknown person, without any valid reason.  In the above circumstances the complaint is allowed. And we direct the opposite party to pay Rs.75000/-( Rupees Seventy five Thousand only ) as price of the defective bricks and also the additional cost incurred by the complainant to purchase further bricks from alternate source and also the cost incurred to remove the useless bricks supply by the opposite party, along with Rs.25000/-(Rupees Twenty five Thousand Only)towards the pain and suffering due to the deficiency of service on the part of opposite party and also Rs.5000/- ( Rupees five thousand only) towards the cost of the proceedings. 

          The aforesaid amount shall be paid within one month from the date of receipt of this order failing which the complainant is entitled to realize interest @ 9% for the whole amount from the date of order till realization.

Pronounced in the open court on this the  30^th  day of November 2016.   

                                                                                       Sd/-

   Smt. Shiny. P.R

                         President

                              Sd/-

             Smt. Suma. K.P

                           Member         

Sd/-

                Sri. V.P.Anantha Narayanan

                           Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 series– Photographs showing bricks

Ext.A2  –Bill no.345 issued by bhavana studio for Rs.200/-

Ext.A3 –CD containing photographs

Ext.A4-Photocopy of building plan.

Ext.A5- Photocopy of building permit

Ext.A6-Extract of mobile phone calls (01/03/15 to 30/05/2015)

Ext.A7- Palakkad Co-Operative Urban Bank Limited statement from 01-03-2015 to 30/04/2015

Ext.MO1-Random sample of the RKS Brand brick which are manufactured to show that is of inferior quality (Partially dissolved condition).

Ext. MO2- Random sample of the RKS Brand brick, which are manufactured to show that is of inferior quality (More than half dissolved condition).

Exhibits marked on the side of opposite party

NIL

Commission Report

C1-Sheeba Devassy

Witness examined on the side of complainant

PW1-Sunitha.P.G.

Witness examined on the side of opposite party

DW1-Jayaprakash

Cost allowed

Rs.5000/-as cost