KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO. 337.2010

JUDGMENT DATED 29.01.2011

PRESENT:-

SMT. VALSALA SARANGADHARAN      : MEMBER

SHRI. M.V. VISWANATHAN                     :  JUDICIAL  MEMBER             

APPELLANT

The Managing Director,

Surabhi Supreme Marbles and Granites(Pvt.) Ltd.,

HI/133 Padayattil House,

Kallupalam road, Angamali – 683572,

Ernakulam. 

                                   ( Rep. by  Adv. Sri.R.S. Kalkura & others)

                                  Vs

RESPONDENT

        Tom C. Michael,

        Chamakkalayil House,

         Muttom P.O.,

         Thodupuzha 685 587,

         Idukki District.

                                (Rep. by Adv. Sri. Abdulkharim & Narayan R.)

.

JUDGMENT 

SMT. VALSALA SARANGADHARAN      :     MEMBER

This appeal is preferred against the order dated 30.1.2010 of CDRF, Idukki in C.C. 59/09.  The complaint therein was filed by the respondent herein as complainant against the appellant as opposite party, whereby the Forum below directed the opposite party to take back the balance Jubrana Model tiles and to returned the price of the tiles which was fixed as Rs. 56.50 as per the Ext. P1 and C1 Commission report.  The Forum below also directed the opposite party to pay a sum of Rs. 10,000/- as compensation and Rs. 2,000/- as costs to the complainant.

          The case of the complainant is that  he purchased 1,550 square feet of Jubrana G.T. 24x12 model granite tiles and 110 square feet  of Tiger Skin G.T. 24x12 model granite tiles for Rs. 93,500/- for the renovation of his textile shop.  At the time of purchase the opposite party assured that all the tiles will be of same design and colour.  On 13.3.2009 the opposite party delivered the tiles and the complainant paid Rs. 93,260/-  But the opposite party  supplied bill only for Rs. 63,123/- On 14.3.2009 the complainant  opened the tile box of Jubrana Model and it was revealed that all the tiles were of different in design and colour.  But due to the urgency to inaugurate the   Wedding Saree section he laid some tiles.  The matter was informed to the opposite party on 17.3.2009, the complainant approached the opposite party for getting the tiles of the same design and colour by replacing 514 numbers of Jubrana model tiles but the opposite party denied the same and informed the complainant that he  is ready only to replace the unlaid tiles, after excluding the tax  for the  entire tiles  and expenses met by him for transportation.   Hence the complainant filed complaint before the Forum claiming a sum of Rs. 1,70,000/- as compensation on the ground  of deficiency in service along with  other relief.

          The opposite party filed version denying the alleged deficiency in service.  He also challenged the maintainability of the complaint and denied the alleged purchase of tiles by the complainant.  He further submitted that at the time of purchase, different models of tiles were shown to the persons who approached there and that the granite tiles are natural material and there will be variation in colour.  So the tiles should be floored by selecting the tiles from different boxes.  He further submitted that the opposite party never supply tiles to the complainant at Thodupuzha and that the tiles were purchased by a person named Binil Mathew and the complainant paid only Rs. 63,132/- to the opposite party.  Pleading that there was no deficiency in service, the opposite party requested for the dismissal of the complainant.

        The evidence adduced consisted of oral testimony of Pws 1 to 4, Dw1, Exts. P1 to P4 , R1 and C1 to C3 reports. 

          We heard the learned counsel for the appellant and respondent.  The learned counsel for the appellant submitted that the Forum below can not be justified in finding that the complainant purchased the tiles from the opposite party.  He further pointed out that the Forum below failed to take up the issue regarding jurisdiction as a preliminary issue.  He submitted that the colour variation in the tiles was natural earmark of the product itself and hence variation in colour under any circumstances could not be treated as a defect.  Moreover Ext. P3 would show that the complainant had purchased the tiles for a low cost for a low quality of tiles.  He argued for the position that the tiles purchased for commercial purpose for lying in the showroom of a business house.  He also attacked the compensation and costs awarded by the Forum below. Thus he prayed for setting aside the impugned order passed by the Forum below.

          On the other hand the learned counsel for the respondent/complainant supported the findings and conclusions arrived at by the Forum below.  He argued for the position that the tiles were purchased by one Binil Mathew who is the manager of the complainant and he was examined as Pw2 and he deposed to the effect that he purchased the tiles for the complainant.  The learned counsel for the respondent/complainant submitted that though the complainant paid Rs. 93,620/-including Rs. 120/- as driver’s bata to the opposite party,  they supplied bill only for Rs. 63,123/- and when he opened the tile box of the Jubrana Model for flooring,  it is revealed that all the tiles were of different in design and colour.  But the opposite party was willing only to replace the cost of the balance unlaid tiles after excluding tax and expenses met by them for transportation.       Thus he canvassed for the position that the order of the Forum is only to be upheld.

          On hearing both sides and on perusing the records we find that it is the case of the respondent/complainant that he purchased 2 models of granite tiles from the opposite party.  The respondent/complainant had alleged deficiency in service and unfair trade practice on the part of the opposite party in effecting the sale of Jubrana model tiles which have variation in design and colour.    From the deposition of Pw2 the Manager of the complainant, it is clear  that he purchased  the tiles  for the complainant.  The available evidence on record would show that the manager of the complainant  purchased the tiles from the opposite party for the complainant.  Thus the contention of the opposite party that the Forum below is not justified in finding that the complainant purchased the tiles from the  opposite party  cannot be accepted.  So we have no hesitation to discard the aforesaid contention of the appellant/opposite party.  Though it is argued by the learned counsel for the appellant that the complainant has purchased the tiles for commercial purpose, it is to be noted that the complainant has purchased the same not for any resale or for making any profit.  The purchase was for laying the same in his business premises and it has no direct nexus with the profit making process.  So it can be concluded that the purchase was not for commercial purpose and so the complaint is maintainable.  The Forum has elaborately discussed the question of jurisdiction and has found that part of the cause of action has arisen within the jurisdiction of the Forum below.   We also agree with the said findings.  

          Ext. C1 report filed by the Advocate Commissioner would show that 275 tiles which were laid on the floor of the respondent/complainant were of different colour and design and the remaining unlaided tiles also having different colours and as per Ext. C2 report the value of Jubrana Tiles 2/1 size is shown as Rs. 58/- and it comes to Rs. 81,200/- for 1,400 square feet but as per the deposition of Dw1 the office manager of the opposite party  the price of Jubrana tiles per square feet  was Rs. 56.50 and he admitted the issuance of P1 estimate.  As per Ext. P1, the price of the said tiles per square feet was shown as 56.50.    Ext. C3 series is the photographs produced by the Commissioner which would show that the tiles floored were of different colour and design and are not matching.

          No doubt that the complainant had to replace the granite tiles but the actual expenses required for replacing the defective tiles were not mentioned in the Commission report.  The Forum below   directed the opposite party to take back the balance  unlaid Jubrana model tiles purchased by the complainant and to return the price of the tiles which were laid and it was  fixed as Rs. 56.50 per square feet .  The Forum below also directed the opposite party to pay Rs. 10,000/- as compensation for the mental agony caused to the complainant with costs of Rs. 2,000/- considering the expenses incurred by the complainant and also the fact that the complainant suffered mental agony and inconvenience, the compensation of Rs. 10,000/- ordered by the Forum below can be treated as reasonable.  We do not find any cogent grounds to interfere with the impugned order passed by the Forum below.  Hence the same is confirmed.

          In the result the appeal is dismissed and the impugned order dated 30.1.2010 of CDRF, Idukki in C.C. 59/09 is confirmed.  As far as the present appeal is concerned there shall be no order as to cost.  

                        VALSALA SARANGADHARAN      :     MEMBER

                        M.V. VISWANATHAN              : JUDICIAL MEMBER

ST