This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay compensation of   `2,87,000  with interest @12% from the date of institution of this complaint.

          The case in brief is as follows: complainant constructed a building No.II/186 A at Thiruvangad Amsom, Desom which is under the co-ownership of herself and her husband. As per agreement on 21.7.07 opposite party agreed for laying marble on the floor of the newly constructed building. As per agreement opposite party would supply  lavendra marbles at `120 per sq.feet and Makrane marbles at `93 per sq. ft. Complaint paid an advance amount of one lakh rupees and subsequently on  31.07.2007 an amount of `1,05,000.So also on the following payments also made viz.

10.08.07                              `55,000

19.08.07             ` 5,000

31.08.07            ` 27,500

         Thus the complainant had paid a grant total of `2,92,500 to opposite party. There after another agreement was executed on 04.09.07 for laying of Lavendra marbles on the ground floor. Rate of laying makrana marbles on the first floor was `20 per sq.ft. It was also agreed between the parties that the complainant need to pay charges for only half of the total running feet. It is also agreed to pay labour charges after every week measuring the total work. The labour charge paid to opposite party was `5000 on 04.09.07. `10,000 on 26.09.07, `20,000 on 28.09.07, `20,000 on 03.10.07 and `2,000 on 12.02.08 and hence the total amount paid under the 2<sup>nd</sup> agreement was `57,000. The opposite party had not acted in accordance with the faith and trust and hence committed breach of contract. The marbles supplied by the opposite party were of cheep and inferior quality. The complainant made huge payments to opposite party in good faith for supplying marbles of higher superior quality. The marbles were of inferior quality and visible crackes almost every where on the marbles laid on the floor. Polishing of marbles could not be undertaken as the marbles tend to break up into pieces. The complainant approached the opposite party and requested him to re-lay the marbles in the building using good quality ones. But the opposite party refused the request made by the complainant. The workmanship of the opposite arty was also very poor and the edges of the marbles laid were disorted and broken in several parts. Final polishing can be done only after re-laying marbles of good and superior quality. The total extent of makrana marbles laid is 963 sq.ft. and Laavendra marble is 1354 sq.ft making total 2317 sq.ft.The payment already given to opposite party was excessive. Total amount for marble is `2,52,039 ie. `89,559 for makrana marbles and `1,62,480 to lavendra marbles. Both the complainant paid `2,92,500, out of which `40,000 is in excess. The complainant had suffered both mentally, physically and financially due to the deficient service of opposite party. Hence this complaint.

In pursuance to the notice issued by the Forum opposite party appeared and filed his version admitting the agreement on 21.07.07 for the supply of marble from Rajasthan and the marbles to be delivered at the site of nearby constructed house of the complainant. As per agreement the opposite party delivered lavender marble and Makrana marble from Rajasthan. The opposite party received `2,95,500 to opposite party through  4 payments and agreed  to settle the account after the pavement of the marbles. As satisfied the complainant entered into another agreement with opposite party on 04.09.07 for laying work at the rate of `23 per sq.ft. for laying the lavender marble at the ground floor and `20 per sq.ft. for laying makrana  marble at the first floor. It was agreed that for the total amount of skirting shall be calculated at half the running feet. The rate for molding work for lavender marble was to `23 and for makrana marble was `20. It was also agreed that for the boarder with designing `60 and boarder plain `23 and for finishing the laying work, the polishing work shall be technical or  mirror polish for stair case also  rate was fixed. After the entire polishing work of marble, the measurement of marble paved shall be calculated to assess the consideration due to the opposite party and also there are provisions to make advance payments for the labour work and after finishing the complainant has to pay the consideration due to the opposite party. The marbles supplied by opposite party were superior quality. It is incorrect to say that there were visible cracks. Marble is a natural stone and  no visible cracks as alleged. The averment that polishing of marbles could not be undertaken as the marbles tend to break up into pieces is false and baseless and this averments  reveals that the complainant in violation of agreement terms has attempted to polish the marble without the knowledge of opposite party. The complainant has not approached the opposite party or raised any complaints as alleged. The allegation that the workmanship of the opposite party was very poor and the edges of the marbles laid were distorted and broken is also false. The opposite party has completed only the rough finishing work and has to do the final finishing polishing work as provided in the agreement. The agreement has not been repudiated by complainant and hence it is in forcee.  The complainant has not objected about the quality of marbles when the same were delivered. The opposite party has received `57,000 towards laying and finishing charges and also prepared to finish the remaining finishing work as per agreement dt. 04.09.07.

          The complainant requested the opposite party to complete the finishing work of one bed room at first floor since the marriage of her daughter was fixed during February 2008 and allowed the complainant to finish remaining work of polishing after the marriage and gave `2000 on 12.2.08 and promised to pay the balance after completing the remaining work and the marriage was solemnized at Shazi Auditorium, Thalasery. After marriage opposite party approached the complainant several times to compel the final finishing work. But the complainant and her husband left to Dubai. The carpentry work for doors and window shutters were done from the marble flooring and this was adversely effected the finishing of the marble flooring and the opposite party is not responsible for the same. The allegation that the cost of the total marbles is `2,52,039 and `40,000 was paid in excess is baseless. There was no excess payment and huge amount is due to the opposite party.  1865 sq.ft of lavener marbles were used for laying on the floor, skirting and for moulding in the ground floor. 1696 sq.ft. of makrana  were used for the flooring, skirting and moulding in the first floor. Total cost of lavender marbles on the ground floor is `2,23,850 and that of makrana on the first floor is `1,57,698 making a total amount of `3,81,548. Out of this `2,92,500 was paid by the complainant and `89,048 is still due from the complainant by way of cost of the marbles used. As per the agreement dt.04.09.07 `42,895 as labour charge for ground floor, `33,920 for first floor and boarder labour charge is `4,554 making labour charge as `81,639. The complainant has paid only `57,000 and hence there is  balance of `24,369 and hence a total amount of `1,13,417 is due to the opposite party as completion of the finishing and polishing work undertaken as per the agreements entered between the parties. The advocate commissioner inspected without giving notice to opposite party and is a relative of complainant residing very near to the complainant’s house. The complainant has not suffered any mental agony and pain as alleged. Marbles were supplied by M/s. Shri Ganesh marbles (P) Ltd. Borawar Bye Pass Road, Borawar, Nagaur, Rajasthan and M/s.Ahamed Hassan Kunda Basha Choudary, Jusri road,  Rajasthan are necessary parties to decide the dispute. There is no cause of action as alleged. The marbles were not damaged and  no replacement is required and complainant is not entitled to any compensation. The opposite party may be permitted to complete the final finishing and polishing work and direct the complainant to pay `1,13,417 to opposite party and the opposite party is also entitled to collect the remaining marbles available in site. There is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed.

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 to get the relief as   prayed in   the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 and  Exts.A1,A2 and C1and C2.

Issue Nos.1 to 3

The complainant contended that due to the defective marbles supplied by opposite party and poor workmanship in laying the marbles she was not in a position of satisfactorily enjoying the living in the house and suffered so much of mental, physical and financial hardship and was not able to solemnize the marriage of her daughter from there.  In order to prove her case her Power of Attorney holder was examined as PW1 and documents such as agreement dt.21.07.07, 04.09.07, commissioner’s repot with expert engineers report and plan of ground floor and first floor were produced. In order to disprove the case the opposite party was examined as DW1.

The opposite party contended that the complainant has to implead the persons who were supplied marbles. But as per Ext.A1 agreement, the agreement was with the opposite party and the complainant and hence we are of opinion that  there is no need to implead them as necessary parties.

Admittedly the opposite party had supplied the marbles and also had done the laying work. In order to answer issue No.1 it is to be decided two questions ie. Whether the marbles supplied by the opposite party is defective and whether the workmanship is poor.  Regarding quality of marble, the complainant contended that he had supplied superior quality of lavendra marbles and makrana Marbles for laying in the ground floor and first floor respectively. The Ext.A1 is for supplying marbles of 2600 sq.ft.and if it is makrana marbles it is `93 and `120. If it is lavendra marbles per sq.ft. and accordingly the opposite party had supplied lavendra marbles and makrana marbles and admittedly he has received `2,92,500. But the complainant contended that `40,000 is paid in excess. According to the complainant total extend of marble used is 2317 sq.ft. But according to opposite party  1865 sq.ft. lavender marbles and  1696 sq.ft. of Markrane marbles were also used for flooring. But in ext.C2 expert’s report he had very clearly stated about the quantity of the marbles used. The commissioner reported that the quality of Lavendra marbles used in the ground floor including skirting is 129.19m2  ie. 1390.6 sq.ft. and the quantity of makrana marbles used for borders and moulding works in ground floor comes to 5.42 m2 ie. 58.34 sq.ft. Similarly the quantity of makrana used in the first floor is 92.7 m2 ie. 999.92 sq.ft. and the quantity of lavendra in the first floor is 3.63 m2 ie. 39.07 q.ft. So according to the complainant 999.82 + 58.34 = 1058.16 sq.ft. Makrana marble and 1.390.60 + 39.07 = 1429.67 sq.ft. Lavendra marbles were laid on the floor of  the complainant. So 1058.16 sq.ft. Makrana marble + 1429.67 sq.ft. Lavender marble make a total  quantity of 2487.83 sq.ft. were laid on the floor. The commissioner further reported that 159.31 sq.ft. of makrana marbles and 16.95 sq.ft. Lavendra marbles were kept in the yard. In the calculation portion commissioner has made same mistake by showing that total floor area of marbles laid. He had reported it as 2265/82 sq/ft. But actually it will get 2487.83 sq.ft. The commissioner further reported that the marbles laid on the ground floor rooms were with lavender marbles and has not been finished. On thorough inspection a number of visible cracks and minor temperature cracks are observed and these cracks were found sealed using coloured fillers, broken marble and adhesive. The floor area of the all rooms was thoroughly verified and in almost rooms cracks to the marbles were noticed. Also in most of the rooms hollowness below the marbles laid were noticed. At few places the skirting is also seen finished not to lines and levels and the joints of the moulding works at few places were not finished properly. The first floor was laid with makrana marbles and the floor was not been finished except for the one bed room in the first floor. Minor cracks ere observed to the marbles laid in the first floor also to a lesser extent. At some places discoloration to the marbles were noticed. According to the commissioner defective marbles were used. Considering  all these aspect it is seen that the lavendra marbles laid in the ground floor were more defective than that of makarana marbles laid in the first floor.

Regarding workmanship the commissioner reported that, hollowness below the marbles laid was noticed is an indication of poor workmanship. The laying work may have been done in a hasty manner. Proper care has not been taken by the labourers at the time of laying for the proper seating of marbles over the cement mortar bedding. A dull sound is heard knocking on the floor marbles laid. So according to the commissioner the workmanship is not up to the required standard. So from the above discussion it is seen that the workmanship in laying the marble is very poor. So we are of the opinion that there is deficiency of service and unfair trade practice on the part of opposite party in supplying and laying the marbles to the complainant’s house.

          The lavender marbles laid on the first floor is defective and hence it has to be relayed. As stated earlier 1429.67 sq          .ft. lavendra marbles were laid on the floor of the complainant.

 Purchase price of the above marbles at `120 per sq.ft.

                                                                     = 1,71, 560

The Makrana marbles laid in the first floor has some minor defects and according to the pleadings and commission report, we are of opinion that the minor defect can be cured by final polishing. For polishing the commissioner calculated `8/sq.ft. So in order to polish 1058.16 sq.ft makrana marble =1058.16 x 8

                                                                        `8465.28

And the opposite party has to pay this amount also to complainant fur curing the defect.

          The complainant further contended that towards value of marbles he has paid `40,000 in excess.

          As per Ext.A1 agreement value of makrana marble per sq.ft. is `93.

So value of Makrana marble = 1058.16 x 93

                                                                     `98,408.88

Purchas price of lavendra marble is                 `171,560

                                                               = `2,69,968.88

Admittedly the complainant has paid `2,92,500 towards the purchase price of marble. So the opposite party has to refund `22,532 from this. Admittedly the opposite party has received `57,000 as labour charges. Labour charge for 2487.83 ft. marble at the rate of `20/sq.ft.                           = `49,756.6

  Skirting charges calculated by the Commissioner= `5,833

Moulding charges                                                   = `18,076                   

                                                                              = `73,665.6

                                                                              =`16,665.6

So from this it is seen that the complainant has to pay `16,665.6 to the opposite party as balance of labour charge for the work done.

So from the above discussion it is seen that the complainant is entitled to the following relief

(1)                             The opposite party has to pay purchase price of  lavendra marbles ie.        `1,71,560.

(2)                             The amount required for polishing first floor, ie. Makrana marbles                   `8,465.28

(3)                             The opposite party has to repay 5,866.4 after deducting `16,665.6 as balance of labour charge from the balance purchase price of marble `22,532.

                                   Total                     = `1,85,891

So the opposite party is liable to pay `1,85,892 along with `5000 as compensation and `3,000 as cost of the proceedings to the complainant and order passed accordingly.

                    In the result, the complaint is allowed directing the opposite party to pay `1,90,892 (Rupees One lakh Ninety Thousand Eight hundred and ninety two only) as compensation with   `3,000 (Rupees Three thousand only) as  cost of the  proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of consumer protection Act. Opposite party can take back 16.95 sq.ft lavender marbles and 159.31 sq.ft of Makrana marbles kept in the yard of complainant.

                             Sd/-                   Sd/-

President                Member 

APPENDIX

Exhibits for the complainant

A1 & A2.Copies of the agreement

Exhibits for the opposite party:

Nil

Exhibits for the court

C1 & C2. Commission reports (Advocate and Engineer)

Witness examined for the complainant

PW1.Thasleem.V

Witness examined for the opposite party:

DW1.Sharafudheen

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer disputes Redressal Forum, Kannur.