D.O.F. 23.09.2009

                                          D.O.O. 08.05.2012

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 8^th day of May, 2012.

C.C.No.255/2009

Majeed K.K.,

S/o. Moidu,

‘Maharoof Nivas’,

Achukulangara,                                          :         Complainant

P.O. Paral, Madapeedika,

Thalassery.

(Rep. by Adv. C.G. Arun)

M/s. Marble India,

Saidarpalli, Main Road,                              :         Opposite Party

Thalassery

(Rep. by Adv. A.P. Ashokan)

                                                 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 replace 1178 Sq. ft. Indo Italian marble slabs purchased from them or to pay `1,20,000 to complainant as compensation along with the cost of the proceedings.

          Complainant’s case in brief is as follows :  Complainant purchased 1178 Sq. ft. Indo Italian marble slabs @ `63 per Sq. ft. on 21.03.2006, 07.04.09 and 29.04.09 for a total amount of `74,211.  The complainant paid `63,000 in cash and a cheque for the balance amount.   Opposite party made believe the complainant that the slabs supplied to the complainant was the same as that of the state in the display board.  He had also made believe that the shining and quality would be visible only after paving the tiles and polishing the same.  But complainant did not get such shining as showed in the display board. Cracks in the state also were visible in most of the slabs.  Opposite party willfully supplied inferior quality slabs.  When it was informed about the defects and inferiority he undertook to replace all the slabs and promised that the cheque would only be encashed  after replacing the slab.  But opposite party did not fulfill his promise.  Opposite party supplied slabs costing less than `30 per Sq. Ft. instead of the original Indo Italian marble costing `63.  Complainant sent lawyer notice calling upon to replace and re-pave with the original Indo Italian marble slabs or to pay `1,20,000.  But no reply was sent by opposite party.  The failure of opposite party to replace or to pay compensation amounts to deficiency in service.  Opposite party is liable to replace all the marble slabs.  Hence this complaint. 

          Opposite party filed version raising the following contentions :  One Majeed came to the shop on 07.04.2009 and purchased 251 Sq. ft. of marble slabs and paid a total amount of `11,307.55.  The allegation that complainant purchased marble on 21.03.2009 and 29.04.2009 is incorrect.  The rate per Sq. Ft. was `40.  The marble is a natural product and the selection of the same is the discretion of the buyer.  Opposite party sold the marble selected by the complainant.  The allegation that inferior quality marbles costing less than `30 per Sq. ft. is not correct.  The opposite party did not receive any cheque from the complainant. It is true that notice was received but no reply was sent because the notice was not mentioned to whom for it was sent.  Opposite party never supplied inferior quality slabs.  Complainant is not entitled for any relief.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been framed for consideration.

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

2.     Whether the complainant is entitled for any relief as prayed for?

3.     Relief and cost.

The evidence consists of oral evidence adduced by PW1, DW1 and documentary evidence Ext.A1 to A7, Ext.X1, B1 and B2.  Except Ext.A4 all other documents on the side of complainant marked with objection subjected to prove.

Issues No.1 to 3 :

          Complainant alleged that he had purchased 1178 Sq. Ft. Indo Italian Marble slab at the rate of `63 per Sq. Ft. on 21.03.09, 07.04.09 and 29.04.09 for a total amount of `74,211.  It is denied by opposite party and partially admitted that Mr. Majeed purchased 251 Sq. Ft. of marble slabs on 07.04.09.  Opposite party contended that complainant did not made any purchase on 21.03.2009 and 29.04.2009.  The rate of purchase also disputed and according to opposite party it is `40 per Sq. Ft.  The payment of `63,000 in cash and issuance of cheque bearing No. 04741 is also disputed and denied by opposite party.  Opposite party contended that complainant had to pay altogether `11,307 and opposite party received the full amount.  He did not receive any cheque.  Opposite party also contended that the reply to lawyer notice had not been sent since there was no mention about for and on behalf of whom it was sent. 

          So, from the outset it is necessary to examine the details of purchase.  Opposite party admitted only the purchase made on 07.04.2009 for `63,000 at the rate of `40 per Sq. Ft. Ext.A1 is bill marked with objection.  It is seen issued to Maharoof.  The article purchased is Indo-Italian Marble slab.  The total amount is `53,650.  This bill dated 21.03.2009 is neither proved nor explained to what extent it related to complainant’s transaction with the opposite party.  The contents of the bill no way seems to be related to complainant.  So that the purchase on the cash bill Ext.A1 can not be taken as proved.  Ext.A2 is the cash bill dated 07.04.2009 in the name of Mr. Majeed for `15,983.16.  There is no name by whom it was issued.  The bill does not bear the name of the establishment from where it was brought.  The marking of the document was objected by opposite party.  It is also not proved.  The bill dated 29.04.2009 also doesn’t bear the name of the establishment.  Marking of this document also objected and not proved by complainant adducing evidence.  Ext.A5 and A6 are also bills marked with objection.  These documents are not bearing the name and signature of the establishment / opposite party.  So the above said bills do not hold good to establish the purchase of the complainant since it lack supporting evidence.  Anyhow without going further the purchase of 251 Sq. Ft. at the rate of `40 can be taken as proved since that is an admitted fact. If that be so an amount of `11,307 received by the opposite party can only be considered payment made by the complainant.  Then arose an important question of cheque.  Complainant alleged that he made payment for certain amount by means of cheque bearing No.04741, Kodiyeri Co-operative Bank, Madapeedika Branch.  But complainant did not take steps to prove this payment.  If that was proved it would have been strengthen the entire case of the complainant.  An amount paid by cheque can easily be proved.  It is a clear proof which is difficult to dispute, since the money transaction had been taken place through banks.  If it is not proved, that non attempt has to be taken into account as a source of suspicion adverse to complainant since it is a matter the complainant could have been succeeded in establishing his case to a great extent.  This is a case wherein opposite party pleaded that he had received no payment by means of cheque from the complainant.  If complainant was able to prove the payment which he had made by the cheque, that itself would have been sufficient enough to cut the root of the contention put forward by the opposite party.   Payment by cheque is a best evidence to prove the transaction between the parties, especially when it was denied by the opposite party.  Inaction of complainant not proving the payment by the cheque really weakened the case basically, since cheque being an instrument easily possible to prove free from doubt.  In the cross examination DW1 deposed that “cash sImSp¯ ka-b¯v cash bill X¶n-«n-Ã.  Cash bill tNmZn-¨n-«n-Ã.  Ext.A1, A2, A3 _nÃp-IÄ 2010-þ-emWv F\n¡v In«n-b-Xv.  Bb-Xn\v {]tX-yIw Imc-W-an-Ã.  Ext.A1, A2, A3 _nÃp-I-fn Øm]-\-¯nsâ t]tcm kotem CÃ.  _nÃv X¶-bmsf hnkvX-cn-¡p-¶n-Ã.  If-hmbn D­m-¡nb _nÃmWv F¶p ]d-ªm icn-b-Ã.”  Since the bills as such lacks the name and particulars of the establishment from where it was purchased, the genuinity can be suspected.   However it is not a proved document which cannot be relied upon.  Hence there is absolutely no evidence whatsoever let in by the complainant to show that he had purchased 1178 Sq. ft. Indo Italian Marble Slabs from opposite party.

          Complainant sent a legal notice to opposite party on 13.08.2009.  No reply was sent.  There is a question whether adverse inference can be drawn or not.  It was contended by opposite party that the legal notice was not replied because it did not contain to whom for it was sent.  If that be true it is not possible to draw any adverse inference against opposite party or else cannot be treated any fact admitted on that ground.  Ext.A4 is the legal notice.  On going through the notice it can not be seen to whom for the notice was sent and who instructed to sent the same.  It is not possible to understand who had instructed the counsel to sent the notice.   Except saying “my client” the particulars of “my client” has not been given anywhere in the notice.  Under such circumstances the non-reply of legal notice cannot be blamed in any sense, whatsoever written or alleged in the notice.

          Complainant has taken out a commission for the purpose of assessing the quality of marble slab.  The perusal of the report Ext.X1 submitted by the Commissioner reveals that the quality of the marble slab laid at the site is not very good but is not very bad also.  There are several cracks visible on most of the slab.   Some of which are along the centre.  There are some stains found on some of the slabs which are not removable by any means.   The marble laid is an ordinary variety and not Indo Italian marble.  Its quality is average. The average cost of the marble laid would be approximately `40 to `45 per Sq. Ft.  The case of the opposite party is that complainant purchased 221 Sq. Ft. of marble slab from the opposite party `40 per Sq. Ft.   Complainant failed to establish that he had purchased entire marble slabs from opposite party.  Regarding the price also the evidence adduced by the complainant shows that he had purchased the slab for a cost of `40 per Sq. Ft.  PW1 in his cross examination deposed that “251 Sq. Ft. marble slab am{Xta hm§n-bn-cp-¶p-sh¶v D¯-c-¯n ]d-ªXv icn-b-Ã. 40 cq] sh¨mWv X¶Xv F¶p ]d-ªm icn-bm-Wv.”  What does complainant pleaded is that he had purchased 1178 Sq. Ft. Indo Italian marble slab @ `63 per Sq. Ft.  The admission in cross examination that the price was @ `40 makes it clear that the conclusion of commissioner in Ext.X1 that the slabs are of average quality is reliable.  It is pertinent to note that commissioner has reported that “Several cracks visible on most of the slabs.”  That means cracks are not seen in all slabs.  In the evidence available on record does prove only 251 Sq. Ft. out of 1178 Sq. Ft. purchased from opposite party.  So it is not possible to jump into conclusion that there are cracks on the slabs purchased from the opposite party.  DW1 was elaborately cross examined but practically nothing was brought out.

          Taking into account, the evidence available on record we find that the complainant is miserably failed to prove his case and hence issues No.1 to 3 are found against complainant.

          In the result the complaint stands dismissed.  No cost.

                         Sd/-                           Sd/-                      Sd/-

                     President                    Member                Member               

APPENDIX

Exhibits for the Complainant

A1.  Bill dated 21.03.2009.

A2.  Cash bill dated 07.04.09.

A3.  Bill dated 29.04.09.

A4.  Lawyer notice dated 13.08.09.

A5.  Ledger account.

A6.  Ledger account.

A7.  Acknowledgment card.

Exhibits for the opposite party

B1. Bill book.

B2. Register (Form No:88)

Exhibits for the Court

X1.  Commission report.

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1. Manoli Muhammed

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT