BEFORE THE HON’BLE STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, PONDICHERRY

Dated this the 17^th day of December, 2015

C.C. No. 2 / 2008

Mananathan,

Chairman cum Managing Director,

Manatec Group of Companies,

Puducherry.                                     …….                                       Complainant

Vs.

Marbles Centre International Pvt. Ltd.,

Bangalore                                          ……..                                   Opposite Party

BEFORE:

HON’BLE THIRU JUSTICE K.VENKATARAMAN

PRESIDENT

TMT.K.K.RITHA,

MEMBER

THIRU S. TIROUGNANASSAMBANDANE,

MEMBER

FOR COMPLAINANT :

Tmt.S.Hemambujam

Advocate, Puducherry.

FOR OPPOSITE PARTY:

Thiru. V. Vaithilingam,

Advocate, Puducherry.

O R D E R

(By Hon'ble Justice President)

1.   This complaint is filed by the complainant under Sec 12 of the Consumer Protection Act 1986, setting out the following facts:

1. He has placed orders to opposite party for supply of marbles of two verities one Italian marble and another one American beige marble. After placing the orders on 24-05-2005, the Complainant along with his architect and the manager visited the opposite parties shop and has seen the samples displayed by them. After verification of the samples and satisfied with the same, the complainant placed orders for supply of Italian marble and American beige. It is the further case of the Complainant that he was under the boanafied impression that the opposite party would supply the marbles as displayed by them in the show room.
2. On finishing and polishing, the complainant observed that the Italian marble supplied by the opposite party was good looking but however the American beige marble supplied by the opposite party was very bad and ugly with stains, not etc. Immediately the opposite party was contacted and informed about the American beige marbles supplied by them. On 25-06-2006 Mr.Rajkumar Lada along with experts from Bangalore came to Puducherry and physically verified the laying of the American marble. He infact accepted that the marble looks ugly and it is not looking as samples displayed by the opposite party. The opposite party deputed one Mr.Kishore gowani for applying the chemicals and re-polishing. He stayed at Puduchery for a week and carried out the re-polishing with chemical. However, there was no improvement at all. Hence again it was brought to the notice of Mr.Rajkumar lada. But he did not reply to the complainant. The complainat sent a letter dt 15-07-2006 to Mr.Rajkumar lada expecting a positive reply. However he did not reply for the same. Therefore the complainant has came forward with present complaint for the following reliefs.
   1. directing the opposite party to pay a sum of Rs.3,18,303/- towards the amount paid for the purchase of the marbles with its accrued interest theron U/Sec. 14(1) (e),
   2. directing the opposite party to pay a sum of Rs.2,56,911/- towards borders, laying and polishing charges spent by the complainant, U/Sec. 14(1) (e),
   3. directing the opposite party to pay compensation of Rs.25,00,000/- towards the mental gony U/Sec. 14(1) (  )
   4. directing the opposite party to pay compensation of Rs.5,00,000/- towards the future expenses U/Sec. 14 (1) (  )
   5. directing the opposite party to pay a sum of Rs.5,00,000/- towards compensation for the dificiency of service on the part of the opposite party U/Sec 14 (1) (d).
   6. directing the opposite party to pay a sum of Rs.5,000/- towards the cost of this complaint U/Sec 14 (1) (i)
   7. and pass such other suitable orders as this Hon’ble court may deems fit and proper in the interest of justice.

2. The opposte party field a counter version seting out the following facts.

1. There is no casue of action for the complainant to the file the present complaint before this commission, as the alleged cause of action took place at Bangalore city even as per the averments made in the complaint. Since the entire cause of action has arison at Bangalore Karnataka city, this Hon’ble Commission has no Jurisdiction to decide the matter intiated at the instance of the complainant.    
2.  Though it is true that the complainant has placed orders for purchase of marbles, it is false to state that the supply that was made was not the one that was shown to the complainant. Marbles are thoroughly selected, checked and approved by the opposite party after the concurrence of his architect and one Mr. Sankar, said to be the manger of the Complainant. Only those marbles who were selected checked and approved by the complainant were loaded and taken to the destination by the complainant. The variation in colour, texures and design, if any are the natural characters in the stone and the dealer by no such imagination could be held responsible for the same.
3. The terms and condition of the sale which came to be accepted by the complainant as found in the invoice and  in token of his acceptance, the complainant’s representative has subscribed a signature in the invoice.
4. The completion of laying work in the first floor was done by the complainant by engaging his men. After completion of the laying work, if the floor is not giving the design look it has got to be said that the workmen ship involved in laying of the marble settle the not to the extend one would have expected. No un-fair trade practice on the part of the opposite party and therefore the complainant is liable to dismissed. That apart there is no deficiency in service on the part of the opposite party and no defects in the goods. 

Hence the complaint is liable to dismissed.

3. On behalf of the complainant, the complainant examined himself as CW1 and Exhibits C1 to C8 were filed and marked. On the side of the opposite party one Mr.K. Narendra kumar Jain was examined as RW1 and no document was filed on behalf of the opposite party. 

4. We have heared the learned counsel appearing for the complainant and as well as the counsel appearing for the opposite side. We have also perused all the relevant documents including the complaint and the reply version filed by the opposite parties.

5. The points for determination in this complaint are:

1. Whether the complainant is a consumer as defined under the Consumer Protection Act? 
2. Whether the complaint is maintainable before this commission and whether the state commission has got jurisdiction to decide the complaint?
3. Is there any deficiency of service on the part of the opposite party?
4. To what other relief the complainant is entitled to?

6. As regards the first issue whether the complainant is a consumer under the Consumer Protection Act, we are of the view that since the complainant has purchased marbles from the opposite party which according to him found certain defects, it has to be held that the complainant is a consumer as defined under the Consumer Protection Act.

7. As for as the second issue whether the complaint is maintainable before the state commission at Puducherry, first of all we have to see the averments made in the complaint and as well the version filed on behalf of the opposite party. It is the case of the complainant that the marbles were placed orders from the opposite party at Bangalore and it was sent to Puduchery for laying the same at the residence of the complainant. When the consignment has been sent to Puducherry and it was laid in Puducherry one cannot say, that the state commission has no jurisdiction to decide the matter. Even though the opposite party is having office at Bangalore and the consignment have been booked by the complainant at Bangalore since the same has been delivered at Puducherry and laid in the premises at Puducherry, the Puducherry state commission has got jurisdiction to decide the matter. Therefore while agreeing with the contentions raised on behalf of the complainant and rejecting the contentions raised on behalf of the opposite party, we are of the firm view that the state consumer disputes Redressel commission puducherry has got judistion to decide the matter in issue.

8. The next point that has to be seen is that, whether the opposite party has supplied defective materials to the complainant. It is the case of the complainant that he along with his architect Mrs. Mythily and manger Sankar visited Bangalore and seen the samples displayed at the opposite party show room and after verification of the samples and after satisfying with its royal look, placed orders for the supply of Italian marble and American beige.

9. However it is contented on behalf of the opposite party that the marbles were selected, checked and approved by the complainant and later it was loaded and taken to the destination by the complainant. In more than one place the opposite party in his reply version as stated that the complainant after selecting, checking and approving the marbles loaded the same to Puducherry. Even in the cross examination by the counsel appearing for the opposite party, a specific questions was put to CW1 stating that the goods dispatched were already selected, checked and approved by him, his manager and architect before loading. To this CW1 replied that he has seen only samples. In our considered view the entire consignment of about 2740.47 Sq. Ft would not have been seen either by the complainant or by his manger or Architect. It is not humanly possible to check all the consignment of several Sq.ft. In our considered view the complainant and his men would have seen only the sample and that they would have been shown only the samples of the marbles and on the basis of the samples found therein the complainant would have booked for the goods. Therefore we have no other option but to agree with the complainant that the complainant and his men have seen only the samples that have been displayed in showroom and that they would not been selected, checked and approved all the consignment before it could be loaded to the destination.

10. Then we have to see whether the goods were supplied by the opposite party was very well in order. On behalf of the complainant Exhibits C1 invoice was filed. Exhibits C2 is the letter dated 06-06-2006 which was sent by the complainant to the opposite party where he made a complaint regarding the marbles that have been supplied. It was pointed out in the said letter that the Italian marble was in order but however the American beige marble were looking dirty after it was laid and polished. If really the opposite party felt that the marbles were in order and that the complainant has taken the marble after selecting and checking the same, definitely a reply would have been sent by the opposite party immediately after the receipt of Exhibit C2. That apart another email was sent by the complainant on 11-07-2006 to the opposite party in which he has made similar complaint. However there was no reply from the opposite party. It was followed by another email dated 15-07-2006 which was also not replied. Under Exhibits C5 another email dated 21-07-2006 was sent to the opposite party but there was no reply. The opposite party as stated already examined one Mr. Narendra kumar jain as RW1. In the cross examination it is stated by him that a reply has been sent to Exhibits C3. It is also stated in the cross examination that said reply has been filed before the commission. However no copy of the reply was filed before this commission. In the further cross examination, he has stated that he has sent reply to Exhibits C4 but at the same time it is stated by him that he has not filed the same before the commission. This will clearly prove that the opposite party has neither sent reply to Exhibit C3 nor to C4. As stated already if the complainant taken delivery of the marbles, after the same was checked and verified, as contended by the opposite party, immediately reply would have been sent to the complainant stating that, since the goods have been verified by them they are not responsible for any defects found in the marbles supplied by them.

11. One more aspect that has to be seen is that on receiving the letter from the complainant, it is an admitted case that the opposite party has sent men to Pondicherry to find out the position of the marble that have been laid. The respondent company has sent a team to polish the stone. As stated already if the marbles were selected and approved by the complainant after verifying each and every one of the stone that have been supplied to them, the respondent would not have sent a team of people to Puducherry to find out the defects pointed out by the complainant and that the opposite party would not have asked its men to re-polish the stones. The said act of the opposite party makes us to believe that the marbles have been supplied by the opposite party, on the orders placed by the complainant after seeing only the samples displayed at the opposite parties place and that the contention of the opposite party that the complainant after selecting and checking the entire marbles took delivery of the same.

12. The learned counsel for the opposite party cited a Judgement rendered by the Hon’ble National Consumer Disputes Redressal commission, New Delhi, reported in 2015 (3) CPR 583 (NC) (in the matter of Ms. Anjali nath Vs. M/s.Bhowal & Co., and others) and contended that if a natural product such as a marble stone purchased on the basis of its appearance and the origin does not prove to be of the quality expected by buyer, seller of the product cannot be held responsible for the weakness of the stone.

13. The said Judgement will not come to the rescue of the opposite party for two reasons. Firstly because that is a case where the complaint of the buyer of the marble was that the marbles cracked soon after it was got fixed. On facts, it was found that there is no evidence of the opposite party having sold marbles of 20-25MM thickness to the complainant. Therefore the Hon’ble National Commission held that if the natural stone cracks after fixing it can be due to variety of factors such as inherent weakness of the stone or the deficiency in the process of fixing the said stone. However in the present case it is the case of the complainant that the marbles supplied by the opposite party was bad and ugly with stains etc.,

14. Secondly that is a case where there is no evidence of any assurance about any particular quality of stone having been given by the opposite party to complainant. But in the present case it has fund that the complainant purchased marbles from the opposite party on the basis of the samples displayed by it in its show room.

15. Therefore we have to hold that the said Judgement will not come to the rescue of the opposite party.

16. Then we have to see how much was the defective marbles. The complainant himself restricted his claim to an extend of 1600 Sq. Ft. However the Junior Engineer who assisted the Advocate commissioner has given the figure of 1701.31 Sq.Ft. But photo’s filed before us along with the report of junior engineer shows that only in certain area the marbles looks ugly. For instance in balcony area of 26.83 Sq.ft (Photos No’s 63 and 64); sit out area of 143.88 Sq.Ft (Photos 50 to 56), another balcony area of 23.60 Sq.ft (photos 70 to 72), and a part of marbles laid in lobby / passage (photos 78, 79 and 90), (measurement not available) were looking ugly. Likewise some photos shows ugly look but the exact measurement not known, since the measurement was taken combining certain area and for that photo’s have been filed. Therefore we are unable to come to a definite conclusion about the extent of marbles which are defective. Further for small cracks found in the marbles after laying the same, the opposite party cannot be blamed. Since those cracks cannot be visible before polishing the same. Therefore approximately we can held that the opposite party is liable to pay Rs.1,50,000/- for the defective marbles supplied by the opposite party. A sum of Rs.2,50,000/- would be justifiable for mental agony, deficiency of service, damages and future expenses. The opposite party also has to pay a sum of Rs.5,000/- towards cost that was claimed in the complaint.

17. Thus the complaint is ordered directing the opposite party to pay

1. A sum of Rs.1,50,000/- towards the cost of marbles which were supplied by the opposite party which found to be defective.
2. A sum of Rs.2,50,000/- towards mental agony, damages, deficiency in service and for further expenses.
3. A sum of Rs.5,000/- towards cost of the complaint.
4.  

Dated at Puducherry this the 17^th Day of December 2015.

HON’BLE THIRU JUSTICE K.VENKATARAMAN

PRESIDENT

TMT.K.K.RITHA,

MEMBER

THIRU S. TIROUGNANASSAMBANDANE,

MEMBER