Delhi

North East

CC/317/2014

Amrit Pal Kaur - Complainant(s)

Versus

M/s Durga Marble - Opp.Party(s)

-

13 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 317/14

 

In the matter of:

 

	Smt. Amritpal Kaur W/o Harjap Singh R/o L.I.G-56, Pocket –C, G.T.B. Enclave Delhi-110093.	Complainant
	Versus
	M/s Durge Marble Through its proprietor Anil Kumar & Varun Kumar B-42, East Jyoti Nagar, Loni Road, Durgapuri Chowk, Shahdara, Delhi-93.	Opposite Party

 

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

19.08.2014 06.02.2018 13.02.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that the complainant had purchased “Katni Marble” in bulk quantity i.e. 782.37 Ft marble stone @ Rs. 60  per sq. ft from OP on 30.01.2014 alongwith 175 running ft black granite marble for a total sale consideration of Rs. 51,944/- including sales tax charges + transport and cartage on rough estimated bill as the OP never issued the original bill to the complainant. However the stone mason (mistri) of the complainant who was appointed for fixing marble stone informed the complainant that the said marble stone purchased from the OP was defective and of worst quality for which reason it was very difficult to cut the marble properly in desired shape due to filling of artificial solution in it and suggested the complainant to return the same and exchange with a better quality material from OP. Thereafter the complainant went to the showroom of OP on 01.02.2014, 02.02.2014, 03.02.2014 and lastly on 05.02.2014 and asked for replacement and return of the marble stone and also for original bill and on 05.02.2014. When the complainant went to the OP’s shop alongwith her husband, the OP showed the complainant “MODWAR” marble @ of Rs. 75 per sq.ft including sale tax and compelled the complainant to purchase the proposed material on the basis of rough estimated bill as the OP were not ready to refund the money to the complainant. The complainant has submitted that here again the OP refused to give any original bill. The complainant has submitted that later on the same day, she came to know that the actual price of Modwar marble was not more than Rs. 33-35 per sq.ft. The complainant has further submitted that the OP accepted only                Rs. 590.22 sq. ft (out of the total earlier purchase Rs. 782.37 sq.ft of katni marble) for exchange and refused to accept the remaining material of 192.15 sq.ft due to the cutting of marble in two pieces and due to this non adjustment, the OP burdened the complainant with cost of Rs. 11,531 towards the remaining material of 192.15 sq.ft. The complainant has further stated that the OP has charged very high amount of Rs. 50,529/- @ of Rs. 75 per sq.ft (including sales tax) for new material + Rs. 1,000/- exchanged cost + Rs. 3,000/- transport and labour charges thereby a total sum of Rs. 54,529/- was paid by the complainant to the OP. The complainant stated that as per breakup of Rs. 11,531/- + Rs. 27,000/- (for new purchase) + Rs. 1,000/- exchange cost + Rs. 3,000/- for transport and labor charges, unnecessary and extra burden of Rs. 42,531/- (including sales tax) had to be paid by the complainant to the OP. The complainant has submitted that during 30.01.2014 to 05.02.2014 the complainant had continuously visited the shop of the OP for exchange of defective material, however the OP failed to do so and has been deficient in service and has indulged in unfair trade practice causing mental pain agony and financial turmoil to the complainant. Therefore the complainant was constrained to file the present complaint praying for directions to be issued by this Forum to the OP to refund the excess amount of Rs.  42,531/- taken by the OP alongwith 1,00,000/- towards compensation for mental pain, agony and financial turmoil and Rs. 15,000/- towards litigation expenses.
2. Notice was issued to the OP and written statement was filed by the OP on 20.01.2015. The OP took the preliminary defence that the quality and quantity of the Katni Marble was to the full satisfaction of the complainant as also the pricing of the same. The OP further stated that the Mason of the complainant had asked the OP for commission towards the purchase of said marble in question and on refusal by OP to give the same to him, the mason had threatened the OP that he shall ensure that the complainant returns the said marble on convincing her that the same is of inferior / bad quality and therefore it is clear why the complainant approached the OP on 01.02.2015 for return of the marble and exchange of the same without any plausible answer or explanation. The OP further took the plea that as a goodwill gesture and to maintain market prestige, the OP took back the marble at its purchase rate i.e. Rs. 60 per sq.ft and desired white marble was given in exchanged to the complainant @ Rs. 75/- per sq.ft against the market price of exchange @ Rs. 85/- per sq.ft. The OP further stated that the complainant took the changed material from the OP on some payment of difference of the amount to the OP however a sum of Rs. 1,944/- from first billing and Rs. 5,116/- from second billing totaling Rs. 7,060/- is still unpaid by the complainant towards the OP which sum when asked for by the OP from the complainant, the complainant threatened the OP to falsely implicate the OP in case which probably is the instant complaint case. The OP had therefore filed a written complaint with PS Jyoti Nagar, New Delhi on 18.02.2014. The OP denied having received a sum of Rs. 51,944/- from the complainant as also the allegation by the complainant of OP having refused to hand over the original bill to the complainant on each purchase. The OP further denied that the marble purchased by the complainant was of worst/ inferior quality and submitted that it is a natural material / ingredient from different qualities and quantity of marble and that complainant has failed to substantiate or explained anywhere in her complaint as to why the marble sold by the OP was of bad quality and has based her allegation merely on advice of her mason despite the fact that she had satisfied herself before purchasing the same and was present at the time of loading of the marble. The OP further stated that the complainant had herself agreed to purchase the MODWAR from the OP at Rs. 75 per sq.ft after returning the earlier purchased Katni marble. The OP further denied that the actual price of marble sold to the complainant for Rs. 75/- per  sq.ft is actually Rs. 30-35 per sq.ft and stated that there are different varieties of marble with different price range in the market and there was no compulsion for the complainant to buy the said marble from the OP alone. The OP further took the defence that it does not sale marble on rough bills and gives proper billing at the time of purchase but had lost his passport, voter ID card, marble measurement details and sales tax papers etc for which FIR / NCR No. 578 of 2014 dated 31.03.2014 was lodged by the OP with Jyoti Nagar Police Station, Delhi the same day.
3. Rejoinder to the written statement was filed by the complainant in rebuttal to the defence taken by the OP in which the complainant denied her complaint being on false on frivolous grounds filed after lapse of eight months from the date of purchase of marble i.e. 30.01.2014 in order to extort money and to harass the OP. The complainant also denied any outstanding amount of Rs. 7,060/- Payable to the OP or that any threats were extended to the OP to implicate the OP in a false case.
4. Evidence by way of affidavit was filed by both the complainant as well as the OP exhibiting the relevant documents in support of their case / defence.
5. Written arguments were filed by both the parties. In the written arguments filed by the complainant and additional submissions, the complainant reiterated her case of Katni marble stones purchase from OP as defective and of worst quality given against rough estimate without original bill and having been charged excessive amount of Rs. 75/- per sq.ft for purchase of Modwar marble in exchange of afore mentioned marble and has filed quotation of United Construction Company dated 01.09.2014 which gave the pricing of Modwar white marble slab size (6x4) ft. thickness 18 mm @ 33 per sq.ft and sales tax + labor + cartage extra and also quotation from SK Construction Company dated 02.09.2014 with respect to Modwar white marble @ Rs. 36/- per sq.ft. extra + sales tax + labour Cartage charges slab size, 7x4 ft.- Thickness -18 mm”. The complainant argued that since the OP was not ready to refund the extra money paid by the complainant,  towards purchase of broken Katni marble pieces she was compelled to purchase the Modwar marbles @ 75/- per sq.ft from the OP. The OP only accepted 590.22/- sq.ft out of 782.37 sq.ft. Katni marble for exchange and admittedly refused to accept the remaining material of 192.15 sq. ft due to  cutting of material against which no adjustment was made by the OP and an additional burden of Rs. 11,531/- was put on the complainant by the OP. The complainant further alleged that by giving rough estimate bills, the OP is also evading its sales tax and income tax liability. Therefore, the complainant alleged deficiency in service and sought compensation from the OP to the tune of Rs. 42,531/- as refund of excess amount alongwith Rs. 1,00,000/- as compensation for mental physical pain, agony and financial turmoil / losses and Rs. 15,000/- towards cost of litigation.
6. Written arguments was filed by the OP in which the OP reiterated the defence taken in the written statement denying any deficiency in service on the part of the OP as her case does not fall within Section 2 (1) (f) and 2 (1) (g) of CPA and that no cause of action has arisen or existed against the OP in favour of the complainant at any point of time and that the quality of marble sold by the OP to the complainant was not inferior or bad in any manner. The OP further argued that the complainant owed Rs. 7,060/- to the OP as outstanding amount against first and second bill and if the marble sold by the OP to the complainant was of bad quality or on the higher price range of Rs. 75 per sq.ft as against the same being available within price range Rs. 30-35 per sq.ft as stated by the complainant, the complainant was free to purchase the same from any other shop. The OP further argued that they are doing their business with full honesty and had prestige in the market and therefore prayed for rejection of the present complaint.
7. Both the parties citied various case laws in support of their case/ defence alongwith the written arguments.
8. We have heard the rival contentions of both the parties and have thoroughly and carefully perused the case file and documentary evidence placed by both the parties on record.

It is not in dispute that out of 782.37 sq.ft of Katni marble purchased by the complainant from the OP, 590.22 sq. ft was returned by the complainant to the OP and accepted by the OP and the remaining material of 192.15 sq.ft was refused to be accepted by the OP as returned since the same has been cut into pieces by the mason of the complainant which return acceptance is evidence enough of faulty / defective material and therefore deficiency in service in terms of selling defective goods is made out against OP by the complainant. As far as the subsequent exchange / purchase of Modwar marble is concerned, the two quotations filed by the complainant range between Rs. 33 per sq. ft to Rs. 36 per sq. ft for which the OP had charged Rs. 75 per sq.ft to the tune of Rs. 50,529/- in addition Rs. 1000/- as exchange cost and Rs. 3000/- transport and labour charges totaling 54,529/-. Thereby Rs. 11,531/- (cost of remaining material of 192.15 sq.ft of Katni marble) and Rs. 31,000/- (cost of MODWAR marble purchased by the complainant from the OP in lieu / return of Katni marble, exchanged cost and transportation and labour charges) adding to Rs. 42,531/- including sales tax was additionally paid by the complainant to the OP which refund of the amount is prayed for by the complainant from the OP before this Forum. We are of the view that the charges of Modwar marble @ Rs. 75 per sq.ft are apparently on the higher side as compared to the otherwise prevalent market rate at the relevant time according to the quotations filed by the complainant and therefore this issue of excessive pricing is decided in favour of the complainant against the OP as the same is amounting to unfair trade practice. Pertinently, nowhere the OP could produce original bill of purchase by the complainant either of Katni marble or Modwar marble which also is an unfair trade practice and does not support the bald averment of OP that they give proper bills to their customers at the time of purchase. At this stage however a very pertinent objection of the OP has to be considered wherein the OP in its written statement had stated that there were unpaid amounts of Rs. 1,944/- from first billing and Rs. 5,116/- from second billing done to the complainant which had not been paid by the complainant to the OP for which police complaint dated 18.02.2014 was lodged by the OP against the complainant. Thus it would be just and fair that the amount of Rs. 7,060/- should be remitted to the OP in parity of justice.

9. We therefore deduct Rs. 1,944/- from the first billing outstanding of Rs. 11,531/- towards broken Katni marble of 192.15 sq.ft totaling Rs. 9,587/- and deduct Rs. 5,116/- from the second billing of Modwar marble of Rs. 31,000/- thereby totaling Rs. 25,884/-. We therefore award a sum of Rs. 35,431/- (Rs. 9587+Rs. 25884) towards unreturned / unadjusted cost of Katni marble and excessive pricing of Modwar marble to the complainant payable by the OP as refund of the said payment already made by the complainant to the OP after deducting Rs. 7060/- as outstanding payment payable by the complainant to OP from Rs. 42,531/- as prayed for by the complainant.

In addition we also award a sum of Rs. 15,000/- towards compensation for mental pain and agony and Rs. 10,000/- towards litigation expenses payable by the OP to the complainant. Let the order be complied within 30 days from the receipt of copy of this order.

10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  13.02.2018   

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member