SMT. RAVI SUSHA  : PRESIDENT

         Complainant has filed this complaint  U/S 35 of Consumer Protection Act 2019  seeking to  get an order, directing  the opposite party to pay Rs.4,25,000/- towards compensation  and also cost of the proceedings of this case.

   Brief  facts of the complaint are that on 16/2/2021 the complainant has purchased  1348.55sq.ft white marble and 614.57sq.ft Ariena marble  and ancillary products  for a total  amount of Rs.3,02,301 from the OP.  On believing the words of  OP the complainant purchased the marbles  and made the payment, but the  OP has not given her original bill instead,  OP has provided only estimated bill.  The Op has  delivered the marbles to the complainant’s site and during  March 2021 the workers of the complainant has laid down the marbles.  While they were conducting  polishing job, they found  crack over the laid marbles.  So they said to the complainant that they cannot further polishing  the marbles since it is having crack. Thereafter when the complainant’s son same to the house, then only the complainant could notice the ugliness and crack on the marbles.  The complainant  sent a lawyer notice to OP seeking the original bill and stating the below sub standard and poor  quality of the marbles  sold by them.  But they did not do anything nor  any reply.  Hence the complaint.

    After receiving notice, OP entered appearance and filed version.  The  OP denied  all the allegations of the complaint.  The  OP admitted the purchase of marbles and received Rs.3,02,301/-  from the complainant .  The OP stated that the transportation charge was not received by the OP from the complainant. The marble was purchased by the complainant  to the satisfaction  of the complainant  as well as  her son and worker.  Marble slab  having an irregular shape was purchased  that the said marble slab  there was some ugly look  on the side  and at the time of measuring the slab those area of the  marble having  ugly look were not measured  and no amount was collected for those portions.   The OP  doubt that the complainant might have laid the marble which was not measured  at the time of  calculating the price  and those partitions were outside the measurement and was not intend to lay in the floor.  No amount was collected for the irregular portions having ugly look. If inexperience workers are laying the marble there are chances that the crack will be formed at the time of laying or after laying  the marble if some air are present in between the laid floor and marble slab. It was the duty of the workers to see to avoid air in between the slab and  the floor.  No polished piece of  marbles were displayed at the show room of the OP and  the OP did not collect any excess price for the marble.  There is no  deficiency of service  or unfair trade practice  on their part  and the complainant is not entitled to get any relief.  Hence prayed for the dismissal of the  complaint.

   While pending of this  case, complainant has taken steps to appoint an  expert commissioner, which was allowed  The expert has filed  report after inspecting the site.

   Complainant filed chef affidavit and  documents. She was examined as PW1 and marked Exts.A1 to A3.  The expert report is  marked is marked as Ext.C1.  On the side of OP, the managing partner of OP has filed his  chief affidavit and has been examined as DW1.  Both witness were subjected to cross examination for the other  party.  After that the learned counsels of both parties filed their written argument notes.

   It has been contended by learned counsel for the OP that the complainant has purchased the marbles along with ancillary  products for a total amount of Rs.302301/- out of which the total cost of the marble is only Rs.227823/-. Moreover, the  complainant along with her son and one worker who is an expert in the marble work came to the  shop of the OP and after their inspection and to their satisfaction with respect to the standard, quality, piece of marbles, complainant has selected the marbles and  placed order for purchasing the marbles and as  such the OP has measured the marble stables selected by them in front of the complainant and others and  the OP as  avoided the  measurement of those marbles having shapeless edge and ugly look.  OP has stated that   OP has given more quantity of  marbles than the  complainant demanded and no amount was collected from the complainant for those unmeasured marbles.

   On the other hand, it is contended by the learned counsel for complainant that, the marble slabs supplied were having cracks throughout.   The presence of cracks cannot be said to be of natural formation.  According to complainant, she purchased the marbles as per the advice and recommendation and believing them that the marbles slab, she purchased will be of good quality, colour and design and had paid Rs.301000/- to OP.  The marbles purchased were supplied by OP at the complainant’s house and  layed them on her house.  During polish work, the workers stated that there are cracks over the slabs and hence it cannot be polished.  There were  cracks on almost entire slabs of marbles, appeared to be of inferior quality, and as such the OP is liable  for making the payment.

  OP in para  11 of its written version has admitted that marble slab having an irregular shape was purchased by the complainant.  In the said marble slab there was some ugly look on the side of those slabs.  At the time of  measuring the slab those are of the marble having the ugly look were not measured and no amount was collected for those portions .

  Thus, OP himself admits that there were marble slab purchased by the complainant having an irregular shape and was some ugly look on the side of those slabs.  This admission made by OP goes on to show that complainant has been supplied with a defective marble slabs in the first instance.

    In addition to that the expert appointed from the commission Dr.Ajith M.S, Asst. Professor, Dept. of Civil engineering inspected the site and has filed report.  The expert report was marked as Ext.C1.  In Ext.C1 report, the  expert  has observed that  there are visible cracks observed in the disputed marble on the ground floor, staircase, and first floor at many locations.  The lengthy cracks on the white marble laid on the ground floor are longitudinal  in nature and discoloration was observed near the crack line.  The sample photograph also submitted for revealing the discolouration and cracks in the marbles.

   The expert further reported that in the backyard of the house balance 3 numbers of marbles slab of each category were placed.  Similar kinds of cracks were found on these unused marbles also.  Based on available samples collected from the complainant’s house, thickness and hardness test was conducted at the material testing  lab of Govt. college of Engineering  Kannur. The expert opinioned that the marble is a metamorphic kind of rock  and they are brittle in nature.  Based on visual observation and  expertise, the observed cracks are not propagated for the entire thickness of the slab.  Hence this might have originally existed on the slabs and  may not have happened during the laying of the marble slabs.

       Thus the report of the expert Ext.C1 , has clearly observed that the crack  found on the marbles are not propagated for the entire thickness of the slab.  It is opinioned that the cracks found might have originally existed on the slabs and  may not  have  happened during the laying of the marble slabs.  Though OP filed objection  to the  Ext.1 report, OP had not tried to discard the finding of the expert by citing  the expert as a witness.  Therefore, the said evidence stands undemolished  in as much as the OP could not impeach such evidence and thus, it is evident that the cracks found in the marble slabs may not  have  happened during  the laying.

     Hence from the above observation of the expert, the contention of the OP that the cracks in the marbles may be  formed due to the  air  held in between the floor and marble slab at the time of laying the marbles by the  in experienced workers cannot be accepted. Further  OP contended that the complainant might have laid the unmeasured shapeless marbles freely given by the OP which  was not intended to lay in the floor.  The said contention cannot be  believed for a moment.  Moreover the expert reported that in the back yard of the house, balance  3 numbers of marble slabs of each category were placed.  Similar kinds of cracks were found on  these unused marbles also.

   Further OP failed to prove the contention that OP had not received any amount for the irregular ugly look slabs.

  Complainant alleged that the OP had personally verified the marbles laid on the floor of complainant’s house and got convinced about the defect and had undertaken to  redress her grievance  but after that there was no response from the side of OP.  Here  the OP is found to earn money and profit without  any duty  cast on them on the consumers.  This shows the deficiency in service on the part of OP.  Therefore,  OP has to redress the grievance of complainant with compensation.

   Here the learned counsel of OP submitted a judgment of Hon’ble  National commission 2015 3 CPR NC 583.  In which it is held by the Hon’ble National Commission  that “  if a natural product such as a marble stone purchased on the basis of its appearance and origin does not prove  to be of quality  expected by buyer, the seller of product cannot be held responsible for weakness of stone”.

   In the said case, the grievance of the complainant is that the stone which  she had purchased from the OP and got fixed in her house  cracked soon after it was got fixed.

   In the instant case the grievance of complainant is different.

   During the laying time itself the workers stated that there are cracks over the slabs.  The expert also observed that there are visible cracks observed in the disputed marble on the ground floor, stair case and first floor at  many locations and lengthy cracks on the white marble  laid on the ground floor and discoloration was observed near the  crack line.  Moreover OP himself admit that there was some irregular shape and ugly  look stone  in the marble slab purchased by the  complainant.  That itself shows that OP as a responsible seller, sold defective item to the consumer.  This type of business cannot be allowed to continue.  So here there is deficiency in service on the part of OP.  The decision submitted by the learned counsel of OP cannot be taken into account.

   Based on the facts and circumstances as stated above, the complainant is entitled to get relief.  There is no scope for directing  the OP to replace the entire marbles laid  in the house with good quality marbles.  Our view is to  order compensation to the complainant for causing mental agony and financial loss caused due to the deficient action of OP.

   In the result complaint is allowed in part.  Opposite party is directed to give Rs.2,50,000/- towards  compensation  to the complainant together with Rs.15,000/- towards cost of the proceedings of this complaint.  Opposite party shall comply the  order within  one month  after receiving certified copy of this order.  Failing which the amount of Rs.2,50,000/- will carry interest @7% per annum from the date of order till realization.  Complainant can execute the order as per the provision of Consumer Protection Act 2019.

Exts:

A1-Copy of estimate dtd.10/2/2021

A2-Copy  of lawyer notice

A3-Reply notice

C1- Expert commission report

PW1- Valsala- Complainant

DW1-Muhammed Umail-OP

Sd/                                                                Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                        MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR