DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT
Sri.V. BALAKRISHNAN, M Tech, MBA, LLB, FIE: MEMBER
Tuesday the 27st day of June 2023
CC No. 328/2011
Complainant
Aboobacker,
Nechooli House,
Puthoor -673 572.
Opposite Party
M/s.Ceepee Marbles,
Vavad, Vavad (P.O),
Koduvally, Kozhikode - 673 572.
(By.Adv.Sri.Faisal)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
- The case of the complainant, in brief, is as follows:
The complainant purchased granite slabs from the opposite party on two occasions for the purpose of his house construction. The first purchase was on 15-03-2008 and the second purchase was on 29-03-2008. The total amount paid was Rs.94,698/-. The granite slabs were laid by the workers of the opposite party, for which, he had to pay Rs.40,000/- as labour charges. Besides, he had to spent Rs.50,000/- for sand and cement.
- But within one and half years, the granite slabs became defective. There was swelling and bursting on the surface of the slabs and patches and dust were formed there. On contacting the opposite party, two employees came and were convinced of the defects and agreed to replace the granite slabs. But thereafter no positive action was taken by the opposite party in this regard. On 02-07-2011 the complainant issued a lawyer notice to the opposite party, but there was no response. Hence the complaint seeking replacement of the granite slabs along with compensation of Rs.2,00,000/- for the mental agony and monetary loss sustained by the complainant.
- The opposite party filed written version wherein all the allegations and claims in the complaint are denied. The opposite party has denied having sold the granite slabs in question to the complainant or laying the same in the house of the complainant engaging their workers. Equally, the allegation that the granite slabs become defective and the employees of the opposite party, after inspecting the same, had agreed to replace the product is false and hence denied. The opposite party is engaged in the sale of flooring materials only. They never undertake the laying work of flooring materials. No such expert workers are there in the shop of the opposite party. The estimates produced along with the complaint are not issued by the opposite party. The complaint is a concocted one and is liable to be dismissed with costs.
- The points that arise for determination in this complaint are :
- Whether there was any unfair trade practice or deficiency of service on the part of the opposite party, as alleged?
- Reliefs and costs.
- Evidence in this case was recorded by our learned –predecessors in- office which consists of the oral evidence of PW1 and Exts A1 and A2 on the side of the complainant. The managing partner of the opposite party has filed proof affidavit, but he was not cross examined by the complainant in spite of granting ample opportunity.
- Both sides remained continuously absent and there was no representation for them and no arguments were advanced.
- Point No.1– The complainant has approached this Commission alleging unfair trade practice and deficiency of service on the part of the opposite party. The specific allegation is that the granite slabs sold to the complainant and laid in his house by the opposite party engaging their labourers, became defective as there occurred swelling and bursting on the surface of the slabs forming micro cavities, patches and dust. The complainant alleges that the opposite party, though had agreed to replace the same, no positive action was taken thereafter.
- The case advanced by the opposite party is one of total denial. The opposite party has specifically denied having sold the disputed granite slabs to the complainant or laying the same engaging their workers. The opposite party has denied having issued any document as produced by the complainant along with complaint and according to them, the present complaint is a cooked up one with the malafide intention to grab money.
- The complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint. Ext.A1 is the copy of the lawyer notice with postal receipt and postal acknowledgement card and Ext A2 series are the estimates.
- In a consumer case, the onus to prove deficiency of service is on the complainant. Without proof of deficiency, the opposite party cannot be held liable. In the instant complaint, as we have already stated, the contention of the opposite party is one of total denial. The opposite party has specifically denied having sold the product to the complainant. But nothing is produced by the complainant to prove that the disputed granite slabs were purchased from the opposite party. Ext. A2 series are only estimates and they do not bear the name and seal of the opposite party. Ext A2 does not give any indication that the products mentioned therein were supplied by the opposite party herein. No bill /invoice is forthcoming. Equally, there is absolutely no evidence to hold that the laying work was done by the opposite party engaging their own workers. Not even a scrap of paper is produced by the complainant to show that the laying work was done by the opposite party. According to PW1, he had paid a total sum of Rs.40,000/- as labour charges as instructed by the opposite party. But no document evidencing any such payment is produced before this commission by the complainant. Apart from the self -serving testimony of PW1, who is none other than the complainant, no other independent evidence was adduced by the complainant in this regard. Further it may be noted that the opposite party has filed proof affidavit reiterating and reaffirming that the opposite party had never sold the granite in question to the complainant or undertook the laying work. It is pertinent to note that the opposite party was not cross examined by the complainant and the evidence of the opposite party stands unchallenged. In the absence of any satisfactory evidence, we are constrained to hold that the complainant could not establish and prove that the disputed granite slabs were sold and laid by the opposite party, as alleged.
- Another important matter to be noted in this case is that there is a report filed by the senior geologist after inspecting the site where the disputed slabs were laid. But the complainant has not taken any effort either to examine the expert or to mark the report. As already pointed out, it is for the complainant to prove his case by adducing satisfactory evidence including expert evidence. But here the complainant has not taken any effort to bring the report of the expert in evidence or to cross examine the opposite party.
- To sum up, we hold that the complainant could not establish or prove the allegations raised in the complaint. There is no proof of any unfair trade practice or deficient service on the part of the opposite party and consequently the complaint must fail.
- Point No.2 : In the view of the finding on the above point, the complainant is not entitled to claim and get any relief as prayed for.
In the result, the complaint is dismissed. However, no order as to costs.
Pronounced in open Commission on this the 27th day of June 2023.
Date of Filing: 25-08-2011.
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PRESIDENT MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of Registration Certificate.
Ext. A2 – Copy of retail invoice dated 27/06/2015.
Exhibits for the Opposite Party
Nil.
Witnesses for the Complainant
PW1 – Aboobacker (Complainant)
Witnesses for the opposite parties
Nil.
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PRESIDENT MEMBER
True copy,
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Assistant Registrar.
