BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 21/05/2009

Date of Order : 29/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 270/2009

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the facts of the complainant's case are as follows :

Lured by the advertisements of the opposite parties on 11-08-2007, the complainant placed an order for supply of 50.04 sq. meters of granites and 5.30 sq. meters of marble at a total price of Rs. 1,40,000/-. The complainant paid the amount by cash cheque drawn on Canara Bank, Valappad Branch. On 13-08-2007, the opposite parties delivered the goods at the residence of the complainant at Valappadu in Thrissur District. Though the complainant paid Rs. 1,40,000/- to the opposite parties, they issued an invoice only for Rs. 43,372.86. The contractor to which the complainant had entrusted the laying of granite refused to lay the same on the ground that the same would not have good appearance on account of low and substandard quality. The complainant intimated the opposite parties regarding the same, at that juncture, the opposite parties suggested an expert and he laid the tiles. On completion the appearance was not fit to be seen as there were colour variation and patches. This happened solely due to the low quality of the granite. The complainant caused to issue a lawyer notice to the opposite parties demanding to refund the price of the granite with interest, and to pay the cost of relaying the floor together with a compensation of Rs. 40,000/-, but there was no response. This complaint hence.

2. Version of the opposite parties :

The complainant purchased granite slabs worth Rs. 43,372/- on 11-08-2007. The opposite parties did not collect Rs. 1,40,000/- from the complainant as alleged by him. The opposite parties are not undertaking laying work and are not engaging any experts for laying. There is no defective service or unfair trade practice on the part of the opposite parties.

3. The power of attorney holder of the complainant was examined as PW1 and Exts. A1 to A7 were marked on the side of the complainant. The witness for the opposite party was examined as DW1. Exts. B1and B2 were marked on their part. The expert commissioner's report was marked as Ext. C1. Heard the counsel for the parties.

4.The points that arose for consideration are :-

1. Whether the complainant is entitled to get refund of Rs. 1,40,000/- being the price of the granite?

2. Whether the complainant is entitled to get Rs. 40,000/- the cost for relaying the tiles?

3. Compensation and costs of the proceedings?

5. Point No. i. :- According to the complainant, he had ordered to purchase tiles worth Rs. 1,40,000/- from the opposite parties and paid the amount vide Ext. A2 cash cheque dated 11-08-2007. It is contended that at the time of delivery of the goods the opposite parties handed over Ext. A3 invoice dated 13-08-2008 only to the tune of Rs. 43,372.86 for their own reasons which at that time did not contradict. The definite case of the opposite parties is that the complainant has purchased the granite and the marble as per Ext. A3/B2 invoice. The onus is on the complainant to prove that he had paid the amount as per the cash cheque towards the consideration of the granite and marble to the opposite parties wherein he fails. Though there is nothing before us to contradict that there is a complaint between the complainant and the opposite parties as to the nature of the amount in question.

6. Now, the question arises whether the granite supplied by the opposite parties suffers from defect or not. At the instance of the complainant an expert commissioner was appointed by this Forum. The expert commissioner filed his report before the Forum which was marked as Ext. C1. Though the opposite parties filed objection to the report, no efforts have been taken by them to substantiate the same. As per the report, the findings of the commissioner is as follows :

“a) To assess the nature and quality of the granite supplied by the fist opposite party to the complainant and laid in the first floor of the building of the complainant.

The material laid by the opposite parties in the above mentioned building does not show the qualities of granite. A granite contains quarts, feldspar and mica and it should be course grained or medium grained, compact, dense, massive, hard and should exhibit inter locking texture. It should have a specific gravity of 2.6 to 2.75 with crushing strength of 100 to 150 N/mm², and high resistance to weathering. Moreover, it should take high polish even without the presence of any adhesives. Since the specimen supplied does not show any of the above qualities it may be some artificial stone or natural stone, light in weight, porous, and of low hardness. The surface hardness of the above material at some places is very low especially at skirting, so that scratch impressions are possible by finger nail (ie) inferior to a burnt brick. Even if the dealer claims it as granite, it is of inferior quality.

b) To assess the nature and appearance of granite slabs laid in the general appearance in total and report weather there is ugly appearance and colour variation and patches appearing in respect of the granite laid.

The appearance of the laid slab is not of the colour of granite containing, glittering mica or feldspar. But it appears that the dealer has supplied flooring slabs, which have been polished with the aid of adhesives. There are colour variations in some places and appears ugly patches in some other places on flooring material laid.

c) To note the market value of the type of the granite purchased by the complainant as on date of supply, maximum value of granite slabs required to be purchased and cost of relaying the floors.

Since the flooring material is of inferior quality and of full slab size the cost of it nor more than Rs. 1000/- sqm., laying cost can be assumed as Rs. 250/m2.

Cost of existing floor -

Slab @ Rs. 1000/sqm. - 50,040

Labour charges Rs. 250/m2 - 12,510

Material for fixing - 5,000

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Total - 67,550

Say 68,000

Cost of relaying with granite full slabs of specified

thickness-

Slab @ Rs. 2500/sqm. -50.04x2500 = 125100

Labour charges Rs. 250/m2 - 50.04x250 = 12510

Material cost - 5000

Dismantling charges existing floor - 3000

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Total - 1,45610”

7. The defects noted by the commissioner due to the inherent manufacturing defect of the granite supplied by the opposite parties evidently uncontroverted. So, this Forum is of the firm view that the opposite parties are liable to indemnify the loss sustained by the complainant due to the inferior quality of goods supplied by the opposite parties. The complainant has had to spend the following amounts for the completion of laying of granites.

Cost of granite slab as per Ext. B2 - 40981.50

Labour charge - 12510

Material for fitting - 5000

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Total Rs. 58490.50

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The commissioner commends that the complainant would have expend the following amounts to dismantle and relay new tiles.

Dismantling charges - Rs. 3,000

Labour Charge - Rs. 12,500

Material cost - Rs. 5,000

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Total - Rs. 20,500

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8. We cannot sit in judgment to fix the price of the goods, since the Government has constituted various mechanisms for the same. In this case, the opposite parties are liable to pay Rs. 78,990/- (Rs. 58,490.50 + Rs. 20,500 = Rs. 78,990) to the complainant for the reasons stated above.

9. In the result, we partly allow the complaint and direct that, the opposite parties are liable to pay the amount of Rs. 78,990/- (Rupees Seventy eight thousand nine hundred and ninety only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the opposite parties shall pay interest @ 12% p.a. till payment.

Pronounced in open Forum on this the 29^th day of October 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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