Date of Filing:        25.07.2013

                                                                                                                       Date of Disposal:  13.11.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.,                                .…. PRESIDENT

                   TMT.      K. PRAMEELA. , M.Com.,                                         ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,                   ……MEMBER-II

CC No.42/2013

THIS WEDNESDAY THE 13^th DAY OF NOVEMBER 2019

S.Sundara Moorthy,

S5, Moon Light Apartments,

Co-operative Nagar Phase - 4,

Thiruverkadu, VeelappanChavadi,

Thiruvallur District,

Chennai -600 077.                                                                                   ….. Complainant. 

                                                                        //Vs//

M/s.Venkateshwara Marbles & Granites,

Represented by Managing Director R.K.Sony,

SP-143, Ambathur Industrial Estate,

Chennai - 600 058.                                                                            …Opposite parties.

This Complaint is coming upon for final hearing before us on 01.11.2019 in the presence of complainant who is appeared in person and Mr.A.R.Poovannan, counsel for the opposite party and after perusal of documents filed on both side and hearing the arguments on both side, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the Consumer Protection Act, 1986 against the opposite party for passing an order to pay a sum of Rs.75,000/- as compensation for the supply of inferior quality marbles with defects, unsatisfied services and unfair trade practices on the part of the opposite party.

2. The brief averment of the complaint is as follows:-

M/s.Venkateshwara Marbles & Granites is a firm engaged in selling of marbles and granites and also undertaking laying of marbles and granites. The complainant ordered 325 square feet (calculated quantity 300 square feet) Dyna Marbles Slabs in the M/s. Venkateshwara Marbles & Granites.  Before the complainant placed his order, he and his family members visited the branch office and then to Head office of M/s.Venkateshwara Marbles & Granites there one Mr.Nitin Soni, S/o Mr.R.K.Soni showed many real marble samples and the final finish appearances in their computer system. The opposite party also agreed to undertake for marble slabs transport, laying and polishing at the site with an additional costs. Due to non-availability of labor Mr.Nitin Soni assured the complainant that he would undertake the marble laying and polishing work after Deepavali Festival. At this instance the complainant explained his inability to present in Chennai after Deepavali festival and thereby Mr.Nitin Sono promised the complainant that he will take care of everything.  Believing Mr.Soni Nitin’s words the complainant paid Rs.1,26,000/- through a cheque No.622216 dated 15.10.2012, Canara Bank, perambur, Chennai- 600 011.  At the time Rs.1558 was discounted by the trader for the complainant very early payment from the original amount of Rs.1,27,558/-.  Mr.Soni Nitin arranged one Mr.Rinku for laying the marble and also polishing the same after laying.  In the mid of January 2013 the complainant visited Chennai and he found the several defectiveness and also insufficient quantity of marble supplied by the opposite party.  Immediately the complainant contacted Mr.R.K.Sony and his son Mr.Nithin Soni about the inferior quality and insufficiency in supply of marbles.  On site visit, Mr.Nitin Soni agreed to supply additional marble slabs to cover the agreed area and also he compromised the complainant that the defectiveness will disappear upon additional polishing.  Based on his commitment, Mr.Nitin Soni arranged another person name Mr.Iyyappan to lay marbles in the missing area and also for additional polishing over the laid marbles.  In spite of repeated polishing few cracks was disappeared still many cracks and damages remain as it is. In the month of February 2013 once again the complainant called Mr.R.K.Soni and Mr.Nitin Soni and complained about the defectiveness, once again they arranged some rectification work but not complete, rather worsen the condition.  Thereafter the complainant has refused to carry out any more rectification work. On March 21^st the complainant sent a notice to the opposite party to give a sum of Rs.75,000/- towards compensation for the supply of inferior quality and defective marble (defective goods), deficiency in service, and followed of unfair trade practice, failure to comply the matter will be referred to District Consumer forum.  Till date no reply from the opposite party.  Hence the complainant filed this complaint before this forum.

3. The contention of written version of the opposite party is as follows:-

It is true that the opposite party is a firm engaged in selling of marbles and granites.  The opposite party denies the allegation that the opposite party is undertaking laying of marbles and granites and the complaint is put to very strict proof of that allegation. It is true that the complainant placed an order for supplying 325 square feet marble slabs and before placing the said order he had visited the branch office and the head office of the opposite party with his family.  The opposite party showed many samples and final finishing appearances in their computer system.  It is true that the complainant has paid a sum of Rs.1,26,000/- by cheque No.622216 dated 15.10.2012, but denied the allegation that a sum of Rs.1558 was discounted from the original price for his early payment.  The opposite party is dealing with only the sales of marbles and granites over a period of more than 20 years and they never experienced any complaint in the past.  The complainant approached the opposite party for purchasing marbles for his house and the opposite party had shown all the stones available with them and showed with the finishing. The complainant needed 325 square feet of marble slabs and at first he was opted the 1^st quality of marble which is Rs.350 per square feet.  When the cost goes high, the complainant wanted to purchase an inferior quality which is Rs.330/- per square feet.  The complainant cannot afford to that price, he has opted the marble slabs at the rate of Rs.300/- per square feet.  Accordingly the total cost of marble slabs, border, strips and that comes around 1,27,558/-.  Since the complainant bargained to reduce the price the amount was rounded to a sum of Rs.1,26,000/- and the complainant issued a cheque dated 15.10.2012.  The complainant was issued with a receipt voucher on the same day. The complainant himself on his own on 21.11.2012 got the delivery of 325 square feet marbles from the opposite party. Thus in all the transaction the opposite party use to clearly mention that “marble slabs are natural stones and they have inbuilt natural shades, patterns, hair cracks, fissures.  The complainant wanted to have the marbles suitable for his cost and on his own got the delivery with full satisfaction.  Further as per the terms and conditions in the delivery note “(1) Reasonable variation in colour, vein and back ground are expected as marbles and granites and all stones being natural product” and (2) our responsibility ceases with the goods are handed over in said condition to the carrier at our end.  The complainant received the marbles in good condition and cannot now blame the opposite party at this stage that the marbles are defective.  The opposite party is only a dealer selling the marble stones and cannot be responsible for the inner problems.  The complainant purchased the marbles for his own house at 22, Harmony Apartment, Siruvallur Main Road, perambur as per the delivery note. But in the complaint he has stated that it is used for the house at S5, Moon Light Apartment, Co-operative Nagar, Phase 4, Thiruverkadu, Velappanchavadi, Chennai -77 .  The opposite party reasonably suspects the some defects might have occurred during loading and unloading transport without due care. There is no deficiency in service on the part of the opposite party in quality and quantity.  The opposite party is not doing laying and polishing and has not even received any amount for the same.   Thus the allegation that the opposite party engaged labourers for laying and visited the complainant’s house are all invented for the purpose of this case.  The claim of the complainant is not sustainable.  The complainant has not approached this forum with clean hands.  There is no merit in the claim. Therefore the opposite party prays this forum may be pleased to dismiss the complaint with exemplary cost.

4. In order to prove the case on the side of the complainant proof affidavit submitted as his evidence Ex.A1 and Ex.A2 were marked.  While so, on the side of the opposite party proof affidavit submitted as his evidence Ex.B1 to Ex.B5 were marked and also adduced oral argument on both sides.

5. At this juncture, the point for determination before this forum is:-

(1) Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?

(2) Whether the complainant is entitled for compensation and costs?

(3) To what other reliefs, the complainant is entitled to?

6. Point No.1 & 2:-

The case of the complainant is that the complainant ordered Dyna marbles and granites from the opposite party.  The opposite party has supplied marbles and granites during November 2012 and also agreed laying and polishing the marbles supplied by the opposite party.  But the opposite party supplied defective inferior quality marbles and committed unfair trade practice and negligent in their service.

7. The opposite party contended that the complainant purchased inferior quality of marbles at the rate of Rs.300/- per square feet and the total cost marble slabs, border, strips Rs.1,26,000/- and also the complainant paid the amount by cheque on 15.10.2012.  The complainant received the marbles in good condition. The opposite party has not laid and polished the marbles and not received any amount from the complainant for laying and polishing the marbles.  Therefore there is no deficiency in service on the part of the opposite party.

8. It is admitted by both the parties that the complainant placed an order for supply 325 square feet Dyna marbles slabs, 60 square feet brown Border –Imported brown and 100 square feet imported brown marble strips.  Ex.A1 contains the copy of estimate, receipt voucher and invoice.  As per Ex.A1 the complainant purchased 325 square feet Dyna marbles slabs at the rate of Rs.300/- per square feet and the total cost of the marbles with tax is Rs.1,11,637.50/-.  Further the complainant purchased 30.21 square feet 3” & 4” width brown marble strips at the rate of 360.00/- per square feet and the total cost with tax is Rs.12,452.56/-.  Therefore the total cost of marbles as per Ex.A1 is Rs.1,24,090/-.  The opposite party also filed copy of invoice and the same has been marked as Ex.B3 and Ex.B4.  Therefore Ex.B3 & Ex.B4 and Ex.A1 invoice are one and the same documents.  According to the complainant, he purchased marbles slabs and brown marble strips for Rs.1,26,000/- and the opposite party also accepted the same.  The complainant also paid the above said amount of Rs.1,26,000/- by cheque,  for which the opposite party issued receipt.  Ex.B2 and Ex.A1 proved the same.  The complainant also filed the copy of Bank pass book (Ex.A2) and the same would prove that the complainant paid a sum of Rs.1,26,000/- by way of fund transfer to the opposite party on 17.10.2012.  It is admitted by both the parties that the complainant purchased marbles slabs and brown marble strips from the opposite party for the total cost of Rs.1,26,000/- and the opposite party also delivered the marbles to the complainant.

9. According to the opposite party the complainant received the marbles in good condition.  Further the opposite party contended that the complainant purchased the marbles for his own house at 22, Harmony Apartment, Siruvallur Main Road, Perambur and he has used the marbles for the house at S5, Moon light Apartments, Co-operative Nagar, Phase-4, Thiruverkadu, Velappanchavadi, Chennai -77. It is the duty of the complainant to prove that the opposite party has delivered the marble to the complainant at Velappanchavadi.  But the complainant has not filed any proof to show that the opposite party delivered the marbles to the complainant addressed at Velappanchavadi.

10. The complainant alleged that the opposite party supplied defective and inferior quality marbles to the complainant but the complainant has not taken any steps to find out the quality of the marbles.  The complainant filed an application to appoint an advocate commissioner to inspect and assess the damage in the marble supplied and laid by the opposite party and the same was allowed and one Mr.P.Senthil Kumar appointed as a commissioner to inspect and assess the damages in the marbles supplied and laid by the opposite party.  The commissioner inspected the complainant’s premises at Velappanchavadi and filed his report on 23.06.2014. The commissioner has not stated about the quality of marbles.  Further the complainant has not filed any documents to show that the marbles supplied by the opposite party is inferior quality and defective one.

11. The complainant alleged that the marbles laid and polished by the opposite party.  But the opposite party contended that they have not laid and polished the marbles.  Hence it is the duty of the complainant to prove that the opposite party has laid and polished the marbles.  Ex.A1 and Ex.B1 are the estimate given by the opposite party in which it is stated as the total cost of polishing and laying is Rs.18,200/-.  But there is no evidence that the opposite party has received the said amount for polishing and laying the marbles from the complainant.  Further the complainant has not filed any documents to show that the opposite party received the above said amount for polishing and laying from the complainant.  Hence this forum is unable to accept the contention that the opposite party laid and polished the marbles to the house of the complainant at Velappanchavadi.

12. The complainant alleged that there are cracks in the marbles.  But the commissioner in his report stated as follows:-

“tPl;Lf;F gad;gLj;jg;gl;Ls;s khu;gpspy; Mild line Nghd;w Nfhzyhd xU NfhL Nghd;w gFjpahFk;.  ,J 12nr.kP tiu cs;sJ.  if tpuypdhy; efj;ij nfhz;L me;j Nfhl;by; Nja;j;jhy; tpuy; efkhdJ mjpy; rpf;fhJ.  Mdhy; fz;fSf;F kl;Lk; Nfhzyhd NfhL Nghd;w fhl;rp njupAk;.”

13. As per commissioner report there was no crack in the marbles but the commissioner has expressed mild line in the marbles.  The said crack may be due to laying the marbles, but the laying was not done by the opposite party.   Further the marbles was laid at the 2^nd floor of the building through his own men the complainant might have taken the marbles from the ground floor to the 2^nd floor.  Due to this transfer some cracks might have occurred and for which the opposite party is not responsible.

14. The opposite party filed a letter issued by the complainant to the opposite party on 15.10.2012 as document No.5, but the complainant strongly objected for the same on the reasons that the above said letter was not written by him and the same was created by the opposite party.  Since Ex.B5 is the Xerox copy and the original was not filed by the opposite party before this forum, this forum was unable to accept Ex.B5.  On the other hand, there is no proof or evidence on the side of the complainant that the opposite party laid and polished the marbles.

15. The opposite party is engaged in selling marbles and granites.  The complainant purchased the marble slabs and width brown marble strips from the opposite party for Rs.1,26,000/- and the opposite party delivered the same in good condition to the complainant and also there is no evidence to show that the marbles supplied by the opposite party as inferior quality and defective product.  Further there is no evidence on the side of the complainant that the opposite party laid and polished the marbles.  Under these circumstances there is no unfair trade practice and deficiency in service on the part of the opposite party and the complainant is not entitled for compensation and cost. Thus the point No.2 &3 are answered accordingly.

16. Point No.3:-

In this result, this complaint is dismissed.  No costs.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 13^th November 2019

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MEMBER-II                                              MEMBER-I                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-II                                              MEMBER-I                                         PRESIDENT