IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.295/2013
(Against the order passed in C.C.No.30/2010, dated 27.02.2013 on the file of the District Commission, Salem)
TUESDAY, THE 31st DAY OF AUGUST 2021.
R. Rajagopal,
S/o. Late. Palaniyappa Gounder,
No.11/5-94-A, Keelvellalar Street,
Mecheri, Mettur Taluk,
Salem District. Appellant/Complainant
Vs
M/s. Oswal Marbles,
Stockiest quality Marbles and Granites,
Represented by
1. N.S. Jain,
2. Punit Jain,
3. Kannan,
All the above are residing at
No. A/2, Bharathy Street,
Swarnapuri,
Salem – 636 004. Respondents/Opposite Parties
Counsel for the Appellant/Complainant : M/s. J. Ramakrishnan, Advocate.
Counsel for the Respondent/Opposite party: M/s. R. Dhanalakshmi, Advocate.
This appeal coming before us for final hearing on 18.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.
1. This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Salem made in C.C.No.30/2010, dated 27.02.2013, dismissing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputers Redressal Commission, Salem.
3. The factual matrix giving rise to the present appeal is as follows;- The case of the complainant before the District Commission is that the complainant is a retired Government servant. He was working as Assistant Agricultural Development Officer at Veerapandi in Salem Taluk. After his retirement, he proposed to construct a new house for his own occupation. At the time of his retirement, he received a sum of Rs.7,00,000/- as retirement benefit. He had also availed a loan of Rs.6,00,000/- from the State Bank India, Salem Main Branch. He had also invested his hard-earned money and loan amount in construction of the house. At the time of construction, he approached the opposite parties who are doing marble business under the name and style of Oswal Marbles and enquired about the cost, and quality of the marbles. The opposite parties displayed the sample marble slabs at the rate of Rs.45/- per sqft and advised the complainant to purchase the same claiming that the samples displayed at the rate of Rs.45/- per sq.ft are the fast moving quality of marble slabs in the market. Hence, the complainant purchased 773.16 SF of marble slabs from the opposite parties to lay the same in his newly constructed house, especially in the main hall, Dining Hall and two bed-rooms and also the entrance of the house. The opposite parties have received a total sum of Rs.37,417.20 being the cost of the marble slabs from the complainant. (Cost of the marble Rs.34,792.20 plus Tax of Rs.2,625/-). Though the opposite parties received a sum of Rs.37,417-20, they issued a bill No.75 dated, 26.08.2009 only for a sum of Rs.23,417-20. The opposite parties had also recommended one Ram Jiyam Gupta to lay the marbles. The complainant also paid a sum of Rs.27,000/- towards the Labour charges to lay the marble slabs on the floors. That apart, the complainant has also spent a sum of Rs.50,000/- towards the purchase of 50 bags of cement, 2 load sand, 50 Kgs white cement and other materials to lay the said slabs in the house. On completion of construction, the complainant found out that many cracks had developed in several places of the marble flooring and the colour was also not uniform. The complainant approached the opposite parties and explained the defects. But, the opposite parties replied that once the goods were sold and delivered, they are not responsible for any defects found in the materials. On 25.10.2009, the complainant performed house-warming (“Grahapravesham”) function in his house. At that time, the relatives, friends and other guests who came to attend the house-warming function noticed the defects and enquired about the same with the complainant which caused great mental agony and humiliation to the complainant. The complainant, being a retired government servant, hailing from middle-class family, construction of a new house for his own occupation is a life-time dream. The opposite parties purposely failed to discharge their responsibility. The opposite parties have supplied substandard quality of marble slabs. Hence, the complainant issued a legal notice on 19.01.2010 to the opposite parties requesting them to replace the defective marble slabs with the new and standard quality of marble slabs at their own cost and to pay a sum of Rs.2,37,027-20 i.e., Rs.1,37,027-20 being the cost and expenses for laying the marble slabs, Rs.50,000/- towards the damages and another sum of Rs.50,000/-as compensation for mental agony. The opposite parties acknowledged the said notice on 20.01.2010 and sent a vague and untenable reply dated 03.02.2010. Since the opposite parties had not complied with the claim made in the legal notice, the complainant filed a consumer complaint before the District Commission.
4. Denying all the above allegations made by the complainant, the opposite parties have filed their written version and sought for dismissal of the complaint.
5. Before the District Commission, on the side of the complainant, proof affidavit was filed and Exhibits A1 to A13 were marked. On the side of the opposite parties, proof affidavit was filed but no document was marked. During the enquiry before the District Commission, an Advocate Commissioner was appointed who after visiting the complainant’s house and testing the marble slabs filed his report with house plan and some digital photographs which have been marked as Exhibits C1 to C3.
6. After hearing the submissions made by both sides and analysing the evidences available on record, the learned District Commission dismissed the complaint holding that the complainant had miserably failed to prove the case of deficiency in service on the part of the opposite parties. Aggrieved over the same, the complainant has preferred this appeal praying for setting aside the order of the District Commission and for allowing the complaint by granting the relief as claimed in the complaint.
7. The points for consideration are
(1) Whether the complainant has established the case of deficiency in service and Unfair-Trade Practice against the opposite parties?
(2) Whether the complainant is entitled for the relief as prayed for in the complaint?
8. Points No.1 & 2:- We have heard the submissions made by both sides and perused the materials placed on record. As we have dealt with the factual submissions advanced by the learned counsel for both sides at required length, we refrain from dealing with the same any further in this order. However, certain facts which are absolutely germane and necessary are examined and taken note of, for the purpose of disposal of this appeal.
9. It is the submission of the counsel for the complainant that the consumers have no knowledge about the quality of marble slabs. Normally, the suppliers’ only used to display and explain about the kinds of samples, quality and cost of marble slabs. Believing the words of the suppliers, the customers used to purchase the marbles. But, whether it was low grade marble slab or not can be identified only after finishing the polish on the marbles. By purchasing the marble slab in a separate single piece, the consumers could not identify the quality of the marbles. In fact, at the request of the complainant, the opposite parties sent their labourers for laying the marbles. During the proceedings before the District Commission, an advocate Commissioner was also appointed who after visiting the complainant’s house and testing the marbles filed a report with plan and digital photographs. That apart, the complainant himself, separately obtained a report from Civil Engineer and produced the same. In the report, filed by the complainant, the Civil Engineer has clearly stated that the quality and strength of marble stone is not good. But, the District Commission without considering the engineer’s report dismissed the claim petition of the complainant.
10. On the other hand, the opposite parties have totally denied the case of the complainant. The learned counsel appearing for the opposite parties submitted that the complainant on seeing the samples and having been satisfied with the quality, purchased the marbles. Only on request of the complainant, they arranged for labourers to lay the marbles. The cracks in the flooring ought to have been occurred due to the poor workmanship by the labourer who did the laying of marbles. Evidence on record, would show that marble slabs were purchased and transported on 26.08.2009 which is evident from Ex A3. Thereafter, he purchased border tiles on 29.08.2009 which is proved by Ex A4. It is clear that the sand was transported to the house only on 04.09.2009 under Ex A6 and further the complainant purchased cement on 04.09.2009 under Exs A7 and A8. Probably, laying work might have been commenced one or two days after 04.09.2009. The marble slabs were in the complainant’s custody for nearly 10 days. When the marble slabs were in his possession, there was no complaint about the quality of the marbles and only after a lapse of few months, the complainant has come forward with the present allegations that there were defects in the marble slabs and deficiency in service on the part of the opposite parties in supplying the substandard quality of marble slabs. Therefore, considering all above facts, the District Commission has rightly come to the conclusion and dismissed the complaint and hence the appeal has to be dismissed.
11. Keeping the submissions of both sides, we have carefully gone through the entire materials on record. It is the case of the complainant that he had approached the opposite parties to purchase marble slabs from the opposite parties to lay the same in his newly constructed house and the opposite parties had also displayed various samples of marble slabs and finally on the advice of the opposite parties the complainant purchased 773.16 sqft of marbles on 26.08.2009 for a sum of Rs.37,417.20. The complainant had also purchased border stones at a cost of Rs.10,800/-, round design marble slabs at Rs.2500/-, green slabs for Rs.7560/- and further he spent Rs.1000/- for freight charges, Rs.750/- for loading and unloading charges, totalling Rs.60,027/-.
12. Now the main grievance of the complainant is that after laying marble slabs, he noticed several cracks and the colour of the marbles are not in uniform. Therefore, according to the complainant, the opposite parties ought to have supplied substandard quality of marble slabs. Whereas, according to the opposite parties, the complainant after satisfying himself with the samples displayed by the opposite parties purchased the marble slabs with his full satisfaction and at the time of delivery of the marbles, no complaint was made by the complainant. Further, the complainant had commenced the laying of marbles works only after 10 days from the date of supply of marble slabs and after laying the marbles he has come forward with the allegations that the marbles were substandard quality as there were cracks on the floor. Hence, alleging to the opposite parties, the cracks may be due to poor workmanship of the labourers and hence the opposite parties cannot be held responsible. But, the learned counsel for the complainant contended that the case of the complainant has to be decided only on the basis of Commissioner’s report. But, in the instant case, based on the Commissioner’s report, one cannot come to a conclusion as to whether the materials supplied by the opposite parties were substandard or not since at the time when Commissioner inspected the complainant’s house, the marbles were already laid and polishing works were also completed by employing labourers. So, the contention of the opposite parties that cracks may be due to the poor workmanship of the labourers engaged by the complainant cannot be brushed aside. No doubt, the complainant has obtained a separate engineer’s report wherein it has been stated that the marble slabs supplied to the complainant are not good. But the said document is a self-serving document. Further, the said document was not marked as Exhibit. A primary duty was cast upon the complainant to establish that the cracks developed in the marbles are only due to substandard quality and not due to poor workmanship by the labourers. But, in this case, the complainant has miserably failed to establish his case of deficiency in service and unfair trade practice on the side of the opposite parties. Therefore, we are of the considered opinion that the complainant is not entitled to get any relief and the appeal is liable to be dismissed. The learned District Commission has also rightly come to the conclusion by dismissing the complaint holding that the complainant had miserably failed to prove his case. Hence we are of the view that there is no need to interfere in the order of the District Commission. The points are answered accordingly.
13. In the result, the appeal is dismissed confirming the order of the learned District Commission, Salem made in C.C.No.30/2010, dated 27.02.2013. There shall be no order as to costs in this appeal.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
