By Smt. C.S. Sulekha Beevi, President,

1. The case of the complainant is that he purchased marble from opposite party for laying on the floor of his house which was under construction. On 15-11-2001 complainant purchased 1209 square feet marble for Rs.69,154/- 219 square feet of marble for Rs.12,429/-, 70 square feet of marble for Rs.3,712/- and 48 square feet of marble for Rs.2,735/-. It was delivered to the house of complainant by opposite party and the laying work was done by workmen of opposite party. That complainant provided the necessary cement, sand, white cement and other items necessary for laying work. When the work was over complainant noticed cracks on the marble. Further instead of white colour, the marbles had a mixture of green colour and white. Complainant realised that the marbles are of substandard quality. Complainant had purchased the marbles by paying Rs.88,030/-. That he incurred expenses for laying work including heavy expenses for using generator for this work. The expenses incurred is Rs.1,96,877.50 including the cost of marbles. Complainant estimates that Rs.3 lakh is needed for re-doing the floor. That the total square feet was only 1228 whereas opposite party calculated the square feet to be 1600. Hence this complaint alleging unfair trade practice and to direct opposite party to pay Rs.3 lakh for re-doing the floor and to pay compensation of Rs.50,000/-.

2. Disregarding the superfluous averments in the version opposite party has admitted sale of marbles for Rs.88,030/- to complainant. It is submitted that out of the various types of marbles displayed at the shop complainant himself had selected the marbles. The price of marbles ranges from Rs.50/- per square feet to Rs.200/- per square feet. The price varies basing upon the size of the slab, quality, with track or without tracks, coloured one or plain, white coloured or faintly coloured etc. The marbles purchased by complainant was of the quality and type of Rs.56/- per square feet. The price of pure white marble is Rs.200/- per square feet. Complainant has suppressed the slab size in his complaint. The marbles were taken delivery by complainant himself. The laying work was not done by workmen of opposite party. The total square feet was not measured or calculated by opposite party but by complainant. The marbles purchased were for 1571 square feet and not 1600 square feet. Opposite party does not know anything about the laying work done by complainant or the expenses incurred for the same. Due to incorrect and unskilled laying even good quality marbles may get damaged. Opposite party is not liable for any defects caused due to incorrect laying work. From enquiries opposite party came to know that there was a level difference of 6 inches on the floor which was corrected by using cement and concrete. Marbles were laid before this concrete was set properly and this caused cracks on the marbles. It must have happened due to the inexperience of the Engineer who did the construction work of the house. It is also submitted that out of the consideration complainant had paid only Rs.10,000/- and the balance is still due. That this complaint was filed when opposite party demanded the balance amount. The other allegations in the complaint are denied as false. That complainant is not entitled to any reliefs.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A7 marked for complainant. Counter affidavit filed by opposite party and Ext.B1 marked. Ext.c1 is the Commission report.

4. Points for consideration:-

 

(i) Whether opposite party has committed any unfair trade practice.

(ii) If so, reliefs and costs.

 

5. Point (i):-

The purchase of marbles for Rs.88,030/- is admitted by opposite party. Complainant alleges that the marbles are of substandard quality. Ext.A1 series show that the rate of the marbles was Rs.56/- per square feet. The main defense raised by opposite party is that the marbles selected was of the price of Rs.56/- per square feet only and that these have the standard and quality for the due consideration. Opposite party alleges that the cracks may have occurred due to incorrect levelling of the floor before laying the marbles and also due to defect in doing the laying work. The burden rests upon the complaiannt to prove that the marbles have defects and are of substandard quality. Since opposite party contends that there was defect while levelling the floor before laying the marbles this aspect also needs to be proved by complainant that the cracks were due to poor quality of the marbles alone and not due to any improper levelling of the floor.

6. To prove the defects of the marbles complainant relied upon Ext.C1 which is a report submitted by commissioner K.T. Siddique who is an advocate. To this report opposite party filed detailed objection on 17-7-2002. The main objection raised was that Advocate Commissioner is not an expert to inspect and opine about defect of marbles, and that he does not possess the requisite qualification to find out the reason for the cracks seen on the marbles. It was also stated in this objection that the real state of facts can be brought out only by the inspection of Civil Engineer. Complainant did not take any further steps to have the marbles examined by an expert qualified in the respective field. Later on 16-1-2003 opposite party filed I.A.7/2003 to appoint a qualified Expert Commissioner to inspect and report about the marbles. Complainant filed counter on 11-4-2003 opposing this application, which was then dismissed on 27-5-2003. Thus Ext.C1 is a report submitted by an advocate commissioner who is not a qualified expert in the respective field. Along with C1 commissioner has produced some photographs of the marbles. By perusing these photographs we are unable to understand anything about the quality, size or defect of the marbles. On 23-7-2008, the counsel for complainant filed an application for appointing an expert commission to inspect and report about the marbles. This petition was dismissed by us mainly because of it's belated nature. Ext.C1 was filed on 02-7-2002. Even after the objection raised by opposite party regarding the lack of expertise of the Advocate Commissioner complainant was not diligent enough to take necessary steps within time. It is true that this Forum was not functioning from February 2004 till June, 2007 due to the vacancy in the post of President and Member. We consider that complainant had sufficient time before that to take steps to get the marbles inspected by a qualified expert commissioner. Further the inspection if done in 2008 after so many years of use of the floor and the house will not help us arrive at a just decision. We therefore have to say that complainant has failed to prove the defect of the marbles by adducing expert evidence. In our view, Ext.C1 which is the report of an advocate Commissioner is not reliable and acceptable regarding the defect of marbles. It is held in 2008 CTJ 421 (CP) SCDRC Kerala, Sree Masthi Enterprises Vs. Kallingal Iqbal decided on 26-10-2007 Appeal No.503/2002 that when manufacturing defects in a product are alleged, the same should be proved by taking out a Commission that should be competent and qualified in that field. The ratio laid in the above decision is squarely applicable to this case. We hold that complainant has failed to establish a case in his favour.

7. In the result the complaint fails. We make no order as to costs.

Dated this 7th day of February, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A7

Ext.A1(series) : Estimates (4 Nos.)

Ext.A2 : A piece of paper for Rs.2,735/- dated, 13-12-2001 by opposite

party to complainant.

Ext.A3 : Estimate for Rs.12,429/- dated, 15-11-2001 by opposite

party to complainant.

Ext.A4 : A piece of paper for Rs.840/- dated, 05-12-2001 by opposite

party to complainant.

Ext.A5(series) : Quotation (2 Nos.)

Ext.A6 : Bill for Rs.35,000/- dated, 12-02-2002 by Alfa Light & Sounds

to complainant.

Ext.A7 : Calculation statement

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Photo copy of the bill for Rs.78,030/- dated, 15-11-2001

by opposite party to complainant.

Court document marked : Ext.C1

Ext.C1 : Commission Report dated, 04-6-2002.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER