Karnataka

Chitradurga

CC/77/2014

Shri.P.Lokesh S/o Parameshwarappa - Complainant(s)

Versus

Owner,Devi Marble - Opp.Party(s)

Shri.M.Umesh

28 Mar 2016

ORDER

COMPLAINT FILED ON : 15/09/2014

     DISPOSED ON: 28/03/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

CC. NO. 77/2014 DATED:  28th March 2016

PRESENT :-      SRI. T.N. SREENIVASAIAH     PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

COMPLAINANT	Lokesh. P S/o Parameshwarappa, Near Ayyappaswamy Temple, Vidyanagar, Medehalli Road, Chitrdurga.   (Rep by Sri. M. Umesh and Associates, Advocate)
OPPOSITE PARTIES	1. The Proprietor, Devi Marble, Near Gnanabharathi School, Holalkere Road, Chitradurga.   2. Sri Granite, 12 A, IDA, Guruma Palyam, Pendurthi, Vishakapattnam-560066.,   3. Sri Marble & Granite, No. 85/1, Harapanahalli, Bannerghatta, Anekal Road, Bangalore-560066.   (Rep by Sri. C.J. Lakshminarasimha, Advocate for OP No.1, OP No.2 ex-parte and Sri. A. Sivadasan, Advocate for OP No.3)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to the OPs to pay Rs.9,50,000/- with interest at the rate of 12% p.a and such other reliefs.

2.     The brief facts of the case of the complainant are that, he approached OP No.1 shop in the first week of October 2012 to purchase granite.  As per the assurance given by the OP No.1 that, the granite shown to the complainant are good quality and they are very durable for 100 years, complainant on 14.10.2012 purchased 1200 sq.ft at the rate of 73/- per sq.ft by paying a sum of Rs.1,00,302/-.  Complainant gave a contract to one Basha to lay the said granite and the said contractor completed the laying work in the month of January 2013.  But, within a span of time i.e., three months, it started chipping in the granite and they lost their shining.  Thereafter, complainant informed the same to OP No.1, OP No.1 visited and inspected the granite which laid in the house of the complainant  and assured that, they will polish the same by putting chemical and if fails to do so, they will give five times the cost of the granite.  But, after 5-6 months, it started chipping and the entire house became awkward.  Complainant tried to contact OP No.1 through his telephone and also from others but, OP No.1 did not respond properly.  On 21.08.2014 complainant contacted OP No.1 through telephone and asked to set right the defects in the granite or to refund the amount or replace the granite.  OP No.1 again visited the house of the complainant and asked the complainant about using of acid for cleaning the granite and tried to escape from their liability.  Complainant and his wife are the Graduates in Science and they have a knowledge about not to use the acid to clean the granite.  If the acid is used to clean the granite, the granite will turn to yellowish or black colour but, not the chipping.  OP No.1 took two pieces of granite for testing the same in the factory and requested don’t go to Police or Court.  On 06.09.2014 complainant visited the shop of OP No.1 and the son of OP No.1, who is present in the shop told to come on 08.09.2014 as his father went to Tamilnadu.  On 08.09.2014 complainant tried to contact OP No.1                   through telephone but he did not pick the call.  Thereafter, on 09.09.2014 complainant along with his friend one Sri. Basavaraj P.A, went to OP No.1's shop and requested to rectify or to replace the granite or to refund the amount but, OP No.1 refused to rectify or to refund the amount to the complainant and told to go to Court or do whatever you want.  The cause of action to file this complaint is on 14.10.2012 and on 09.09.2014 when the complainant purchased the granite and when the complainant visited the OP No.1's shop to rectify the defects in the granite or to refund the amount. Complainant laid the granite by spending huge amount for flooring, cement, sand and labour charges. Due to deficiency of service in supplying the low quality granite, complainant suffered mentally and physically and prayed for allow the complaint.

3.     On service of notice OP Nos.1 and 3 appeared through their respective Advocates.  Inspite of service of notice OP No.2 remained absent and placed ex-parte.    OP No.1 appeared through Advocate Sri. C.J. Lakshminarasimha and filed version denying the averments made in the complaint.  It is further stated that, complainant purchased the granite from them but, they are the dealers but not the manufacturers.  They have purchased the said granite from Bangalore.  Complainant has not given any notice to this OP regarding the defects in the said granite till date and there is no any defects found in the said granite slabs at any point of time.  It is further stated that, the said granite slabs were washed or cleaned by heavy acid by the complainant though it is not necessary and they have strictly informed orally to the complainant that, not use the acid to clean or to wash the granite and the complainant has done the same against to the instruction given by the OP.  There is no any defects or cracks or damages in the said granite supplied by the OP.  It is further stated that, the complainant demanded to do granite polish at free of cost for which, OP not agreed but, informed the complainant that, they will do the granite polish if the complainant bears the expenses for the same and it is not their duty to do wash or polish, their duty is to supply the granite only.  The granite slabs were fixed by others and therefore, they have informed to get the granite polish or granite wash with only who have fixed the same in the house of the complainant.  There is misusage of work regarding the acid wash to the granites.  It is further stated that, they are ready to do the polish work if the complainant agreed to pay the necessary charges for the same and they are responsible to pay any claim and prayed for dismissal of the complaint. 

4.     OP No.3 appeared through Sri. A. Sivadasan, Advocate and filed version denying the averments made in the complaint stating that, they have not supplied any goods to the complainant and he has not received any payments from the complainant and there is no relationship between them and complainant as that of consumer and supplier of goods and he has not produced any piece of paper to establish any kind of jural relationship between the complainant and this OP.  They have not supplied any materials to complainant and there is no documentary proof to this effect and so the question of deficiency of service on their part does not arise.  The provisions of C.P Act will come into play only when if the aggrieved party proves that the materials supplied by them are defective and when they have not supplied any materials to the complainant, the question of deficiency of service does not arise.  It is further submitted that, OP Nos. 1 and 2 never stated that the said goods were supplied by the OP No.3 and no link is established between the parties in respect of said goods supplied by the OP No.1.  The complainant nowhere in his complaint stated that, the said goods were supplied or manufactured by OP No.3 and therefore, prayed for dismissal of the complaint.       

        5.     Complainant himself examined as PW-1 by filing affidavit evidence reiterating the contents of complaint and documents are marked at Ex.A-1 to   Ex.A-7. 

6.     On behalf of OP No.1 one Sri. Rajendra Singh Bhati, the Proprietor of OP No.1 examined as  DW-1 by filing affidavit evidence and documents are marked at Ex.B-1 and on behalf of OP No.3 one Sri. Kamlesh Agarwal, the Proprietor of OP No.3 examined as  DW-2 by filing affidavit evidence and no documents were got marked.     

7.     Written arguments have been filed and oral arguments heard.

8. Now the Points that arise for our consideration for the decision of the complaint are that:

Point No.1:- Whether the complainant proves that, he is a consumer and the OPs have committed deficiency of service in rectifying the defects in the granite and he is entitled for compensation as stated in his complaint?

 

Point No.2:- What order?

 

        9. Our findings on the above points are as follows:

 

        Point No.1:- Negative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

 

10. Point No. 1:- The case of the complainant is that, on 14.10.2012 he purchased 1200 sq.ft at the rate of 73/- per sq.ft by paying a sum of Rs.1,00,302/- and laid the said granite in the month of January 2013.  But, within three months, it started chipping in the granite and they lost their shining.  Complainant informed the same to OP No.1, OP No.1 visited and inspected the granite laid in the house of the complainant  and assured that, they will polish the same by putting chemical.  But, after 5-6 months, the granite fixed in the entire house became awkward.  Complainant tried to contact OP No.1 through his telephone but, OP No.1 did not respond properly.  On 21.08.2014 complainant contacted OP No.1 through telephone and asked to set right the defects in the granite or to refund the amount or replace the granite.  OP No.1 again visited the house of the complainant and asked the complainant about using of acid for cleaning the granite and tried to escape from their liability and took two pieces of granite for testing the same in the factory.  Complainant by himself and along with his friend went to OP No.1's shop and requested to rectify or to replace the granite or to refund the amount but, OP No.1 refused to rectify or to refund the amount to the complainant. Due to deficiency of service in supplying the low quality granite, complainant suffered mentally and physically and prayed for allow the complaint.

11.   In support of his contention, the complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also relied on documents like copy of receipt dated 14.10.2012 for having purchased granite from OP No.1 marked as Ex.A-1.  Copy of tax paid receipt marked as Ex.A-2.  Photos marked as Ex.A-3 and C.D is marked as Ex.A-4.  Copy of observation report by the Geo Consultant marked as Ex.A-5.  Coy of Test report by the Chemist marked as Ex.A-6.  Copy of Tax Invoice marked as Ex.A-7.      

 12. It is argued by the OP No.1 that, complainant purchased the granite from them but, they are the dealers but not the manufacturers.  They have purchased the said granite from Bangalore.  Complainant has not given any notice to this OP regarding the defects in the said granite till date and there is no any defects found in the said granite slabs at any point of time. The said granite slabs were washed or cleaned by heavy acid by the complainant though it is not necessary and the complainant has done the same against to the instruction given by the OP.  There is no any defects or cracks or damages in the said granite supplied by the OP.  The complainant demanded to do granite polish at free of cost for which, OP not agreed but, informed the complainant that, they will do the granite polish if the complainant bears the expenses for the same and it is not their duty to do wash or polish, their duty is to supply the granite only.  There is misusage of work regarding the acid wash to the granites.  They are ready to do the polish work if the complainant agreed to pay the necessary charges for the same and they are responsible to pay any claim and prayed for dismissal of the complaint. 

13.   In support of its contention, OP No.1 has relied on the affidavit evidence of its proprietor in which he has reiterated the contents of complaint. He has also relied on document like copy of observation report marked as Ex.B-1, wherein it has been mentioned as "because of the chemical reaction occurred in the joints surfaces and in skirting area".   

14.   It is argued by the OP No.3 that, they have not supplied any goods to the complainant and he has not received any payments from the complainant and there is no relationship between them and complainant as that of consumer and supplier of goods and the complainant has not produced any piece of paper to establish any kind of jural relationship between them. They have not supplied any materials to complainant and there is no documentary proof to this effect and so the question of deficiency of service on their part does not arise.  The provisions of C.P Act will come into play only when if the aggrieved party proves that the materials supplied by them are defective and when they have not supplied any materials to the complainant, the question of deficiency of service does not arise.  OP Nos. 1 and 2 never stated that the said goods were supplied by the OP No.3.  The complainant nowhere in his complaint stated that, the said goods were supplied or manufactured by OP No.3 and therefore, prayed for dismissal of the complaint.      

15.   We have carefully gone through the complaint, version, affidavit evidence filed by both parties and the documents.  The complainant in his complainant has stated that, he purchased the granite from OP No.1 who is only a dealer and he is not the manufacturer.  Complainant nowhere in his complainant has stated that, he purchased the said granite from OP No.1 through the manufacturers i.e., OP No.2 or OP No.3.  He has not produced any piece of paper to show that, OP No.2 and 3 are the manufacturers and they have supplied the granite through OP No.1 to him.  OP No.1 is only a dealer, he is not the manufacturer and he sold the goods only on commission basis.  Ex.A-1, the photos shows that, because of acid washing, the damages occurred and the said granite slabs were washed or cleaned by heavy acid by the complainant though it is not necessary and the OP No.1 has strictly informed orally to the complainant that, not use the acid to clean or to wash the granite and the complainant has done the same against to the instruction given by the OP No.1, for which the OPs are not responsible and the complainant has not followed the instructions given by the OPs and there is a negligence on the part of complainant himself only and he is wholly responsible for the defects occurred in the granite.  As per Ex.B-1, the observation report given by the Geo Consultant, shows that, "the defects appeared in the granite slabs are due to chemical reaction occurred in the joint surfaces and in the skirting area".  So, in our opinion, the complainant has failed to prove his case by producing necessary documents to show that, he purchased the granite from OP No.1 through the manufacturers i.e., OP No.2 and 3.  Moreover, the complainant has not sought specific relief against the OPs.  Such being the case, we cannot come to the conclusion that, the OPs have supplied the defective goods to the complainant.  Therefore, we have no agitation to come to the conclusion that, the complainant is not entitled to get compensation from the OPs.        

 

16.  Point No.2:- For the foregoing reasons, we pass the following.

ORDER

 

It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.  No order as to costs.

        (This order is made with the consent of Members after the correction of the draft on 28/03/2016 and it is pronounced in the open Court after our signatures.)

 

 

 

 

MEMBER                                                         MEMBER   

                  

 

PRESIDENT

 

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

On behalf of OP No.1 one Sri. Sri. Rajendra Singh Bhati, the Proprietor examined as  DW-1 by filing affidavit evidence.

On behalf of OP No.3 one Sri. Kamlesh Agarwal, the Proprietor examined as  DW-2 by filing affidavit evidence.

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Copy of receipt dated 14.10.2012 for having purchased granite from OP No.1
02	Ex-A-2:-	Copy of tax paid receipt marked as
03	Ex-A-3 & 4:-	Photos & C.D
04	Ex-A-5:-	Copy of observation report by the Geo Consultant
05	Ex-A-6:-	Coy of Test report by the Chemist
06	Ex.A-7:-	Copy of Tax Invoice

 

Documents marked on behalf of Opponent:

01

Ex-B-1:-

Observation Report by the Geo Consultant

 

 

 

MEMBER                                                         MEMBER                      

 

 

PRESIDENT

Rhr.