IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 20^th day of October, 2011.

Present : Sri. Jacob Stephen (President).

Sri. N. Premkumar (Member)

C.C.No.143/09 (Remanded)

Between:

Kuttappan. D.,

Puthenpurayil Veedu,

Pramadom, Mallassery,

Pathanamthitta.

(By Adv. Soni. P. Bhaskar)                                         .....     Complainant

And:

P. Sudesan,

Thusharam Wirecut Bricks,

Thazhom Pangodu,

Karimbinpuzha.P.O.,

Puthoor, Kollam.

(By Adv. K. Ajith Kumar)                                           .....     Opposite party.

O R D E R

Sri. N. Premkumar (Member):

                   Complainant filed this complaint for getting a relief from the Forum.

                   2. Fact of the case in brief is as follows: Complainant had purchased 25000 wire cut bricks from the opposite party by paying `1,18,750.  Opposite party supplied the bricks at the complainant’s building site.  On inspection, complainant found that the said bricks are of law quality and are not useful for the construction works.  Complainant informed the opposite party about the said defects directly and through telephone. But the opposite party has not resolved the matter.  Due to the above said acts of the opposite party, the complainant’s construction work was affected and he had sustained mental agony and financial loss.   The above said act of the opposite party is a clear deficiency of service and therefore the complainant issued a legal notice in this regard on 20.07.2009 which was accepted by the opposite party.  But the opposite party had not settled the issue.  Hence this complaint for the realisation of ` 1,18,750, the amount received by the opposite party along with compensation of ` 50,000/- and cost of this proceedings.

                   3.  Earlier in this case, opposite party was exparte.  Based on the available evidence, this case has been disposed by this Forum as exparte by allowing the complaint. 

                   4.  Aggrieved by the said order, opposite party approached the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram by filing Appeal No. 642/2010.  The Hon’ble CDRC set aside the order of this Forum and remanded the case for fresh disposal by giving opportunity to opposite party for adducing evidence.

                   5.  After remand order, opposite party entered appearance and filed version stating that the complaint is not maintainable either in law or on facts.  This complaint has been filed on experimental basis for not giving the balance due amount of ` 28,750 in the wire cut bricks transaction between the complaint and opposite party. 

                   6.  According to opposite party, complainant came to their office and see the wire cut bricks and fully understand the quality and standard.  On 10.04.2009 complainant given ` 20,000 as advance at a rate of `4-75 per wire cut bricks and ordered 25000 bricks.  Opposite party supplied the bricks on 13.04.2009, 14.04.2009, 16.04.2009 and 18.04.2009.  Each load contains 5000 in number.  Complainant paid ` 50,000 on 13.04.2009 and ` 10,000 on 14.04.2009 to the opposite party.  He has not paid any amount on 16.04.2009.   On 18.04.2009 he paid ` 10,000.  The total paid amount is ` 90,000.  At that time, opposite party is entitled to get ` 95,000 for 20000 bricks.  When opposite party demanded ` 5,000, complainant informed that for the completion of the construction of the building he needs 5000 more bricks and the balance amount of ` 5,000 along the price of the said bricks would be given to them.  Accordingly, opposite party supplied 5000 bricks on 26.05.2009 and demanded `28,750.  But complainant assured to pay the said amount directly to opposite party on next day.  Thereafter, opposite party approached the complainant several time for getting the balance amount.  But the complainant has not paid the amount.  Thereafter, this complaint has been falsely filed by the complainant for not paying the said amount.

                   7.  According to the opposite party, at the time of purchasing the bricks, complainant told that he had purchased 2 loads of wire cut bricks from a company at Pathanamthitta which was of low quality and not used for construction.  Therefore, he came to Kollam which is well known for wire cut bricks and meet opposite party.  Whenever the opposite party demanded the balance amount, complainant has not made any complaint regarding the quality of bricks supplied by the opposite party.  Complainant has used opposite party’s bricks for entire construction and completed the building.  The allegation regarding the lower quality of bricks is false.  Wire cut bricks are burnt in choola for a period of 2 weeks which would not be changed to mud tomp.  There is no deficiency of service on the part of the opposite party.  Therefore, the relief claimed by the complainant is not allowable.  Hence opposite party canvassed for the dismissal of the complaint with cost.

                   8. From the above pleadings, the following points were raised for consideration.

(1)   Whether this complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are   

      allowable?

(3)   Reliefs & Costs?

                     9. The evidence of this complaint consists of the oral deposition of PW1, CW1, CW2, DW1 & DW2 and Exts. A1 to A3 & C1 to C3. After closure of the evidence, both parties were heard.

                   10. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents.  He was examined as PW1 and the documents produced were marked as Exts.A1 toA3.  Ext.A1 is the copy of advocate notice dated 20.07.09 issued to opposite party.  Ext.A2 is the postal receipt of Ext.A1.  Ext.A3 is the acknowledgment card of Ext.A1.  In this case, an advocate commissioner and expert commission were appointed.  Ext.C1 is the report.  Ext.C2 is the mahazar and Ext.C3 is the expert report.

                   11. On opposite party’s side DW1 and DW2 were examined, but no documentary evidence was adduced.

                   12. On the basis of the contentions and argument of the parties, we have perused the entire materials on record.  Complainant’s case is that opposite party supplied 25000 low quality wire cut bricks.  Complainant cannot be used the said bricks for construction and opposite party has not returned the amount though he demanded several time.  Opposite party’s contention is that, they supplied 25000 numbers of standard wire cut bricks and complainant used it for construction of his building.  An amount of `28,750 is due from the complainant in the said transaction.  When they demanded the balance amount of `28,750, complainant filed this complaint alleging the quality of bricks for avoiding the balance payment.  Ext.A1 to A3 it is seen that opposite party received the notice regarding the quality of bricks and demanded for the return of amount of `1,18,750.  But opposite party has not responded to it.  They raised the contention only in their written statement and not supported by any materials.  If it is genuine, they would have responded in time.  Therefore, it cannot be ruled out that opposite party’s claim for balance amount is only an after thought to escape from this dispute.

                   13. It is not disputed that opposite party’s supplied 25000 numbers of wire cut bricks.  According to complainant, all the said bricks were having low quality and cannot be used for construction work which is laying in the site.  Therefore, he is entitled to get the amount of ` 1,18,750 paid by him with compensation and cost.  But as per Ext.C2 mahazar, it is evident that complainant used 10000 numbers of wire cut bricks for his construction.  Complainant also mentioned in the argument notes that the bricks used for the construction of a shed, if pressed will become dust.  From the above facts and circumstances and the available materials on record, it is crystal clear that complainant used a portion of wire cut bricks for construction, though it bearing low quality.  But he suppressed the said material fact.  It is unfair, unethical and he is expected to come with clean hand.  Therefore the claim of 10000 used bricks cannot be allowable.

                   14. On a perusal of Exts.C1 to C3, it is evident that the wire cut bricks are low quality.  It is becoming powdered when it is pressed with fingers.  As per report complainant used 10000 numbers of wire cut bricks for construction.  The remaining 15000 numbers of bricks are kept in the building yard.  Now no single bricks can be separated from this because only soil leaps are seen.

                   15. Material on record shows that out of 25000 numbers of wire cut bricks, 10000 were used for construction.  The remaining number is 15000.  It is seen that the said bricks were powered, damaged and became mud and cannot be countable.  This fact is evident in CW1’s deposition which is as follows:- “NpSpI«bv¡p]Icw a¬Iq\I­p F¶v FgpXnbXv F´SnØm\¯nemWv? CjvSnI ASp¡n h¨Xv s]mSnªv a¬Iq\bmbn InS¡p¶Xv I­v t_m[ys¸«Xnsâ ASnØm\¯nemWv A{]Imcw alÊdn tcJs¸Sp¯nbXv.  \of¯n Hcp Iq\bmbn«mWv InS¶Xv“. From the above fact, we find that remaining 15000 numbers of wire cut bricks were powdered and became soil leaps. 

                   16. Though opposite party challenged the finding of expert commissioner and vehemently cross-examined CW2, nothing has come out to discredit the C1 to C3 report.  The deposition of CW2 also corroborate the said report which is as follows:-  “NpSpI«bpsS quality Xocpam\n¡m\pÅ kmt¦XnI amÀ¤§Ä Fs´ms¡bmWv.  Sound, colour, water absorbtion F¶nhsIm­v a\Ênem¡mw. I«bpsS strength Adnbm³ compression method BWv D]tbmKn¡p¶Xv.  B amÀ¤§Ä hÃXpw Øe¯v D]tbmKnt¨m? ]e sSkväpIfpw \S¯n.  I« {]kv sNbvXp t\m¡n.  At¸mÄ s]mSnªp t]mIp¶ AhØbnembncp¶p.  AXpsIm­v IqSpX sSÌv Bhiyambncp¶nÓ. 

                   17. Opposite party vehemently objected Ext.C1 to C3 report, but they neither filed a petition to set aside the said report nor taken any step to file a fresh commission application to ascertain their contention and adduce facts.  The mere objection raised by the opposite party cannot be accepted.  Therefore, complainant failed in their attempt either to disprove the C1 to C3 report or to prove their contention.

                   18. From the overall facts and circumstances, we come to the conclusion that out of 25000 numbers of wire cut bricks, 15000 numbers were damaged due to the low quality which are unused for any construction.  Opposite party failed to adduce any cogent evidence to disprove this fact.  Therefore, supplying low quality bricks is not only a deficiency of service but also an unfair trade practice.  Hence complaint is maintainable and allowable in part.  In the facts and circumstances of this case, compensation and cost is not allowable.         

          19. In the result, this complaint is allowed in part, thereby the opposite party is directed to return ` 77,250 (Rupees Seventy seven thousand two hundred and fifty only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realise the whole amount ordered herein above with 10% interest per annum from today till the realization of the whole amount.

        Declared in the Open Forum on this the 20^th day of October, 2011.    

                                                                                                (Sd/-)

                                                                                      N. Premkumar,

                                                                                          (Member)

Sri. Jacob Stephen (President)        :         (Sd/-)        

Appendix:

Witness examined on the side of the complaint :

PW1  :         Kuttappan.

Exhibits marked on the side of the complainant:

A1     :         Photocopy of the Advocate Notice dated 20.7.2009 sent by the   

                      complainant to the opposite party.

A2     :         Postal receipt of Ext. A1.

A3     :         Acknowledgment card of Ext.A1 legal notice.

Court Witnesses:

CW1 :         Abraham Varghese.

CW2 :         Ano David Thomas.

Court Exhibits:

C1     :         Mahazar prepared by the Advocate Commissioner Sri.     

                    Abraham Varghese.

C2     :         Report prepared by the Advocate Commission Sri.

                   Abraham Varghese.

C3     :         Expert report prepared by Ano David Thomas.

Witness examined on the side of the opposite parties :

DW1 :         P. Sudesan.

DW2 :         Sudheer Babu.

Exhibits marked on the side of the opposite parties     : Nil.

                                                                                      (By Order)

                                                                             Senior Superintendent.

Copy to:- (1) Kuttappan. D., Puthenpurayil Veedu, Pramadom, Mallassery,

                       Pathanamthitta.

       (2) P. Sudesan, Thusharam Wirecut Bricks, Thazhom Pangodu,

                       Karimbinpuzha.P.O., Puthoor, Kollam.

                 (3) The Stock File.