DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 16th day of February 2013
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 08/03/2011
(C.C.No.39/2011)
Ashok Kumar.R
S/o.Late K.Ramachandran,
Ramraj, House No.15/218,
Near Stadium, Valiparambu Road,
Kunnathurmedu (PO),
Palakkad – 678 013
Present Address
Indeevaram,
House No.12/784,
O/o.Kairali Kalari Sangham,
Santhi Colony, Chembalode,
Chandra Nagar (P.O),
Palakkad - Complainant
(By party in person)
V/s
Proprietor,
M/s.Rakesh Marbles & Granites,
Calicut Bye-pass Road,
Kalmandapam,
Palakkad
(By Adv.U.Suresh & K.Dhananjayan) - Opposite party
O R D E R
By Smt.PREETHA G NAIR, MEMBER
The complainant purchased 130 sq.feet of Red multi Granite from opposite party on 13.12.2010 for Rs.16,490/- for constructing his house. The opposite party delivered four pieces of granites on 14/12/2010 in their vehicle. On verification the complainant understood that the unloaded granites were in two different colours. One piece of granite having 21 sq. feet became brown and remaining three pieces were in red colour. Then the complainant requested the salesman of opposite party, one Mr.Saji to change the brownish granite. He told the complainant that the same piece was not polished and remaining pieces were polished. He will arrange polishing and after polishing all pieces will looks similar. He insisted the complainant to lay the stone as it will be more comfortable them to do the polishing work. Further he stated that the tax invoice is misplaced by the driver in some where and he will deliver the bill within two days after locating it. Further the complainant requested him to change the stone again and again. Then he informed that they have attended more than four or five cases like this. Thereafter the complainant contacted Mr.Saji over phone several days. He assured him that they will rectify the problem immediately and advised to lay the stone. The complainant laid the stone on 17th and 18th December.
On 18th the complainant again went to opposite party and met the owner to request for changing the brown coloured piece immediately. Opposite party told that he will come on 20th for inspecting the laid material and assured that he will replace new one after inspection. Further told the complainant to wait the work site on 20th at 10.a.m. The complainant waited up to 1.30 p.m. after wasting half day leave, the opposite party did not come by that time and left the work site at 1.30 p.m. Thereafter he came at 2 p.m. along with Mr.Saji for inspection. Instead of changing the stone, they applied some red coloured paint/polish in the laid granite. Then Mr. Saji immediately rang up him from the site and handed over the phone to the opposite party . Then the opposite party assured that there will not be further problem as they have rectified the complaint. Continuously the complainant requested them to change the granites as the colour will fade in the near future. Thereafter the opposite party told that they are unable to change the granites, since the granites were laid. The complainant thought that problem would have been solved as all the pieces were looking similar for the last few days after applying polish. But it is looking very awkward and the painted colour became vanished and sit out of the house is looking in two different colour from 28/12/2010 onwards. Again the complainant approached the opposite party to change the granite. But they were still in the same old stand. The tax invoice also not issued by the opposite party. Finally on 29/12/2010 the opposite party issued duplicate copy of the invoice dated 13/12/2010. The adamant attitude of the opposite party, the complainant has postponed the house warming dates two three times. Then the complainant sent a letter dated 18/01/2011 to opposite party to verify the defects before 25/01/2011 to do the house warming on 30/01/2011. But they have not sent any reply or rectify the defects. Finally the complainant done the house warming on 13/02/2011 with the awkward sit out.
The act of opposite party amounts to deficiency in service. Hence the complainant prays an order directing the opposite party to pay Rs.40,000/- as compensation for cost of granites, labour charges and cost of mental agony.
Opposite party filed version stating the following contentions. The opposite party admitted the purchase of granite pieces by the complainant. The complainant himself had supervised and inspected the granites and after thorough inspection only, purchased the granites and taken delivery of it. There is no colour change or difference of colour between 3 pieces. According to the opposite party all the granite pieces are similar and identical in nature. The complainant was at full liberty to inspect and order the granite pieces before the purchase itself. The opposite party has not changed the granite selected by the complainant. The allegation of the complainant that he had made the granite as per the advice of Mr.Saji salesman is not correct. The deviation in colour if any between the 3 pieces of granite is not at all due to the deficiency in service of opposite party. The granite are natural product not artificial one and as every pieces itself is unique. The possibility of light variation of colour is permitted and it is authenticated by various authorities and experts. There is no deficiency in service on the part of opposite party. Hence opposite party prayed that complaint dismiss with cost.
Matter heard. Complaint allowed. Thereafter opposite party filed appeal before the Hon’ble State Commission. Then the matter remanded back by the Hon’ble State Commission for fresh disposal after given ample opportunity to both sides to adduce further evidence especially expert evidence. The complainant filed application for appointment of fresh commission. Application allowed. Commissioner filed report marked as Ext.C2. Both parties had not filed objection to commission report. Opposite party filed argument notes. Heard from complainant.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite parties ?
2. If so, what is the relief and cost ?
Issue No.1 & 2
We perused relevant documents on record. Admittedly the complainant purchased the granite from the opposite party for an amount of Rs.16,490/-. Ext.A1 shows that the cost of granite is Rs.16,490/-. According to the opposite party all the granite pieces are similar and identical in nature. Also opposite party stated that there is no colour change or difference of colour between 3 pieces. The opposite party has not produced evidence to show that all the granite pieces are similar. The complainant filed application to appoint an expert commissioner to inspect and file report. The application allowed and Ext.C1 the report filed by the expert commission.
Later the opposite party filed application to set aside the commission report or remit the report. It is stated that no notice was given to the opposite party regarding the date of inspection and no one on the side of the opposite party was present at the site of inspection. In the result I.A. allowed and report is remitted to the commissioner. Thereafter the commissioner not filed the report. Then the complainant filed application to receive the photographs alongwith CD. Application allowed and the photographs alongwith CD marked as Ext.A5 series. In Ext.A5 series shows the colour difference of granites layed in the sit out.
According to the complainant he waiting nearly two months for getting a favourable response from the opposite party. Finally the complainant done the house warming on 13/02/2011 with the awkward sit out. No contradictory evidence produced by the opposite party. The complainant has not cross examined by the opposite party. Ext.A5 series photographs alongwith CD also shows the colour difference of granites laid in the sit out.
After remanded back from the Hon’ble State Commission Ext.C2 as the Commission Report filed by the expert commissioner. No objection filed by both parties. No steps taken by the both parties to examine commissioner. In the argument notes filed by the opposite party stating that in the report the expert commissioner has not at all stated anything about the defects and inequality of the granite stone. Further opposite party stated that the complainant was having ample time to test and check the quality of the granite stone before its purchase. According to the complainant on verification he understood that the unloaded granites were in two different colours and approached the sales man to change the brownish granite. No contradictory evidence produced by the opposite party.
In C2 report, the commissioner stated that at the time of inspection some points are raised by the complainant. Observation of Commission is that “one slab belongs to different lot. There is considerable grains and colour difference visible. There are some defects visible in one slab. This may be due to improper polishing of the slab”. Further the commissioner noted that the complainant and T.R.Jain, K.Pradeep, representing opposite party present at the time of inspection.
The opposite party stated that the commissioner has not assessed the quantum of damages. The complainant present in person and the opposite party appeared through counsel. After appointing the commissioner both parties can file work memo. In the present case commissioner noted that the complainant raised some points at the time of inspection.
The commissioner inspected the house on the point noted by the complainant and filed report. According to the complainant one piece of granite having 21 sq.feet became brown and remaining three pieces were in red colour. Also he stated that he laid the granite and opposite party applied some red coloured part / polish in the laid granite.
In Ext.A1 the complainant purchased the granite on 13/12/2010 for an amount of Rs.16,490/-. The complainant is waiting for more than two years to change the granite piece. In C2 report the commissioner noted the defects of granite due to improper polishing of the slab. The commissioner has not assessed the cost of damages.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainant an amount of Rs.10,000/- (Rupees Ten thousand only) as compensation for mental agony and damages and pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 16th day of February 2013.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1- Duplicate copy of Tax Invoice Form 8B- Dt.13/12/2010
Ext.A2- Quotation dt. 13/12/2012
Ext.A3 - Copy of complaint letter dt 18.1.2011
Ext.A4- Postal Receipt dt.20/01/2011
Ext.A5 series-CD and the photographs
Exhibits marked on the side of opposite parties
Nil
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
Nil.
Commission Report
C2 – Commission Report filed by Mohandas.K.A. dated 8/1/13
Cost allowed
Rs.5000/- (Rupees Five thousand only) allowed as cost of the proceedings.
CONSUMER DISPUTES REDRESSAL FORUM
PALAKKAD, KERALA
Dated this the 27th day of July, 2012.
Present: Smt. Seena. H, President
: Smt. Preetha. G. Nair, Member
: Smt. Bhanumathi. A.K, Member Date of filing: 08/03/2011
CC / 39 / 2011
Asok Kumar.R
S/o.Late.Ramachandran, - Complainant
Ramraj, House No.15/218,
Near Stadium, Valiparambu Road,
Kunnathurmedu P.O, Palakkad-678 013
Present Address
Indeevaram, House No.12/784,
O/o Kairali Kalari Sangam,
Santhi Colony, Chembalode,
Chandranagar PO, Palakkad.
(BY Party in person)
Vs
Proprietor,
M/s.Rakesh Marbles & Granites,
Calicut Byepass Road,
Kalmandapam, Palakkad - Opposite party
(BY ADV. U.Suresh&K.Dhananjayan)
O R D E R
BY SMT. PREETHA. G. NAIR, MEMBER
The complainant purchased 130 sq.feet of Red multi Granite from opposite party on 13.12.2010 for Rs.16,490/- for constructing his house. The opposite party delivered four pieces of granites on 14/12/2010 in their vehicle. On verification the complainant understood that the unloaded granites were in two different colours. One piece of granite having 21 sq feet became brown and remaining three pieces were in red colour. Then the complainant requested the salesman of opposite party, one Mr.Saji to change the brownish granite. He told the complainant that the same piece was not polished and remaining pieces were polished. He will arrange polishing and after polishing all pieces will looks similar. He insisted the complainant to lay the stone as it will be more comfortable them to do the polishing work. Further he stated that the tax invoice is misplaced by the driver in some where and he will deliver the bill within two days after locating it. Further the complainant requested him to change the stone again and again. Then he informed that they have attended more than four or five cases like this. Thereafter the complainant contacted Mr.Saji over phone several days. He assured him that they will rectify the problem immediately and advised to lay the stone. The complainant laid the stone on 17th and 18th December.
On 18th the complainant again went to opposite party and met the owner to request for changing the brown coloured piece immediately. Opposite party told that he will come on 20th for inspecting the laid material and assured that he will replace new one after inspection. Further told the complainant to wait the work site on 20th at 10.am. The complainant waited up to 1.30 p.m. after wasting half day leave, the opposite party did not come by that time and left the work site at 1.30 p.m. Thereafter he came at 2 p.m along with Mr.Saji for inspection. Instead of changing the stone, they applied some red coloured paint/polish in the laid granite. Then Mr. Saji immediately rang up him from the site and handed over the phone to the opposite party . Then the opposite party assured that there will not be further problem as they have rectified the complaint. Continuously the complainant requested them to change the granites as the colour will fade in the near future. Thereafter the opposite party told that they are unable to change the granites, since the granites were laid. The complainant thought that problem would have been solved as all the pieces were looking similar for the last few days after applying polish. But it is looking very awkward and the painted colour became vanished and sit out of the house is looking in two different colour from 28/12/2010 onwards. Again the complainant approached the opposite party to change the granite. But they were still in the same old stand. The tax invoice also not issued by the opposite party. Finally on 29/12/2010 the opposite party issued duplicate copy of the invoice dated 13/12/2010. The adament attitude of the opposite party, the complainant has postponed the house warming dates two three times. Then the complainant sent a letter dated 18/01/2011 to opposite party to verify the defects before 25/01/2011 to do the house warming on 30/01/2011. But they have not sent any reply or rectify the defects. Finally the complainant done the house warming on 13/02/2011 with the awkward sit out.
The act of opposite party amounts to deficiency in service. Hence the complainant prays an order directing the opposite party to pay Rs.40,000/- as compensation for cost of granites, labour charges and cost of mental agony.
Opposite party filed version stating the following contentions. The opposite party admitted the purchase of granite pieces by the complainant. The complainant himself had supervised and inspected the granites and after through inspection only, purchased the granites and taken delivery of it. There is no colour change or difference of colour between 3 pieces. According to the opposite party all the granite pieces are similar and identical in nature. The complainant was at full liberty to inspect and order the granite pieces before the purchase itself. The opposite party has not changed the granite selected by the complainant. The allegation of the complainant that he had made the granite as per the advice of Mr.Saji salesman is not correct. The deviation in colour if any between the 3 pieces of granite is not at all due to the deficiency in service of opposite party. The granite are natural product not artificial one and as every pieces itself is unique. The possibility of light variation of colour is permitted and it is authenticated by various authorities and experts. There is no deficiency in service on the part of opposite party. Hence opposite party prayed that complaint dismiss with cost.
Both parties filed their respective affidavits and documents. Ext.A1 to A5 series marked on the side of complainant. Matter heard.
Issues to be considered are
1). Whether there is any deficiency in service on the part of opposite party?
2) If so what is the relief and cost?
Issue No:1 & II
We perused relevant documents on record. Admittedly the complainant purchased the granite from the opposite party for an amount of Rs.16,490/-. Ext.A1 & A2 shows the piece of the granite was Rs.16,490/-. According to the opposite party all the granite pieces are similar and identical in nature. Also opposite party stated that there is no colour change or difference of colour between 3 pieces. The opposite party has not produced evidence to show that all the granite pieces are similar. The complainant filed application to appoint an expert commissioner to inspect and file report. The application allowed and Ext.C1 is the report filed by the expert Commissioner.
Later the opposite party filed application to set aside the commission report or remit the report. It is stated that no notice was given to the opposite party regarding the date of inspection and no one on the side of the opposite party was present at the site of inspection. In the result IA allowed and report is remitted to the Commissioner. Thereafter the commissioner not filed the report. Then the complainant filed application to receive the photographs along with CD. Application allowed and the photographs along with CD marked as Ext.A5 series. In Ext.A5 series shows the colour difference of granites layed in the sit-out. According to the complainant he waiting nearly two months for getting a favourable response from the opposite party. Finally the complainant done the house warming on 13/02/2011 with the awkward sit out. No contradictory evidence produced by the opposite party. The complainant has not cross examined by the opposite party. Ext.A5 series photographs along with CD also shows the colour difference of granites layed in the sit-out. The opposite party has not produced any contradictory evidence.
The complainant has not produced evidence to show the cost of replace of granite. Ext.A1 & A2 shows the complainant purchased the granites for an amount of Rs.16,490/- on 13/12/2010. The opposite party has not produced evidence to show that there is no colour change or difference of colour between 3 pieces.
In the above discussions, we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainant an amount of Rs.20,000/- (Rupees Twenty thousand only) as compensation for mental agony and pay Rs.3000/- (Rupees Three thousand only) as cost of the proceeding.
Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry 9% interest per annum from the date of order till realization.
Pronounced in the open court on this the 27th day of July, 2012.
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Preetha.G.Nair
Member
Sd/-
Smt. Bhanumathi.A.K
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1- Duplicate copy of Tax Invoice Form 8B- Dt.13/12/2010
Ext.A2- Quotation dt 13/12/2012
Ext.A3 - Copy of complaint letter dt 18.1.2011
Ext.A4- Postal Receipt dt.20/01/2011
Ext.A5 series-CD and the photographs
Exhibits marked on the side of opposite parties
Nil
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
Nil.
Cost allowed
Rs.3000/- (Rupees Three thousand only) allowed as cost of the proceedings.
