By Smt. PREETHI SIVARAMAN.C, MEMBER

1.The complaint in short is as follows:-

      On 03/10/2016 complainant had approached opposite party for purchasing   quality marbles for laying in the floor of his house. Then opposite party showed some marbles to complainant especially  morchana marbles  and he  said that   these are  high quality marbles and having  finishing and smoothness. Opposite party told to complainant that the above marble which costs Rs. 78/- for sqft and he also wanted Rs. 1700/- for loading and unloading of the above marbles at complainant’s house. As per that, complainant  purchased  1701.84 sqft marbles.

2.          Opposite party calculated 1700 sqft marble slabs and he told to complainant to pay Rs.1,34,300/- including the unloading charge. For the above amount, complainant paid Rs 2000/- as advance and opposite party provided a bill (estimate) to complainant. After one week opposite party unloaded the marbles in complainant’s work site and he paid the balance amount of Rs.1,32,200/- to opposite  party. Thereafter complainant put the marbles with the help of some workers appointed by him and after the work completed and after polishing the marbles, he saw some cracks in every marble slabs.  When complainant asked about this to the workers and they told to complainant that these cracks are already there in the marbles and it became clear and visible due to polishing the marbles. Then complainant again contacted to opposite party and he assured that he will come to the site and he will rectify the defects caused to the marbles. But opposite party did not come to the site and did not rectify the defect. Due to the defects of the marbles, flooring is seen to be ugly and complainant had already spent huge amount for  his  newly constructed  house. 

3.      Due to this cracks, the marbles in complainant’s house were need to be removed and complainant is forced to put new marbles instead of the old damaged one.  It caused a huge financial   burden to complainant.  For removing the cracked marble slabs complainant have to spent nearly Rs.22,000/-.  Complainant already spent Rs.1,28,000/- as coolie for laying the marbles  in his house and he had spent Rs 75,000/- for purchasing sand , cement  and other  articles  for laying the marble slabs in his house. Complainant alleged that opposite party gave cracked and damaged marbles to complainant intentionally. Opposite party sold the cracked marbles to complainant. It is an unfair trade practice. Hence this complaint. 

4.        The prayer of the complainant is that, he is entitled to get  Rs.1,34,200/- the cost of the marbles slabs, Rs. 2,15,000/- as the  amount spent for giving coolie to the workers and for purchasing cement , sand and other  articles  for  fixing the  marble slabs in his house, Rs. 22,000/- for removing the damged  marbles from  the floor of his house, Rs. 1,00,000/- as compensation on account of deficiency in service  and unfair trade practice on the part of opposite party  and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings with 12 % interest. 

5.           On admission of the complaint notice was issued to the opposite party and

notice served on them and they appeared before the Commission through their counsel and filed version.

6.       In their version, opposite party denied all the allegations in the complaint against them except those which are admitted there under. They admitted that on 03/10/2016 , complainant had purchased 1701.84 sqft marble worth Rs. 78/-  per sqft from them and  Rs.1700/-  also  given to opposite party for loading  and unloading o  of the marbles from  the shop of opposite party to complainant’s house. But they stated that they did not fix the marbles in complainant's house and they did not do the future maintenance of the floor. They again stated that complainant had no complaints about   the quality of the marble and the price of the marble. Further they stated that complainant had admitted that, he had purchased 1701.84 sqft of marble from opposite party and he had paid for the same.   

7.       Opposite party stated that they provided the marble slabs having higher length and width   to complainant.  In this marble slabs there is cracks found on the edges of the pieces at the time of excavating (mining) the marbles from earth. Opposite party again stated that,   they measured the sqft of the marble sheet only that area where no cracks found.  The cracked part of the marble slabs is not taken for calculating the sqft of the marble. Only the remaining part is taken for measuring the sqft of the marble. Complainant purchased the marble slabs with his own likes and he purchased Morchana marbles with his own will.  They only wanted the payment for that portion of the marbles where there is no crack. The other portion of the marbles (portion having cracks) are giving to complainant free of cost. The total area of the marble purchased by complainant is measured as 2099.16 sqft.  The total sqft includes the area where the crack found. Moreover he did not file any complaint before any of the authority   about the  marble slabs. 

8.     They again stated that complainant had laid the marbles by appointing labourers of his own choice   and in his own money.  The polishing work is also done by the labourers appointed by complainant. Moreover opposite party stated that they had provided the bill to complainant after deducting the area of cracked portion of the marble slab. It is very much evident in the measurement given by complainant in his complaint.  They again stated that complainant had appointed unskilled labourers for fixing the marble slab in complainant’s floor.  They contented that there is no unfair trade practice from their side. He is conducting this business with a good reputation since 1995 at Irumbuzhi for his livelihood and most of the labourers are his relatives and the local people.  There is no allegation till now against them from the side of anybody. 

9.       He again contented that  after the inspection of the  Advocate commissioner,   opposite party also filed one IA 83/2022 to  re-inspect  the marbles  and to measure  the total sqft of the marble slab which affixed in  complainant’s house  with  the  same Commissioner  and  that was allowed. Commissioner filed her report on 13/10/2022 and she reported in her Ext.C2 report that, the total sqft of the marble fixed at complainant’s house is 2013.93 sqft. Thereafter they stated that, complainant already stated in his complaint and affidavit that he had paid the amount only for 1701.84 sqft of marble slabs. There is an additional marble slabs of 312.9 sqft is there at complainant's house. Moreover complainant has no case that he had purchased some marbles from another shop. They again stated that complainant had no objection against the Ext. C2 report filed by commissioner and complainant did not say anything about the extra sqft of marble slabs in his house. They again contented that complainant had no case that, he had purchased the marble slabs after cutting the four sides of the marble pieces. Moreover  opposite party stated that, complainant is clearly knows that  his house has an area above 2000 sqft  for   fixing the marble slabs but  he only purchased and paid for  1701.84 sqft  of marble. Complainant very well know that  without cutting the edges of marbles sheets , he can get an extra 300 sqft of marble slabs   and he very well knows that he had paid an amount only for 1701.84 sqft of marbles. He also knows that the area of his house is 2000 sqft. They again stated that,  it is a false complaint and  complainant impleaded this opposite party in this complaint who is conducting his business  in a  truthful manner only for harassing him. Hence complaint may be dismissed.

10.       In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 & A2. Ext.A1 is the original estimate (bill) given by opposite party to complainant on 03/10/2016. Ext.A2 series are the photographs of the marble slabs laid in complainant’s house. The reports submitted by  of Advocate commissioner is marked as Ext. C1 and C2.  Thereafter opposite party also filed affidavit but no documents filed.

11.    Heard complainant and opposite party. Perused affidavits and documents.  The following points arise for consideration:-

1. Whether there is any unfair trade practice on the part of opposite party.
2. If so, reliefs and cost?

12 .Point No.1& 2:-

     Case of the complainant is that the marble slabs   he had purchased from opposite party were defective and there is cracks found in most of the marble slabs   within few days. Complainant said that this cracks were already there in the marbles and it is clear and apparent after polishing. But opposite party did not rectify the defects. But opposite party said that, the admitted measurement of marble slabs purchased by complainant is 1701.84 sqft. But after the  visit of Advocate commissioner  he measured the total area of the marble slabs  purchased by complainant is  2016 sqft, the total sqft includes the area where the crack found. As per Ext. C2 report total area of the marbles affixed at complainant's house is 2013.93 sqft. They again stated that complainant already stated in his complaint and affidavit that he had paid the amount only for 1701.84 sqft of marbles. There is an additional marble slabs of 312.9 sqft. Complainant got an extra 300 sqft of marble slabs  and he had paid only the amount for 1701.84sqft. The area of the house of the complainant is 2000 sqft.  They again stated that complainant had laid the marble slabs by appointing labourers   of his own choice.  Sometimes they may be unskilled labourers.

13.     After perusing the affidavits and documents.  It is seen that   , complainant had purchased 1701.84 sqft of marbles. Opposite party also admitted the same. As per Ext.A2 the photographs shows that there is cracks in the marbles laid at complainant’s house. Opposite party did not produce any document to prove their case. There is no case for opposite party that complainant did not pay the full amount including the loading and unloading charges. So from the above statements it is clear that complainant had purchased 1701.84 sqft of marbles from opposite party after paying the full amount to opposite party.

14.     But  as per the version and affidavit of opposite party ,  he  stated that  at the time of excavating the marble slabs  cracks will be there  at the end portion of the marble slabs and they are providing that portion of marbles with  cracks to consumers free of cost. They only taken the measurement of the middle portion of the marble for calculating the sqft without cracks. As per his case the total sqft of marbles including the cracked area purchased by complainant is 2099.16, but opposite party only charging the amount for 1701.84 sqft of marbles. From the above statement it is clear that, they had given the marble slabs including the cracked marble slab to complainant having 2099.16 sqft. But they charged and  received only the amount for 1701.84 sqft of marbles.

15.   As per  IA 72/2019, Adv. Jasmi N is appointed as the  advocate commissioner to inspect the marbles laid in complainant’s house. After inspection Commissioner stated that at the sit-out of the house which situated in front of  the house there is crack in one slab  and she produced four photographs to show the cracks.   She again stated that “Cª o¢×ª-¶¢¨Ê l-T-´¤-g¡-L-·¡-i¢-¶¡X® c¢k-·® l¢-j¢-µ h¡t-f¢w l-k¢-i- ©Y¡-Y¢v ¨d¡-¶® l£-X¢-¶¤-¾Y® ’’. She again stated that o¢×ª-¶¢¨k  h-פ Ì-k-¹-q¢-¨k¡¼¤« crack  l£-X¢-¶¢¿. In her Ext. C1 report  she clearly stated that o¢×ª-¶-¢¨Ê ¨h¡-·« A-q-l¤-Jw 253cm l£-Y¢-i¤« 185cm c£-ql¤« BX®. Again the same commissioner was appointed   to inspect the measurements of marble as per IA 83/2022  filed by opposite party.  In that report Ext. C2, she stated that   the area of sit out 182 X 252 cm c£q-l¤« l£-Y¢i¤-h¡X®. In her Ext. C2 report , she stated that "Y¡r-¨· c¢-k-i¢-¨k o¢-ת-¶¢v h¥-¼® lk¢i slab DÙ®. j-Ù-® Ìk·® crack l£-X¢-¶¤Ù®.  She had already reported the measurement of sit out in her Ext. C1 report.

16.      After inspection, in her Ext. C1 report she stated about the office room of the house.  T¢. ©V¡-s¢-©c¡-T® ©Ot-¼® c¢-k-·® l¢-j¢-µ h¡t-f¢w ¨d¡-¶® l£-X¢-¶¤Ù®  and she produced  one photograph  to show the  crack .  In her Ext. C2 report,   she stated that  j-Ù® lk¢i slab DÙ®. j-Ù® Ìk·® crack l£-X¢-¶¤Ù®. She had already reported the measurement of office room  in her Ext. C1 report.

17.     In her  Ext. C1 report she stated about the measurement  and other details of the floors of  dining hall of the house.  T¢.p¡-q¢-¨Ê ©V¡s¢-©c¡-T® ©Ot-¼® c¢k-·® l¢-j¢-µ h¡t-f¢w lk¢i ©Y¡-Y¢-v ¨d¡-¶® l£-X¢-¶¤Ù® and she produced  one photograph  to show the  crack .  T¢. p¡-q¢-¨Ê last g¡-L-l¤« kitchen c¢©k-´¤«  h-פ jÙ® bed room ©k-´¤-h¤-¾ l-r¢-i¢-k¡-i¢-¶® c¢k-·® l¢-j¢-µ h¡t-f¢w ¨d¡-¶® l£-X¢-¶¤Ù® . She produced  one photograph  to show the  crack. Again she reported   in her Ext. C2  report  that  “ 6 lk¢i slab  D-Ù®. 5 Ìk·® crack l£-X¢-¶¤Ù® . She had already reported the measurement of dining hall   in her Ext. C1 report.

18.      In her  Ext. C1 report she stated about the measurement and  other details of the floors of  first and second  bed room  of the house.  Regarding the first bed room Commissioner  stated that “ T¢. s¥-h¢v H¼¤« Y-¨¼ c¢-k-·® l¢-j¢µ h¡t-f¢w ¨d¡-¶® l£-X¢-¶¢¿. Regarding the second bed room, Commissioner stated that “T¢. s¥-h¢¨Ê   c¢-k-·® ©V¡s¢-©c¡-T® ©Ot-¼® lk¢-i j£-Y¢-i¢v  h¡t-f¢w ¨d¡-¶® l£-X¢-¶¤Ù®”. She also reported the measurement of cracked area of the marble in second bed room in her Ext.C1 report. In her Ext. C2 report, she stated about the first and second bed room that ‘’ jÙ® lk¢i slab D-Ù® H-j¤ Ìk·® crack l£-X-¢-¶¤Ù®.    She had already reported the measurement of first and second bed room   also in her Ext. C1 report.

19.     In her  Ext. C1 report she stated about the measurement and  other details of the kitchen   of the house.  Regarding the kitchen she stated that “ T¢. kitchen ¨Ê G-J-©am« h-b¬-g¡-L-·¡-i¢-¶¡-X® c¢k-·® l¢-j¢-µ h¡t-f¢w ¨d¡-¶® l£-X-¢-¶¤Ù® and she stated the measurement of slabs which had  cracks in her Ext. C1 report.  In her Ext. C2 report she stated that  lk¢-i jÙ® slab D-Ù®, 3 lk¢i crack DÙ® kicthen ¨Ê g¡L¨· Bw-h-s g¡L-·® j-Ù® ¨d¡-¶® DÙ®. She had already reported the measurement of kitchen    also in her Ext. C1 report.

20.   In her  Ext. C1 report she stated about the measurement and other details of the work area  of the house.  In the work area she stated that “T¢. lt´®® F-j¢-i-i¤-¨T G-J-©a-m« h-b¬ g¡-L-·¡-i¢-¶¡X®® c¢k-·® l¢-j¢-µ h¡t-f¢w ¨d¡-¶® l£-X¢-¶¤-¾Y®. In her Ext. C2 report she stated that  h¤-r¤lu slabc¤«  lk¢i crack DÙ®. She had already reported the measurement of cracked area and the measurement of full work area     also in her Ext. C1 report.

21.     Again she reported the first bed room of the first floor of the house. In her Ext. C1 report she stated that T¢. s¥-h¢-¨Ê A-l¢-¨T-l¢-¨T d-k Ì-k-¹-q¢k¤« h¡t-f¢w ¨d¡-¶® l£-X-¢-¶¤Ù®®. In her Ext. C2 report she stated that 4 slab D-Ù® F¿¡ slab D« ¨d¡-¶® DÙ®. She had already reported the measurement of first bed room   in the first floor  of  the house also in her Ext. C1 report.

22.    Again she reported the second   bed room of the first floor of the house. In her Ext. C1 report she stated that T¢ s¥-h¢-¨Ê c¢k-·¤ l¢-j¢-µ h¡t-f¢w A-l¢-T-l¢-T-¹-q¢-k¡i¢  ¨d¡-¶® l£-X¢-¶¤Ù®. In Ext. C2 report Commissioner stated that j-Ù® lk¢i slab B-X-¤¾-Y® A-Y¢v lk¢i slab -v ¨d¡-¶¤Ù®. She had already reported the measurement of second  bed room   in the first floor  of  the house also in her Ext. C1 report.

23.  Nothing reported by Commissioner  in her Ext. C1 report about the crack found in the sit out and hall  at the upstairs. But in Ext. C2 report, commissioner reported that  in the up stair  sit out  ‘’6 ¨O-s¢i  slab D-Ù®  2 Ìk-·® ¨d¡-¶¤Ù®. In the up stair hall, she reported that   3 ¨O-s¢i  slab  B-X® A-Y¢-c® h¥-¼¢c¤« ¨d¡-¶¤-Ù®.   Again the commissioner reported that in the up stair ‘’up stair v j-Ù® Ìk-·® ¨d¡-¶¤Ù®’’. She had already reported the measurement of sit out and hall  at the upstairs   in the first floor  of  the house also in her Ext. C1 report.

24.    In Ext. C1 report, commissioner stated that T¢ l£-T¢-¨Ê ¨h¡-·« sqft  1867.90 BX®. T¢. l£-T¢-¨Ê h¤-J-q¢-¨k-¨·i¤« Y¡-r-¨·i¤« c¢-k-i¢v c¢k·¤ l¢-j¢-µ h¡t-f¢w F-Í-¢©h-×® d-si¤«  ±d-J¡-j« 51 slab J-q¡-i¢-¶¡X® d-j¡-Y¢-´¡-ju J-T-i¢v c¢-¼¤ l¡-¹¢µ-Y® B-i-Y¢-¨Ê F-Í-¢©h-פ-Jw d-j¡-Y¢-´¡-ju p¡-Q-j¡-´¢ Y-¼Y®. T¢ h¤-J-q¢v ±d-o®-Y¡-l¢µ slab J-q¢v j-¨Ù-»« A¿¡·-Y® h¤-r¤lu slab Jq¤« ¨d¡-¶¢-i¢-j¤¼¤. A-Y¤ ©d¡-¨k Y-¨¼ f¡-´¢ estimate v J¡-X¢µ slab Jw ¨d¡-¶® H-r¢-l¡-´¢-i¡-X® A-c¬¡-i-´¡-ju l¡-¹¢-µY®. ¨d¡-¶® H-r-¢l¡-´¢ l¡-¹¢-µ h¡t-f¢-q¡-X® h¤-J-q¢-¨k-¨· c¢-k-i¢v l¢-j¢-µY®.  In Ext. C2 report commissioner stated that  the total sqft of marbles used in  complainant’s house is  2013.93 sqft. Then Commissioner again stated  in   Ext. C2 report  that crack l£-X h¡t-f¢w – h¥-J-q¢-¨k-¨· c¢-k-i¢-k¤«, Y¡r-¨· c¢-k-i¢k¤« l¢-j¢-µ h¡t-f¢-w  crack l£-X¢-¶¤Ù®.

25.   In this case commissioner measured   and noted the area of the house in her Ext. C1 report.  In Ext C2 report she again measured the area of the house with the help of a person who had taken the measurements of the house with her  in her first visit  The only difference is that  Commissioner mentioned the total area of the house  in her first commission report as 1867.90 sqft .  From that it is clear that there is nearly 300 sqft difference of marble in both the reports. As per Ext. A1 estimate, the total   marble purchased is 1701.84 sqft. In Ext. C1 report, commissioner reported that the total area of the house is 1867.90 sqft.  But in Ext. C2 report, she reported that the total area of the house is 2013.93 sqft.  It is true that complainant only purchased 1701.84 sqft of marble, so it is seen that there is some difference between the area of the house and the total marble purchased. 

26.      But commissioner clearly reported in both reports that   there is crack found in marbles of both ground floor and first floor of the house. She never pointed out that the cracks found in the marble were at the edges of the marble slabs. In Ext C1 report, she clearly stated that   most of the marble slabs laid at complainant’s house had cracks.  In some places she reported that the cracks found at the middle portion of the slab.  So it is clear that the marble given by opposite party to complainant were defective. Commissioner clearly stated about that defects in her Ext. C1 and C2 reports.

 27.     Opposite party filed his version on 04/12/2018.  In that version opposite party stated that, the total area of the house of the complainant is 2099.16 sqft. Commissioner reported in her Ext. C2 report filed on 13/10/2022 that the total area of the house is 2013.93sqft. Then how can the opposite party can submit the total area of the house as 2099.16 sqft in their version. Moreover opposite party in their version stated that, he had given 2099.16 sqft marble to complainant including the cracked area. But he did not mentioned that in Ext A1 estimate. Then how can the commission find out the difference.

28.     Another contention of opposite party is that, complainant had fixed this marble slabs by the labourers appointed by himself and the marbles are polished by his own labourers. Opposite party again stated that, the unskilled labourers who put the slabs at complainant’s house is one of the reason for the defects and the lower quality  polish is  also another reason for the defects of the marble.  But they did not prove these two factors are the reason for the defects caused to the marbles in complainant’s house.  Another reason stated by opposite party is the necessity of regular polishing and maintenance of marble slabs. They stated that, it   is also another reason for   the non finishing of the marble slabs put at complainant’s house. That is also not proved by the opposite party.  Another contention of opposite party is that, there is chance to enter water inside the complainant’s house during the last flood at 2018. But  in IA 458/ 2022 filed by opposite party to inspect  the house of complainant  by the same commissioner, there was no request to direct the  Commissioner  to report  whether complainant's    house was  flood affected or not. From the above facts we are on the opinion that opposite party admitted the defects of marble slabs put at complainant’s house. In the argument note filed by opposite party before the Commission, they stated that there is no evidence of witnesses taken from the side of complainant and opposite party. After perusal it is seen that complainant and opposite party did not produce any witness list before the Commission to examine the witnesses.  Moreover commissioner reported that, in some slabs, the middle portion of the marble had cracks. Commissioner never reported in both the reports that the cracks were found in the edges of the marble slabs. 

29.          But the prayer of the complainant is that, he is entitled to get Rs 22,000/- to remove the marble slabs having cracks from the floor of his house. But he did not produce documents regarding that.  Another point stated by complainant is that, he had spent Rs 1,28,000/- for fixing the marbles at  his house  and Rs 77,000/- for  purchasing cement, sand etc. But no documents produced by him to prove his contention. No bills or estimate were produced by complainant. Complainant can submit before the Commission an estimate from a person who is doing this type of works. But it is true from the documents and commission report filed by commissioner that, the marbles laid at complainant’s house have cracks and are  defective.  It is a clear deficiency in service and unfair trade practice from the side of opposite party. So from the above facts Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite party as alleged in the complaint. Hence we allow this complaint holding that opposite party is deficient in service.

30.    We allow this complaint as follows:-

1. The opposite party is directed to refund Rs. 1,34,200/- (Rupees One lakh thirty four thousand and two hundred only) to the complainant, including  the cost of the marble slabs and the amount given  by complainant to opposite party  for loading and unloading  of marble slabs at complainant’s house.
2. The opposite party is also directed to pay compensation of Rs.50,000/-(Rupees Fifty thousand only) to the complainant on account of deficiency in service on the part of opposite party and thereby caused mental agony, physical hardships and sufferings to the complainant.
3. The opposite party is also directed to pay Rs.10,000/-(Rupees Ten thousand only)   as cost of the proceedings.

      If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite party is liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.

Dated this 20^th day of April, 2023.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                        : Nil

Documents marked on the side of the complainant                      : Ext.A1 & A2

Ext.A1 : Original estimate (bill) given by opposite party to complainant on   

                03/10/2016.  

Ext.A2 : Series are the photographs of the marble laid in complainant’s house.

Witness examined on the side of the opposite party                  : Nil

Documents marked on the side of the opposite party                : Nil

Ext.C1 : Advocate Commissioner’s report.

Ext.C2: Advocate Commissioner’s report.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

CPR