SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint for getting an order directing the opposite party to pay Rs.9 lakhs towards compensation for delivering defective marbles.
The facts of the complaint is that the complainant purchased marble from the OP marble company. He selected favorite design marbles and ordered to the OP. But he got another design marble. Complainant noted trouble on the marbles immediately after laying of the marbles. Even after informed to OP, they did not rectify the defects in the marbles and did not redress the grievance of the complainant. There is deficiency or unfair trade practice on the part of OP hence the complaint.
OP filed version denying the allegations of the complainant. It is submitted that this commission has no jurisdiction to try the above complaint since the specific terms and condition No.2 of the invoice issued by this OP to the complainant has clearly shows that in case of any disputes, the same shall be a subject to exclusive territorial jurisdiction of Kishangarh city only. Hence the above complaint is not maintainable before this commission. The complainant has visited the factory of the R K Marbles on 14/03/2019 for purchase of marbles and having seen various varieties of Indian Marbles, the complainant has selected the item by name “wonder white marble” and has chosen at this own will and pleasure and has purchased the same and he paid Rs.1,58,000/- towards the price of the same. Hence the question of sending a different design to him does not arise. After the quality check formality was completed the slabs were delivered to the complainant non 14/03/2019 itself. Moreover the OP has also specifically mentioned in the invoice that the OP Company is not liable or responsible over the goods once they sold and leave from the factory premises. The allegations in the complaint that the change in the design was noticed by him after laying, buffing and polishing, etc. are not true, the quality of the finishing depends on the workmanship of the person who polishes the same. There is no deficiency of service or unfair trade practice on the part of the OP towards the complainant. The complaint is therefore not maintainable and is to be dismissed.
Both parties led evidence. On the side of complainant, two witness were examined. Complainant and the expert who prepared Ext.C1 report. Ext.A1 to A4 are also marked from the side of complainant. The manager of IDBI Bank, Thalassery was examined and marked Ext.X1 the cash pay in receipt issued by IDBI Bank, Thalassery. On the side of OP, one Mr. Krishnan kutty M, was examined as Dw1. After that the learned counsel of OP made argument.
It is the case of the complainant that there is deficiency in service on the part of OP. Complainant noted trouble on the marbles immediately after laying of the marbles. Even after informed to OP, they did not rectify the defects in the marbles and did not redress the grievance of the complainant. Complainant proved his allegation, through Ext.X1established that an amount of Rs.1,58,000/- spent for the marbles. Further defect was proved though Ext.C1 report. In Ext.C1 the expert commissioner observed that it is found that all marbles purchased are laid and polished at present and there are two types of slabs laid which varies in size. Only two pieces one at premises of CDRF and one slab at site are not laid till inspection date. Approximately 800sqft laid is low in quality which contains pebbles which affect the quality of marble stone. The size of this slab are small, Some cracks found in big size marble slab laid in living room, 50% of large size marbles are not matching with the marble slab kept at CDRF Kannur premises.
From the side of OP on witness was examined. OP alleged that he is working in construction field and doing the business of selling marbles. According to OP, he is an expert in the said field and was present at the time of inspection done by the Expert Commissioner. According to him, the difference in design was noted only in one room in the upstairs of the house. He also deposed that this difference could have been avoided, by the workers, who layed the marbles.
Here the evidence tendered by Dw1, cannot be taken as an expert opinion, because, the qualification or experience of Dw1 is not submitted. Moreover, he has not been appointed as an expert by the commission. Hence his evidence cannot be accepted as there is a report submitted by a qualified person, Civil Engineer. A Grade appointed by this commission.
As discussed above, there is deficiency in service on the part of OP to redress the grievance of the complainant. So, complainant is required to be compensated by the OP. As far as dispute in this case is concerned it is evident that the marbles purchased from the OP was laid out in the premises. So giving direction to replace all of them is impossible and become more expensive. Therefore it will be just and proper to direct the OP to pay lump sum of rs.1,00,000/- being the cost of the defective marbles.
In the result, complaint is allowed in part. Opposite party is directed to pay Rs.1,00,000/- towards cost of the defective marbles to the complainant. Opposite party is further directed to pay Rs.25,000/- towards compensation and Rs.5,000/- as cost of the proceedings of the case, within one month from the date of receipt of this order. Failing which the awarded amount except cost will carry interest @ 9% per annum from the date of order till realization. Complainant can execute the order as per provision in Consumer Protection Act 2019.
Exts.
A1-Tax invoice
A2 &A3- E-way bill
A4-Paying slip
C1-Expet commission report
Pw1- Complainant
Pw2- Jinesh Kumar K – Witness of complainant
Dw1-Mr.Krishnan kutty M- Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
