BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.452 of 2020

      Date of Instt. 17.12.2020

      Date of Decision: 22.11.2023

Honey son of Surti Ram resident of 1422, Bansa Wali Gali, Rama Mandi, Jalandhar.

..........Complainant

Versus

Sahib Oberoi Owner of Sharda Marbles Nakodar Road, Opp: Khalsa School, Jalandhar.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       None for the Complainant.

                   Sh. R. K. Sharma, Adv. Counsel for the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant approached the OP on 12.06.2020 for the purchase of Floor tiles for his house and being constructed at Plot No.36, Jalandhar. Garden, Shalimar The assessment Rama Mandi, was made between opposite party and the complainant whole area and the total assessment for the came out to Rs.30,300/- and the complainant had paid a Sum of Rs.5000/- as advance to opposite party and booked the tiles. A Kacha Bill was issued by the OP under his signatures by showing the quantity of tiles and receipt of payment, which is on record. Again on 15.6.2020 the complainant paid remaining balance amount of Rs.26,200/- to the OP and OP delivered the tiles in two installments, firstly OP dispatched 46 boxes of tiles of 2'x4' size and second time OP dispatched 25 boxes of tiles of 16"x16" size. The delivery effected by OP on second time is of that which was not selected earlier by the complainant as the selected costly tiles which were of choice of the complainant were not supplied rather a very poor quality and colour & shade of tiles were supplied and the photographs of tiles sent by OP are on record. The OP delivered the tiles at odd time i.e. after 07:00 pm in the absence of the complainant and on the next day the masons started affixing the tiles in the absence of the complainant early in the morning around 7 am. When the complainant examined those tiles which were not of the colour not of the quality of earlier tiles selected by the complainant, he immediately informed OP that OP has dispatched poor quality tiles and having different shade and be defective tiles to the complainant and were not of that quality for which the complainant had paid OP. As the tiles dispatched by OP are of very poor quality and damaged one due to be not could same the which affixed properly and were un-affixed again and again due to which the complainant to pay excess labour to the masons. The OP did not pay any heed to the complaint/request of the complainant regarding change of tiles or to return the money and the complainant also visited OP shop many time but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to refund Rs.30,300/- towards cost of tiles. Further, OP be directed to pay Rs.20,000/- as cost of material and mason labour from OP alongwith the interest over the amount. Further, OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and litigation expenses also be awarded.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complainant is not maintainable against the OP as no cause of action has accrued to the complainant, as such the complaint is liable to be dismissed. It is further averred that the complainant has no locus-standi to file the present complaint, as such the compliant is liable to be dismissed. It is further averred that the complainant visited OP on 12.06.2020 for purchase of floor tiles and clicked number of photographs of different sets of tiles to make his choice. The Complainant ordered to supply tiles as per his requirement of 46 boxes of tiles of size 2' x 4' and 25 boxes of tiles of 16" x 16" size and accordingly an order cum estimate slip was prepared and the same has been produced by the complainant. An advance payment of Rs.5000/- was made by the complainant. As ordered, 46 boxes of tiles of size 2 x 4' and 25 boxes of tiles of 16" x 16" size were supplied to the complainant and after receiving the delivery of the tiles in two installments, the complainant made payment of balance amount of Rs. 26,200/- (balance payment of Rs. 25,300/+Freight Rs.900/-) after fully satisfying himself that the ordered tiles have been delivered. The complainant is wrongly stating that 25 boxes of tiles of 16" x 16" size which have been supplied were of different colour & shade and of poor quality and were other than the selected titles. The tiles were sent after intimating the complainant that the same are being sent. The complainant himself received the delivery of tiles and after satisfying himself that the ordered tiles have been delivered made the balance payment including freight. It is denied for want of knowledge that the masons started affixing the tiles in the absence of complaint early in the morning around 7 A.M. The averment of the complaint that the masons started affixing tiles in his absence is a concocted story. Had the supplied tiles been other than the ordered/selected tiles, the complainant would had returned the same. Otherwise, also 25 boxes of tiles of 16" x 16" size cannot be affixed in a short time and the complainant must had inspected the work of affixing tiles and had the tiles supplied not the same as selected and ordered, the complainant must had not allowed the mason to affix the tiles and would had returned the same to the OP. The complainant is wrongly stating that the 25 boxes of tiles of 16" x 16" size delivered to the complainant were of poor quality or damaged one. Wrongly affixing of tiles, un-affixing of tiles and affixing the same again cannot be attributed to the opposite party. Had there been any defect in the tiles, the complainant would had returned the same prior to affixing of the tiles. As the delivered tiles were of the same quality, colour and shade, the complainant allowed the mason to affix the same. It is the inefficiency of the mason, if the tiles have not been properly affixed or had to be un-affixed or affixed again. OP is not at fault in wrong affixation of tiles by the mason. The complainant wanted the opposite party to change the used tiles (25 boxes of tiles of 16" x 16" size) or return the money of used/affixed tiles, on which the complainant was apprised that had the tiles been unused, the opposite party would have changed the tiles or returned the money, but not in case of used tiles. The OP was threatened that he will be dragged in the court, if he does not changes the used tiles or return the money of 25 boxes of tiles of 16" x 16" size. When the complainant is alleging that the 25 boxes of tiles of 16" x 16" size were not that as ordered, how the complainant demand refund of Rs.30,300/- total sale consideration of 46 boxes of tiles of size 2' x 4' and 25 boxes of tiles of 16" x 16" size. The price of tiles of 25 boxes of tiles of 16" x 16" size is Rs.7,750/- only as is evident from Ex. C-1. The complainant has not disclosed the details of cost of material and cost labour for affixing 25 boxes of tiles of 16" x 16" size. The District Commission is being used as tool to harass the OP and extract money from the opposite party for no fault of him. The present complaint is abuse of process of law and the same is liable to be dismissed with exemplary costs. On merits, it is admitted that the complainant ordered to supply tiles on 12.06.2020 to the OP as per his requirement of 46 boxes of tiles of size 2’x4’ and 25 boxes of tiles of 16’’x16’’ size and it is also admitted that the complainant made payment of balance amount of Rs.26,200/- and Rs.5000/- as advance to the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the OP only as none has appeared on behalf of the complainant since last so many dates and have also gone through the case file very minutely.

6.                It is admitted that the complainant ordered to supply tiles on 12.06.2020 to the OP as per his requirement of 46 boxes of tiles of size 2’x4’ and 25 boxes of tiles of 16’’x16’’ size. The slip Ex.C-1 shows the amount for which the tiles were agreed to be sold and description of the boxes has been admitted and proved vide Ex.C-1. It has also been admitted that the complainant made payment of balance amount of Rs.26,200/- and Rs.5000/- as advance as per Ex.C-1 and Ex.C-2.

7.                The complainant has alleged that when he received the tiles, which were sent in two installments, he found that the tiles sent on the second time were not selected by him nor the same were of his choice and the quality of the tiles was very poor. Photographs have been proved by the complainant as Ex.C-3 and Ex.C-4. He has further alleged that he received the tiles after 07:00 pm in the absence of the complainant and on the next day, the Mason started affixing the tiles in the absence of the complainant early in the morning around 07:00 am. He has produced the photographs of the tiles also Ex.C-5 and Ex.C-6 and submitted that the tiles were un-affixed again as the same were of poor quality. He has sought the cost of tiles alongwith compensation.

8.                The OP has denied that the tiles were of poor quality and the same were not of the complainant’s choice. Though, the complainant has filed on record the photographs of the tiles which were allegedly selected by the complainant. The OP has alleged that these photographs are of those tiles allegedly selected by him, but he has not produced on record the photographs of two boxes allegedly selected by him. The photographs have been produced by the complainant, which have been affixed and as per the submission of complainant those tiles were unaffixed. This averment of the complainant does not seem to be probable and genuine. Once the tiles were sent to him and he had received the tiles and if he was not satisfied with the tiles he could have returned or intimated the OP about the poor quality of the tiles. If the tiles were received in his absence at 07:00 pm and the same were affixed, as alleged, early in the morning by Mason, he could have stopped the Mason from affixing these tiles as shown in Ex.C-3 to Ex.C-6. These tiles shows in photographs cannot be affixed within a short span of one or two hours. The complainant must be in contact with the Mason and he could have seen the position and condition of the tiles and could have stopped the Mason from affixing the tiles, but he has not done so. This is not the case of the complainant that the tiles were damaged or there were cracks, nothing has been mentioned in the complaint which may lead to conclusion that the tiles sent were not in a proper and good condition, when the same were received by the complainant. The complainant has got unaffixed all the tiles as alleged, but this cannot be presumed that all the tiles have been affixed in his absence. Thus, there is no deficiency in service and unfair trade practice on the part of the OP and the complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

9.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jaswant Singh Dhillon           Dr. Harveen Bhardwaj     

22.11.2023                    Member                              President