By: Sri. Sri. Mohandasan K., President
Complaint in short is as follows: -
1. The complainant approached the opposite party to purchase Marble for laying in house which is constructed on behalf of his son Mr. Sideeque. The opposite party introduced good quality of marble made of Morchana brand and it is also stated that they are newly arrived with good quality and strength. The complainant placed an order for 1392 sq ft and paid Rs.107949/- on 29/03/2016. The opposite party delivered marble slab at the building site of the complainant.
2. Thereafter completing the laying work, while started polishing it was noticed cracks almost all part of the marble slab and it was informed to the opposite party. The opposite party agreed that they are prepared to replace the defective marbles. But later the opposite party prolonged saying lay excuses. The opposite party had told the cracks can be corrected using chemicals and polishing thereafter and for that the articles will be supplied from Rajasthan. Thereafter few months some workers were deputed for the same and when they started to do the same it was appeared the cracks on the slab as further widening and so the workers stopped the work and turned back. So, the complainant approached the opposite party for doing as assured initially but the opposite party did not act as assured. The complainant could not organize house warming function of his son as he desired. Due to the incident the complainant suffered mental agony and inconvenience.
3. The complainant alleges that the opposite party mislead the complainant stating the marble supplied by him was good quality one, which was actually worthless and defective. The attempt of the opposite party was to extract money unduly from the complainant. The complainant submitted that he spent more than Rs.75,000/- as labor cost and also spend Rs.25,000/- for incidental articles. The complainant estimates more than 3,00,000/- rupees to remove the existing marble and lay new marble. The complainant prays compensation of Rs.2,40,000/- for the mental agony and inconvenience caused due to the defective supply of marbles. The complainant prays altogether Rs.7,50,000/- from the opposite party as the entire expenses through the lawyer notice. But the opposite party sent a reply contending totally false hood. The complainant alleges the opposite party issued quotation to the complainant instead issuing original bills. The complainant alleges the opposite party collected value of marbles of good quality one. The attempt of the opposite party is to evade tax payment and also make undue financial benefit. The act of the opposite party amounts illegal and unfair trade practice. Hence the complainant prays refund of Rs.1,07,949/- along with Rs.1,00,000/- towards the incidental expenses including labor cost, Rs.3,00,000/- for replacing the defective marble, compensation of Rs.2,42,000/- altogether Rs.7,49,949/-. Complainant also prays cost of Rs.20,000/-.
4. On admission of the complaint notice was issued to the first opposite party and on receipt of notice the opposite party entered appearance and filed version. The first opposite party denied the entire averments and allegations in the complaint. The opposite party denied that the complainant approached the opposite party and the opposite party made believe the complainant that the Morchana brand marble as good quality one and it has got strength and life and the complainant purchased 1392 sq ft marble on 29/03/2016 and the opposite party collected Rs.1,07,949/- from the complainant. The complainant and his family members approached the opposite party and through inspection and conviction the complainant purchased 238.25 sq ft marble worth Rs.75 per sq ft and 1154.84 sq ft marble worth Rs.78 per sq ft from the opposite party. The complainant selected marble after searching each and every marble pieces separately and convincing the same complainant remitted Rs.1,07, 000/-.There was costly marble of Morchana brand in the shop comparing to the marbles purchased by the complainant. The complainant paid Rs.5,000/-as advance and thereafter 15 days the complainant came to the shop and examined the new stocks but insisted for the delivery of already booked items. The marbles purchased by the complainant was of low quality. The opposite party further contended the contention of the complainant that he laid marble and while doing polishing he could see cracks on every marble slabs and the same was informed to the opposite party, on receipt of complainant opposite party had assured to replace the defective slabs, but the opposite party refused to do the same stating lay excuses and later it was said that cracks can be rectified using polish and for that they are prepared to avail chemicals from Rajasthan and later long period the opposite party deployed workers for the same, but on doing slab work they could see the work of slab was defective one and the workers accordingly scopes the work are imaginary averments and so denied. The opposite party submitted that the entire slabs were delivered to the complainant after checking the slab with water. The complainant was very well at free not to purchase the defective slabs. The complainant was every chance to realize the quality of the slabs. The opposite party submitted that the statement itself reveals that there were no defects or thereafter there was any sort of defect for the marble. The opposite party submitted that they are not responsible for the defect to marble slab while using machine or polishing the same with sufficiently expert workers. The workers also are liable for the defect. The complaint is filed without impleading the workers who carried out the laying work. The opposite party also submits that they are able to replace the defective marbles while informing prior to laying work of the slab. Hence the opposite party denies the allegation that the opposite party mislead the complainant and defective marbles supplied to the complainant. The opposite party also denies the averment that the house of the complainant made for his son stands defaced.
5. The opposite party denies the claim of the complainant that he spend Rs.75,000/- for polishing marbles, he spends Rs.25,000/- for incidental materials, he spends Rs.50,000/- for laying the slabs and also spend 10,000/- rupees for other purposes . The opposite party also disputed the estimate of 3,00,000/- rupees for the expense towards marble laying since it is baseless. In accordance with the statement of complainant the cost of the marble worth Rs.1,07,000/- and laying cost Rs.1,00,000/- comes only worth Rs.2,0,7000/- and the balance amount of Rs.9,30,000/- is an unreasonable amount for removing the already laid slabs.
6. The opposite party submitted that there is no irresponsible act or cause for mental agony and time waste for the complainant due to the act of the opposite party. The complainant is not entitled for any compensation. The opposite party had issued reply notice to the complainant stating the true fact and correct version. The statement of the complainant that opposite party realized cost high quality material is not correct. The complainant purchased low quality marble with proper verification. There is no bonofides for the statement of the complainant that the opposite party is not issuing correct bill to the complainant. The opposite party has not exploited the complainant and so there is no reason for agony and cause for complaint. Hence the complainant is not entitled any claim as prayed in the complaint.
7. The first opposite party is only a retail seller and the opposite party obtained marble from Raju Marble suppliers, Makran Road, Industrial area Madangach Kissanged (Ajmeer )30580. If the complainant has got any grievances against the marble, the supplier of marble is also to be party in the proceedings. More over the workers who laid the marble in the house of the complainant is also to be party in the proceedings and so the complaint is defective due to non-joinder of necessary parties. Hence the prayer of first opposite party is to dismiss the complaint with the cost.
8. The complainant filed an application 837/2017 to implead supplemental second opposite party and on impleading the second opposite party, issued notice to the second opposite party. Despite receipt of notice to the second opposite party did not turn up, hence name called and set exparte.
9. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5. Ext. A1 is quotation dated 29/03/2016 for Rs.1,07,949/-. Ext. A2 is copy of lawyer notice dated 05/10/2016. Ext. A3 is postal receipt. Ext. A4 is postal acknowledgment. Ext. A5 is reply notice dated 20/10/2016. The commissioner’s report in the matter marked as Ext. C1 to C3. Ext. C1 is the Adv. Commissioner’s report. C2 is report of geologist. Ext. C3 is series of photographs. No documents on the side of opposite party. Complainant examined Mr. Mohamed examined as PW1. Worker Mr. Prveen examined as PW2. No witness examined on the side of opposite parties. The following points arise for consideration.
1) Whether there is a defect to the marbles supplied to the complainant
2) Whether there was unfair trade practice on the side of opposite parties
3) Relief and cost.
10. Point No.1 and 2
The first opposite party admitted the purchase of the marble, but denied the allegation that the marble was defective one. The contention of the opposite party is that the complainant and family visited the opposite party shop and on thorough search and convincing the quality, nature and cost of the product purchased the marble. The opposite party received Rs.5,000/- as advance on the day of visit to the opposite party shop and thereafter two weeks the complainant approached the opposite party. On that day there was new stock but the complainant was particular on the marbles already ordered by him. The complainant produced Ext. A1 quotation which shows that the total cost of the marble as Rs.1,07,949/- and an advance payment to Rs.5,000/-. The balance amount as per Ext. A1 is Rs.1,02,949/-. Ext. A1 proves that the complainant purchased products from the first opposite party and it was issued from the first opposite party worth Rs.1,07,949/-. Ext. A1 documents also reveal the name of product as Morchana.
11. The dispute between the complainant and opposite party is that the product was defective and there was crack on the marbles. The complainant has made attempt to establish the same through the deputation of an Advocate commissioner as well as expert commissioner. Both of them filed reports and they are marked as Ext. C1 and C2 respectively. In addition to that certain photographs of the marbles also produced before the Commission and they are marked as Ext. C3 series. Ext. C2 is the report submitted by the geologist, district office, department of mining and geology, mini civil station Manjeri . The expert commissioner reported that there are long and narrow cracks in a number of marble slabs in direction other than the natural plains of lineation. He also reported that minute and very narrow cracks may be delivered in marble during process of cutting and polishing. But such cracks will not be visible for naked eyes. Such cracks may widen and became visible in the later stages of laying and polishing and so he reported that not possible to ascertain the actual reason for development of cracks belong to the complainant. He further stated that the cracks in marbles are not developed along the natural Plaines of weakness and hence cannot be termed as natural cracks.
12. The Adv. commissioner reported that he could see cracks in the slabs which is laid in sit out and dining hall. He could see cracks in almost all the marbles. But in two bed rooms he could see cracks in two slabs only and also in kitchen he could see cracks in two slabs.
13. The commissioner further states that the cracks seen on the marble are not natural one. The commissioner also had served with a work memo by the complainant. The commissioner answered to the question whether the crack was caused to the marble during the laying time or during the machine work, the answer was that the commissioner was not able to clarify the question. The commission further states that if the crack was in a microscopic size, it is not possible to see by naked eyes. The commission also stated that there are defects to the slabs which is not natural one. But it is not possible to clarify the exact reason for the same.
14. The commissioner stated that the marble laid portion seen in a defaced condition which lay in a lengthy shape. The further contention in the report is that marble slabs are cracked and subsequently rejoined pieces.
15. The perusal of the Ext. C3 photographs substantiates the contention of the complainant and the reported facts of the commissioners. So, the perusal of affidavit and commissioners report and the photographs establish that the case of complainant is genuine one and so we find that the slabs delivered from the first opposite party was defective one.
16. The complainant produced Ext. A1 to A4 document to establish his contention among Ext. A1 to A5. Ext. A1 alone is the document to reveal the transaction with the complainant and opposite party. Though it is in the form of quotation, it endorses contentions of the complainant as well as the opposite party. Ext. A1 reveals the product name as Morchana. The amount shown as Rs.1,07,949/- and advance as Rs.5,000/-. The quotation further reveals the balance amount as Rs.1,02,949/- and the same stands issued on 29/03/2016. The opposite party has no case that the complainant has not issued the entire cost of the product. So, it is evident that the product cost is Rs.1,07,949/-. The grievance of the complainant is that the entire marble work done in the house of the complainant constructed for his son stands in a defaced condition and they could not even conduct a handsome house warming function. The complainant wanted to replace the defective marbles. But the documents are not supporting the entire claim of complainant. Complainant has not produced documents to prove his expense met for laying the marbles and the expenses expected to meet for removing the defective slabs, replacing the same by new marbles and the incidental expenses there to be incurred. But it is certain that replacing of the marble may require a reasonable expense. It is also not certain that the particular pattern of marble is available or not. The complainant might have suffered mental agony and inconvenience as well as hardship due to the defective marbles. The complainant is entitled to the cost of the defective marble as well as the expenses for the replacing the defective marbles. Complainant claims the refund of cost of the marble. We do not find reason for not allowing the same. The commission consider 1,00,000/-rupees for the replacing the defective marble which includes labor and incidental expenses. The complainant also entitled for reasonable amount as compensation for the mental agony, inconvenience and hardship caused due to the laying of defective marble and we allow Rs. 50000/- on that account. The complainant is also entitled to cost of Rs.10,000/-.
17. The first opposite party contended that the second opposite party is the authorized authority of marbles and they are to be a party in the proceedings. Despite service of notice to second opposite party not turned up and so remained set exparte. Hence, we find the first and second opposite parties are liable to compensate the complainant.
In the above facts and circumstances, we allow this complaint as follows: -
- The opposite parties are directed to refund the cost of the marble Rs.1,07,949/- to the complainant.
- The opposite parties are directed to pay Rs.1,00,000/- to the complainant towards replacing the defective marbles and incidental expenses.
- The opposite parties are directed to pay Rs.50,000/ as compensation on account of unfair trade practice and there by caused inconvenience, hardship and mental agony to the complainant.
- The opposite parties are directed to pay Rs.10,000/- as cost of the proceedings to the complainant.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the above entire amount shall carry interest at the rate of 9% per annum from the date of this order till date of payment.
Dated this 15th day of December, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1 &PW2
PW1: Mr. Mohamed (Complainant)
PW2: Mr. Prveen examined (Worker)
Documents marked on the side of the complainant: Ext.A1 to A5
Ext.A1: Quotation dated 29/03/2016 for Rs.1,07,949/-.
Ext.A2: Copy of lawyer notice dated 05/10/2016.
Ext A3: Postal receipt
Ext A4: Postal acknowledgment.
Ext A5: Reply notice dated 20/10/2016.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Ext.C1: Adv. Commissioner’s report.
Ext.C2: Report of geologist.
Ext.C3: (series): Photographs
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
