DOF.28.5.2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 6th day of April 2010 CC.140/2009 Ashraf Puthiyaddath, H.No.71A, Asnas, Near Madappura, Pulliyode, Kadirur (Through P.A.Holder, P.K.Yousuf, and Complainant Shalimar, Chundangapoil, Kadirur. Sameer, Proprietor, Pondy Tiles and Marbles, Near Juma Masjid, Chokli. Opposite party (Rep. by Adv.Suhaib.K) O R D E R Sri.K.Gopalan,President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.25, 000/- as compensation for mental agony. The case of the complaint in brief is as follows: complainant purchased flooring tiles for Rs.62048/- and an acknowledgement indicating the reception of the amount with the specification of tiles was issued by him on the very same day. Laying was carried out spending an amount of Rs.70,000/- .When the complainant and his family entered in to his house after completion of the flooring work it could be noticed that tiles exposes shabby marks and colours and the dirty stain marks stands as such. On reporting the same with immediate effect, the opposite party physically paid a visit and convinced him and there upon he had assured that the same will be replaced and the same will be laid at his cost. But he kept resiled from the assurance. Whenever complainant contacted the opposite arty he behaved in a rude way and insulted in the presence of others. The conduct of the opposite party exposed that there is unfair trade practice and deficiency of service on the part of opposite party. Legal notice was sent calling upon to replace and lay perfect tiles. The opposite party who acknowledged the notice on 16.2.08 did not care to send a reply, but chosen to play clandestinely and chosen to give a reply to the counsel of the complainant through one K.Sudhir Menon under the head of “VITRIFIED TILES’. As if he gives reply to the opposite party. Though the envelop of the reply carried the address of the opposite party the mere reading of the contents would reveal how far the opposite party stooped to exploit and to play unfair trade practices against his consumer. It dictates that his judicial Forum is at Himatnagar, Gujarat, and the complainant consumer who lives within the jurisdiction of this Hon’ble Forum where in the cause of action also arisen should go for Gujarat. This is only a part of unfair trade practice. Complaint is under the impression that the opposite party will not set right the deficiency of service or make good the losses. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the allegation of the complainant. The contention of the opposite party in brief is as follows: The complaint is not maintainable either in law or on facts. The opposite party neither resides nor carries on business within the jurisdiction of this Hon’ble Forum. No part of the transaction is taken place within the jurisdiction of this Forum. Hence this forum has no jurisdiction to entertain this complaint. The complaint purchased the tiles and took delivery of the article from the shop after paying price. The allegation that the tiles was delivered by this opposite party at complainant’s house is false. Apart from the allegation there is nothing to show that the opposite party delivered the tiles at his house. The opposite party is only a sales man in the firm Pondy Tiles & marbles. The Managing partner is not made party to this complaint. The defects alleged in the complaint are a manufacturing defect. The manufacturing company is also not made party. The address of the both parties is given in the version. The complaint is bad for non-joinder of necessary parties. Complainant purchased the tiles after convincing its colour, quality and attraction. The allegation that the tiles expose shabby marks and dirty stain marks stands as such is false. The colour, attraction on usefulness on the date of purchase is still present and there is no variation and it will never be subjected to any such variations under ordinary circumstances. Incase of premium quality materials where these quality complaint arises before laying, the company will take responsibility to replace the tiles. After laying the tiles the company will not take any responsibility vitrified tiles are porons in nature while has no stain resistance capacity. The colour of the tiles may vary due to many reasons due to touching of any type of chemicals; direct touching of rain water and heat etc. are some of the reasons for the same. The colour variation also will occur due to the laying of libs by an unskilled labour. The allegation that the complainant incurred Rs.70, 000/- expense is not correct. In fact there is no complaint. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether the complaint is maintainable? 2. Whether there is any deficiency on the part of opposite party? 3. Whethr the complainant is entitled to get the relief as prayed in the complaint? 4. Relief and cost. The evidence consists of oral evidence of PW1 and Exts.A1 to A5 marked on the side of the complainant. No documents marked on the side of opposite party. Chief affidavit filed by opposite party but witness was not cross examined for complainant. Though opportunity given cross examination was not done but complainant filed notes of argument. Issue No.1 Admittedly complainant purchased the alleged tiles from the opposite party. The case of the opposite party is that he has purchased the tiles from the shop after paying the price. Opposite party contended that he is only a sales man in the shop. The allegation of the complaint that the tiles was delivered by the opposite party at complainant’s house has been denied by the opposite party. Where as the opposite party contended that the complainant purchased the goods from Pondy tiles and Marbles, Chokli, Pondicherry state and the goods were handed over to him from the shop and the complainant carried away the tiles using a vehicle brought by him. Thus it is can important point to be considered whether this Forum has jurisdiction to entertain the complaint or not. First of all mere purchase from the opposite party will not be sufficient to determine the jurisdiction since the shop is situated in Pondicherry state. PW1 in his cross examination deposed that “TilesRm\pT Aj-d-hpT IqSn t]mbmWv hm§n-b-Xv.Cu Imc-yT lc-P-nbn ]d-bm-Xn-cn-¡m³ Imc-W-a-nÃ. “He further deposes that “Goods vehicle emWv km[-\T sImp-h-¶Xp. 450 cq]- hm-l-\-¯nsâ hmSI sImSp-¯p. This is a direct answer admitting the fact that the complainant purchased the tiles from the shop, which is beyond the jurisdiction of this Forum. As per section 11(2) a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the opposite party resides or carries on business or has branch office or personally works for gain. It is seen from the evidence of PW1 that the goods purchased from the shop beyond the jurisdiction of this Forum. Complainant has not pleaded or adduced evidence to the effect that the opposite party resides or carries on business or has a branch office or personally works for gain within the jurisdiction of this Forum. Complaint has no case that the cause of action wholly or in part arises within the jurisdiction of this Forum as per section 11(2) ©. Opposite party has specifically pleaded that the opposite party neither resides permanently nor carries on business within the jurisdiction of this Forum. Opposite party also pleaded that no part of the transaction is taken place within the jurisdiction of this Forum and to dismiss the complaint on this score. PW1 adduced evidence by way of proof affidavit but no evidence placed with respect to question of jurisdiction except stating that the opposite party had delivered flooring tiles at this house. At the same time what he deposed in his cross examination quite contrary to this statement that he and the Ashraff went and purchased the tiles. If it is delivered to his house what is the necessity to go and purchase and brought in a goods vehicle. He has also deposed that the tiles brought in a goods vehicle by paying Rs.450/- as fare. He has also deposed that it was he, PW1, who fixed the fare with the drive. This part of evidence alone makes it clear that the pleading of the complainant that the opposite party had delivered flooring tiles at his house is absolutely untrue. Hence we hold that this complaint is not maintainable before this Forum for want of territorial jurisdiction. Issue No.1 found against the complainant. In the light of above finding we are not considering other issues since the complaint is liable to be dismissed on the ground of territorial jurisdiction itself. In the result the complaint is dismissed for want of territorial jurisdiction. The complainant is at liberty to take back the complaint to present it before the proper Forum. No order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Estimate dt.28.6.08 A2.Copy of the lawyer notice sent to OP A3 & 4.Postal receipt and AD A5.Reply notice sent by OP Exhibits for the opposite party: Nil Witness examined for the complainant PW1.P.I.O.Yousaf Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
