DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 243 of 22.08.2007<br /> Decided on : 21-11-2007 <br /> <br /> Dr. S.S.Grover, resident of near Bus Stand, Rampura, District Bathinda. <br /> ... Complainant<br /> Versus<br /> <br /> Shri Rajinder Goyal, Prop/Partner of M/s. Super Marbles, G.T. Road, Bhucho Kalan, District Bathinda.<br /> ...Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. M.S. Sidhu, Advocate.<br /> For the Opposite parties : Sh. Jasbir Singh, Advocate<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred by the complainant seeking direction from this Forum to the opposite parties to refund a sum of Rs. 1,27,934/-; pay Rs. 50,000/- as compensation for mental tension, agony and botheration besides Rs. 5500/- as cost of the complaint.<br /> 2. Briefly put the case of the complainant is that he had visited shop of opposite party for purchase of marble for the construction of his house. Various categories of marbles were shown to him. He was induced by the opposite party to purchase marble of Doongri category as the same is of good quality. Believing his assurance, marble of this quality worth Rs. 52,934/- was purchased by him. Marble was sent by the opposite party to his house. It was used by the complainant for the construction of the floor of his house incurring labour cost to the tune of Rs. 48,000/- and other material cost of Rs. 27,000/-. After construction of the floor with the marble supplied by the opposite party, material has started coming off and stains have appeared on the marble. On enquiry, it has come to the light that marble supplied to him is of the category of Kumari instead of Doongri. His allegation is that marble supplied to him is inferior to the Doongri quality for which amount has been charged and that he has been duped. He got issued legal notice dated 13.7.07 through his counsel, but to no effect. Request was made by him to the opposite to admit his lawful claim, but opposite party paid no heed. Accordingly, there is deficiency in service and unfair trade practice on the part of the opposite party.<br /> 3. Opposite party filed reply of the complaint taking legal objections that complaint is not maintainable against him as he is neither Proprietor nor Partner of M/s. Super Marbles, G.T. Road, Bhucho Kalan,; complainant has got no locus standi to file the complaint; he has not come to this Forum with clean hands; complainant has got no cause of action; he is not consumer; intricate questions of law and facts are involved which requires voluminous evidence and only civil court has got the jurisdiction to decide the complaint. He denies that marble worth Rs. 52,934/- was purchased from him by the complainant. In fact complainant is his next door neighbour and he is declaring himself as R.M.P. Doctor and is running Clinic in the name and style of Janta Clinic in an un-authorised manner in violation of the Medical Council Act. He is doing an un-authorised practice and is cheating the public at large. He ( opposite party) and other residents of the locality are exposing his misdeed and this complaint is the result thereof. Documents attached do not show sale/purchase of particular quality of the marble. He denies the remaining averments in the complaint.<br /> 4. In support of his averments contained in the complaint, he has produced in evidence his affidavit (Ex. C-1), report regarding defects in marble (Ex. C-2 to Ex. C-16), postal receipt (Ex. C-17), copy of legal notice (Ex. C-18), A.D. Receipt (Ex. C-19), photocopy of bill No. 404 (Ex. C-20), photocopy of bill No. 405 (Ex. C-21) and photocopies of receipts (Ex. C22 & Ex. C-23).<br /> 5. In rebuttal, opposite party tendered his affidavit Ex. R-1 in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 7. Mr. Sidhu, learned counsel for the complainant vociferously argued that complainant has proved copy of the receipts Ex. C-20 & Ex. C-21 that marble was purchased by him from the opposite party. He has also purchased goods worth Rs. 52,934/- as is evident from Ex. C-22. A sum of Rs. 48,000/- has been paid towards labour charges as per Ex. C-23. Marble fixed in the house of the complainant was examined by Col. H S Mavi & Associates, Bathinda and vide his report Ex. C-2 he has opined that marble supplied and fixed is defective to the extent of 31%. Ex. C-3 to Ex. C-16 is the supporting evidence to the view expressed by Col. H S Mavi & Associates, Arch. Civil & Structural Consultants. Complainant has also got issued notice to the opposite party through his counsel and copy of the same is Ex. C-18 of which reply was not given. He further argued that affidavit of the complainant regarding purchase of the marble from the opposite party has gone unrebutted.<br /> 8. Mr. Jasbir singh, learned counsel for the opposite party argued that complainant is not consumer qua the opposite party as the evidence on the record does not establish that the marble was purchased by the complainant from him.<br /> 9. We have considered the respective arguments. Legal aspect of the matter is as to whether the complainant falls with the definition of consumer as has been defined in the Act. In our view complainant has failed to establish that he falls within the definition of consumer. Complainant is relying upon the documents Ex. C-20 & Ex. C-21. They do not advance the cause of the complainant. According to these documents SF Marble has been shown to have been purchased worth Rs.7200/- and 6300/- respectively from Super Marbles, G.T. Road, Bhucho Kalan, Bathinda. There is nothing in them that marble sold is of Doongri quality. Complainant alleges that marble worth Rs. 52,934/- was purchased whereas as per Ex. C-20 & Ex. C-21 marble purchased on 2.2.07 and 3.2.07 is worth Rs. 13,500/-. Name of the complainant as purchaser does not find mention in the bills dated 2.2.07 & 3.2.07. Against the name, word cash has been recorded in both the bills. In case complainant had purchased the marble, he could raise objection and get his name incorporated as purchaser in the bills. Apart from this, marble has been shown to have been sold by Super Marbles. A person has shown to have signed the bills for Super Marbles as Proprietor/Manager. The onus to prove the case is upon the complainant. He has failed to establish that opposite party is in any way connected with Super Marbles in the capacity of Proprietor/Partner/Manager or employee etc. In case the bills were issued by the opposite party in any capacity after receiving the amount from the complainant, he (complainant) could get the signatures of the opposite party compared from the expert with the signatures on the bills. He could make prayer to this Forum for obtaining the signatures of the opposite party before it for comparison with the signatures on the bills. In case opposite party is in any way connected with Super Marbles, he could get the record of Super Marbles produced for showing affiliation of the opposite party with it. Complainant did not muster courage to do so. On the basis of the inferences that opposite party did not send reply of the notice, complainant cannot be concluded to be consumer qua him. So far as the affidavit of the complainant is concerned, it stands amply rebutted with the affidavit Ex. R-1 of the opposite party according to which he is neither Proprietor nor Partner of M/s. Super Marbles. He has assigned the reason in Ex. R-1 for filing complaint against him. In these circumstances, we have no hesitation in concluding that complainant has failed to establish that marble was purchased by him from the opposite party. Hence complainant is not consumer qua the opposite party.<br /> 10. In view of the discussion made above, complaint before this Forum is not maintainable. Accordingly, it is dismissed with no order as to cost. Before parting with this order, it is made clear that complainant is at liberty to approach the competent court or any other authority for getting his grievances redressed, if so advised and permitted by law.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 21-11--2007 <br /> (Lakhbir Singh )<br /> President <br /> <br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br />