The Complainant has filed this case alleging deficiency-in-service by the O.P, where O.P is Sri Bailochan Kar, Prop. of Shree Jagannath Tiles, Ganeswarpur, Balasore.
2. The case of the Complainant in brief is that the O.P has approached the Complainant to supply tiles for setting on the floor of the Complainant’s house. Then the Complainant went to the shop of the O.P and selected the designs and colours of the tiles and accordingly, the Complainant has agreed to purchase the said tiles. Then on 08.05.2017, as per the choice of the tiles by the Complainant, the O.P has prepared a cash memo vide C.M No.257, dtd.08.05.2017 for Rs.68,000/- (Rupees Sixty eight thousand) only and out of that, the Complainant has paid him Rs.40,000/- (Rupees Forty thousand) only and the amount of Rs.28,000/- (Rupees Twenty eight thousand) only was pending against the Complainant. Then after 2 days, the O.P has sent the tiles on his vehicles to the building of the Complainant and without opening the packets, the Complainant has received the tiles and after 10/12 days, the Complainant has paid the rest dues amount of Rs.28,000/- (Rupees Twenty eight thousand) only to the O.P with the mason, who has negotiated the matter to purchase the tiles from the shop of the O.P. After one month, the said mason along with labourers had filled the said tiles on the floor and when setting the tiles, most of the tiles were broken and the Complainant came to know that these tiles were low graded tiles and the designs of tiles are discoloured. So, the Complainant met the O.P and told about the tiles, but the O.P did not listen to him. So, being aggrieved with the behaviour of O.P, the Complainant has sent a legal notice through his Advocate to the O.P on dtd.28.06.2017, but after receiving the said legal notice, the O.P has not taken any action, which amounts to deficiency of service by the O.P causing mental agony and harassment to the Complainant. Cause of action arose on 08.05.2017. The Complainant has prayed for compensation towards mental agony and litigation expenses. Neither the Complainant nor his Advocate was present at the time of hearing of this case.
3. Written Version filed by the O.P denying on the point of maintainability and limitation. The O.P has further submitted that he has a shop which deals in flooring tiles and other fittings at Ganeswarpur in the name and style of “Shree Jagannath Tiles” for last 5 years and the Complainant visited the shop of the O.P and selected the materials of his own choice, which was valued at Rs.68,000/- (Rupees Sixty eight thousand) only vide C.M No.257, dtd.08.05.2017 and paid Rs.40,000/- (Rupees Forty thousand) only against the bill value and the rest was paid after 10 to 15 days as final bill settlement, which was after receiving, checking and counting of the purchased tiles and finding them to be correct and perfect by the Complainant himself. The Complainant has fitted/ fixed the said tiles on the floor, which clearly defined that if the tiles were broken or low graded then why he not complained prior to fixing the same and what barred him from doing so. Furthermore, it is genuine ethics that purchasing anything is personal choice of the Customer and no force can be applied, hence the complaint made after fixing the tiles is nothing, but an afterthought and only to take illegal benefit by deposing false and concoctive stories. As the case is devoid of any merit, as such the case is liable to be dismissed with cost.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether the case is barred by law of limitation ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, the Complainant has filed certain documents as per list, whereas the O.P has not filed any documents in his support. Perused the documents filed. Neither the Complainant nor his Advocate has participated in the hearing and remained absent on that day. However his pleading remains as it is. According to the pleading of the Complainant, after receiving of tiles, it was fitted after one month and most of the tiles were found broken and low graded tiles and designs were discoloured, for which he complained to the O.P and when he got no result, came to the Forum, praying for compensation and litigation cost. On the other hand, it has been argued on behalf of the O.P that tiles are genuine and in good condition. The Complainant has fitted the tiles on the floor, which clearly shows that those are not broken and were of not low graded. He should have complained about it before fitting of the tiles. So, the Complainant is not clear about his allegation.
6. So, now on careful consideration of all the materials available in the case record, this Forum come to the conclusion that the Complainant has not come to the Forum with clean hands and by suppressing material facts, he is now claiming compensation and litigation cost without any basis, for which the case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.P, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 20th day of August, 2018 given under my Signature & Seal of the Forum.
