Tamil Nadu

South Chennai

13/2011

Suguna Joseph - Complainant(s)

Versus

Sri Venkatesh Marble Works - Opp.Party(s)

Party in Person

24 Apr 2019

ORDER

                                                                        Date of Filing  : 20.12.2010

                                                                          Date of Order : 24.04.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.13/2011

DATED THIS WEDNESDAY THE 24^TH DAY OF APRIL 2019

                                 

Mrs. Suguna Joseph,

W/o. Dr. M.G. Joseph,

Flat Nos.6 & 7, Sree Apartments,

4A – Haddows Road,

Chennai – 600 006.                                                      .. Complainant.                                                     

 

                                                                                            ..Versus..

 

Sri Venkatesh Marble Works,

Rep. by its Proprietor

Mr. S. Venkatesh,

No.1, 4^th Street, Abhiramapuram,

(Near Warren Road),

Chennai – 600 018.                                                   ..  Opposite party.

 

Counsel for the complainant      : M/s. K.F. Manavalan

Counsel for the opposite party  : M/s. K. Ganesan & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 pray to pay a sum of Rs.3,81,677/- being the cost of defective marble laid in flat Nos.6 & 7 by the opposite party along with costs of preparatory work done by the mosaic tile flooring dismantling contractor and to pay a sum of Rs.9,42,266/- being the cost for laying of marble floor as the complainant has suffered during the period of laying the slabs along with debris disrupting the others in the building.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that the complainant approached the opposite party for laying marbles and the opposite party gave quotation on 14.04.2010 in detail regarding the cost of marbles agreed by both parties is Rs.3,52,596/- only and its laying charges and the manner of payment in details.   The complainant submits that the opposite party completed the work as per the stipulation and handed over possession to the complainant on 15^th July 2010 and the last payment was made by the complainant to the opposite party is on 16^th July 2010.   The complainant submits that after one week of completion and handing over possession i.e. on 23.07.2010 the complainant noticed a crack in marble granite in one of the slabs in the hall.  Immediately the complainant telephoned the opposite party and reported the defect.  The opposite party also came and saw the alleged damaged marble through his technician after 10 weeks i.e. on 09.10.2010.  At that time, the complainant  requested the opposite party to replace the damaged marble.  The complainant submits that after repeated requests and demands the opposite party technician came and applied some chemical adhesive solutions, polish etc which shows very ugly.   The complainant submits that she is continuing to live in anguish and distress with the defective flooring and the opposite party has not taken any positive steps to remedy the damage.   The complainant gave a notice to the opposite party in writing by a registered letter dated:26.10.2010 reiterating the above facts concerning defective work, verbal reports by complainant and unsatisfactory repair carried out by the opposite party.   The registered letter was delivered to the addressee on 27.10.2010 but no reply from the opposite party.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by  opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite party states that the complainant and this opposite party entered into a contract on 14.04.2010 for laying marbles, polishing the marbles including supply of necessary marble slabs, other materials, cost of labour and technicians in a old flat No.6 & 7 of Sri Apartments.  The complainant personally administered and managed the entire contract work in respect of access to the site, progress of work, instruction to contractor, time to time payment  etc.   The opposite party states that the complainant ascertained the quality of marble and its condition and thereafter alone, the opposite party was permitted to commence the work on 20.04.2010.  The opposite party also in the presence of the complainant completed the work on 24.05.2010.     The allegation that the work was completed on 15.07.2010 is nothing but figment of imagination of the complainant and the same is not correct.  The final payment was made only on 16.07.2010 after being satisfied within all respects.  The opposite party states that while giving access to work of laying marbles and thereafter, the complainant carried out several other works like carpentry, plumbing, electrical and other miscellaneous work including permission to the tenants to walk along the newly laid marbled floor.  Therefore, the alleged crack if any, would have been caused by other workers, engaged simultaneously in the same premises for the other types of works as above said.  The carpentry work carried out in the freshly marble laid floors was not advisable.   The opposite party states that the alleged complaint of crack is totally imaginary and is invented by the complainant to annoy and harass the opposite party who is an expert in the field of laying marbles.  The opposite party supplied and used the materials after thoroughly satisfied with the size, quality and colour etc and approved by the complainant.   Each and every marbles laid after verification and consent of the complainant and there was no possibility for the alleged damage or crack.   Till handing over possession after due polish there was no allegation of any complaint regarding crack/ damage.  The alleged crack as per the complainant has noticed only after one week without disclosing the date may be due to the other sources of workers including the usage by the tenants.   The vague allegation of crack in one slab and laying slab for entire area of 1,837 sq. ft. is an imaginary one.  The opposite party states that the compensation claimed is imaginary and falsified with a view to make unlawful enrichment.   Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A7 are marked.  Proof affidavit of the opposite party is filed and document Ex.B1 is marked on the side of the opposite party.  

4.      The points for consideration is:-

1. Whether the complainant entitled a sum of Rs.3,81,677/- being the cost of the defective marble laid in flat Nos.6 & 7 by the opposite party as prayed for?
2. Whether the complainant is entitled to a sum of Rs.9,42,266/- being the cost for laying of marble as the complainant has suffered during the period of laying as prayed for?

5.      On point:-

Both parties filed their respective written arguments. Heard the respective Counsels also.  Perused the records namely the complaint, written version, proof affidavit of the complainant and documents.  Accordingly, both husband and wife entered into a contract with the opposite party.   But this case is filed by wife alone.  The husband is not added as a party without any reason.  Thereby, this case is hit by non-joinder of necessary parties.  Admittedly, the complainant filed this complaint on 20.12.2010 claiming a sum of Rs.20,000/- towards the cost of cracked marble slab and a compensation of Rs.2,80,000/- towards mental agony.  But no substantial document to prove the cost of marble stone.   Thereafter, the complainant by way of amendment application CMP 399 /2012 amended the prayer and claiming a huge amount of Rs.3,81,677/- being the cost of defective marble slab and another sum of Rs.9,42,266/- being the cost for laying the marble slab.  But the complainant has not produced any document to prove that she has purchased the marbles valuing Rs.3,81,677/- and he has expended a sum of Rs.9,42,266/- towards laying charges for the said marbles.  The enhanced claim of the complainant through the amended complaint is proved to be false and unsustainable as per law without proper evidence.   Further the contention of the complainant is that admittedly, the complainant approached the opposite party for laying marbles; Accordingly the opposite party gave quotation Ex.A1 (S) on 14.04.2010 in detail regarding the cost of marbles agreed by both parties is Rs.3,52,596/- only and its laying charges and the manner of payment in details  as per Ex.A2 (S).  

6.     Further the contention of the complainant is that the opposite party completed the work as per the stipulation and handed over possession to the complainant on 15^th July 2010 and the last payment was made by the complainant to the opposite party is on 16^th July 2010.   This is admitted by the complainant in his complaint and evidence through Ex.B1.   Further the contention of the complainant is that after one week of completion and handing over possession i.e. on 23.07.2010 the complainant noticed a crack in marble granite in one of the slabs in the hall.  Immediately the complainant telephoned the opposite party and reported the defect.  The opposite party also came and saw the alleged damaged marble through his technician after 10 weeks i.e. on 09.10.2010.  At that time, the complainant  requested the opposite party to replace the damaged marble.  But the complainant has not pleaded specifically in such a manner in her complaint that on which date the crack; was noticed and the cause for the crack and has not proved with expert opinion who is a specialist in ascertaining the quality of the marble by testing the same in an appropriate laboratory.  On a careful perusal of records, the complainant has not proved why such long time taken for noticing the alleged damage in the marble in the hall within the reasonable time after taking possession of the same and made payment.   Ex.A7 photograph showing the marble has not been sent to the opposite party at the earliest point of time i.e. immediately after taking possession within the reasonable time.   The photograph, Ex.A7 also there is no evidence to prove that on which date photos taken and who is the photographer of the said photos.  No bills and other relevant evidence produced and neither CD nor negative has been produced.   Further the contention of the complainant is that after repeated requests and demands the opposite party technician came and applied some chemical adhesive solutions, polish etc which shows very ugly.   But there is no record except photographs without negative. 

7.     Further the contention of the complainant is that while laying the marbles by the opposite party men there are several other works like carpentry plumbing electrical works being carried out is proved from the claim made by the complainant demanding carpenter expenses, painting of interior walls, polishing of wood works, temporary relocation of household articles, packing and transportation etc with the cost of existing marbles and estimated cost of removal and redoing etc.  On a careful perusal of records, the complainant has not produced any document to prove that she has packed the household articles and temporarily relocated and expending huge amount.  Equally, the allegation of health resorts by the complainant are imaginary and not proved with any medical evidence.  For laying marbles the help of carpenter is not at all required.  The carpenter is no way connected with floor marble laying work. Equally, there shall be no requirement of painting etc proves that the complainant carried out different kinds of work while laying the marbles and thereafter because admittedly, it is the renovation of 30 years old house required different kinds of work simultaneously.   It is also seen from the records that the complainant after verifying the marbles found satisfied and permitted to lay the marbles is not denied and after the laying work the premises were handed over to the complainant with fullest satisfaction.  Hence, under what circumstances and when the alleged crack / damage caused is not explained in this case by the complainant.  The complainant has not taken any steps to prove the alleged crack / damage of marbles by way of an expert opinion also.  The  quotation prepared by an engineer unilaterally without the knowledge of the opposite party who is not an expert in ascertaining the quality of the marbles was filed and was rejected by this Hon’ble Forum in CMP No.113/2018.  Even after rejecting Engineer’s Report, the complainant has not taken any steps to file the proper petition to get order for inspecting the property by Advocate Commissioner through proper Expert to prove the defect.  In the absence of pleading and proving the reason for the alleged crack / damage and evading to prove through expert opinion regarding the damaged marbles establishes that the complainant has suppressed the material facts and filed this case after 3 months from the date of taking over the possession. The complainant is claiming a sum of Rs.3,81,677/- being the cost of the defective marbles alleged to be one slab and another sum for Rs.9,42,266/- towards the cost of laying marbles for the same.  But there is no iota of evidence produced for claiming such huge amount.  Much less no quotation from the authorised dealers produced in this Forum proves that the complainant’s claim is imaginary.

8.     The learned Counsel for the opposite party would contend that the complainant and this opposite party entered into a contract on 14.04.2010 for laying marbles, polishing the marbles including supply of necessary marble slabs, other materials, cost of labour and technicians in a old flat No.6 & 7 of Sri Apartments.  The complainant personally administered and managed the entire contract work in respect of access to the site, progress of work, instruction to contractor, time to time payment  etc.   Equally, the complainant ascertained the quality of marble and its condition and thereafter alone, the opposite party was permitted to commence the work on 20.04.2010.  The opposite party also in the presence of the complainant completed the work on 24.05.2010.  On a careful perusal of Ex.B1, Acknowledgement given by the complainant in his handwritten which reads as follows:

Mrs. Joseph,

4A – Haddow’s Road,

Nungambakkam.

 

“The marble work in my house completed”.

     -Sd-

24.05.2010.

 

proves that the opposite party has completed the work in a satisfactory manner.    The allegation that the work was completed on 15.07.2010 is nothing but figment of imagination of the complainant and the same is not correct.  The final payment was made only on 16.07.2010 after being satisfied within all respects shows no deficiency in service.   Further the contention of the opposite party is that while giving access to work of laying marbles and thereafter, the complainant  carried out several other works like carpentry, plumbing, electrical and other miscellaneous work including permission to the tenants to walk along the newly laid marbled floor.  Therefore, the alleged crack if any, would have been caused by other workers, engaged simultaneously in the same premises for the other types of works as above said.  The carpentry work carried out in the marble floors was not advisable.   

9.     Further the contention of the opposite party is that the alleged complaint of crack is totally imaginary and is invented by the complainant to annoy and harass the opposite party who is an expert in the field of laying marbles.  The complainant has not taken suitable steps to prove the alleged crack / damage in this case by way of expert opinion.  The complainant also has not taken any steps for expert opinion available through this Forum.  The opposite party supplied and used the materials after thoroughly satisfied with the size, quality and colour etc and approved by the complainant.   Each and every marbles laid after verification and consent of the complainant proves there is no possibility for the alleged damage or crack.   Till handing over possession after due polish there was no allegation of any complaint regarding crack/ damage.  The alleged crack as per the complainant has noticed only after one week without disclosing the date may be due to the other sources of workers including the usage by the tenants.   The vague allegation of crack in one slab and laying slab for entire area of 1,837 sq. ft. is an imaginary one and the reason may be best known to the complainant alone.  Thereby, the complainant was not inclined to take any expert opinion in this case evenafter repeated amendments claiming exorbitant amount.   The compensation claimed is imaginary and falsified with a view to make unlawful enrichment.  Considering the facts and circumstances of the case, this Forum is of the considered view that this complaint has to be dismissed.

In the result, this complaint is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 24^th day of April 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	14.04.2010	Copy of Sri Venkatesh Marble Works Quotation
Ex.A2	20.04.2010, 19.05.2010  and  16.07.2010	Copy of Abstract of payments for work
Ex.A3	26.10.2010	Copy of 10 days notice sent by the complainant to the opposite party
Ex.A4	26.10.2010	Copy of Post office receipt of registration of letter to the opposite party
Ex.A5	07.12.2010	Copy of PO confirmation of date of delivery of registered letter to the opposite party
Ex.A6	05.12.2010	Copy of replacement cost of cracked marble floor
Ex.A7	29.01.2012	Valuer’s Report  on compensation / Damages claim of owners of Flat Nos.6 & 7 of Sree Apartments locaged in No.4A-Haddows Road, Chennai – 600 006

 

OPPOSITE PARTY’S SIDE DOCUMENTS:-

Ex.B1

24.05.2010

Copy of acknowledgement letter given by the complainant

 

 

 

MEMBER                                                                                PRESIDENT