KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS:275/01 & 408/2001 COMMON JUDGMENT DATED:13..05..2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SHRI.M.K. ABDULLA SONA : MEMBER APPEAL NO:275/2001 1.The Managing Partner, Southern Investment (SI), Reg. Office: Montieth Court, 65, Montieth Road, Egmore, Madras – 600 008. : APPELLANTS 2.Sri.Abraham Thomas, Partner SI, 8 Owners Court, Egmore, Madras-600 008. 3.Ms.Cressy Suresh, Sales Manager, Kadavil Court, Arangath Cross Road, Ernakulam, Cochin-18. (By Adv:Sri.Bechu Kurian Thomas) Vs. 1.O.N.Gopinathan, Dubai Post Authority, P.Box No:3258, Dubai (UAE), R/by its Power of Attorney- Holder V.Achutha Menon, S/o V.Seetha Amma, M 21, Sakthinagar, Iringalakuda. : RESPONDENTS Additional Respondents 2.Mrs. Anandam Gopinath, W/o Gopinath, M-21, Sakthinagar, Iringalakuda desam & Village, Mukundapuram Taluk.P.O, Iringalakuda. 3.Nitya Gopinad, R/by Mother and Guardian- Anandam Gopinath. 4.Narayani Amma, W/o Late Parameswaran Nair, Odath Pallath Veedu, Vasupuram Desom & Village, Mukundapuram Taluk. APPEAL NO:408/2001 1.O.N.Gopinathan, Dubai Post Authority, P.Box No:3258, Dubai (UAE), R/by its Power of Attorney- Holder V.Achutha Menon, S/o V.Seetha Amma, M 21, Sakthinagar, Iringalakuda. : APPELLANTS Additional Appellants 2.Mrs. Anandam Gopinath, W/o Gopinath, M-21, Sakthinagar, Iringalakuda desam & Village, Mukundapuram Taluk.P.O, Iringalakuda. 3.Nitya Gopinad, R/by Mother and Guardian- Anandam Gopinath. 4.Narayani Amma, W/o Late Parameswaran Nair, Odath Pallath Veedu, Vasupuram Desom & Village, Mukundapuram Taluk. (By Adv:Sri.P.Pramod) Vs. 1.The Managing Partner, Southern Investment (SI), Reg. Office: Montieth Court, 65, Montieth Road, Egmore, Madras – 600 008. : RESPONDENTS 2.Sri.Abraham Thomas, Partner SI, 8 Owners Court, Egmore, Madras-600 008. 3.Ms.Cressy Suresh, Sales Manager, Kadavil Court, Arangath Cross Road, Ernakulam, Cochin-18. Additional Respondent 4.M/s Southern Investments (P)Ltd., Managing Director, H.H.Y.S.Bldgs., 1st floor, Rajaji Road, Ernakulam, Kochi-680 035. (By Adv:Sri.T.L.Ananthasivam) COMMON JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU: PRESIDENT The appellant in Appeal:275/01 is the opposite parties 1, 3 & 4 in OP:632/97 and the appellant in Appeal:408/01 is the complainant in the above OP in the file of CDRF, Ernakulam. The opposite parties including the appellants in A:275/01 are under orders to pay a sum of Rs.59,531.40 and Rs.5000/-, totally Rs.64,531.40 towards the defective marble tiles supplied laid and for removal of the same. 2. The case of the complainant is that he was working abroad and he purchased in pursuance of an agreement, a flat in West Gate Terrace constructed by the opposite party and that there was an agreement to provide white marble flooring to the drawing room and dining room at a cost of Rs.96,275/-. After laying it was found that the marble did not appear to be white as such. But there were fissure like marks over all the slabs. He had paid at the rate of 200 per square feet for the above area and he has sought for return of the amount of Rs.96290/- and the cost of removal on the 6th floor of the building which he has estimated at Rs.15,000/-. There was also claim with respect to the delayed handing over of the flat. 3. On the other hand the opposite parties have contended that there was no specific agreement with respect to the quality of the marbles and that there was no delay in handing over the flat. It is contended that white marble is available of different qualities. 4. The evidence adduced consisted of the testimony of PW1, DW1 and CWs1 and 2 and Exts.A1 to A15 series, B1 to B21 and C, C2, MOs 1 to 3. 5. We find that the expert commissioner who is a senior lecturer in Geology at Government Engineering College has specifically noted that the milk white marble said to have been laid was having fissure like mark (foliations, veins and natural cracks) and that the above are not in confirmity with good quality marbles. He has also noted fissure like marks are seen in nearly 60% of the marble slabs. Of course he has also noted that for assessing the grade for the quality of the marble at least 18 marbles should be collected and sent to testing. The commissioner was also examined. 6. We find that it is not disputed that the agreement was to lay milk white marble. What the complainant envisaged by the milky white marble is evident. 60% of the marble laid is noted as having fissure like marks including natural cracks. Hence in this regard the appellants can have no defence. The entire slabs would have to be replaced. Hence we find that awarding only 60% of the amount has only 60% of the marble slabs laid had marks cannot be said to be just. In the circumstances we find that the order of the Forum is liable to be modified. The appellant/complainant is entitled for the entire value of the marble slabs ie Rs.96,290/-. 7. So far as delayed handing over we find that no interference is called for is no patent illegality in appreciation of evidence has been brought out. The interest awarded is reduced to 7.5% per annum. The rest of the order of the Forum is sustained. 8. Hence Appeal in 275/01 is dismissed and A.408/01 is allowed in part as above. The opposite parties are directed to make the payment within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 12% per annum from the date of this order. In the result both the appeals are disposed of as above. The office is directed to forward the LCR along with the copy of this order to the Forum urgently. JUSTICE K.R.UDAYABHANU: PRESIDENT M.K. ABDULLA SONA : MEMBER VL. | 
