BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE                                                          

Dated this the 24^th of March 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT                

                        SMT.LAVANYA M. RAI       :   MEMBER                  

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.61/2010

(Admitted on 22.02.2010)

Mr.John Baptist Pinto,

So. Late Alex Pinto,

Aged about 65 years,

Valley View, Door No.4 126 3,

New Church Compound,

Bondanthila Post,

Mangalore Taluk.                              …….. COMPLAINANT

(Advocate for the Complainant: Sri.Deenanath Shetty).

          VERSUS

The Proprietor,

Das Concrete Industries,

Mudu Perara Village,

Via Ganjimata,

Mangalore.                                ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.Surajlal Shetty).

                                       ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submitted that, he had purchased interlocks from the Opposite Party to lay on the court yard of the residence of the Complainant to the extent of 1,120 sq. ft. and 27 sq. ft.  The Opposite Party issued a bill dated 14.11.2008 for a sum of Rs.30,240/- towards laying tri axyl type of interlocks and labour.

 The 1^st allegation of the Complainant is that, after elapse of 17 days of laying of the interlocks the colour of the layer of interlocks faded drastically and the huge unsightly white patches appeared on the layer of interlocks. It is stated that, the whitish discolouration is visible, the same has been brought to the knowledge of the Opposite Party through his mobile and requested to change the interlocks but the Opposite Party turned deaf ear to the request of the Complainant.  Finally, in the 2^nd week of December 2009 the Opposite Party sent his supervisor to inspect the interlocks laid on the court yard of the Complainant and took a sample of discoloured interlock along with him but neither the Opposite Party nor the supervisor did not address to the problem with regard to the discolured layer of interlocks.

The another allegation of the Complainant is that, the Opposite Party did not issued acknowledgement of the sum of Rs.30,240/- inspite of request made by the Complainant.   The Complainant contended that, the act of the Opposite Party amounts to deficiency and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to relay the discoloured layer of interlocks on the court yard of the residence of the Complainant or to repay the amount of Rs.30,240/- paid up by the Complainant to the Opposite Party towards the purchase of the interlocks with interest at 12% p.a. from the date of purchase till the final payment of the aforesaid amount and also claimed Rs.20,000/- towards the cost and compensation.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that, the Complainant voluntarily approached the Opposite Party for the purpose of laying interlocks on the court yard of the residential house of the Complainant and selected the interlocks.  Thereafter Opposite Party undertaken the work of laying interlocks as per the request of the Complainant.  After completing the work, the Opposite Party requested the Complainant to pay the balance amount of Rs.10,240/- but the Complainant not paid the balance amount.  Hence the Opposite Party not issued a receipt for acknowledgement for the entire amount of Rs.30,240/.

It is further submitted that, the interlock is made out of cement sand and hard stones.  Due to heavy sunlight on the interlock floor, little bit of fading cannot be ruled out.  The allegation of the Complainant is purely imaginary and self created.  The Opposite Party further submits that, the Complainant has not taken the required precautionary measures and due to rough use and washing of vehicles and flow of waste water on the interlock floor are the causes for Complainant’s allegation and stated that there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.John Baptist Pinto (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C3 were marked for the Complainant as listed in the annexure.   One Mr.Mohandas Shetty (RW1), Proprietor of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Both parties produced notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:                          

                       Point No.(i): Negative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

In the instant case, it is admitted that the Complainant had purchased interlocks from the Opposite Party to be laid on the court yard of the residential house of the Complainant measuring 1,120 sq. ft. and 27 sq. ft.  There is no dispute of purchasing interlocks from the Opposite Party to be laid on the court yard of the Complainant’s residence. 

Now the dispute between the parties before this FORA is that, the Complainant contended that, subsequent to the elapse of 17 days of laying of the interlocks the colour of the layer of interlocks laid on the court yard faded drastically and the huge unsightly white patches appeared on the layer of interlocks.  The whitish discolouration is visible on the interlocks and produced photographs.  It is stated that, the Complainant had lodged a complaint with the Opposite Party and requested the Opposite Party to change the interlocks but the Opposite Party in the 2^nd week of December 2009 sent his supervisor to inspect the interlocks laid on the court yard and took a sample of discoloured interlock.  Thereafter neither the Opposite Party nor the supervisor did not attend the problem and the another allegation of the Complainant is that, the Opposite Party did not issue a receipt in acknowledgement of the sum of Rs.30,240/- to the Complainant. 

On the contrary, the Opposite Party contended that there is no defect or deficiency of the Opposite Party.  The interlocks are made out of cement sand and hard stones (jelly).  Due to heavy sunlight on the interlock floor, little bit of fading cannot be ruled out but the allegation of the Complainant is purely imaginary and there is no discolouration.  It is further submitted that, the Complainant has not taken the required precautionary measures and due to rough use and washing of vehicles and flow of waste water on the interlock floor are the causes for little bit discolouration of the interlocks.  As far as receipt is concerned, the Opposite Party stated that, the Complainant not paid Rs.10,240/- only Rs.20,000/- was paid by the Complainant and hence he cannot issue acknowledgement for the entire amount of Rs.30,240/-.

However, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C3.  Opposite Party also filed oral evidence by way of affidavit.

In the instant case, the counsel for the Complainant vehemently argued that, the interlocks laid by the Opposite Party on the court yard of the Complainant was discoloured within a period of 17 days of laying of the interlocks and produced photographs in order to substantiate his contention.  Except producing the photographs nothing has been placed on record to show that whether the Opposite Party had given any warranty on the above said interlocks.  On the other hand, the Opposite Party stated that the interlocks are made out of cement sand and hard stones (jelly), due to heavy sun light on the interlock floor, little bit of fading cannot be ruled out.  The above evidence of the Opposite Party is not rebutted by the Complainant.  No doubt, the interlocks are used in court yard and it do not contain any colours as the same is made out of cement sand and hard stones.  If at all the Complainant requires any particular colour, then the Complainant has to colour on the interlocks.  The photograph produced by the Complainant in this case reveals that, the interlocks are directly fixed and no colouring or painting was made on it.  But in some of the places in one of the photograph, some painting on the interlocks were made on the court yard by drawing a shape of ‘rangoli/flower shape’.  Except that, the interlocks were fixed as it is.  When that being the case, it is very difficult to hold that the interlocks fixed by the Opposite Party is discoloured or faded.  As we know, the mixture of cement sand and jelly has got no definite colour except one type of faded grey colour.  The Complainant should have painted or coloured on the interlocks to get a particular colour on it.  On perusal of the photographs, the interlocks supplied by the Opposite Party is intact there is no defect or shortcomings could be seen on the interlocks.  However, we are convinced that the interlocks supplied by the Opposite Party is not defective.  The defect or deficiency pointed out by the Complainant is not acceptable in this case.

 Further as far as receipt of Rs.30,240/- is concerned, the Complainant states that, he had paid the amount in cash on 14.11.2008 but according to the Opposite Party, a sum of Rs.10,240/- is due.  When the Opposite Party specifically denied for payment of Rs.10,240/-, the burden is on the Complainant to show that he has paid the entire amount of Rs.30,240/-.  But no such evidence available on record.  In the absence of the same, we cannot consider that the Complainant paid the entire amount to the Opposite Party and issuing of receipt for a sum of Rs.30,240/- does not arise.  On overall considering the materials on record, we hold that there is no force in the complaint and deserves to be dismissed. No order as to costs.

6.       In the result, we pass the following:                          

ORDER

            The complaint is dismissed.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 24^th day of March 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.John Baptist Pinto – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 14.11.2008: Original bill for Rs.30,240/-.

Ex C2 and C3 -      : C.D. and coloured photographs.

Witnesses examined on behalf of the Opposite Party:

RW1 – Mr.Mohandas Shetty, Proprietor of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

• Nil -

Dated:24.03.2011                            PRESIDENT