By Smt.E.Ayishakutty,Member
Complaint in brief is as follows.
Complainant Mr.Abdul Hameed is represented by his power of attorney holder Mr Surendran Attracted by the advertisement of opposite partyNo1 regarding the sale of marbles , granites and other similar items of goods,complainant made an order for purchase of “red star” granite slabs through the agent of opposite partyNo1 in malappuram District. Opposite partyNo1supplied the goods at the site of complainant at Vilayil in Malappuram district. On verification of the materials it is found that the slabs which they brought to the site was not he slabs which was ordered by the complainant. So he rejected the same and opposite party replaced it with another load which seemed to be the same which ordered.. The granite slabs were laid by the workers of opposite party,aNo1 but a few days after it was noticed that the color of the slabs were diminishing and scratches began to form. The floor of the house became faded and looked ugly due to scratches. So complainant and his father contacted opposite party and asked him to replace the granite slabs which he purchased from opposite partyNo1 But opposite party refused to replace it. . Then complainant sent a lawyer notice to opposite party and he replied that the granite slabs which he purchased are not manufactured by opposite partyNo1 but he refused to give the details of the manufacturer. Opposite party made false representation regarding the quality and durability of the granite slabs and supplied substandard slabs. This act of opposite party caused a great financial lost and mental agony to the complainant. Hence he filed this complaint before the Forum alleging deficiency of service on the part of opposite parties. Complainant prays to direct opposite party to pay him Rs. 691000 as the price of the granite slabs and Rs 5 Lakhs as compensation for the mental agony and financial loss along with cost of this litigation.
Opposite party No1and No2 filed separate version. Opposite party No1 denotes all the averments of the complainant except those which specifically admitted. Opposite party content that the Forum has no jurisdiction to entertain this complaint since the opposite party is not having branch office at Malappuram. Op1 denies the allegation of the complainant that he has made wide propaganda through visual media and the complainant read the same at Vilayil Etc . He denies the allegations of complainant that Op1 and his agents falsely represented that the particular granite named “red star granite” is a high standard and quality granite and is color will not fade etc. Complainant selected and purchased the granite with the help of and expert with whom he came to purchase the granites. They checked the entire stock and selected the slabs after due inspection Op1 is not manufacturing the slabs, he is only a dealer Op2 , who is the manufacture of above said granite slabs . The granite will be having different patterns,toughens, smoothness, color Etc according to the rock from which it is cut. The said granite slab is not natural product and it is not having any guaranty or warranty as available to floor tiles . Complainant and two persons along with and expert person visited the yard and selected the slab and same was taken from the yard after payment. . The allegation that Op1 promised to replace the slabs if any defect will see at the time of allaying or after wards is incorrect. He denies the allegation of the complainant that Op1 supplied the goods at the site of complainant and the slabs was laid by the workers of Op1. The work was done by in experienced workers appointed by the complainant. The complainant not taken care in the laying work and the defect if any seen is after effect of bad workmanship of laborers The allegation that the color faded and changed in to rose color is incorrect. The complainant purchased a moderately priced granite slabs and the quality of the slabs can be seen and assessed during the laying process. No complaint were informed during the laying time and now the complaint is submitted with ulterior motive. Opposite party is no t liable to pay any amount to the complainant. He is submitted this complaint with false and baseless allegation and hence the complainant is liable to be dismissed with cost of opposite party n. Second opposite party also filed version. He content that they are not aware of the alleged transactions between the complainant and Opposite party no1 . He filed 1A 36/08 t o delete his name from the party array of the complainant. He states that he is not a necessary party to the above complaint He does not have either legal interest or commercial interest as far as the alleged deal is concerned. As such the che can not comments upon any of the allegations set forth by the complainant He is not entitled for any of the reliefs prayed for as against second opposite party and hence the complaint is to be dismissed with Rs.10000/- as cost to him.
Complainant filed affidavit with documents as evidence. Ext A1 to A7 marked on the side at him. Opposite party No1 filed counter affidavit. Documents marked as EaxtB1 to B8 on behalf of him.. No oral evidence adduced both sides. Expert commissioner and advocate commissioner filed their report. It is marked as Ext. C1and C2 respectively.
The main points for consideration. (i) whether the Forum has jurisdiction to entertain the complaint (ii) Whether there is any deficiency of service of or unfair trade practice on the part of opposite parties (iii ) If so what is the relief and cost.
Point(i)
Opposite party is doing their business of sale of marbles, granites and other similar items of goods through out India. They made wide of publicity to this through visual medias and news papers as commercial advertisement. Complainant contracted opposite party,No1 by this advertisement and made an order for purchase of real star granite through the agent of opposite partyNo1. At Vilayil in Malappuram district Opposite party No1 supplied three loads of granite and marble slabs at complainants site at vilayil which is under the jurisdiction of this Forum. So the Forum has territorial jurisdiction to entertain this complaint
Point( ii)
The main allegation raised by the complainant is that he purchased a variety of“ Star red granite slabs from opposite partyNo1, for Rs.691000/- and it was laid by the workers of Opposite partyNo1. But a few days after it is noticed that the color of the granite slabs were diminishing and scratches began to form. Complainant intimated it opposite party No1 then he had sent lawyer notice and asked replace the alleged defective granites. But opposite party refused to do so. He alleges that opposite party made false representation about the quality and durability of the granite slabs which he purchased from opposite party and supplied substandard materials. Opposite party No1 resists the contention of complainant and state that complainant and his friends with one expert person selected the granite from the stock at kottiyam in Kollam by examining all stocks of granites and marbles and enquirerd details about the variety , quality and price before purchase. Then they select two loads of natural granites and one load of marble slabs . On transporting three loads of materials to the premises of the complainant, he informed that the granite which he selected was different in color and which is not up to his choice. In order to satisfy the complainant Opposite party No 1 has taken back the two load natural granite and replaced it with another two load with the expense of Opposite party No1 . Complainant laid it on the floor by using his workers complainant admit the replacement of the granite he says that on verification of the load of granite which was supplied by opposite party No1 found out that which was not the granite slabs which he ordered to Opposite party No 1 and hence he rejected the same and it was replaced by opposite party 1 But he says that few days after laying it the color was diminishing and it changed in to rose color and scratches began to form. Opposite party No1 depends the allegation of complainant by saying that the laying work was done by inexperienced laborers and the defect if any seen is the after effect of bad workmanship. Complainant states that the work was done by the laborers of Opposite party No 1, but opposite party denies it. Complainant has not adduced any evidence to prove his contention. As per the copy of purchase bill produced by opposite party No 1 shows that complainant purchased 1200 square feet marble slab and 2400 square feet granite slabs. As per the Ext B3,B4,and B5, the copy of purchase bills produced by opposite party, shows the complainant paid Rs.4,60,800/- in total for the value of 2400 square feet granite slabs and 1200 square feet marbles. Complainant submitted the copy of the this bills to the expert commissioner and he produced this bills before the Forum as a part his report . Complainant has not specifically mentioned whether the granite slab or the marble slabs become defective. In the complainant as well as in the affidavit complainant alleged the defect only to the star red granites. Ext B3 and B4 the purchase bills of granites which shows that he had paid Rs. 230400 for 2400 square feet granite slabs. So there is no evidence to the purchase for the alleged amount of Rs.691000/- Commissions were appointed to inspect the alleged defect of the granite purchased by the complainant
T. Mohanan, Geologist, Mining and Geology department was appointed as expert Commissioner who filed a detailed inspection report before the Forum and it marked as Ext C1.. The report is given below.
“On 9-2-2009 I personally inspected the house of the complainant. I observed the floor to answer for the work memo issued by the advocate of the complainant. My observation results are as follows.
1. The slabs are not of granite rock. The color of the slabs is more or less wine red and at certain places the color is faded and thus dirty patches are formed.
2. The slabs laid on the floor are not natural but synthetic.
3 The thickness of the laid slabs cannot be found out without drilling it. But a piece of the waste slab produced by the petitioner shows that the thickness of floor tiles. Length of the slabs is millimeters that suits the normal thickness of floor tiles. Length of the slabs is measured at the floor as 9 feet 6 inches and breadth 4 feet. The slabs are seen laid and fixed by ordinary cement paste.
4. The slabs are jointed with a very few millimeter of gap.
5. Polished and finished slabs are laid.
6 On inquiry the complainant told that polished and finished slabs from the shop were brought and laid by the workers of the dealer.
7. No such synthetic materials were observed that has been used over the slabs for finishing.
Here the first step before me was to know whether there is fade of color of the floor tiles that are laid on the floor of the complainant house. I found that certain places especially where sun rays and intense light beams are fallen the small size can also be seen. Then I tried to find out the genuineness of the floor tiles. Mega scopic inspection of the slabs and pieces of waste of the slab showed that the slabs are not natural but synthetic. The purchase bill dated 6.10.2006 produced by the complainant shows that the slabs are of granite rock. ( Copies of the bills are Produced as C3) The slabs are not granite because granite is a rock naturally occurring and having specific mineral composition. The important minerals are feldspars and quartz. Here none of these minerals can be found out. A natural rock is having certain texture (specific pattern formed naturally by arrangement of minerals in a rock) and certain colors also. None of these natural features are seen in these slabs.
Another purchase bill dated 28.9.2008 produced by the complainant shows that the slabs are of marble. (Copy of the purchase bill is produced as C4).
The slabs are not of marble also Marble is a metamorphic rock of naturally occurring and having certain specific physical properties and texture. Here also no such specific features of marble can be found.
Then I tried to find out the rock type of the slabs. I had discussions with various Geologists and academicians in this field. All of them commended that the slabs are not natural rock but of synthetic material. Then I send a sample to the Center for Earth Science Studies(CESS) at Thiruvananthapuram to find out the mineral composition of the Slabs. CESS is a Scientific Organization issuing scientific reports in case of minerals and rocks. ;In CESS the sample was subjected to X-Ray Diffraction (XRD) analysis to find out the minerals comprised in the slab. The XRD report shows that calcite is the mineral content of the slabs. No other mineral was found in the sample material. (The XRD report from CESS is produced as exhibit C5).
CONCLUSION
Studies, observations and discussions with various eminent persons in the field of Geology and analysis of the sample revealed that he slabs are made artificially using calcite gains with a red colored dyed material. The red colored dye might have prepared by dying ordinary cement with red oxide or so. Here the 1st question before me was why the color of the slabs is faded within a few months. Secondly the genuineness of the slabs i.e. Whether it is natural or not. Natural colors, especially which of rocks do not fade so fast. Natural stones and rocks are originated u;under certain temperature and pressure conditions. The colors of the minerals that constitute a rock are subjected to such temperature and pressure conditions. So it will not fade due to the sun rays or such light beams. Murals are best example for natural colors that withstand the weather conditions of nature. Here I found that the slabs are made with certain red dye material which is impregnated with calcite grains. The colors of the slabs are fading because the dye material is fade. Sun rays or like energy rays are enhancing the process of fading of the dye material in the slab. This is the reason for the color of the slab to fade this is the reason for the color of the slab to fade”
As per the report of expert commissioner the granite slabs and marble slabs which complainant purchased from Opposite party No1 and manufactured by by Opposite partyNo2 is not natural. From the lab analysis it is revealed that the alleged slabs are synthetic. He also reports that on the floor of the complainant house he found that certain places especially where sun rays and intense light beams are fallen the colors were faded and one or two places there are scratches of very small size also be seen. Opposite partyNo1 in his version admits that the alleged star red granites were not natural product and it was manufactured by Opposite party No2. But opposite parties give wide publicity through visual medias and news papers about the quality, color, standard, freshens etc to attract the people. By giving such false representation regarding the granite and marble slabs and supplied the substandard synthetic slabs to the complainant. Such acts of a trader amounts deficiency of service and unfair trade practices. So we hold that opposite parties are deficient in their service and committed unfair trade practice towards the complainant. Hence complaint entitle to get compensation from both opposite parties.
In the result the complaint is allowed partly and we order both opposite party jointly and severely pay an amount of Rs.50000/- as compensation to the complainant along with cost of Rs. 2500 with in one month from the date of receipt of copy of this order. Dated this28thday of February 2012 .
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN,
MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to Ext. A7
Ext.A1 : Copy of lawyer notice issued by complainant to Op. Dated 27-04-2007.
Ext.A2 : Postal Receipt.
Ext.A3 : A acknowledgment card
Ext.A4 : Photo copy of lawyer notice Dated 28-05-2007, Issued by complainant to Op1, dated 28-05-2007
Ext.A5 : Postal Receipt.
Ext. A6 : Photo copy of Lawyer notice issued by complainant to Op1 dated 20-06-2007.
Ext A7 : Acknowledgment card
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 to Ext.B2
Ext.B1 :Photo copy of Invoice dated 18-09-2006.
Ext.B2 :Photo copy of Invoice dated 24-09-2006.
Ext.B3 : Photo copy of purchase bill dated 28-09-2006.
Ext.B4 : Purchase bill dated 06-10-2006.
Ext.B5 : Purchase bill photo copy dated 06-10-2006.
Ext.B6 : Copy of a letter given by complainant to Op1
Ext.B7 : Photo copy of a complainant filed before judicial first class magistrate Malappuram dated 22-02-2008.
Ext.B8 : Scene mahassar
Ext.C1 : Report of expert commissioner
Ext.C2 : Report of advocate commissioner
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER
E. AYISHAKUTTY, MEMBER
