KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL Nos. 912/2000 & 1227/2000 JUDGMENT DATED: 30-07-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER APPEAL No. 912/2000 APPELLANTS 1. Proprietor, K.J. Marbles, Madaplathuruth, Moothakunnam P.O, Ernakulam District. 2. K.J. Robin, Kizhakkeveettil, Madaplathuruth, Moothakunnam P.O, Ernakulam District. 3. K.J. Joy, Kizhakkeveettil, Madaplathuruth, Moothakunnam P.O, Ernakulam District. (Rep. by Adv. Sri. P. George William) Vs RESPONDENT N.Y. Thajudheen, Nambipunnilath House, Mathilakam P.O., Thrissur District. (Rep. by Adv. Sri. T.H. Abdul Azeez) APPEAL No. 1227/2000 APPELLANT N.Y. Thajudeen, Nambipunnilath House, Mathilakam P.O., Thrissur District. (Rep. by Adv. Sri. T.H. Abdul Azeez) Vs RESPONDENTS 1. Proprietor, K.J. Marbles, Madaplathuruth, Moothakunnam P.O, Ernakulam District. 2. K.J. Robin, Kizhakkeveettil, Madaplathuruth, Moothakunnam P.O, Ernakulam District. 3. K.J. Joy, Kizhakkeveettil, Madaplathuruth, Moothakunnam P.O, Ernakulam District. (Rep. by Adv. Sri. P. George William) COMMON JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellants in Appeal No. 912/2000 are the opposite parties and the appellant in Appeal No. 1227/2000 is the complainant in OP 12/98 in the file of CDRF, Thrissur. The opposite parties are under orders to pay a sum of Rs. 1,18,712/- and compensation of Rs. 5,000/- and costs of Rs. 1,000/- to the complainant. The opposite parties vide Appeal No. 912/2000 have sought for setting aside the order of the Forum whereas the complainant in Appeal 1227/2000 has sought for enhancement of the amount ordered to be paid. 2. The case of the complainant is that the opposite parties 2 and 3 and subsequently along with the 1st opposite party who is a close relative of opposite parties 2 and 3 was entrusted with the work of laying marbles to the floors of the newly constructed building owned by him. It is his case that the opposite parties 2 and 3 received amounts from him and agreed to lay marbles in the building to an extent of 2625 sq.ft and the total amount was agreed at Rs. 1,50,000/-. The agreement was recorded in writing. Amounts were paid in cash and cheques. According to him, altogether the opposite parties have received a sum of Rs. 1,99,400/-. The work was not completed. The works done are defective. The levels are not proper. The quality of the marble is low. He has altogether claimed a sum of Rs. 2,61,765/- that included interest at 12% and compensation of Rs. 25,000/-. 3. The opposite parties have filed a joint version denying the involvement of the first opposite party altogether. According to them in November 1995 the complainant had approached the second opposite party for procuring marble from Rajasthan and he had given advance to secure the same. The second opposite party had handed over a cheque leaf as security. The second opposite party had on the basis of the plan and estimate transported marble from Rajasthan and unloaded the same in the compound of the complainant. The marble was laid under the supervision of the complainant. During the period the complainant left abroad and he told the second opposite party that the remaining laying and final polishing should be executed subsequently. The complainant had not raised any complaints during the period of laying and it is only to avoid the settlement of accounts that he has raised the complaints. It is also mentioned that the complainant had constructed another building at Padiyoor and it was the second opposite party who laid marble in the above building. The amount received for the work at Padiyoor is also claimed in the present petition. According to opposite parties, the complainant is bound to pay a sum of R. 70,000/- more to opposite parties 2 and 3. According to them the complaint has been filed on an experimental basis. It is also mentioned that after laying marble to an extent of 1500 sq.ft the complainant had requested the second opposite party to stop the work for sometime. The complainant has not paid the entire cost of marble transported from Rajasthan or the amounts due to the completed works. Subsequently in June 1996 the complainant had approached the 3rd opposite party and requested him to lay marble in the building. At the time the 3rd opposite party had agreed to supply marble from the establishment ie, the first opposite party owned by his wife. On 17-08-1996 marbles required for 800 sq.ft was purchased by the complainant from the first opposite party and laid under the supervision of the 3rd opposite party. Subsequently on 16-09-1996 also marble for 350 sq.ft was purchased and laid. The opposite parties have contended that the final polishing could not be done, as the amounts due were not paid. The opposite parties have sought for compensatory cost from the complainant. 4. Evidence adduced consisted of the proof affidavits filed by the complainants and opposite parties and Exts. P1 to P5, R1 to R4 and C1. 5. The Forum has calculated the amount altogether received by the opposite parties ie, Rs. 1,82,000/-. In the appeal filed by the complainant there is no dispute about the above calculation by the Forum although the complainant had claimed a sum of Rs. 1,99,400/ as paid. 6. Ext.P1 is the agreement written in plain paper dated 17-10-1995 in which revenue stamps are affixed and signed by the complainant and the second opposite party. The 3rd opposite party has signed therein as a witness. As per Ext.P1 the second opposite party has agreed to lay marble in the newly constructed building owned by the complainant. It is mentioned therein that the square feet rate mentioned is inclusive of the labour charge, transportation and cost of marble. It is also mentioned therein that 2/3 of the amount should be paid during the period of construction and the balance 1/3rd after 3 months of the arrival of the load and before the expiry of 4 months. The rate mentioned is Rs. 40/sq.ft for white marble and Rs. 45/sq.ft for pink marble and Rs 66/sq.ft for pink slabs. Amounts received are also noted on the reverse of Ext.P1. Ext.P2 is the cash cheque signed by the first opposite party (wife of 3rd opposite party). Ext.P3 is another undertaking by the first opposite party dated 08-07-1996 wherein it is mentioned that except two bedrooms wherein marble has been laid the balance of the bedrooms, kitchen, work area, varanda, hall, kitchen slab, top of the staircase steps, sides of the floor shall be laid with pink slabs and the bathrooms will be laid with tiles and the car porch with broken tiles and the works included polishing and amount agreed is Rs. 1,50,000/-. It is also mentioned that a sum of Rs. 75,000/- has been received as advance. It is also mentioned that all required materials for laying except marble shall be supplied by the complainant. It is also mentioned therein that 7 days after the arrival of the marbles works will be started and the same will be completed within one month. The total area is mentioned as 2625 sq.ft. The amounts received are endorsed on the back. The endorsements are signed by the opposite parties 1,2 and 3 on different dates. 7. Although Ext.P1 agreement is signed by the second opposite party and witnessed by the 3rd opposite party and Ext.P3 agreement is signed by the first opposite party and the endorsements on the reverse of Ext.P3 being that of all the opposite parties. It has to be taken that all the opposite parties were involved in the works entrusted by the complainant. 8. The Forum has ordered to pay for the area of the works done as assessed by the Commissioner ie, 1582.20 sq.ft at the rate of Rs. 40/sq.ft which would work out to Rs. 63,288/-. The Forum has ordered to pay the balance of Rs. 1,18,712/- out of the total amount paid ie, Rs. 1,82,000/- to the complainant. We find that the Forum has not taken into consideration the different rates mentioned for different types of marble and marble slabs. In Ext.P1 the rate of pink slabs are mentioned as Rs. 66/sq.ft. On the reverse of Ext.P1 the rate of white marble slabs are mentioned as Rs. 58/sq.ft. It is also seen noted on the reverse of Ext.P1 that by 26-10-1996 the works executed at Padiyoor will be completed and the balance amount of Rs. 1,500/- should be given to the 3rd opposite party. 9. Ext.C1 is the report of the expert Commissioner who is an Assistant Professor of Government Engineering College, Thrissur. As per Ext.C1 Commissioner has inspected the building and measured the flooring. It is also mentioned that the complainant has occupied the house on 08-08-1996. It is also mentioned that the work has been completed in two stages, the first stage being in December 1995 and the second stage in June 1996. The Commissioner has not mentioned the total floor area as such but has mentioned the measurements of the different rooms and other portions of the building. It is also to be noted that the cost of the works included the price of the marble, transportation costs and labour charges excluding the materials for laying. The Commissioner has quoted the market rates at the time of inspection ie, 09-04-1999. The building consisted of the ground floor and first floor. It is mentioned that the flooring and side skerting has been done with marble slabs in different rooms. It is also mentioned that the first grinding of the floor has been done and the subsequent grinding and polishing has not been done. It is also mentioned that the side skerting work in various rooms has not been completed and pointing and finishing has not been done in many places. It is also mentioned that the leveling of the marble slabs is not satisfactory. Air void below the marble slabs can be noticed at few places in various rooms. The thickness of few of the slabs used is not found uniform. Cracks can be noticed on some of the slabs. It is also mentioned that the general quality of the marble slabs used in the complainant’s house is not very good. He has noted that the works done in the bedroom (on the front) extending 158.23 sq.ft and in the kitchen extending 83.95 sq.ft and in the work area extending 46.15 sq.ft and in the bedroom (first floor) extending 191.73 sq.ft are satisfactory. In the front varanda, drawing and dining room, staircase room, bedroom (on the rear side) staircase and loby, bedroom first floor (item IX) and sitout he has pointed out is suffering from imperfection and final polishing has not been done also. No works have been done in the bathrooms and car porch. Excluding the bathrooms and car porch the total area would workout to 1585.20 sq.ft. He has also noted 14 pieces of marble slabs of different types having size of 2m x 0.8m and 4 slabs of 2m x 0.7m have found stock in the car porch and 3 to 5 bags of broken pieces of marble. 10. The Commissioner has also inspected the building at Padiyoor, which is a single storied RCC building, which has been laid with 2 ft. 1¼ feet commercial mix marble tiles. The total square feet area is mentioned as 1100 sq.ft. 11. It is the contention of the Counsel for the appellants/opposite parties that the total square feet area mentioned in Ext.P3 included that of the building at Padiyoor. It is highlighted by him that the area mentioned by the Commissioner for the two buildings would tally with the total extent of 2625 sq.ft mentioned in Ext.P3. We find that in Ext.P1 on the reverse it is mentioned that the works at Padiyoor will be completed by 26-10-1996 and the balance amount to Rs. 1,500/- should be paid to the 3rd opposite party and the price of the required balance materials and labour charges should be given to him. It is also mentioned therein that the rate of white slabs is Rs. 58/sq.ft. There is no explanation as to why the total extent is mentioned as 2625 sq.ft while the extent of the works of the building under dispute is only 1585 sq.ft. The difference is 1040 sq.ft. The area of the building at Padiyoor is 1100 sq.ft as per Ext.C1. It can also be seen from Ext.C1 report of the Commissioner that it is green marble, pink marble slabs and white marble slabs that has been used in the building. Mostly, the slabs used are pink marble. The rate mentioned for pink marble slab is Rs. 66/sq.ft and for white marble slab at Rs 58/sq.ft. Hence the order of the Forum directing the opposite parties to pay at Rs. 40/sq.ft cannot be justified. No evidence has been adduced by the complainant also to explain the difference in the total area. The OP is of the year 1998. Remitting the matter at this point of time appears to be unjust. Evidently, as can be seen from Ext.C1 report of the Commissioner the works executed are not complete and there are certain defects. Taking the entire matters into consideration, we find that direction to pay a sum of Rs. 60,000/- to the complainant would be adequate. Hence Appeal No. 1227/2000 is dismissed and Appeal No. 912/2000 is allowed in part. The opposite parties in OP No. 12/98 will pay a sum of Rs. 60,000/- to the complainant and compensation of Rs. 5,000/-. The amounts are to be paid within three months from the date of receipt of this order, failing which the complainant would be entitled for interest at 12% from today. The complainant would also be entitled for cost of Rs. 2,000/-. The office will forward the LCR to the Forum along with a copy of this order urgently. JUSTICE K.R. UDAYABHANU: PRESIDENT M.K. ABDULLA SONA: MEMBER Sr. | 
