Shihab Vs. al Mathjarurabih, New Marble City - Court Judgment

Mrs. A. Radha : Member

This appeal is preferred by the complainant against the Order in C.C.No.141/08 on the file of CDRF, Malappuram.

2. It is the case of the complainant that the complainant purchased marbles from opposite party for flooring work of his house. As suggested by the opposite party and on believing the words, complainant ordered for 950 sqft cut marbles. It is asserted in the complaint that the opposite party undertook the laying of marbles and polishing. The complainant paid Rs.1,10,500/- to the opposite party. On 26/12/2006 the amount was paid and started the work on 03/01/2007. The opposite party was very slow and it took around one year to finish the work. It was found that broken slabs were used for flooring which caused financial loss of Rs.3,50,000/- towards cost of marbles and laying charges. The complaint is filed to reimburse the cost incurred and for laying marble and Rs.50,000/- as compensation for the mental agony.

3. In the version filed by the opposite party it is contended that the complaint is a concocted one. It is also stated that no advertisement was given to attract his business. The opposite parties admitted that the marble slabs given to the complainant were lowest quality. It is contended in the version that the opposite party received Rs.59,210/- against invoice No.633 and 634 dated 27/12/2006. No laying work of marble was undertaken by the opposite party. The transporting of marble was also done by the complainant. The opposite party delivered 76.67 ms Cutni marbles and 62.36 ms Aspur marbles. The bill also clearly shows that the marble slabs were of irregular size and it was within the knowledge of the complainant himself. The good quality cutni marbles will cost Rs.150/- in Kerala during 2006-07. Hence the complainant ordered and purchased the lowest quality cutni marbles. The opposite party had not received Rs.1,10,500/- as alleged by the complainant. It is admitted that the marbles were of low quality worth Rs.30-32 per sqft. The laying work was not undertaken by the opposite party. Hence the complaint is only to be dismissed.

4. On the side of the complainant PW1 and PW2 were examined, Exbts. A1 to A9 were marked. DW1 was examined on the part of opposite party and Exbt.B1 was marked. An expert Commissioner was appointed and the Commission Reports were marked as Exbts. C1 and C2. On appreciation of evidence the District Forum dismissed the complaint.

5. It has been argued by the counsel for the appellant that the respondent supplied two types of marbles for an amount of Rs.1,10,500/- and the laying of marble was undertaken by the respondent. The allegation is with regard to the low quality of marbles as well as the defect in laying the marble. He also pointed out that the laying was air filled and the work was not satisfactory. It is argued that the respondent took around one year to complete the laying work causing difficulties to the appellant and also financial loss. It is relevant here to point out that the Commissioner observed that the slabs were of ordinary marble and there had holes in some marbles in several parts. Even though the District Forum considered that there had some defects in the laying work, the Forum ignored the Commission Report as a whole. As per the report the cracks and fractures developed in marble slabs due to the presence of weaker plains in certain slabs by natural joining. The non bonding of slabs and the ground below enhanced the process of breaking the slabs along with weaker plains. The non-bonding of slabs and ground create void space between slabs and ground. It is very clear from the Commission report that the laying work is defective. The respondent undertook the supply of marbles as well as the laying of the marbles. It is submitted that the complainant had heavy financial loss and the respondents are liable to replace the marble or an amount of Rs.3,50,000/- is to be paid as compensation to the complainant.

6. The counsel for the respondent submitted that the respondent supplied two types of marbles evidenced by Exbts.A6 and A7. The complainant purchased marble slabs of irregular size on 27/12/2006 against the invoice No.633 for an amount of Rs.31,741/- (Exbt.A6) and invoice No.634 dated 27/12/2006 for marble slabs irregular size and granite tiles for Rs.27,469/- (Exbt.A7). The total amount comes to Rs.59,210/- which was paid by the appellant. Exbts.A1 to A5 produced by complainant are on scrap of papers and it was denied by the respondent and cannot be relied upon. There is nothing in evidence to show that the laying work was undertaken by the respondent. Further the marbles supplied were of irregular size clearly mentioned in the invoices issued to the appellant. It is asserted that no advertisement was given by the respondent with regard to the marbles or laying of marbles. The respondent never undertook any marble laying work, skirting or molding of marble/granite. The complainant took delivery of Cutni marble and Aspur marble of his own choice of lowest quality and the cost of such marbles per sqft was Rs.30-Rs.33/-. It is also evident from the bill that the marble supplied were of irregular size and of lowest quality and no unfair trade practice can be attributed upon the respondent as the bills itself state the quality of the marble. Nothing is brought out in evidence that the respondent or his men had undertaken the laying of marbles in the building of the complainant. The allegation of the complainant is merely to harass the opposite party for unlawful enrichment.

7. At the time of argument before us, it is admitted that the appellant purchased the marbles from the respondent. The dispute is with regard to the amount of the bill. The complainant produced Exbts.A1 to A7 whereas the respondent admitted only Exbts.A6 and A7 bills. As per the said bills the total amount comes to Rs.59,210/- paid by the complainant towards the supply of marbles. The alleged bills Exbts.A1 to A5 are on small piece of papers as it was paid to the respondent towards the supply of marbles. This was denied by the respondent. Regarding laying of marbles, the complainant could not produce any agreement or bill. It is also pertinent to point out that the appellant failed to bring in evidence any of the persons who were engaged in the laying of marbles. No witness is brought out to prove the case of complainant. The only witness PW2 is none other than a relative of the complainant himself. So, that cannot be taken into evidence to prove the case of the complainant. Now coming to the quality of marble, it has been clearly stated in the bill itself that the marbles are of irregular size and the marbles are of lowest cost. After accepting the supply of such marbles the appellant is estopped from complaining about the marbles. So also it is clear from evidence that the complainant himself unloaded the marble. Mere pleading is not evidence and the complainant failed to prove his case that the complainant supplied low quality material without the knowledge of the complainant. It is also in evidence that when the Commissioner visited the place found some defects in the laying of marble. It is pertinent to point out that neither the alleged payment nor the laying work undertaken by the respondent are proved, the allegation regarding the defect in the laying of marble cannot be fastened upon the respondent.

8. As discussed above, no interference is required in the conclusion made by the District Forum. In the result, appeal is dismissed.

The office is directed to send a copy of this order to the Forum below along with LCR.