CHITRANJAN SAHOO vs N.C.JAIN

DEFECT in goods is grievance of the complainant. Complainant is an Automobile Engineer. For two decades he was in England. Coming back to India with all his savings he constructed a house in Ranihat in Cuttack town. The house is a 3 storied building. Complainant constructed one room on the third floor of his house. He purchased marbles - White and black in colour - from the Opposite Party. When the marbles were polished, white marbles lost their colour. This is grievance of the complainant.

ON receipt of a copy of the complaint, opposite party stated his case. While admitting that he supplied white and black marbles to the complainant as required, his case is that the marbles supplied by him might not have been used in the building of the complainant. Complainant has not paid the consideration in full also. A reply has been given by the complainant to the case stated by the opposite party refuting the assertions. Complainant has filed the complaint which has been verified by him. He relied upon the measurement taken by the opposite party in his own hand, visiting card of opposite party, receipt prepared by the opposite party, lawyer's notice sent by registered post which was received by the Opposite Party, reply to the notice given by the complainant, letter dated 3.8.1993 of the complainant to the opposite party which was sent by Certificate of posting. Both parties have submitted their notes of submissions.

There is no dispute that opposite party supplied the marbles to complainant. Following questions arise for consideration in this case: Whether opposite party came to complainant to give offer to sell the marbles, or whether opposite party measured the house where the marbles were to be used and prepared the slip of measurement indicating the requirement of marbles at Cuttack, or whether opposite party handed over his visiting card to complainant at Cuttack nothing his name on the reverse side thereof, or whether Opposite Party went on 11.11.1991 with one Rajendra Bindhani, an employee of Safari Sales Limited and inspected the marbles where after he placed orders to finalise the transaction or whether Opposite Party prepared a slip mentioning the size of white marbles at Rs.60/- per square feet and black marbles at Rs.57/- per square feet and calculated the value of the materials and granted rebate of Rs.336/- rounding it to total cost of Rs. 15,000/- and receiving Rs.4,000/- indicating the balance to be Rs. 11,000/- at Bhubaneswar or whether on asking for a printed receipt Opposite Party expressed his inability stating that the firm has not printed any receipt, are not required to be considered in this case since the only question to be considered is whether on polishing the marbles purported to be of white colour displayed gray and other multi colours to come to a conclusion that the marble supplied is defective.

CASE of complainant is that Opposite Party was to deliver the marbles at Cuttack. CASE of Opposite Party is that on the same day complainant took delivery of the marbles after payment of Rs.4,000/-. There is no assertion that complainant and Opposite Party had previous acquaintance with each other. No businessman would allow goods worth Rs. 15,000/- to be lifted on receipt of Rs.4,000/- only. We cannot accept the case of Opposite Party since it is not the normal human conduct. If the marbles were lifted, Opposite Party would have knowledge how they were removed from his shop. Opposite Party has not given any description of the same. In these circumstances, we are inclined to accept the case of the complainant that Opposite Party was to deliver the goods at Cuttack. There are two check-gates between Bhubaneswar and Cuttack with are two municipalities. Each municipalities collects octroi at the check gate. Besides, there are also sales tax check-gates. For removal of goods from one place to another, way bills are prepared. Complainant would not have liked to take the risk of bringing goods worth of Rs.15,000/- without way bill, sale and purchase memo. This strengthens our view that it was agreed that Opposite Party would deliver the goods at Cuttack. In view of the aforesaid discussions, we came to conclusion that Opposite Party was to deliver the goods at Cuttack. Complainant stated that goods were delivered at Cuttack on 17.11.1991. On the admitted position that the goods have been delivered, on our finding that it was agreed to be delivered at Cuttack, we accept the case of complainant that goods were delivered at Cuttack on 17.11.1991.

FOR a direction to be given under Section 14(1) of the Act, complainant is required to prove defect in goods. Case of complainant is that he used the marbles and while polishing the same found defect in the white marbles. There is no grievance about the black marbles. Normally, on receipt of lawyer's notice, Opposite Party would have rushed to the complainant to see whether there was defect in the marbles supplied by him. Instead, before us he claims that complainant might not have used the marbles supplied by him. We cannot accept case of the Opposite Party Assertion of complainant that the marbles supplied by the Opposite Party was defective inasmuch as while polishing the marbles gray and other multicolours came out, appears to be correct. We are satisfied that marbles supplied by Opposite Party were defective. Since it is not case of Opposite Party that the marbles available at that rate have chance of changing colour. When complainant wanted white marble and Opposite Party supplied white marble, it is for the Opposite Party to expressly state that the quality of marble is such that it may not retain its colour when polished. In absence of such assertion we are inclined to hold that Opposite Party gave the complainant to understand that the marbles supplied would retain its white colour. When the colour changed, it comes within the scope of defect in goods. Under Section 14(1)(a) to (c), while finding defect in goods, redressal agency can direct removal of defect, replacement of goods or refund of the price. On polishing the defect in the marbles were found out. There is no scope to remove the defects from the marbles. Accordingly, we are left with no other alternative than to direct that the marbles are to be replaced because we are not given any idea by either party as to the rate of marbles which would retain its colour and marbles which may change the colour on polishing. We direct that opposite party as per the contract would supply white marbles at Cuttack to the complainant. Since complainant had fixed the marbles and polished the same, Opposite Party whose goods were found to be defective is to fix the marbles at his own cost and polish the same. All other disputes relating to payment of consideration shall be agitated in Civil Court since the same have not been considered by us. In result, the complaint is allowed. Complaint allowed.