Nitco Marble Land vs Ashwani Sondhi & Anr

The present revision petition has been filed against the order dated 14th May, 2018 in first appeal No.757/2013 filed against the order of the District Forum dated 21.5.2013.

This case seems to be a classic case of misuse of the procedure of the Consumer Protection Act, 1986. It is apparent that at every stage petitioner is changing its stand in the matter. Before us it is argued that the emails which had been relied upon by the learned Member of the District Forum in its order, were never there on the file of District Forum however no such contention had been raised by the petitioner before the State Commission in the appeal filed by the petitioner. The copy of the appeal is not placed on record but the State Commission has noted all the contentions raised by the petitioner in its order. These contentions clearly show that no plea that the District Forum had relied on the documents (the emails), which were not before it (the District Forum). A document i.e. the copy of the bill filed before the State Commission has not been placed by the petitioner on this paper book. Although it is argued that the emails were not on the State Commission or the District Forum file, no such contention has been raised in the present revision petition. In the grounds of challenge in revision petition, our attention is drawn to clauses C & D in order to justify the argument that in the present petition the petitioner has raised the plea that the emails on which reliance has been placed by the Foras below were not there on the file. The relevant clauses are hereby reproduced as under: -

"c) In the light of the above stated facts and relying on email dated September 16, 2008 and ignoring that no original documents were placed on record by the complainant, the Ld. District Commission vide its order dated May 21, 2013 held the petitioner responsible for supply of marble and directed the petitioner and respondent No.2 to pay the amount of Rs.1,82,250/- jointly and the sum of Rs.20,000/- shall be paid as compensation. Copy of order dated May 21, 2013 is annexed hereto and marked as Annexure A-6.

d) That being aggrieved by the order d ated May 21, 2013 the petitioner filed an appeal before the Ld. State Commission. The said appeal came to be numbered as FA No.757 of 2013. Copy of the appeal as filed by the petitioner is annexed hereto and marked as Annexure A-7."

We do not find in these paragraphs the plea that the emails dated 15.7.2008 and 16.9.2008 were not filed by the complainant before the District Forum. What the contention is that, "the learned State Commission has failed to appreciate that the complainant in his evidence filed before the learned District Forum has not even referred to any such emails." The plea therefore is that the complainant had not relied on any emails in their complaint or in their evidence. The perusal of the copy of the complaint and the copy of the affidavit of the complainant, disproves this contention because we clearly find mention of emails in the said documents. It is also argued that the State Commission passed the impugned order without even referring to the District Forum record. This argument is also contrary to record. Noting in the impugned order wherein the State Commission has clearly mentioned, "file of the District Forum will also be sent back forthwith" clearly shows that the file of the District Forum was before the State Commission where the impugned order was passed.

The brief facts of the case as made in the complaint are that in March, 2008 the complainant had purchased certain tiles from M/s JCR Marble Company who represented itself to be the authorized dealer of the petitioner. He purchased 11 marble slabs for Rs.1.5 lakhs. Certain defects of the nature of biotchy/patchy surface were detected in part of the consignment of the marbles which frustrated the very purpose of the complainant using said tiles. The laying cost of the tiles was Rs.62/- per sq. ft. which was paid by the complainant but due to inherent manufacturing defect in the tiles the beauty of the floor was spoiled. He brought the defect to the notice of M/s JCR Marble Company (respondent No.2) who visited the complainant and admitted the defects and advised to contact the petitioner for rectification of the tiles. He thereafter contacted the petitioner, who sent its official and on examination the official of the petitioner also accepted the manufacturing defect in the marble tiles and advised that the patches could be reduced by re-polishing the floor but the petitioner refused to carry out the same. He filed the complaint claiming a sum of Rs.1.5 as the cost of the tiles and Rs.32,250/- as laying cost of the tiles and compensation of Rs.1 lakh.

M/s JCR Marble Company did not attend the proceedings before the District Forum and was proceeded ex-parte. The petitioner, however, filed its written version wherein the plea taken was that the complaint was not maintainable for want of purchase bill which was not filed by the complainant and denied the relationship of seller and purchaser and also alleged that the allegation in the complaint were vague.

Both the parties led their evidences before the District Forum. The learned District Forum observed that the complainant had filed number of emails exchanged between him and the representative of the petitioner regarding the defects in the tiles. He relied on one of the emails dated 16th September, 2018. The findings of the District Forum are reproduced as under: -

"Both the parties led their evidence on affidavit and filed documents. Complainant has filed a number of emails exchanged between him with representatives of NITCO tiles making complaint with regard to marbles. A email dated 16.9.2008 informed the complainant that patches appeared in the engineered marble was an indication of laying defect. It was also written that respondent as provided a detailed note of the probable laying deficiencies which led to these patches. Emails were also sent to respondent No.1 wherein he admitted the supply of the tiles to the complainant as well as taking up the matter with the manufacturer. The complainant filed the rough estimate as well as the photocopy of the delivery challan which proves that tiles were delivered at the residence of the complainant at C-1/94, Anand Vihar on 4.3.2008. Correct name and address of the complainant is given on the delivery challan which is sufficient to prove that he purchased the tiles from respondent No.1 which was manufactured by respondent No.2. The defects in the tiles is admitted by both the respondents. As an afterthought a defence is taken by respondent No.2 that there was defect in laying the tiles that is why patches appeared on the tiles. Complainant has filed photographs of the floor showing the patches in the tiles. From the documents filed he has successfully proved that he purchased the tiles from respondent No.1 which were manufactured by respondent No.2 and the tiles were suffering from manufacturing defect. Both the respondents are jointly and severally liable to refund the cost of the tiles alongwith cost of laying the same. Hence both the respondents shall jointly and severally pay a sum of Rs.1,82,250/- to the complainant, a sum of Rs.20,000/- shall be paid as compensation for the inconvenience and hardship caused to him.

OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge. Thereafter, the file be consigned to the record room."

This order was impugned before the State Commission. As mentioned above, the plea taken by the petitioner before the State Commission was that the goods were supplied to the complainant by M/s JCR Marble Company and that the labour did not place/lay this marble in proper manner and did not follow the procedure for the same as the manpower used by the complainant was unskilled and did not have the full knowledge of laying of the marbles. They had also taken the plea that responsibility of the manufacturer is to safe and sound delivery of the goods and therefore the contention of the complainant that goods were not supplied in good condition was not tenable. They have also contended that the complainant did not purchase any marble slab from M/s JCR Marble Company, the authorized dealer of the petitioner. They have admitted one fact that M/s JCR Marble Company is the authorized dealer of the petitioner. They have also admitted that the goods were supplied to the complainants and that their only liability is to supply the goods in a sound and safe condition. There is no evidence on record to prove that the goods were not purchased by the complainant from M/s JCR Marble Company. M/s JCR Marble Company did not attend the proceedings before the District Forum as well as before the State Commission. The District Forum had given a clear finding on the basis of documents before it that the complainant had purchased the subject articles from M/s JCR Marble Company. In the absence of any denial from the seller there is no reason to doubt the testimony of the complainant to this effect. Even the State Commission after re-appreciating the evidence has held as under:

The stand of the appellant/OP-2that the marble was not supplied by him is not true which is evident from the e-mails sent by the respondent-2/OP-1 to the respondent-1/complainant dated 15th July,2008 wherein it is admitted by respondent-2/OP-1 about supply of tiles to respondent-1/complainant as well as taking up the matter with the manufacturer. In its evidence the respondent-1/complainant also filed the rough estimate as well as the photocopy of the delivery challan which proves that tiles were delivered at the residence of the respondent-1/complainant at C-1/94, Anand Vihar, on 04.3.08. Thus, from the documents filed by the respondent-1/complainant, it is proved that he had purchased the tiles from respondent-2/OP-1 who is the authorized dealer of the appellant/OP-2 the manufacturer (NITCO).

.The correct name and address of the respondent-1/complainants also given on the delivery challan which is sufficient to prove that he had purchased the tiles from respondent-2/OP-1 who was the authorized dealer of appellant/OP-2. Moreover the respondent-1/complainant has filed e-mails exchanged between him and representatives of appellant/OP-2 making complaints with regard to marbles. The appellant/OP-2 wrote an e-mail dated 09.05.2008 informing the respondent-1/complainant that patches appeared in the marble was an indication of laying defect. The defect in the tiles is admitted by both the appellant/OP-2 and respondent-2/OP-1. The complainant has filed photographs of the floor showing the patches in the tiles along with the complaint filed before the Ld. District Forum which shows that the tiles were having manufacturing defect. The defence taken by the appellant/OP-2that the patches appeared in the marbles because the respondent-1/complainant has engaged unskilled labourers who did not have the knowledge of laying down of the marbles is an afterthought just to save its skin.

In view of the above discussions we are not at all convinced with the plea taken by the appellant/OP-2in this appeal. As no justified grounds have been given by the appellant/OP-2 we are not inclined to interfere with the impugned order passed by the Ld. District Forum. Appeal is dismissed."

The jurisdiction of this Commission under Section 21 (b) of the Consumer Protection Act, 1096 is limited. It is not required to re-assess or re-appreciate the evidence and reach to its own conclusion. It is only required to see whether there is any miscarriage of justice done or whether the findings are illegal or perverse. There is concurrent finding of facts based on the evidences on record as mentioned above. The argument before us is that there was no email of any nature placed before the District Forum and the State Commission has just confirmed the order of District Forum without perusing the documents including e-mails.

Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed as under:

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

Hon'ble Supreme Court has further held in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 as under:

"The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

The argument of learned counsel for the petitioner that there was no email before the District Forum and before the State Commission since no such email was filed by the complainant, is misconceived and contrary to the record. The findings are based on the evidence before the Foras below. We find no illegality or infirmity in the impugned order.

As observed by us, the complainant which has been filed in the year 2004 claiming a sum of Rs.1,82,000/- and for the last ten years the complainant is waiting for the justice which has been denied to him by the clients like the petitioner who is raising objections and taking pleas which are contrary to the record. They are changing their stand before every Fora. In view of this, while dismissing the present revision petition, we impose a cost of Rs.25,000/- which shall be deposited in the "Consumer Legal Aid Account-NCDRC."