S ASHOK KUMAR vs C J SUJATHAN

-THIS revision is directed against the order dated 22. 8. 2003 of Consumer Disputes Redressal Commission, Thiruvananthapuram allowing appeal against the order dated 22. 12. 1999 of a District Forum and dismissing the complaint. The District Forum had allowed the complaint filed by the petitioner with direction to the respondent to pay amount of Rs. 80,000 as refund, pay Rs. 5,000 as compensation and cost to the petitioner.

COMPLAINT was filed, inter alia, alleging that the petitioner had completed the house in December 1997 at Muttada, Thiruvananthapuram. Respondent/opposite party dealer of granites and marbles approached him when construction of the house was nearing completion, for providing granite and marble slabs and tiles. Respondent demanded Rs. 12 per sq. ft. as labour charges, Rs. 190 per sq. ft. for granite slab and Rs. 70 per sq. ft. for tiles. Total area where the work was to be done was 1427 sq. ft. It was alleged that after settlement of rates, the respondent got the granite slabs and tiles laid. It is stated that the slabs and tiles supplied were of inferior quality and some of them were having discolouration. Respondent removed only some of the broken slabs and tiles. Total amount to be paid to the respondent was Rs. 1,40,940 but he collected a sum of Rs. 1,59,400 from the petitioner. Refund of this excess amount of Rs. 15,090 was sought in addition to removal/replacement free of cost of all the granite slabs/tiles which were broken and having dis-colouration. In the event of refusal to lay new slabs and tiles an amount of Rs. 65,000 was claimed. Amount of Rs. 50,000 was further claimed towards compensation for mental agony by the petitioner. Plea taken in the written version by the respondent was of total denial. It was alleged that the petitioner never purchased any goods from the respondent nor did the respondent supply any goods to him. There was no transaction of sale of any materials between the parties. In support of the complaint, the petitioner filed his affidavit and affidavit of G. Komalan Nair. He also filed the receipt Ex. P-1. In rebuttal, the respondent filed his affidavit. Petitioner and his witness were cross-examined by the respondent. Likewise respondent was cross-examined by the petitioner.

Main thrust of argument advanced by Mr. Shyam Padman for the petitioner was that receipt Ex. P1 was filed along with the complaint and the State Commission ought not to have given undue importance to the non-examination of Ashraf, author of the receipt who was then the Manager of the respondent. State Commission also erred in not giving due weight to the evidence of G. Komlan Nair P. W. 2 and returning the finding that the petitioner had failed to prove that there was any contract with the respondent for supplying and laying of granite slabs, etc. According to the learned Counsel, the State Commission should have remanded the case for fresh consideration giving opportunity to both the parties to lead further evidence instead of dismissing the complaint while allowing the appeal. Copy of the receipt Ex. P-1 is at page No. 24. It is an estimate. On back of it certain amount is shown to have been received allegedly by one Ashraf. In cross-examination, the petitioner admitted that there is no other document except Ex. P-1 evidencing the transaction in question, there is no name or signature on the first page of Ex. P-1, name of Benoy Enterprises, respondent establishment is not written, person who signed Ex. P-1 is not shown as the Manager of respondent firm. He denied the suggestion that the respondent did not have a Manager by the name of Ashraf. In his affidavit the respondent averred that Ex. P-1 is a fabricated receipt and the petitioner did not give any amount to him for the purpose of laying granite slabs and tiles. In cross-examination, he stated that he did not know the person who signed Ex. P-1 and the establishment did not have any person designated as Manager. Considering the stand taken by the respondent that he did not have any Manager by the name of Ashraf a heavy burden lay on the petitioner to disprove this plea by examining Ashraf which he did not do. Receipt Ex. P-1 will thus have to be excluded from consideration in deciding this revision. We are left with the testimonies of the petitioner and his said witness, on the one hand, and the respondent, on the other hand. To be noted that the name of G. Komlan Nair P. W. 2 does not figure in the complaint or the affidavit of the petitioner. In the complaint, case set up by the petitioner is that when the house was near completion, respondent himself had approached him and quoted the rate of the materials and labour charges. In this backdrop, no reliance can be placed on the testimony of P. W. 2. State Commission for cogent reasons has found the testimony of the petitioner un-believable. In revisional jurisdiction, we are not inclined to take a view different from that taken by the State Commission in the matter. There was no occasion for the State Commission to have remanded the case as it was for the petitioner to have led the entire evidence in support of the complaint before the District Forum. Submission referred to above advanced on behalf of the petitioner is, therefore, repelled being without any merit. There is no substance in this revision.

ACCORDINGLY, revision petition is dismissed being without any merit. No order as to cost. Revision Petition dismissed.