BEFORE THE RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION,JAIPUR

 

FIRST APPEAL NO: 371/2021

 

Kamal Singh Dagur s/o Sh. Moti Ram r/o C-33, Indra Nagar, Bharatpur.

Vs.

Malik RD Marbles, Tilak Nagar, Ring Road, Adjoined Basroli House, Bharatpur.

 

Date of Order 2.8.2022

Before:

Hon'ble Mr. Atul Kumar Chatterjee- Acting President

Hon'ble Mrs. Shobha Singh- Member

Present:

Ms. Pooja Gupta learned counsel for the appellant

 

BY THE STATE COMMISSION ( PER HON'BLE MR.ATUL KUMAR CHATTERJEE, ACTING PRESIDENT )

 

This appeal has been filed by the appellant/complainant against the order of learned District Consumer Commission,

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Bharatpur dated 3.8.2021 passed in Complaint Case No 250/2020 whereby the learned DCC has dismissed the complaint filed by the appellant/complainant.

 

Briefly stated the relevant facts of this case are that the appellant /complainant filed a complaint against the respondent/non-complainant stating therein that the non-complainant deals with various types of stones viz. makrana granite, kota stone, Baroda green etc. through its firm. The complainant had purchased makrana stone worth Rs. 18,900/- on 26.1.2020 and he paid Rs.19,620/- including Rs. 720/- as transportation charges. On 14.2.2020 he again purchased makrana stone worth Rs.7560/- and he paid Rs.8028/- including transportation charges. In this way he purchased stone at two occasions paying Rs. 27648/- for stone and transportation charges. At the time of delivery, the respondent/non-complainant had given guarantee of the makrana stone and has conveyed that no cracks would appear in the stone and if the cracks appear, he would change the stone but just after one month of procuring the stones there appear cracks at various places and on complaining the respondent/non-complainant assured to resolve the issue after

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lifting of lock down. In his complaint the complainant has averred that despite repeated request the respondent/non-complainant did not change the stone and had maltreated the complainant. As such alleging deficiency in service and unfair trade practice against the respondent/non-complainant, the complainant had sought relief through complaint for replacement of the stone or refund of the amount of Rs.27648/- alongwith compensation under various heads and costs of litigation.

 

In this matter the respondent/non-complainant did not appear before the learned DCC despite service of notice of the complaint as such the matter was proceeded ex-parte against the respondent/non-complainant.

 

The appellant/complainant had filed affidavit in support of his complaint and had submitted the bill of the stone, copy of registered legal notice alongwith postal receipt. Besides this he also filed coloured photographs of the disputed defective stones.

 

The learned DCC after hearing ex-parte arguments of

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appellant/complainant had dismissed the complaint.

 

The learned counsel for the appellant/complainant has disputed the findings of the learned DCC saying that without any sort of rebuttal of the pleadings and evidence of the appellant/complainant the learned DCC has on its own opined that makrana stone being natural mineral there could appear cracks due to natural and various other reasons and referring to sec. 13 (1) (c) of the C.P.Act,1986 emphasized the need of examination of the stone through appropriate laboratory and has also insisted on report of expert. In this way as per the learned DCC since the appellant/complainant had not fulfilled its onus to prove the defect it has dismissed the complaint.

 

In our humble view the finding of the learned DCC seems to be misconceived because in this matter admittedly the complainant has established through documents and affidavit that he was a 'consumer' of the respondent/non-complainant who dealt with stone business and from whom the appellant had purchased the makrana stone at two occasions as per the bill adduced by the complainant. From the coloured

 

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photographs the crack

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