Haryana

StateCommission

A/963/2015

JAI PARKASH ASSOCIATES LTD - Complainant(s)

Versus

ANIL KUMAR - Opp.Party(s)

DEEPAK AGGARWAL

26 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.963 of 2015

Date of the Institution:03.11.2015

Date of Decision: 26.09.2016

 

Jai Parkash Associates Ltd., Manufacturer of JP Cement having Regd. And Corp. Office Sector 128 Noida, UP, through its Managing Director.

                                                                             .….Appellant

 

Versus

 

1. Anil Kumar S/o Ramesh Kumar, R/o Shiv Colony, Devru Road, Near Sevadham, Sonepat.
2. Mohit Traders, Main road, Adarsh Nagar, Behind Baba Cinema, Sonepat through its Proprietor.
3. Shiv Building Material Supplier, Devru Road, Near Rishi Kul School, Sonepat through its proprietor Deepak Saini.

                                                                             .….Respondents

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Deepak Aggarwal, Advocate counsel for the appellant.

          Mr. Anil Kumar respondent No.1 in person.

          Mr. Pawan Gupta representative of respondent No.2.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          It was alleged by the complainant that he purchased 40 bags of cement on 25.04.2014 and 75 bags on 12.05.2014 from O.P.No.2 manufactured by J.P. Cement i.e. O.P.No.3.  Due to supply of sub standard cement construction raised by him developed cracks and water started seeping from the lintel on the very next day of it’s installation. He brought this fact to the notice of O.Ps., but, they did not take any action.   Kanish Sharma, area Manager of Dealer and OP No.2, asked to get cement tested from any lab at their expenses.  He got the cement tested from micro Engineering and testing laboratory situated at Industrial Estate, Rai and it was reported that the cement was of inferior quality.  Thereafter he again asked O.Ps. to take necessity action, but, to no use.  They be directed to pay Rs.Eight lacs qua the loss suffered by him and compensation qua mental harassment, litigation expenses etc. as mentioned in the complaint.

2.      O.P.Nos.1 and 2 filed joint reply and O.P. No.3 filed separate reply controverting the rights of the complainant.  It was alleged by O.P. Nos. 1 and 2 that cement was one of the raw materials and was not sole material responsible for poor development of strength. The ratio of the materials mixed together was to be taken into consideration.  If there would not be proper ratio then desired strength would not be there.  If shuttering would not be proper or removed earlier then also there could be cracks and seepage in construction. When complainant brought the fact of cracks etc. to their notice it was told that in the month of May surface water in concrete evaporates rapidly.  There was poor workman-ship and that is why there was defect in construction. He purchased 115 bags for construction and used only 35 bags for the construction of the slab.   In this way he used less cement. The cement sold to complainant was  conforming all the physical and chemical properties as specified by BIS in 151489-within part I 1991.  Objections about jurisdiction, maintainability of complaint etc. were also raised and requested to dismiss the complaint.

3.      In addition thereto O.P.No.3 alleged that the cement was not of sub-standard and actually he did not use proper mixture. The report obtained by complainant could not be looked into because it was not in accordance with the provisions contained in section 13 (i) (c ) of the consumer Protection Act, 1986 (In short “Act”). Without proper analysis it could not be opined whether cement was defective or not.

4.      After hearing both the parties, learned District Consumer Disputes Redressal, Forum, Sonepat (in short “District Forum”) allowed the complaint vide impugned order dated 10.08.2015 and directed the opposite parties to pay Rs.50,000/- as compensation for supply of sub standard and inferior quality of cement.

5.      Feeling aggrieved therefrom, O.P No.3. has preferred this appeal

6.      Arguments heard.  File perused.

7.      Learned counsel for the complainant vehemently argued that from the perusal of reports Ex.C-7 and C-8, given by Micro Engineering and testing Laboratory, it is clear that sample was not complying with the specifications.   The material was sent there as per instructions of O.Ps., as mentioned in complaint. Due to this reason there was seepage in lentel and cracks appeared in construction as shown in photographs Ex.C-9 to C-16.  Learned District forum rightly came to conclusion that cement of sub standard was supplied and  he suffered the loss. So appeal be dismissed.

8.      This argument is of no use, because the complainant has miserably failed to show that Kashish Sharma or other O.Ps. asked him to get the material tested from micro engineering. Kashish Sharma tendered his affidavit Ex.RW1/A in evidence  wherein he did not admit  that complainant was authorized to get the cement tested on his own. Rather it is alleged therein that the cement was not got tested in accordance with provisions of law.  As per section 13 (i) (c ) of the Act the material/goods is to be got tested as provided therein from any expert as mentioned therein.  As per section 13 (i) (c ) the defective goods are to be tested before the District Forum from the competent laboratory or expert.  It is admitted case that cement was not got tested as per provisions contained in section 13 (i)  (c) of the Act when this procedure is not followed reports Ex.C-7 and Ex.C-8 cannot be relied upon.  As per Ex.R-2 to Ex.R-4 the cement was properly tested and thereafter sent for marketing/for sale.  Complainant has also failed to show that proper mixture was used and shuttering was not removed before  the prescribed period. The complainant has also failed to show that sample sent for analysis was taken as per Indian standards method of sampling hydrolic cement.  In this way the complainant has miserably failed to show that cement was of sub-standard quality and O.Ps. are liable to pay the compensation as alleged by him. Since the sample of the cement was not tested as per ISI Bureau of Indian Standard and the cement being a chemical compound, the quality of the same cannot be determined with naked eyes and the same requires physical and chemical tests from the appropriate laboratory as per provisions of Section 13 (1)(C) of the Act learned District Forum failed to take into consideration this aspect. So impugned order dated 10.08.2015 cannot be sustained. Resultantly impugned order dated 10.08.2015 is set aside. Complaint is dismissed and appeal is allowed.

9.      The statutory amount of Rs.25000/- deposited at the time of filing of the appeal be refunded to the appellant against proper receipt and identification.

 

 

September 26th, 2016           Urvashi Agnihotri                             R.K.Bishnoi,                                                             Member                                              Judicial Member                                                       Addl. Bench                                       Addl.Bench               

S.K.