Haryana

Panchkula

CC/74/2015

GAURAV BAWA - Complainant(s)

Versus

CLTRA TECH. CEMENT LTD.ETC. - Opp.Party(s)

PAWAN KUMAR MUNDAL.

19 Feb 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM; PANCHKULA.

C.C.No. 74 of 2015

Date of Instt.: 22.04.2015

Date of Decision:19.02.2016

 

Gaurav Bawa s/o Sh.Anoop Kumar Bawa, R/o 1290, Defence Enclave, Village Boh, Anand Nagar, Ambala-134001.

 

                    .....Complainant

     Versus

1.       Ultra Tech. Cement Ltd., Unit: Ultra Tech. Concrete, Panchkula, Plot No.387, Industrial Area, Phase-I, Panchkula-134113 (Haryana) through its Managing Director.

2.       Suresh Kumar-the Manager, Ultra Tech. Cement Ltd., Unit: Ultra Tech Concrete, Panchkula, Plot No.387, Industrial Area, Phase-I, Panchkula-13411. (Haryana).

3.       Sharat Kumar, Site Engineer, Ultra Tech. Cement Ltd., Unit: Ultra Tech. Concrete, Panchkula, Plot No.387, Industrial Area, Phase-I, Panchkula-134113 (Haryana).

 

                                                                            …..Opposite Parties

Before:        Mr.Dharam Pal, President.

                   Mrs.Anita Kapoor, Member.

                   Mr.S.P.Attri, Member.

Present:       Mr.Pawan Mundan, Advocate for complainant.

                   Mr.Rajinder Helwa, Advocate for the OPs No.1 & 2.

                   OP No.3 is given up.

ORDER

(Dharam Pal, President)

 

                     Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.

2.                 Brief facts of the present complaint are that the complainant and his father intended to construct a house situated at Defence Enclave, Ambala Cantt.  The lintel of the house was to be laid on 07.03.2015 therefore, the complainant approached the OP No.1 for the purchase of construction material to be used under supervision and guidance of their site engineer. On 05.03.2015 the Ops No.2 & 3 visited the site of the plot and took measurement of the lintel area at about 6 PM and informed that it requires 24 Cum of RMC  costing Rs.1,05,600/- @ Rs.4400/- per Cum for casting of lintel on the house. As per assurance of the Ops the complainant paid an amount of Rs.1,05,600/- through NEFT on 07.03.2015. The RMC material of quantity of 24 Cum was to be supplied by the Ops well within time but they supplied 22 Cum RMC  despite charging for 24 Cum.  Part of RMC material reached at 3 P.M. and remaining material reached at 6.25 P.M. and due to this the labour and masons remained idle and there occurred joints in the lintel for want of construction material and negligence of the site engineer and the OP No.3 also left some columns and slabs open without applying plaster over the same.  It all happened due to non-supply of pre-mixed construction material by the Ops promptly and there is every possibility of seepage in the building at any point of time.  Due to the lapse on the part of Ops in supplying the less quantity of ordered material and in casting of the lintel improperly the complainant had to employ more labour to cover the beams and slabs etc. by incurring Rs.50,000/-. The complainant approached the Ops many a times and requested for the refund of excess amount and for compensation due to occurrence of joints but they flatly refused to adhere to his requests. The act and conduct of the Ops clearly amounts to deficiency in service besides causing mental agony, harassment and financial loss to the complainant.  In evidence the complainant has tendered affidavits and documents Annexure C, Annexure B, Annexure C1 to Annexure C12.  

 

3.                           On notice, Ops No.1 & 2 appeared and resisted the complaint of the complainant by filing joint reply. The appeared Ops have submitted that the complainant does not fall within the ambit of consumer as   it was a commercial transaction.  The agreement between the parties was with regard to supply of concrete and pumping of the same and lying of the concrete and civil work to be executed at the site was not covered under the agreement.  It has been denied that the construction material was to be used under the supervision and guidance of site engineer rather his presence was required for measurement of the approximate area on which the construction material was to be used and also to ensure the smooth pumping of the same.  The OP No.3 was not the site engineer of the OP No.1 and no fee was prescribed for the site engineer. Rates were only for supplying of RMC at site.  The intention was to save money of 2 Cum material of the complainant as at the time of laying of lintel requirement of 22 Cum material was required as assessed by the site engineer.  It has been denied that labour and masons remained idle and joints occurred in the lintel due to lack of construction material and negligence of site engineer.  The material reached at site in time and no columns and slabs were left open without applying the plaster over the same.   The excess amount of Rs.8800/- has already been refunded to the complainant by cheque No.050834 dated 20.04.2015.  There is no deficiency in service on the part of the Ops. Other pleas made in the complaint have been controverted and prayer for the dismissal of the complaint has been made.  In evidence the Ops No.1 & 2 have tendered affidavit and documents Annexure R1/A, Annexure R1/1 to Annexure R1/7.  OP No.3 has been given by the complainant on 29.10.2015.

4.                Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for appearing OPs reiterated the averments made in the reply and prayed for dismissal of the complaint.

5.                Learned counsel for the complainant has argued that as per the instructions of the site engineer of OP No.1 24 Cum of RMC was required for casting of lintel and the complainant had paid Rs.1,05,600/- qua the same @ Rs.4400/- per Cum but despite that the Ops had supplied 22 Cum of RMC in two parts. Due to delay and less supply of RMC material mason and labour remained idle and there occurred joints in the lintel and due to this there is also every possibility of seepage in the building at any point of time. The complainant has requested the Ops many a times to refund the excess amount charged by them and also to compensate for the deficiency in service but they failed to redress his grievance. On the other hand, learned counsel for the appearing OPs has argued that there is no deficiency in service on the part of OPs as in order to save the money of the complainant 22 Cum RMC was supplied and the excess amount to the tune of Rs.8800/- for 2 Cum has already been refunded to the complainant vide cheque No.050834 dated 20.04.2015 and the complainant has concealed this fact from this Forum. The complainant has not suffered any loss due to the act of the Ops as the material had reached at site in time and no columns and slabs were left open by without applying plaster over the same by the their official.

6.                          We have given our thoughtful consideration to the above submissions raised on behalf of the parties and find that there is no merit in the complaint as the onus to prove his contentions was upon the complainant to substantiate his allegations by producing cogent and convincing evidence. The complainant has not produced on record any evidence to show that any joints occurred in the lintel due to lapse on the part of the Ops. The complainant in his complaint has mentioned that he had employed more labour by spending Rs.50,000/- to cover the beams and slabs besides casting of the lintel properly but he has not bothered to bring the person/meson/ labour into the witness box to support his plea.   Though the complainant has placed on record photographs Annexure C9 and Annexure C10 to show that patches were applied on the lintel to cover the laps/joints but he has failed to produce any record to show that where and when the photographs were clicked and to which building it related.  Perusal of the case file reveals that as per Annexure C11 i.e. Technical Report one Jagdish Chawla (Architect) had visited the site but he also not stepped into the witness box to authenticate the pleas taken by the complainant.  Undoubtedly, the  nature of the CP Act is compensatory but it is worthwhile to mention here that he who seeks equity must do equity with other. The Ops have specifically mentioned in their reply that an amount of Rs.8800/- has already been refunded to the complainant qua 2 Cum of RMC but the complainant has concealed this fact from this Forun and in order to get undue advantage of the CP Act he has filed the present complaint  by twisting the facts. The complainant, in his own discretion, did not opt to file a rejoinder. Without at all suggesting that the filing of rejoinder is mandate under the current procedural law, it needs to be stressed that the filing of rejoinder would be required, nay ideal, to rebut a fact which appears for the first time in the reply/written statement. The complainant having refrained from filing a rejoinder and thereby denying the factum of receiving of Rs.8800/-  qua 2 Cum of RMC from the Ops, cannot claim to have come to the forum with clean hands. That fact disentitles them from the grant of relief by the forum. Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as S.Girija Selvaraj Vs. The Proprietor decided on 04.02.2013 in Revision Petition No.3092 of 2012 has held as under:

12.       It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Honble Supreme Court in Faquir Chand Gulati Vs. M/s Uppal Agencies P. Ltd. & Anr. Special Leave Petition (c) No. 18225-18226 of 2011 dated 14.08.2011 observed ;

From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of UP (2010) 2 SCC 114, the first two paragraphs of which are extracted below ;

1. For many centuries Indian Society cherished two basic values of life i.e. satya (truth) and Ahinsa (non-violence) Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.

2.           In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

 

7.                          Keeping in view the above facts and circumstances,   we have no hitch to dismiss the present complaint being devoid of any merit. It is ordered accordingly. Copy of this order be supplied to both the parties free of costs. File be consigned after due compliance.

 

 

 

Announced

19.02.2016        S.P.ATTRI           ANITA KAPOOR      DHARAM PAL

                            MEMBER           MEMBER                  PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                            

                                                DHARAM PAL                                                                                         PRESIDENT