CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 508/2009
Sh. Vijender
S/o Sh. Nathu Ram
R/o K-1195/18, Sangam Vihar,
New Delhi-110062 ……Complainant
Versus
1. M/s Dev Steel
through its Proprietor
having its office at
Khasra No.332, Zonapur,
Main Road, New Delhi0110047
2. M/s Modi Cement
through its Proprietor
Sh. Sanjaya Modi
having its office at
C-20, Devli Road,
Krishna Park, New Delhi-110062
3. M/s J. K. Cement
through its Director/Manager
having its factory at
Nimbahera-312617
Rajasthan ……Opposite Parties
Date of Institution : 06.06.09 Date of Order : 17.10.15
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainant is that he had purchased 150 bags of cement from OPs and OPs agreed to supply the same @ Rs.203.50 per bag. Accordingly, he placed an order for purchasing the cement bags. The OP No.1 supplied 150 bags through OP No.2 which was manufactured by OP No.3. The OP No.1 charged total sum of Rs.30,525/- for 150 cement bags and also charged VAT @ 12.50%, amounting to Rs.3,816/- apart from the cartridge (sic) and labour charges. He used about 100 cement bags. Construction work was done under the supervision of a qualified Civil Engineer. The lintel’s shattering was removed after about 20 days and it was found by him and other persons that the beem and the lintel were having several cracks and the main beem had also bent down. He immediately informed OP No.1 about the fate of lintel and one Mr. Jaiswal was sent to verify the quality of the cement. Mr. Jaiswal prima facie found that he had used substantial and correct quantity of cement and he assured him to provide a detailed report. He also took some pieces of lintel. Complainant also through some private sources got clinically tested the quality of the cement which was purchased by him and the report revealed that the cement was sub-standard and was having mixture of particulars of the ash. He sent various representations to the OPs but to no avail. He was surprised and shocked to see the report of OPs wherein it was stated that the cement was of good quality. He sent a legal notice dated 16.05.2009 to the OPs. He also took several photographs of the constructed property clearly showing cracks and bends in the lintel and the main beem. The OPs supplied adulterated and sub-standard cement bags to him and committed fraud and caused losses to him. No reply has been received from the OPs. The OPs refused to indemnify the losses and to take back the remaining 50 bags and the same are still lying with him. Pleading deficiency in service on the parts of OPs the Complainant has prayed as under:-
- Direct the OPs to pay a sum of Rs.50,000/- as a compensation for the mental agony, harassment and torture caused to him
- Direct the OPs jointly and severally to make the payment of Rs.2 lakhs alongwith interest @ 18% per annum to the Complainant.
- Direct the OPs to pay a sum of Rs.20,000/ as litigation expenses to the Complainant.
Vide order dated 22.01.10 passed by our predecessors the OP No. 1 & 2 were proceeded exparte.
In the written statement OP No.3 has stated that on the complaint of Complainant, they deputed their experts to visit the construction site to collect the sample to see the construction process adopted by the Complainant. The expert found many anomalies in the construction process. The samples of cement which were collected from the construction site by the expert team of OP No.3 were tested and found of good quality conforming to relevant BIS: 1489- part-II. 1991. The cement of the same batch was also supplied by the OP No.3 to its various customers and after enquiring them it was gathered that there was absolutely no complaint or issue with regard to the quality of cement of the said batch. The construction work in question was being carried out under inefficient people and the alleged collapse was a result of such ill advised lay out plan. It is denied that the OP No.3 had supplied any adulterated/sub-standard cement bags to the Complainant. The losses suffered by the Complainant was only due to the reasons mentioned in the observation report submitted by the expert representative of the OP No.3. It is denied that OPs refused to take back the consignment of remaining 50 bags of cement lying with the Complainant as there was no such request on record as well as in his legal notice. OP No.3 has prayed for dismissal of the complaint with exemplary cost.
Complainant has filed rejoinder to the written statement of OP No.3. It is stated as under:-
“2. That in the Written Statement the Opposite Party No.3 alleged that the collapse of the construction was caused, because of the ill advice construction work and faulty support system applied by the contractors engaged by the Complainant. However, no any documentary evidence as well as to how and under what circumstances/exact reason the structure was collapsed, was not given in detail by supporting documentary evidence in its written statement. It is further submitted that the Complainant was adopted the standard procedure of the constructions, which are narrated hereunder:-
The size of the plot is 50 sq. Yard i.e. 15 ft. in width and 30 ft. in length, in which he had put up 6 pillars, (3 each side) erected the same under the earth 4 feet depth. From the earth 2 feet filled with earth, as such 6 feet foundation. Above that 2 feet, a 9” belt was covered by all side. Four side 9 inch break walls, height 9 feet raised, and above which 9 in belt was covered, on that belt 3 beams horizontal, and used cement in the ratio of 1 Bag Cement 2 Rodi and 2 Dust Badarpur 2, i.e. 1:2:2. Further in the beam and pillar and lintel, a 12 mm Steel Road weight about 12 to 13 quintal was used by the Complainant for the purpose of construction of the said structure. In view of the above the above said ratio as well as the quantity of the steel road used by the Complainant is sufficient one and cannot be said that there is an inefficiency of the material. However due to the substandard of the cement supplied by the Opposite Parties and using the same for the construction caused the collapses of the structure.”
Complainant has filed his affidavit and also the affidavit of Sh. Gokul Ram, Private Contractor in evidence.
Affidavit of Sh. U. K. Jaiswal, Sr. Manager Technical has been filed in evidence on behalf of OP-3.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the Complainant and OP No.3 and have also gone through the record very carefully.
We straightway come to the question, whether the cement supplied by the OPs to the Complainant was defective, if so, whether the Complainant is entitled to the relief?
Admittedly, the Complainant had purchased 150 cement bags from OPs @ Rs.203.50 amounting to Rs.30525/- plus VAT charges @ 12.5 % for construction of his house at K-1195/18, Sangam Vihar, New Delhi. He used 100 cement bags for construction and after 20 days of lying the lintel when the shattering was removed he found that the main beam and the lintel were having several cracks and the main beam bent down. He informed the OPs. As per the report submitted by the technical and management services department (Customer technical services), “the above test result clearly indicate the good quality of JK Super Cement conforming to relevant BIS: 1489-Part-II 1991 and cement supplied to the party was of good quality….” (copy mark OPA for the purpose of identification though marked as Annx. OP3B in affidavit of OP3’s witness).
The case of the complainant is that the complainant through some private sources got clinically tested the quality of the cement and the report revealed that the cement was sub-standard and was having mixture of particulars of the ash but he has not placed on record any such report of laboratory. However an affidavit of Sh. Gokul Ram, Private Contractor has been filed in support of his case to prove that the cement supplied by the OPs was defective. Contractor is not an expert witness to prove the quality of cement. Complainant has not filed the affidavit of the Civil Engineer under whose supervision the construction work was got done.
Therefore, the affidavit of evidence of Sh. Gokul Ram can not be taken into consideration for proving the quality of cement. Hence, the complainant has failed to prove any deficiency in service on the part of OPs. Accordingly, we dismiss the complaint.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 17.10.15.
(NAINA BAKSHI) (N.K. GOEL)
MEMBER PRESIDENT
17.10.2015
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
