Punjab

Nawanshahr

CC/60/2015

Madan lal - Complainant(s)

Versus

Faqir Chand - Opp.Party(s)

Gulshan Rana

07 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES   REDRESSAL FORUM, SHAHEED BHAGAT SINGH NAGAR

 

Consumer Complaint No.   60 of 05.06.2015

Date of Decision            :   07.01.2016

 

Madan Lal S/o Kartar Chand age 47 years, resident of Village and Post Office Simbli, Tehsil Garhshankar, District Hoshiarpur.

….. Complainant

Versus

1. Faqir Chand & Sons, Stockists: Cement Sheet and Cement, Near Adda Mehandpur, Mazari, Distt. SBS Nagar, through its proprietor Karan Khosla.
2. Shree Ultra, Shree Cement Limited, Unit S.C.G.P., (a unit of Shree Cement Limited), Near National Highway No.15, Village Udaipur, Udasar, Tehsil Suratgarh, Rajasthan.

                                                                   …Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K. DHIR, PRESIDENT

MS.SUSHMA HANDOO, MEMBER

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Gulshan Rana, advocate

For OP No.1                                     :         Sh.Dhiraj Sehajpal, Advocate

For OP No.2                                     :         Sh.Gaurav Sareen, advocate

 

Per SH.G.K. DHIR, PRESIDENT

 

1.       This complaint has been filed by Madan Lal under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as Act) against the OPs by claiming that complainant, a labourer, started construction of his residential house in December 2014 at VPO Simbli, Tehsil Garhshankar, but before start of the same he consulted OP No.1, who deals in sale and purchase of cement.  On advise of Op No.1, the cement manufactured by Op No.2 was purchased by complainant on assurance of its being of best quality available in the market. Complainant purchased 30 cement bags on 06.12.2014 for price of Rs.260/- per bag, 40 more bags on 07.12.2014 for price of Rs.265/- per bag.  Copies of those bills are produced with the complaint.  When 30 cement bags were used, then Op No.1 sold lot of 40 bags to complainant by mentioning that payment of 40 bags received by delivering same to Karnail Singh son of Bhondu Ram Resident of Village Karwar Tehsil Balachaur District SBS Nagar.  Due to defects in the cement, complainant stopped construction work.  The supplied cement is of worst quality because the same brittles and unable to hold the bricks together, despite the accurate ratio of cement and sand used and watering the linter properly.  When after raising the building, the plumber started installing pipes in the walls as well as through the linter, the cement started falling in powdered form and big lumps.  The walls constructed of cement are unable to bear a touch of hammer even.  It is claimed that use of the cement in question is highly dangerous because the plaster of the walls and the building as well as the ceiling, can fall any time.  Now the building constructed with use of cement is in such a condition that neither the remaining work can be completed and nor it is possible for the complainant to dismantle the same for raising fresh construction.  All the money saved by complainant, had already been spent in the construction work.  The photographs and site plan showing the actual and factual position of the building has been produced with the complaint.     Complainant has suffered huge financial losses and as such by pleading deficiency in service and adoption of unfair trade practice by OPs, directions sought to OPs to pay Rs.4,40,000/- alongwith damages of tune of Rs.50,000/- and interest @ 12% per annum. 

2.       OP No.1 filed written statement pleading inter alia as if complaint is not maintainable in present form; complainant estopped by his act and conduct and even has no locus standi.  Sale of cement to Madan Lal by Op No.1 is specifically denied by claiming that alleged bill produced by complainant issued in name of Madho and Karnail Singh and as such complainant does not come within the purview of consumer.  Rather, it is claimed that bills are in the name of some other persons and as such complainant has not purchased the cement vide bills dated 06.12.2014 and 17.12.2014.  The cement sold by Op No.1 is branded and world renowned one.  OP No.2 is the manufacturer of cement branded as “Shree Ultra” and the same is sold in the market after complying with all the requisite specifications.  Complainant claims to have purchased 70 bags of cement for filling the foundations, constructing the walls and the linter, but the said cement is not sufficient for such construction and as such it is claimed that complainant cannot be said to have raised the said constructions with 70 bag only.  Cement of Shree Ultra Brand is of good quality and commands good market in India.  Shop of Op No.1 is famous in the area, because the public relies on the quality product sold by it.  The construction of the building depends on the masonry work, the mixture of cement, sand and water used in the construction.  Same quality and lot of cement is still being sold by Op No.1, but without any complaint from any one.  Each and every other averment of the complaint denied.

3.       OP No.2 in the separate filed written statement claims inter alia as if complaint in present form not maintainable;  complainant has no locus standi because he has not used the cement of Op No.2; complainant estopped by his act and conduct from filing the complaint and as report qua testing of the cement as per requirement of section 13 (1) (c) of the Act has not been obtained and produced and nor the samples collected from the spot has been deposited in packed condition in this Forum for getting the test conducted and as such complainant failed to prove deficiency in service on part of OPs.  The cement manufactured by Op No.2 conforms to BIS specifications.  The other material used like sand/ballast may have certain deficiencies, which may have affected the construction as a whole.  As complicated question of law and facts are involved and as such matter cannot be decided in these summary proceedings.  Besides complaint alleged to be bad for non-joinder and mis-joinder of necessary parties.  The frivolous complaint alleged to be filed with ulterior motive of extracting money from Op No.2, which is a public limited company, believing in corporate ethical values and in fair transparent policies.  OP No.2 is manufacturing around 16 million tons of cement through integrated plant under strict monitoring system because the product is got analyzed through independent indigenous laboratories.  The cement is manufactured as per para meters specified by BIS.  As per BIS norms, the quality of packed cement decreases during storage at the construction site.  The loss of strength of cement varies between 15 to 20 % after 3 months, but 20 to 30 % after six months and 30 to 50 per cent after 12 months.  Cement manufactured by Op No.2 is of best quality and the same has to go through the quality checks before delivery to the dealer.  A certificate as per guidelines of Government of India is also attached after checking, with each and every lot delivered to dealer.  Neither complainant nor Op No.1 ever lodged complaint with Op No.2 qua the bad quality of the cement.  As motto of Op No.2 is satisfaction of the customer and as such if a complaint would have been lodged with OP No.2, then the latter would have appointed some expert for resolving the problem to the satisfaction of the customer.  Admittedly, the Op No.1 is running business at Alachaur, but it is denied for want of knowledge that complainant purchased cement of OP No.2.  It is claimed that complaint is without merits and same deserves to be dismissed.   

 4.      Complainant to prove the case tendered hisaffidavit Ex.CW1/A and documents Ex.C-1 Ex.C-9, photographs Ex.C-10 to Ex.12, affidavit of Sh.Karnail Singh and Surinder Pal as Ex.CW2/A and Ex.CW3/A and then closed the evidence.

5.       On the other hand, counsel for OP No.1 has tendered affidavit of Sh.Karan Khosla, Ex.OP1/A and closed the evidence.  Counsel for OP No.2 has tendered affidavit of Hitender, Manager as Ex.OP-2/A alongwith photocopies of documents Ex.OP2/1 to Ex.OP2/19 and closed the evidence.

6.       Written arguments not submitted by any of the counsel for the parties.  Oral arguments of both the counsel for the parties were heard and records gone through minutely. 

7.       Complainant has tendered his affidavit Ex.CW1/A alongwith that of Karnail Singh and of Surinder Pal for claiming that the cement of Shree Cement company purchased by him through invoices, copies of which are produced as Ex.C-1 and Ex.C-2, was used by him for construction of his house, but the cement being not upto the mark resulted in brittling of the plaster of the walls.  Photographs Ex.C-4 to Ex.C-9 produced to show that plaster as well as linter have started brittling.  The bills Ex.C-1 and Ex.C-2 are in the name of Madho and Karnail Singh, but complainant through his sworn affidavit Ex.CW1/A as well as through affidavit CW2/A of Karnail Singh has proved that Madho is complainant himself and Karnail Singh is relative of complainant. 

8.       The purchased cement contended to be not upto the mark, but it is case of the OPs that the said cement manufactured as per BIS specifications.  Lot No. of the purchased cement is not mentioned on the bills Ex.C1 and Ex.C-2 and as such these bills virtually do not specify as to of which lot, the cement manufactured by Op No.2 was and as to what was the date of manufacture thereof.  Even, in the complaint, it is not mentioned as to on which date the constructions started and completed, for showing as to how long the purchased cement remained stored before its use. Neither in the evidence and nor in the complaint it is mentioned as to under what circumstances and in what way, the storage of the cement took place.  Strength of the improperly stored cement bound to diminish.  So in the absence of any proof qua due storage of the purchased cement, it has to held that complainant failed to prove that diminishing of strength of the used cement was not due to his act.

9.       As per 7.0 BIS specification, routine analysis of various raw materials going into the manufacture of 43 grade ordinary port land cement shall be made at intervals of a month.  The factory to maintain appropriate controls and checks to ensure that the product conforms to the various requirements of the specifications as per clause 8.0 of BIS specifications.  The licensee i.e. manufacturer to supply free of charge, the samples required in accordance with the Bureau of Indian Standards (Certification) regulation, 1988.  Production data also to be sent in performa – 1 by the manufacturer during the half year ending 30 June and 31 December each.  In view of these safeguards laid down in clauses 7.0, 8.0 and 16.0 of the BIS specifications, there bound to be less scope of inferior quality production of cement.  Those reports of testing and compliance used to be sent by OP-2 regularly as revealed by perusal of Ex.OP-2/1 to Ex.OP2/19.  Except complainant, none has other reported about the inferior quality of the purchased cement to Op No.1 or to OP-2 and nor complainant has lodged any complaint with manufacturer at all and as such these circumstances also leans in favour of holding that manufacturing defect in the purchased cement may not be there and that is why complainant has not opted for expert opinion after submission of the sample with this Forum.

10.     What was the ratio of cement and of the sand used in plastering, constructing the walls and linter qua that contents of affidavit Ex.CW3/A of Mason Surinder Pal and of Affidavit Ex.CW2/A of Karnail Singh and affidavit of Madan Lal Ex.CW1/A are absolutely silent.  The kind and quality of the sand and other material used even not specified in these affidavits or through any other evidence produced by complainant.  So virtually complaint has been filed without due proof of manufacturing defect in the cement.  Though, complainant claims to have purchased 70 bags of cement for raising construction of foundations, walls and of the linter on 613.44 Sq. Ft. of the site mentioned in site plan Ex.C-3, but infact for such construction not less than 150 bags of cement, would have been required and as such it is obvious virtually the complainant used some more cement for construction in the site mentioned in site plan Ex.C-3.  In view of that the brittling of the constructed portion may not have been due to exclusive use of the alleged purchased bags through Ex.C-1 and Ex.C-2.

11.     Bare mention of due curing of the constructed portion is not enough to establish that actually the same was done as per required specifications.  Who did the curing after application of the cement in question and as to for how many days qua that virtually no evidence has been produced by complainant.  It is known to each and everyone that in case due curing of the plastered walls or of the linter roof not done, then the cement may brittle.  So, the evidence virtually has not been produced by complainant to establish that brittling of the cement was not on account of improper curing. 

12.     Onus of proving the inferior quality of purchased seeds is on complainant and in case he does not obtain report of agriculture department in proof of that, then dismissal of the complaint is appropriate as per law laid down in case of Harbhajan Singh Vs Jhandu Kay Coop. Agri. Services Society Limited and Others 2015 (4) CLT 72 (NC).  Ratio of this case fully applicable to the facts of the present case, particularly when complainant failed to prove that he took due precautions as per required specifications qua curing, storage and proper use of the mixture of cement and sand.                         

13.     As a sequel of above discussion, the present complaint is dismissed with no orders as to costs.

14.     File be indexed and consigned to record room.

15.     Let copies of the order be sent to the parties, as permissible, under the rules.

Dated:  07.01.2016

 

  

(Sushma Handoo)                                               (G.K. Dhir)

Member                                                               President