KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.92/2014

JUDGEMENT DATED: 23.02.2024

PRESENT:

COMPLAINANT:

(by Adv. Dinesh K. Sajan)

Vs.

OPPOSITE PARTY:

(by Adv. John Joseph Vettikad)

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed under Section 17 and 18 of the Consumer Protection Act, 1986. 

2.       The complainant is a businessman working abroad.  He had proposed to construct a commercial building in his landed properties situated in Oachira Village.  As per the architectural plan and structure of the building, the concrete mix proposed for the concrete work was M-30.  As per the architectural plan, the structural design of the building such as foundation, columns, beams, slab and stair were got prepared from a reputed structural engineering firm.  The design was complicated as there was no intermediate columns inside the hall.  The designed mix proposed for the concrete was of M-30 and the grade of reinforcement bar was Fe-432.  The complainant had decided to adopt ready mix concrete for concreting the roof of the ground, first and second floors.  The Power of Attorney Holder of the complainant, as per the direction of the complainant had approached A&A Concreter Mix, Nooranadu and entered into an agreement for providing ready mix concrete for the ground and first floors. But the said company failed to provide the agreed standards of M-30 concrete mix.  So the Power of Attorney Holder of the complainant had approached the opposite party for better service and entered into an agreement for providing M-30 concrete mix for further construction of the building.  It was also insisted to provide at least two specimen sample for each batch for the purpose of laboratory test for compressive strength so as to ensure the quality and grade of the concrete utilised for the work.  One specimen each batch was for seven days test and the other for test after twenty eight days curing.  The rate was fixed as Rs.4,20,900/-(Rupees Four Lakhs Twenty Thousand Nine Hundred only) per 69m3.  As agreed, roof concreting of the second floor was done on 19.02.2014 by the opposite party and payment of Rs.4,20,900/-(Rupees Four Lakhs Twenty Thousand Nine Hundred only) was also made.  Twenty cubes were taken for the test.  The cube test for seven days curing was done on 26.02.2014 at Material Testing Laboratory of Younus College of Engineering, Kollam.  The result received would show that the mix had not even achieved the strength of M-20.  The cube test for twenty eight days curing was done at the same laboratory which showed that the sample had not even achieved the strength of M-21.51mm².     

  3.     The crushing strength of these samples were also found highly negative and the concrete mix supplied by the opposite party failed to achieve even M-20 standard.  The matter was timely reported to the opposite party who never reciprocated.  The opposite party did not admit the result of the test of Material Testing Laboratory of Younus College of Engineering. For further confirmation, the complainant had preferred core testing test before Material Testing Laboratory of CUSAT, Cochin on 01.04.2014.  But the result was negative.  From the results it was revealed that the concrete ready mix provided by the opposite party was very weak and of inferior quality.  The opposite party had acted against the agreement entered into and thereby deceived the complainant.

4.       The complainant had invested his entire earnings for the construction of the building with a view to derive income from the building after his retirement.  He is entitled to get Rs.50,00,000/-(Rupees Fifty Lakhs only) as damages for the mental agony and compensation caused out of the defective service and unfair trade practice.  The complainant is also entitled to get Rs.75,900/-(Rupees Seventy Five Thousand Nine Hundred only) as the excess amount received from the complainant by supplying low quality concrete.  The complainant had also sought for a compensation of Rs.40,00,000/-(Rupees Forty Lakhs only) as damages and further compensation for the use and enjoyment of the building for expected period of at least twenty years.  Hence the complaint.

5.       On admitting the complaint, notice was issued to the opposite party.  The opposite party entered appearance and filed version with the following contentions:

According to the opposite party the concrete ready mix purchased by the complainant is within the meaning of Section 2(7) of the Sale of Goods Act.  As per the above provision, if the buyer is not satisfied with the quality of the material, he has an option to reject the same.  The complainant had availed the opportunity to examine the goods at the time of effecting delivery.  He had also availed an opportunity to observe the manufacturing process and to assess the quality of the raw materials which was used for the production of ready mix.  The main grievance of the complainant is in respect of the shortened expectation of the life span of the building due to the lack of strength of the slab constructed with the aid of ready mix concrete supplied by the opposite party.  As per the Indian Standard following six factors would affect the durability of the concrete.

1. The environment
2. The cover to embedded steel
3. The type and quality of the constituent materials
4. Cement content and water/cement ratio of the concrete
5. Workmanship to obtain full compaction and efficient curing
6. The shape and size of the member (here concrete slab)

The building was constructed at Kayamkulam which is a coastal area having all the adverse effects of saturated salt air.  All the points except 3 and 4 are beyond the control of the opposite party.  The quality and the quantity of the aggregates, cement content and water/cement ratio could easily be ascertained before taking delivery of the ready mix concrete.  Complainant never raised any objection regarding the quality of the aggregates, cement content and water/cement ratio at the time of delivery of ready mix.  The constituent material which goes into the ready mix plant is recorded in the computerised batching system.  The batch report generated during the manufacture of ready mix was also produced along with the version.  Those reports show that all the constituents required for the manufacturing of M30 grade ready mix concrete as prescribed under the IS standard was used by the opposite party.  The batch reports would show that the ready mix concrete supplied to the complainant is 370kg/m³ which is well above the requirement of the cement for M-30 concrete as per IS standards.  All other ingredients such as crushed angular aggregates had all gone into the ready mix plant for the manufacturing of M-30 ready mix.  The opposite party had used Ordinary Port Land cement manufactured by M/s Dalmia Cement Bharath Ltd.  The manufacturer of the cement has certified that the cement used in the process satisfy the specification as per IS:12269:1987.

          6.       The responsibility of the opposite party is to supply the ready mix concrete at the site.  The other works such as compaction, finishing and curing exclusively rests with the complainant. Adequate compaction without segregation should be ensured by providing suitable workability by employing appropriate placing and compacting equipments and procedures.  The strength of the concrete varies considerably depending upon the temperature and humidity that they are subjected to early on their life.  The exposed surfaces of the concrete shall be kept continuously in a damp or wet condition by ponding or covering with a layer of sacking or similar materials kept constantly wet at least seven days of its placing.  The period of curing shall not be less than ten days for concrete exposed to dry and hot weather conditions.  As per the IS standards, the minimum frequency of sampling of concrete shall be four numbers of sample (cubes) up to 51m³ and one additional sample for each additional m³ or part thereof.   The opposite party had taken six cubes from various batches of ready mix concrete supplied to the complainant.  The cubes taken by the opposite party was subjected to the curing process as required under IS standards.  Compression test was done on the seventh and twenty eighth days.  The value of compression test results of the cubes are well above the required strength.  The complainant had taken twenty samples for the purpose for undertaking the compression test.  For getting correct results the cubes are to be cured as provided under IS standards.  The test specimen shall be stored in the site at a place free from vibration, under damp matting, sacks or other similar materials for twenty four hours from the time of adding water with other ingredients.  The temperature of the storage shall be at the range of 22 to 32⁰C.  After twenty four hours, the cube shall be removed from the mould and they shall be stored in clean water until they are transported to the testing laboratory.  On reaching the laboratory, the specimen shall be stored in the water until they are tested.  The pH value of water shall not be less than six.  The complainant did not state in the complaint as to how the test was carried out.  He did not cure the cubes as required under the IS standards.  So those results cannot be used against the opposite party.  The cube test result produced by the complainant from Younus College of Engineering cannot be accepted as those reports do not disclose whether any enquiries were made regarding the curing process undertaken by the complainant.  It is also not disclosed in the report that the cubes made using the ready mix concrete supplied by the opposite party was in fact tested in the laboratory.  The results show that there were great variations in the individual readings.  If the properly cured tubes were taken from a given sample of ready mix concrete, there would be minimum standard variations in the reading.  The dimensions of each specimen shall be noted by their testing.  The following information shall be incorporated in the test report:

1. Identification mark
2. Date of test
3. Age of specimen
4. Curing conditions from the date of manufacture of specimen in the field
5. weight of specimen
6. dimension of specimen
7. cross sectional area
8. maximum load applied
9. compressive strength
10. appearance of the fractured faces of the concrete and type of fracture if they are unusual

7.       The reports produced by the complainant bear the details of the load applied and the compressive strength received.  The other vital factors necessary to ascertain the strength of the cubes and the quality of the materials used for preparation of the cubes are totally absent.  Nothing is seen in the reports to show that the apparatus used was properly maintained and calibrated as per the rules.  The test results are not scientifically prepared and hence cannot be accepted.  The complainant did not inform the opposite party about the test he had carried out with the specimen collected.  The very same objections are applicable to the core test result claimed to have been prepared by CUSAT.  The cores are to be collected from the premises strictly following the procedure as per the IS standards.  Before collecting the core, the complainant ought to have given notice to the opposite party and the collection of cores ought to have been done in the presence of the opposite party.  The results show that there are great variations in the individual readings.  If properly cured cubes were taken from a particular sample of ready mix concrete in all probability there would be minimum standard deviations in the readings.  The allegations incorporated in the complaint are devoid of any truth.  There is no basis in claiming the compensation.  The complainant is not entitled to get any reliefs.  The opposite party would seek for dismissal of the complaint.

8.       Heard both sides.  Notes of arguments filed by the lawyers appearing for both sides were perused.  Now the points that arise for consideration are:

1. Whether the complainant is a consumer as contemplated in the Consumer Protection Act?
2. Whether there is any deficiency in service or unfair trade practice?
3. Reliefs and costs?

Point No.1:-

9.       The opposite party would raise a contention that the complainant was provided with an option to check the manufacturing process of the concrete mix and he could have rejected the ready mix at the point of supply.  It was also argued that Section 2(7) of the Sale Of Goods Act would govern the situation and in such a perspective the complainant cannot turn round an say that the product supplied was defective.  This argument is based upon the maxim “Caviet Emptor” as the buyer must be aware about the quality of the ready mix supplied.  As per section 2(g) of the Consumer Protection Act “Deficiency” is any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. From this definition it could be seen that the buyer has got an option to approach the Consumer Commission for redressal of his grievance.  In this connection it is pertinent to note that the seller is responsible for any problem that the buyer might encounter with in respect of a product.  The Latin maxim “Caviet Venditor” would govern the situation.  So the technical objection by resorting to S.2(7) of the Sale of Goods Act would never defeat the right of the complainant.  Therefore, the argument that the complainant is not a consumer is found unsustanable.  Point No1 is found in favour of the complainant.

Point Nos 2&3:-

10.     The Complainant had sworn affidavit in support of the pleadings contained in the complaint.  Exhibits A1 to A6 were marked.  Exhibit A1 is the copy of the payment voucher issued by the opposite party on 19.02.2014 that he had received an amount of Rs.4,20,900/-(Rupees Four Lakhs Twenty Thousand and Nine Hundred only) towards the purchase of ready mix concrete 69m³ @Rs.6,100/-/m³.  The receipt of the amount as per Exhibit A1 is not disputed by the opposite party.  Exhibit A2 is the cube test for twenty eight days curing dated 18.03.2014 issued by the Department of Civil Engineering, Material Control Testing Laboratory attached to Younus College of Engineering and Technology.  Exhibit A3 is the test report dated 04.04.2014 issued by the Head of the Civil Engineering CUSAT after conducting the core cutting test.  Exhibit A4 is the copy of lawyer notice issued on behalf of the complainant dated 03.08.2014.  Exhibit A5 is the reply notice issued by the opposite party dated 12.08.2014.  The building permit of the structure to be put up is exhibited as Exhibit A6.  The general Power of Attorney executed by the order on behalf of the complainant is marked as Exhibit A7.  Basing upon Exhibit A1, A2 and A3, the complainant would assert that the concrete mix supplied by the opposite party did not conform to the standard.  So it is definite that there is deficiency in service and unfair trade practice on the part of the opposite party.

11.     The opposite party had sworn an affidavit in lieu of chief examination by reiterating the pleadings contained in the version.  Exhibits B1 to B15 are the test reports with regard to the concrete ready mix supplied to the complainant.  in Exhibits B1 to B15 it could be seen that the ready mix supplied were in conformity with the order placed.  According to the opposite party, the complainant had sufficient opportunity to witness the manufacturing process of the ready mix and he could have refused the ready mix if it does not confirm to the standard as ordered.  The specific case of the opposite party is that the test reports brought by the complainant do not show that the examination and tests were conducted in accordance with the ISI standards.  The learned counsel for the opposite party had caused production of the Indian Standard Methods for the Strength of Concrete.  There are several specifications with respect to the collection of specimens and the process of curing.  According to the opposite party, the reports filed by the complainant did not show the actual procedures adopted in taking the sample, curing and the tests.  The contention of the opposite party is that if a sample is taken from a particular product, minor variation alone is possible.  But the test results as seen in the reports filed by the complainant are having major variations.  In the beginning stage itself the opposite party had taken a stand that the test results relied upon by the complainant cannot be accepted as the opposite party was not informed and he had no occasion to see the sampling or the curing process.  As per Section 13(1)(c) of the Consumer Protection Act, 1986 when the complainant alleges a defect in the goods which cannot be determined with proper analysis, the Consumer Commission shall obtain a sample of goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory for conducting analysis or test.  Even in the reply notice the opposite party had taken a stand that the reports obtained by the complainant are not in accordance with the procedures stipulated by the Indian Standard Methods of Test for Strength of Concrete.   Even after receiving such a reply notice, the complainant did not resort to seek an expert opinion by sending the specimen sample for analysis.  The learned counsel for the opposite party had drawn our attention to the reports filed by the complainant.  The report issued by the Younus College of Engineering would show that the specimen was supplied to the laboratory by one Y-Shakh Builders (Pvt.) Ltd., Kollam.  It is not seen supplied by the complainant but a stranger.  The report issued by CUSAT would also show that the same was issued to one M/s Padmaja Specialities.  The complainant did not offer any explanation as to how strangers are involved in the process of the sampling.  The learned counsel for the opposite party had drawn the attention of the factors which would affect the durability of the concrete.  Among those factors only two factors alone are applicable to the opposite party.  ISI standard stipulates that the test report should bear identification mark, date of test, age of specimen, curing conditions from the date of manufacture of specimen in the field, weight of specimen, dimension of specimen, cross sectional area, maximum load applied, compressive strength, appearance of the fractured faces of the concrete and type of fracture if they are unusual.  These details are not seen furnished in the report filed by the complainant.  At the time of argument, the learned counsel for the complainant would submit that his party had already filed an application for seeking expert opinion by appointing an expert commissioner.  But on verification, it could be seen that an application was filed on 20.10.2016 that is two years after the filing of the complaint.  But no follow up action was taken by the complainant for conducting the test and when we asked the counsel for the complainant as to whether any expert opinion was required on his application, he submitted that it is not necessary to conduct the examination and ultimately the learned counsel for the complainant had made an endorsement in the application as “not pressed”.  In view of the endorsement of the counsel for the complainant, the application was dismissed as not pressed.  When deficiency in service is attributed, the initial burden is upon the complainant to prove the quality of the concrete mix sample has to be taken in accordance with the stipulations.  Curing process also must be done after giving due notice to the opposite parties.  The two reports filed by the complainant in support of the complaint do not show that the sample taken from the work place of the complainant were examined in accordance with the specifications contained in the IS standards.  The complainant has miserably failed to prove that the concrete ready mix supplied by the opposite party was of inferior quality as alleged.  So it is definite that the complainant is not entitled to get any relief as sought for.  Points are found against the complainant.

In the result, complaint is dismissed.  Parties shall bear their respective costs.

SL

C.C.No.92/2014

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

JUDICIAL MEMBER