By G. Yadunadhan, President:

          Both complaints are filed against the same opposite parties alleging defect in the cement manufactured and marketed by the 3^rd opposite party. The 1^st o0pposite party is alleged to be the retailer who stocks cement from the 2^nd opposite party, which is claimed to be the authorized dealer of the manufacturer, viz., the 3^rd opposite party.  As per order in I.A. 169/2003 filed by the complainants joint trial was ordered in the matter.

          The complainant in O.P. 508/2001 contends that he had entrusted a contractor Mr. Siddique, the house construction and the same was supervised by one Mr. K.K. Mohammed Koya and that for the concreting work done in June 2001, he had purchased 80 bags of ACC cement from the 1^st opposite party who is the retailer of the 2^nd opposite party, the authorized dealer of the 3^rd opposite party.  The grievance of the complainant is about the quality of the cement manufactured by the 3^rd opposite party and according to him the poor quality of cement has caused profuse leakage in the roof of the complainant’s house.  He would content that the leakage was noticed only after the removal of the centering wooden planks and supporting poles after 28 days of curing after concreting.  After seeing the leakage on the roof, the complainant approached the contractor, who after inspection was convinced about the leaking and suggested to subject the remaining cement to a test by competent authority.  The complainant got the cement tested from the Calicut Regional Engineering College and the results confirmed the poor quality of the cement.  The complaint is filed claiming Rs.1,50,000/- as compensation towards the cost of reconstruction, cement testing charge, mental agony and other costs.

          In O.P. No.18/2002, similar allegations are raised.  In the said matter the house construction was entrusted to a contractor Mr. Surendran, and the same was supervised by Mr. T. Radhakrishnan.  The concrete work was done in the month of June 2001 and in the same the complainant had purchased 65 bags of ACC cement which was used for the main slab. Here also the grievance of the complainant is about the quality of the cement and according to him the poor quality of which caused profuse leakage in the roof of the complainant’s house.   The contractor after inspection has opined that the leakage happened due to the substandard quality of the cement used and reliance is placed on the test report obtained by the complainant in O.P.508/2001 from the Calicut Regional Engineering College.  The complainant seeks an amount of Rs.1,90,000/- as compensation towards cost of reconstruction, mental agony and other costs.

          The opposite parties have entered appearance and filed detailed version disputing and denying the allegations and claims contained in the complaint.  Similar contentions are raised in both the matters.  The opposite party Nos. 1 and 2 have filed a joint version wherein they have contended that there is no defect in goods or deficiency in service that no notice was sent prior to the institution of the above complaints, the competency, qualification and experience of the person named as the contractor and supervisor by the complainants were challenged, the fact that the cement manufactured by the 3^rd opposite party was used disputed, the report from the Regional Engineering College and the contentions raised basing on the same was also disputed and they would contend that apart from the quality of the cement there are many other reasons for leakage and that in any view of the matter they are not liable or responsible for the reliefs seen prayed for in the complaint.

          The 3^rd Opposite party has filed versions in the above two complaints contenting inter alia that the complainants are not consumer as contemplated under the Consumer Protection Act, the complainants have not approached this Forum with clean hands, that no steps as contemplated under Section 13 of the Consumer Protection Act has been taken, that they are a reputed well established company in existence from  1936 onwards and that the cement produced by them adheres to strict quality standards and there has been no complaints regarding the remaining bags of cement of the batch from which the complainants claim to have purchased cement.  It is further contended that if at all there is any leakage it could be due to many reasons including improper and unscientific constructions, quality of the sand and water used, defective construction and poor workmanship etc.  The test result from the Regional Engineering College was disputed and denied as being not related to the cement used for the construction.  The opposite parties in short sought the dismissal of the complaints with compensatory costs.

          The evidence in the matter consists of the oral testimony of the complainants who were examined as PW1 respectively in the above two matters.  In O.P.No.508/2001 Exts. A1 to A6 were marked through PW1 and in O.P No.18/2002 Exts. A1 to A5 were marked through PW1.  The supervisors were examined as PW2 in both the matters.  Dr. Somasundaram, Professor of Civil Engineering,  NIT Calicut was examined as PW3 in O.P. No.508/2001 and the said evidence was adopted in O.P.18/2002 as well in view of the order in I.A. No.169/2003 for joint trial.

          On the part of the opposite parties Mr. M.K. Thomas, Deputy Manager, Quality Control was examined as RW1 and Exts. B1 to B4 were marked through him.  Sri. S.N. Vijayakumaran Nair, Deputy Manager, Marketing was examined as RW2. The reports of the expert appointed in the matter, Sri. K. Balakrishnan, Chief Enginer, PWD(Rtd.) is marked as Ext. C1 and C1A and he was examined as CW1.  Notes of arguments were submitted on the part of the complainant.

          The issues that arise for consideration basing on the rival contentions of the parties are (1) whether the complaint is maintainable?  (2) whether there is any defect in the cement manufactured by the 3^rd opposite party?  (3) what order as to reliefs and costs?

Issue No.1:  Even though in the version a contention is seen raised that the complaint is not maintainable, the same has not been seriously pressed.  Ext. A1 shows that cement was purchased by the complainants from the 1^st opposite party for consideration.  Opposite party Nos. 1 and 2 has not cross examined the complainant or adduced any independent evidence challenging this aspect.  Thus purchase of cement for consideration is proved and established, the complainant will definitely be a consumer and hence we hold that the above complaint is maintainable.

Issue No.2:  The complainants alleged that on account of the defect in the cement manufactured and marked by the 3^rd opposite party there occurred leak in the residential house constructed by them. To substantiate the said contention they rely on Ext. A4 report obtained from the Regional Engineering College, Kozhikode.  Dr. Somasundaran, who is the author of Ext. A4 is examined as PW3.  In the chief examination itself he would state that the quality of the cement cannot be completely ascertained from Ext. A4 test result.  He would further states that the structure constructed using the cement of the nature tested will not carry any load.  In the cross examination he would admit that none from REC ever visited the site or inspected the construction and that no sample piece of the alleged defective roof slab was tested at REC.  He would add that there are tests by which the mixed proportion of the concrete roof slab can be done.  According to him the cement can get deteriorated when exposed for some period of time and result of this nature is possible if the cement sample is not properly stored or else exposed for quite some time.  He would admit that a chemical test would have revealed the exact ingredients in the sample and that the same was not done in this case. Complete physical tests have also not been done according to him.  He would admit that leak can happen due to may reasons and that bad pores concrete can be made even with the best cement if not properly done, mixed or workmanship.  He also would admit that he was not directly involved in the testing and that only fresh cement should be tested for quality.  Thus as contended by the opposite parties, had cement of the nature of the specimen tested as per Ext. A4 was used, the structure itself would not sand.  The concreting is alleged to have been done during June 2001 and the sample for testing is claimed to have been given only on 1.8.2001, months after the bags were opened.  PW1 in O.P.No.508/2001 would in page 4 of the cross examination admit that had the construction been done with the cement of the nature tested under Ext. A4, the structure will not stand and will collapse.

          Apart from the above as pointed out by the counsel for the 3^rd opposite party, Regional Engineering College is not an appropriate laboratory as defined under section 2 (1) (a) of the Consumer Protection Act and the alleged sample was not sent through this Forum or with notice to the opposite parties.  Ext. A4 was procured by the complainants prior to the institution of the complaint without any notice to the opposite parties.  The learned counsel for the 3^rd opposite party relied on M/s. Tamilnadu Cement Corporatiobn Ltd. Vs. Raju M. Thomas & another reported in 2000(1) CPR 609 Kerala of the Hon’ble Kerala State Commission wherein it has been held that provision of section 13(1) (c) of Consumer Protection Act is mandatory and sample of defective goods has to be sent to appropriate laboratory and that the Regional Engineering College, Caliuct was not an approved laboratory as defined under section 2(1)(a) of the Consumer Protection Act.  Relying on the National Commission decision in Hotel Nandadeep Vs. Ramachandra Baburao Kokil and others (II) 1994 CPJ (NC), it was held that once it is found that the laboratory which have tested and forwarded the certificate is not one that is prescribed under the Act, the very report of the laboratory becomes unacceptable.  No such testing even is done regarding the cement by the complainant in O.P. No.18/2002, when as admitted to by him as PW1, cement was available for testing.  PW1 in O.P. No.508/2001 would admit in cross examination that there is no reason for not getting the sample of cement analysed from an approved laboratory.  Thus for more than one reason we are not inclined to accept Ext. A4 to render as finding that the cement used for the construction of the complainants’ houses are defective.

          Apart from the above the complainant relies on Ext. C1, the report of the Engineer appointed in the matter.  In the said report CW1 has stated that there are various reasons for the leakage of the RCC roof slab and the reason for leakage seen in the RCC roof slab concrete of the complainants cannot be predicted at a glance.  Sample of roof slab concrete of the house is also taken to ascertain the proportions of the cement, sand and metal used for concreting, but no steps are seen taken for getting the same tested or analysed.  Another important aspect pointed out by the counsel for the 3^rd opposite party is that in the report of the expert regarding O.P. 508/2001 there is no metallic sound of the RCC slab when it was hammered with an iron hammer which shows that the concrete is of poor quality and it is not dense, in the report regarding O.P. 18/2002 metallic sound of the RCC slab was noticed while hammered with an iron hammer which showed that the concrete has been set and it is dense concrete.  Admittedly both the constructions were made using the cement manufactured by the 3^rd opposite party and belonging to the same batch. CW1 has categorically admitted that had the defect been with the cement, both the slabs should have been of poor quality and dense and that the sunshade and lintel built by the same cement shows no defects.  CW1 also admits that quality of concrete and quality of cement are two different things and that even with best quality of cement bad and pores concrete can be obtained.  Quality of concrete depends on many factors and cement is only one factor and had the cement been defective it would reflect in the entire construction throughout.  CW1 would admit that he had reported in both his reports that the whole RCC slab of the house is not defective.  The evidence of CW1 would clearly indicate that the contentions raised on the part of the complainants basing on certain observations made in EXts. C1 and C1(a) reports are baseless and unsustainable.  Even though CW1 in his reports has suggested that sample of concrete taken after breaking the roof slab concrete at its corner may be got tested in any authorized laboratory to ascertain the mixed proportion of cement, sand and metal used for concreting and suitable decision taken after getting the results, no steps have been taken by the complainants.

          Moreover the reports also suggest that the existing construction is unscientific and improper for necessary slope is advised to be provided to avoid stagnation of water on roof.  The evidence of the PW1 and PW2 in both the matters will not and cannot further the case of the complainants in the absence of any positive expert evidence suggesting defect in the cement, and especially because there is non compliance of the mandatory requirement of section 13 (c). The counsel for the 3rd opposite party had relied on M/s. Shetkari Sahakari Sangh Ltd. & another Vs. M/s. Panse Chemicals Pvt. Ltd. reported in 1993 CPJ 47 (NC), wherein it has been held that non compliance with the mandatory provisions of section 13(c) regarding testing of goods alleged to be defective would disentitle the complainant from getting any relief.  The 3^rd opposite party has examined RW1 and RW2 and the daily and weekly test results regarding the batch of the cement from which the complainants claim to have purchased the cement as Ext. B1 to B3, which stands accepted and admitted by the complainant in both the matters.  It reveals that the cement complies with BIS standards.  PW1 in both the cases have in cross examination admitted that the cement manufactured by Opposite party No.3 are subjected to strict quality controls and he does not have any objection regarding Ext.  B1 to B3.  He would add that even  after noticing the leak the balance construction was completed using the same cement.  When the entire construction as admitted by PW1 is done using the same cement, absence of any defects on other portions of the structure also belies and discredits the case and claim of the complainant.  Non participation of the 1st and 2^nd opposite parties in the trial also will not further the case of the complainants regarding alleged defect of the cement and moreover as per PW1 no relief is sought against the said opposite parties.  The 3^rd opposite party has also relied on the decision reported in I 1995 CPJ 477 Kerala, the Managing Director, Baliapatam Tile Works Ltd. Vs. K.V.Bharathan, wherein it has been held that there is no acceptable evidence to show that the leakage was due to bad quality of bricks supplied by the Opposite party and that the leakage can be caused to various reasons and in the absence of any laboratory tests or expert opinion regarding the quality of the brick supplied, the opposite party cannot be held liable for the leakage of tank.  Thus on an analysis of the available materials and evidence and the legal position applicable, it has to be held that the complainants have failed o prove or establish that the cement manufactured by the opposite party No.3 is defective in any manner and we hold accordingly.

Issue No.3:  In view of the findings on point No.2 above, the complaint fails and is liable to be dismissed and we hereby dismiss the complaint.  In the facts and circumstances of the case, the parties are directed to bear their respective cost.

          Pronounced in open Court this the18th day of February 2010.

                   Sd/-President                   Sd/-Member

APPENDIX

O.P. 508/01

Documents exhibited for the complainant:

A1      Photocopy of Cash bill No.1957 dated 4.6.01 for Rs.40320/-.

A2      Photocopy of Hand written receipt issued by 1^st opposite party to the

          Complainant Dated 4.6.2001.

A3      Photocopy of Receipt No.36038 for Rs.1400/- issued by Calicut Regional

          Engg. College.

A4      Test Report dated 5.9.2001 by Calicut Regional Engg. College.

A5      Photocopy of Bill of Charges dated 6.9.01 for Rs.1400/-.

A6      Photocopy of Plan and Estimate.

Documents exhibited for the opposite parties:

B1      Test results for the dispatches made during week. No.22

B2      Test resyults for the dispatches made during week No.25

B3      Brochure.

C1      Expert Commission Report dated 19.2.2003 by K. Bakrishnan, Chief

          Engineer, PWD (Rtd.).

Witness examined for the Complainant:

PW1   Ismail Kutty, S/o. Kunhimoosa, Karakkunnummal – complainant.

PW2   Muhammed Koya, S/o. Ahamed, Kayyathialingal House, P.O. Elettil.

PW3   Dr. Somasundaran, S/o. T.P. Kuttykrishnan (Late), Professor of Civil

           Engineering, NIT, Calicut.

Witness examined for the opposite parties:

RW1   M.K. Thomas, S/o,. Kruvilla Chandy, The ACC Ltd., P.O. Madukkarai.

RW2   S.M. Vijayakumaran Nair, S/o. Late Sri. G. Narayanan Nair, The ACC

          Jyothi Complex, Guruvayur Road, Trichur.

CW1   Balakrishnan, S/o. Kannankeeran, Lotus, Chevarambalam, Calicut.

O.P. No.18/02.

Documents exhibited for the complainant:

A1      Voucher received from 1^st OP to the complainant.
A2      Building plan.

A3      Building permit.

A4      Photocopy of Test Report dated 5.9.01.

A5      Photocopy of detailed estimate.

Documents exhibited for the opposite parties:

B1      Test results for the dispatches made during week No.22.

B2      Dispatches made during week No.25.

B3      Photocopy of daily packing stage.

B4      Brochure.

C1A    Expert Commission report dated 19.2.2003.

Witness examined for the Complainant:

PW1   Sivadas, S/o. Ukkandan Nair, Palakkottil House, Kunnamangalam.

PW2   T. Radhakrishnan, S/o. Chandu.T., Thenangal House, P.O.Kunnamangalam.

-/True copy/-

Sd/-President

(Forwarded/by Order)

Senior Superintendent.