Tamil Nadu

South Chennai

CC/78/2006

Dr.K.Sridhar - Complainant(s)

Versus

Larsen & Toubro Ltd., - Opp.Party(s)

S.Natarajan

08 Jun 2017

ORDER

                                                                        Date of Filing :   10.02.2006

                                                                        Date of Order :   08.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 78/2006

THURSDAY THIS  8^TH   DAY OF JUNE 2017

Dr. K.Sridhar,

Flat 3C Basera,

No.46, Besant Avenue,

Chennai – 20.                                                       .. Complainant

 

                                        ..Vs..

1.  Larsen & Toubro Ltd.,

Rep. by its Regional Manager,

No.10 Club House Road,

Chennai – 2.

 

2. Larsen & Tuobro Ltd.,

Rep. by its Plant in Charge

ECC Construction Group-RMC Plant,

No.142, Plot Developed Industrial Estate,

Palavakkam Village (Perungudi),

Chennai – 96.                                               .. Opposite parties.

 

 

Counsel for Complainant           :    M/s. S. Natarajan & others   

Counsel for opposite parties      :    M/s. R.Murari.   

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay the cost of the ready mix concrete of Rs.1,84,900/- and also to pay repair charges of Rs.6,18,000/-, and also to pay a sum of Rs.4,55,000/- towards rent, and also to pay Rs.2,00,000/- as deficiency of service and Rs.6,50,000/- as compensation for mental agony and Rs.20,000/- as cost of the complaint to the complainant.

 1. The averments of the complaint in brief are as follows:

         The complainant submit that  he has placed the purchase orders to the 2^nd opposite party for supply of ready mix concrete on 26.11.2004 and 19.11.2005 and the complainant paid the total cost of ready mix concrete amount of Rs.1,84,900/-.   Further the complainant contended that  the complainant’s  Engineer had strictly followed the opposite parties instructions in laying the concrete.    The construction was over during February 2005 itself.  The occupation of the house was postponed by the complainant since minor works were being carried outside the house.   Due to heavy downpour of rain in the monsoon season in October November rain water gained access in the concrete caused wide cracks in the roof of the ground and first floors.   During the aforesaid rainy season rain water came into the building through these cracks.  Hence the complainant arranged joint inspection with Site Engineer, Architect, Structural Engineer who were involved in the construction of the house.   They concluded that the fault lay with the ready mix concrete supplied by the 2^nd opposite party.   

2.     The complainant also state that he immediately contacted the 2^nd opposite party engineer namely Mr.Vasanth over the phone and informed the same Mr.Vasanth refused to receive the complaint who said that whatever complainant wanted to do, let it be done and they are having legal experts to defend the same.    Even after the inspection the opposite parties have not come forward to rectify the defects.   Hence the complainant issued repeated notice including Advocate notice.  Thereafter the complainant arranged an expert Structural Engineer Dr. S. Narasimhan for inspection who has submitted report dated 2.2.2006 in clear terms and that ready mix concrete is poor with high porous  mixed with improper materials, rain water gained access in the concrete and develops cracks.    As such the act of the opposite parties amounts to deficiency in service  which caused mental agony and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in Written Version of  the opposite parties 1 & 2    are as follows:

         The opposite parties deny all the averments made therein except those that are specifically admitted herein.    The 1^st opposite party is a reputed leading construction company in India which undertakes a number of construction  projects in India and Abroad and has a specific business unit for manufacture and supply of ready mix concrete, which has a large market all over India.     The opposite parties submit that the complainant had placed a purchase order dated 26.11.2004 for supply of ready mix concrete for construction of the complainant’s house at Eden Gardens, Uthandi.   The said purchase order contains the general terms and conditions governing the supply.    According to the terms and conditions the concrete supplied will be on the basis of cube strength result as per IS 456-2000 standards (Clause 14).  Further the said terms and conditions provide that the opposite parties work does not involve spreading, compacting, vibrating, finishing or any other such related work, but are purely restricted to supply to the work spot.   

4.     Further the opposite party submit that compressive strength tests of sample concrete cubes and slump tests are conducted as per Indian Standards.   The opposite party states that a slump test to identify the water cement ratio was carried out whenever the concrete mixture was supplied to the complainant.    The activity of laying is a mater exclusively for the complainant’s Engineers and the opposite parties have no role to play in this regard.    This concrete has satisfied both the sump test and cube test and therefore there is absolutely no fault in the concrete supplied by the opposite parties.    While the complainant contacted the 2^nd opposite party’s Engineer namely Mr.Vasanth, it is totally incorrect to state that the said Engineer refused to receive such complaint.    The opposite party deny all such averments and submit that it is wrong on the part of the complainant to conclude that the concrete supplied was highly porous in nature.    In fact that the complainant is avoiding at all cost a 3^rd party inspection will be evident from the fact that he had filed an interim application in the above complaint for direction and immediate rectification of the defects.    The opposite parties submit that they are not indulging in unfair trade practice as alleged by the complainant.    Hence there is no deficiency in service on the part of the opposite parties and the compliant is liable to be dismissed.

5.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B5 marked on the side of the opposite parties.  

6.   The point for the consideration is:  

 

1. Whether this forum have jurisdiction to try the case, as per     purchase order ?

 

2. Whether the ready mix concrete supplied by the opposite party is defective ?
3. Whether the complainant is entitled the cost of  Rs.184,900/- towards ready mix concrete,  repair charges of Rs.6,18,000/-, Rs.4,55,000/- towards rent,  Rs.2,00,000/- towards deficiency of service and Rs,6,50,000/- as compensation for mental agony with cost of Rs.20,000/- as prayed for ?

 

7.      POINT No.1

        The learned counsel for the opposite party pleaded and contended that admittedly as per Ex.B1, ready mix concrete supplied to the complainant.  As per Ex.B1 the General Terms and conditions No.17 is as follows:

All disputes arising out of or in connection with this contract shall be resolved by mutual discussions between the parties falling which, such disputes shall be referred to Arbitration of a sole Arbitrators to be appointed by M/s. Larsen & Toubro Limited ECO Division.   The arbitration will be governed by the Arbitration and conciliation Act 1996 and any statutory modifications thereof.

The dispute shall be  settled before the Arbitrator duly appointed and this forum have no jurisdiction to entertain this complaint.  Per contra the learned counsel for the complainant contended that the ready mix concrete supplied by the opposite parties is in defective nature caused vide cracks in the roof of the ground  and first floor;  even after following instruction of the opposite parties including the structural Engineer at the time of laying the concrete.  Hence the complainant is constrained to issue notice and file this case before this forum for the deficiency of service committed by the opposite parties.  The learned counsel for the complainant further contended that even though  there is an Arbitration Clause this forum have jurisdiction and cited a decision reported in Civil Appeal No.7543/2004  M/s. National Seeds Corporation Ltd.  ..Vs.. M. Madhusudhan Reddy and another

Held that

        In Skypay Courier Limited ..Vs,, Tata Chemicals Limited (supra) this court observed  :

Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

In Trans Mediterranean Airways  ..Vs.. Universal Exports (supra) it was observed:

In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute.    It does not extinguish the remedies under another statute but provide an additional or alternative remedy.

Considering the facts and circumstances of the case, this forum is of the considered view that this forum have jurisdiction to try the case and this point-1 is answered accordingly.

8.      POINTS  2 & 3 : -

      The learned counsel for the complainant contended that the opposite parties 1 & 2 are the manufacturer and the supplier of ready mix concrete.  The complainant placed an order dated 26.11.2004 and 19.11.2005 for supply of ready mix concrete.  The total cost of the ready mix concrete is Rs.1,84,900/-.   Ex.A1 and Ex.A2 are the invoice cum delivery challan.    Further the learned counsel for the complainant contended that as per specification and instruction of the opposite parties and due consultation of Engineer including structural Engineer the ready mix concrete was laid on 29.11.2004 and 19.1.2005.   On a great surprise within two months  of such laying of concrete there are several cracks on the ceiling and wall; since the ready mix concrete is poor and high porous developed such cracks due to heavy downpour of rain in the monsoon season in October – November rain water gained access in the concrete exposed wide cracks in the roof of the ground and first floor.  Hence the complainant informed the said fact to the 2^nd opposite party and arranged for joint inspection with Site Engineer, Architect, Structural Engineer including the Engineer Mr. Vasanth of the 2^nd opposite party.  After inspection,  the opposite party concluded that the cracks were due to the fault  of laying and with the ready mix concrete supplied by the opposite parties.    The said joint inspection also admitted by the opposite parties in their written version except the admission of their duty.    Even after the inspection the opposite parties have not come forward to rectify the defects.   Hence the complainant issued repeated notice including Advocate notice Ex.A8.  Thereafter the complainant arranged an expert Structural Engineer Dr. S. Narasimhan for inspection who has submitted a report in Ex.A11 dated 2.2.2006 in clear terms that ready mix concrete is poor with high porosity mixed with improper materials gained rain water develops cracks.  

9.     Further the learned counsel for the complainant contended that during the inspection on 22.1.2006 conducted by Mr. Kannan of the opposite parties the following cracks has been found in the naked eye.

1. 1^st floor, 1^st hall – has cracks on ceiling Red colour dots seen due to dye used to identify the cracks.
2.  Toilet has cracks 7 inch from Electrical installation.
3. 1^st floor, 2^nd hall – long cracks throughout roof.
4. Staircase- long cracks posing danger to structure.
5. 3^rd hall in 1^st floor – long crack
6. 4^th hall in 1^st floor – long cracks between two electrical installations
7. Bathroom – long cracks in the bathroom.
8. Ground floor (passage leading to swimming pool) – long cracks.
9. 1^st hall in ground floor – four big cracks like fan blades.

The said Mr. Kannan undertakes to repair the above said defects after due consultation of 1^st opposite party and thereafter failed to carry out the promise and claimed 3^rd party report.   The opposite parties deliberately refused to rectify the defects and indulged in unfair trade practice.  Hence the complainant constrained to file this compliant was claiming a sum of Rs.1,84,900/- towards the cost of the ready mix concrete and repair cost of Rs.6,18,000/-.   But on a careful perusal of Ex.A12 it is very clear that the entire ready mix concrete is need not to be removed.  Equally consultation fees even never arise, establishes that the claim is towards consultation fees and the cost of ready mix concrete cannot be proved and entitled only Rs.5,93,421/- alone towards other charges including  repair charges.  Further the learned counsel for the complainant contended that he was in the rental house claiming a sum of Rs.4,55,000/- towards payment of rent is unsustainable because the complainant pleaded in the complaint and proof affidavit that the entire construction was completed  in the month of February 2005. Thereafter completion certificate was obtained and the complainant occupied their house, establishes the claim towards rent is imaginary.   Further the claim of Rs.2,00,000/- towards deficiency of service and Rs.6,50,000/- towards mental agony is imaginary and exorbitant because without reasoning the ready mix concrete, the complainant duly rectified the cracks.

10.    The learned counsel for the opposite party would contend that the opposite parties are the reputed leading company having the construction project all over India and Abroad.   Its main business is manufacturing and supplying of ready mix concrete in large scale.   Further the learned counsel for the opposite party contended that the supply of ready mix concrete is admitted.   The due supply of ready mix concrete made after the receipt of slump tests and cube test as per Ex.B2 and Ex.B4.   The allegation of cracks and its developments are not due to the ready mix concrete it may be due to spreading, compacting, vibrating, finishing or any other such related work there too.   The opposite parties have no role in the activity of laying.  The opposite parties are only duty bound to supply the concrete in the premises and provide curing.   The contention of the complainant that due to heavy downpour of rain water gained access in, the concrete and exposed cracks in the roof has nothing to do with the supply of concrete.    But it is very clear from the joint inspection and the inspection by the expert as per Ex.A11 that  there is no deficiency  caused in laying spreading, compacting, vibrating, finishing etc.   Further the contention of the opposite party is that poor compacting, improper curing, earlier removal of shuttering,  weather condition, structural failure, excess water in the concrete may cause such cracks is not acceptable because the building was duly constructed under the supervisor of structural engineer and the concrete was laid as per specification of the opposite party.  Further the learned counsel for the opposite party contended that the ready mix concrete supplied by the opposite party is after the test of slump and cubes tests for efficient test there shall not be any deficiency in the concrete.   The complainant also has not taken any steps for sampling and sent for expert opinion.  It is very clear that the concrete supplied by the opposite party also has not taken any sample.    The alleged tests report on the ready mixed concrete filed before this forum without the sample.   The law is also well settled that sample is not necessary.    

11.    Further the learned counsel for the opposite party contended that as per Ex.A12 the complainant is claiming sum of Rs.6,18,421/- towards the renovation but it very clear that the ready mix concrete laid in the house requires no removal.  Under such circumstances claiming a sum of Rs.1,85,900/- towards the cost of the concrete cannot be awarded.   Similarly no consultation charges for such suffered work can be granted.     Further  the learned counsel for the opposite party contended that the claim of Rs.4,55,000/- towards rent is unsustainable.   The complainant no where in the complaint pleaded and proved that he kept their house ready for occupation immediately after laying of ready mix concrete.  On the other hand after filing the CMP 59/2006 in SR.159/06  in  CC.178/06  he has renovated the house; but no bills produced proves that the complainant is not entitled  to any amount towards rent, the claim of deficiency of service and mental agony is  exorbitant.  There is no deficiency of service in this case because  as per Ex.A12 the complainant not removed the ready mix concrete laid in the house.   In CMP 59/2006 in SR.159/06  in  CC.178/06  also requested to rectify the defects, not removing the ready mix concrete laid.  Considering the facts and circumstances of the case this forum is of the considered view that the complainant is entitled  to a sum of Rs.5,93,421/- towards cost of repair with compensation of Rs.25,000/- towards mental agony and cost of Rs.5,000/- and points 2 & 3 are answered accordingly.  

In the result, the complaint is  allowed in part.    The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.5,93,421/- (Rupees Five lakhs ninty three thousand four hundred and twenty one only)  towards  cost of the repairs of concrete roof and also compensation of Rs.25,000/- (Rupees twenty five thousand only) towards mental agony and also cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.  

The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  8^th  day  of  June 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-  26.11.2004 -  Copy of Invoice cum delivery challan.

Ex.A2-  19.1.2006 -  Copy of Invoice cum delivery challan.

Ex.A3- 29.11.2004  -  Copy of joint measurement sheet.

Ex.A4- 19.1.2005  -  Copy of Joint measurement sheet.

Ex.A5-         -       -   Initial report.

Ex.A6-  4.1.2006   - Copy of complainant’s letter.

Ex.A7- 7.1.2006    -  Copy of Ack. due card.

Ex.A8- 18.1.2006    -  Copy of legal notice.

Ex.A9- 19.1.2006  -  Copy of opposite party’s letter.

Ex.A10- 21.1.2006  -  Copy of Ack. due card.

Ex.A11- 2.2.2006  -  Copy of Narasimhan’s report.

Ex.A12-       -       -   Copy of Estimate of repairs.

Opposite parties’ side document: -   

Ex.B1-         -       -   Copy of Purchase Order with General terms and condition.

Ex.B2-         -       -   Copy of Slump tests report.

Ex.B3-         -       -   Copy of customer feed back reports.

Ex.B4-         -       -   Copy of Cube Test reports and BIS conditions.

Ex.B5-  19.1.2006  -   Copy of letter from opposite party to the complainant.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.