Haryana

StateCommission

A/996/2015

SHRIRAM NIRMAN CEMENT WORKS - Complainant(s)

Versus

MAHABIR SINGH - Opp.Party(s)

S.S.SUDAN

19 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.996 of 2015

Date of Institution: 19.11.2015

                                                               Date of Decision: 19.05.2016

 

1. Shri Ram Nirman Cement, Shriram Cement Works, Kota, Rajasthan (A unit of DCM Shriram Ltd.) through its constituted Attorney Mr.  Amarendra Kumar Rakesh Marketing Head office, Shri Ram Cement works Kirti Mahal, 19, Rajender Place, New Delhi 1100

…..Appellant

Versus

 

1. Mr. Mahabir Singh, S/o Dharam Singh, r/o village Juan,tehsil  and Distt.Sonepat, Haryana.
2. Tushir Builders, Gohana road, Main Bye Pass Chowk, Sonepat, through its proprietor Sanjay.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs.Urvashi Agnihotri, Member.                                                                                                                                         

Present:              Shri Prem Parkash, Advocate counsel for appellant.

                             ShriPardeep Solath, Advocate counsel for the respondent No.1.

                             Respondent No.2 dispensed with vide order dated 09.02.2016

 

F.A. No.1032 of 2015

Date of institution :-03.12.2015

Date of Decision:-19.05.2016

 

Mr. Mahabir Singh, S/o Dharam Singh, r/o village Juan, Tehsil  and Distt.Sonepat, Haryana.

…..Appellant

Versus

 

1.      Tushir Builders, Gohana road, Main Bye Pass Chowk, Sonepat, through its proprietor Sanjay S/o Ram Chander.

2.      The Managing Director, Sh. Ram Nirman Cement, Sh.Ram Cement Works, Kota, Rajasthan.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs.Urvashi Agnihotri, Member.                                                                                                                                         

Present:              Shri Pardeep Solath, Advocate counsel for appellant.

                             Shri Prem Parkash, Advocate counsel for the respondent No.2.

                             Respondent No.1 dispensed with vide order dated 09.02.2016

 

O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

Vide this common order we shall dispose of above mentioned two appeals bearing No.966 of 2015 and 1032 of 2015 as both the  appeals have been preferred against the order dated 12.10.2015 passed by the District Consumer Forum, Sonepat (in short ‘District Forum’).

2.      It was alleged by the complainant that on 19.03.2014 he purchased 50 bags of cement @ Rs.330/- per bag from Opposite Party (O.P.) No.1 for slab work.  That work was done on 19.03.2014, and when the support was removed after 21 days on 09.04.2014, cantiliver fell down. When he brought this fact to the notice of O.P.No.1 he admitted that cement was of inferior quality. He took sample of defective cement and assured to pay the loss.  One sample was taken by the engineer of O.P.No.2, but, no satisfactory reply was given.  He spent Rs.five lacs on construction of the house as detailed below:-

                   “1.     Labour Charges          Rs.1,60,000/-

                    2.      Timber                          Rs.30,000/-

                    3.      Saria                             Rs.50,000/-

                    4.      Rori                               Rs.40,000/-

                   5.      Yamuna Sand              Rs.40,000/-

                    6.      Dust                              Rs.40,000/-

                   7.      Bricks(20,000               Rs.75,000/-

                             in numbers

                    8.      Electricity fitting            Rs.30,000/-

                    9.      Water fitting                  Rs.30,000/-

                    10.    Site plan prepared by  Rs.5,000

                             Architect

Total                              Rs.5,00,000/-“

The O.Ps. be directed to reimburse that amount and pay compensation for mental harassment etc.

3.      Alongwith the complaint he also filed an application for appointment of local commissioner to get the cement examined and submit report.

4.      Both the O.Ps. filed reply and alleged that cement was of inferior quality. Allegations leveled by complainant could not be admitted to be true unless corroborated by expert report.  The cement manufactured by O.P.No.2 confirms to Bureau of Indian Standard (BIS) standards.  Complainant did not follow the quality standard and mixture of cement.  O.P.No.1 also alleged that he never told complainant that cement was of inferior quality and that he would pay any compensation.  O.P.No.1 alleged that Sh.Yuvraj Verma was deputed to visit the site and he collected sample on 08.04.2014 in the presence of Surender Kumar brother of the complainant. De-shuttering was done after 10 days whereas it should have been 14 days.  Ratio of mixture was also not proper.  His averments about expenditure were also not correct.  The sample should have been got tested from the competent authority as provided under section 13 (i) ( c) of the Consumer Protection Act, 1986 (In Short “Act”). Other allegations were also denied and requested to dismiss the complaint.

5.      After hearing both the parties, Learned District Forum, Sonepat  allowed the complaint and observed as under-

“Accordingly, we hereby direct the respondent No.2 to compensation of Rs.1,50,000/- (Rs.One lac fifty thousand) to the complainant alongwith interest at the rate of 09% per annum from the date of filing of the present complaint till its realization or supply of inferior quality of cement to the complainant. The respondent No.2 is also directed to compensate the complainant to the tune of Rs.5000/- (only five thousand) for rendering deficient services, for harassment and under the head of litigation expenses.”

6.      Feeling aggrieved therefrom O.P.NO.2 as well as complainant have preferred these appeals, as mentioned above. The complainant has  come for the enhancement of the compensation and O.P.No.2 has alleged that there was no evidence on the file to show that cement was of sub standard quality.

7.      Arguments heard. File perused.

8.      Learned counsel for the complainant vehemently argued that cost of construction was Rs.Five lacs, as mentioned above.  Learned District Forum has given only Rs.1,50,000/-.  In construction not only cement, but,  so many other articles are also used. So the same be enhanced  Rs.Five lacs as prayed for.

9.      This argument is of no avail.  As per complainant he was to use cement for lintel only, whereas in para No.3 of the complaint he has mentioned the cost of construction of entire house.  He  can claim compensation qua construction of lintel and not the entire house. It is no where alleged that the cement used in other construction was also of sub-standard. So learned District Forum rightly allowed the claim of Rs.1,50,000/-.

10.    As far as question of sub-standard of cement is concerned, it is argued by learned counsel for the O.P. No.2-appellant of appeal No.966 of 2015 that the sample was not  sent for testing as per rule 5A of the Haryana Consumer Protection Rules, 2004 ( In short “rules”). As per rule 5A sealed bag is to be sent to the laboratory on that very day and not later then the succeeding working day.  Whereas in the present case the sample was collected on 16.07.2014 and was sent to laboratory on 04.06.2014.  It is clear from the perusal of test report Ex.C-3 and C-4 when the proper rules were not followed, no reliance can be placed upon the report.  Even otherwise the cement was tested after five months of collection of sample. In such circumstances if there was any variation it cannot be presumed that the cement was of sub-standard. Yuvraj Verma collected sample in the presence of Surender Kumar brother of complainant on 08.04.2014 which was tested immediately. Vide report Ex.R-2/3, R/1. R2/5. R2/6 the cement was upto mark. Actually sub-standard cement mix, design and re-enforcement provided by contractor at site was responsible for bend in cantilever slab.    As per report Ex.R2/1 and R2/2 it is clear that proper cement was supplied.  Learned District Forum failed to take into consideration all these aspects and wrongly awarded compensation, so impugned order dated 12.10.2015 is to be set aside.  In support of his arguments he placed reliance upon the opinion expressed by this Commission in  Pala Ram vs Amit Cement Store & Ors. II (2006) CPJ 294 and Associated Cement companies Ltd. & Anr. III (2011) CPJ 38. 

11.    However there is no dispute as far as opinion expressed by this commission in aforesaid case laws is concerned, but, O.P.No.2 cannot derive benefit from the same.  In Pala Ram’s case complainant failed to supply an other sample of cement to get the lab test done, whereas in the present case the sample was collected by junior engineer on 16.07.2014 in the presence of O.P.No.1 and was sent to Executive Engineer Panchayati Raj Block Sonepat for test at appropriate laboratory.  It is also alleged by O.P.No.2 in the reply that  person namely Sh.Yuvraj Verma also collected the sample for the analysis.  It is no where alleged that proper sample was not supplied for analysis.  In  Associated Cement Companies Ltd. and Anr.’s case, the cement was not tested by forensic/competent laboratory, whereas in the present case cement was tested at micro Engineering and testing laboratory which was authorized to conduct the test. Reports Ex.C-2 to C-4 are prepared by competent laboratory.  It is no where alleged that this laboratory was not competent or authorized to conduct the test.  

12.    Now we come to the next limb of argument i.e. time consumed in test.  As per O.P.No.2 the test was conduct after five months, as mentioned above.  This rule is to be followed so that the sample may not be tempered with.  It can be fatal if the seals are tempered with or the articles is not  fit for analysis.  If the sample of any perishable good is collected, the same is to be forwarded immediately, so that it may not be rotten and becomes unfit for analysis.  In the present case there was a sample of the cement and was not going to perish due to this delay.  O.P.No.1 has failed to show that how it’s right was prejudiced if the time in sending sample is not strictly followed.  It is well settled proposition of law that the rules are the tools of hand made justice and they are to be used for it’s advancement and not to thwart it. On the basis of this ground the complaint cannot be thrown away and the beyond letter when it is mentioned in reports Ex.C-2 to C-4 that sample was complying with the specifications. On the basis of reports Ex.R2/1 to R2/6 it cannot be presumed that the cement was not of sub-standard.  In these cases the sample was tested by the engineers of O.P.No.2 and they cannot go against their employer.  Ex.R-2/2, Ex.2/5, Ex.R/6 is only a  test certificate for Shriram Nirman Cement. They are not pertaining to  the lot from which cement was purchased by complainant. Ex.C-2 to C-3 were given by authorized agency to the Government which was not having interest in any party. This report is on higher pedestal then the report prepared by the engineers of O.P.No.2.  So learned District Forum rightly came to conclusion that cement of proper quality was not supplied. The findings of learned District forum are well reasoned based on law and facts and cannot be disturbed. 

13.    As a sequel to above discussion both the appeals fails and they are hereby dismissed.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing of the present appeal  bearing No.996 of 2015 be refunded to the appellant against proper receipt and due verification.

15.    The original judgement be attached with appeal No.996 of 2015 and certified copies be attached with appeal No.1032 of 2015.

 

May 19th, 2016           Urvashi Agnihotri,                   R.K.Bishnoi,                                                                           Member                                  Judicial Judicial Member                                                        Addl. Bench                            Addl.Bench                

S.K.