BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.267 of 2014

Date of Instt. 07.08.2014

Date of Decision :22.06.2015

Gunpreet Singh aged about 34 years son of Late Sh.Jaspal Singh R/o E.Q.266, Pacca Bagh, Jalandhar, present resident of K-9, Partap Nagar, Village Boot, Jalandhar.

..........Complainant Versus

1. Avtar Chand son of Amar Singh Owner/Prop/Partner M/s Amar Singh and Sons, Near Bijli Ghar, Maqsudaan, Jalandhar, Punjab (Dealer/Agent of Shree Cement), Second Address:- E.Q-132, Pacca Bagh, Jalandhar.

2. Sushil Sharma son of P.Dutt Parkash, Sales Promoter Shree Cement, Gazigulla Ground, Opp.Petrol Pump, Jalandhar, Second Address:- 1/2C, Vindsor Park, Gulab Devi Hospital Road, Jalandhar.

3. Shree Cement, Village Samstipura, outside Octroi, Pathankot Road, Jalandhar through its Manager/Authorized Representative.

4. Shree Cement, Bangur Nagar, Bewar-305901, District Ajmer, Rajasthan, through its Manager/Authorized Representative.

.........Opposite parties

Complaint Under Section 1 2 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.RS Sarna Adv., counsel for complainant.

Sh.Balram Shakti Adv., counsel for OP No.1.

Sh.KC Malhotra Adv., counsel for OPs No.3 & 4.

Sh.Umesh Dhingra Adv., counsel for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant is a law abiding citizen and running a shop of repair of mobiles phones at Central Town, Partap Bagh, Jalandhar and with his hard earned money, the complainant is constructing a house for use and occupation by himself and his family, at Partap Nagar, Near Village Boot, Jalandhar. Avtar Chad i.e opposite party No.1, who is old known of the complainant, approached the complainant at Jalandhar and told the complainant that he is having agency(dealership) of Shree Cement, which is of very good quality cement and is upto the international standards and quality marks. Said Avtar Chand i.e opposite party No.1 offered the complainant to supply him said Shree Ultra Red Oxide Cement and assured and promised him that it is a highest quality cement and induced the complainant to supply him the said cement at very competitive price than the market. Hearing the said assurance and promises made by the opposite party No.1 and believing them to be true, the complainant got induced by the same and purchased about 400 cement bags in total from the opposite party No.1, in parts, at various occasions, for doing plaster work at the said under construction house. On every occasion whenever the opposite party supplied cement to the complainant, demand and request for the bill against the said purchase was made by the complainant from the opposite party No.1, but every time assurance and promise was made by the opposite party to give a consolidated bill against the entire purchase made by the complainant at the time of final purchase. But to the sorrow state of affair for the complainant, no bill was given to complainant by the opposite party No.1 against the said purchase of cement, despite repeated requests and reminders made by the complainant. During the period from June 2013 to till September 2013, complainant purchased about 200 bags of Shree Ultra Red Oxide Cement from opposite party No.1 and with the said purchased Shree Ultra Red Oxide Cement, the complainant got plaster work done at the his said under construction house, but to the utter shock of the complainant, wherever the plaster was done i.e on the walls and roofs of the said house, with the said Shree Ultra Red Oxide Cement, the plaster left its grip on the walls and roofs and there emerged cracks between door planks and the walls and on the plaster walls. Seeing this the complainant immediately approached the opposite party No.1 and brought into his notice said problem and also requested to supply all the bills qua the purchases made by the complainant from opposite party No.1. Hearing this, the opposite party No.1 started making lame excuses, but seeing the complainant repeatedly requesting for the bills, the opposite party No.1 flatly refused to give any bill against the purchases made by the complainant and even refused to accede to any request made by the complainant rather proclaimed and threatened the complainant, that complainant can not do anything against him as he has good links with politician and police officials and even company officials i.e opposite party No.2 and employees/ officials of opposite parties No.3 and 4, are hand in glove with him. The complainant also brought the matter into the notice of opposite party No.2 and employees/officials of opposite parties No.3 and 4, but as alleged by the opposite party No.1, all are hand in glove with opposite party No.1 and nobody was ready to hear the request and complaint of the complainant and refused to accede to the requests made by the complainant. It is mentioned that complainant has also got the said used cement tested at the lab of Guru Nanak Dev Engineering College, Ludhiana and as per the chemical analysis of the cement mortar the ratio of cement sand used in the mixture was accurate. Hence it clearly shows that wrong and inferior quality cement has been supplied to the complainant. The complainant has also filed a complaint to police against the opposite party No.1 vide complaint No.4740 PTM dated 26.10.2013 and during investigation the opposite party No.1 and 2 (as representatives of opposite parties No.3 and 4), appeared before the police and admitted and promised to compensate the complainant for the loss incurred by him, by giving 12o bags of Shree Ultra Red Oxide OPC Cement and also entered into a written compromise dated 12.11.2013 and signed the said compromise in presence of marginal witnesses. But to the sorrow state of affair for the complainant, the opposite parties failed to supply any cement bags to the complainant as agreed and admitted, rather made lame excuse and put off the matter on one pretext or the other despite the repeated requests and reminders made by the complainant. Against which the complainant has again moved a complaint to police but till date police has failed to take any action. On such like averments, the complainant has prayed for directing the opposite parties to pay Rs.3,06,750/- i.e price of the cement and labour charges alongwith interest and further Rs.2 Lacs as damages. He has also claimed Rs.11,000/- as litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that on the demand of the complainant, 100 bags of Shri Cement were supplied to the complainant and for which a legal and valid bill was also issued, carbon copy of the same is with the opposite parties. It is wrong that the complainant purchased 400 bags of cement. In fact only 100 bags of cement have been purchased by the complainant for which the valid bill has been issued to the complainant. It is wrong that the complainant ever made the payment of the bills beyond 100 bags. As regards the making of construction in the house of the complainant, the same is denied for want of knowledge as it is not the job of the dealer to supervise the construction work. The job of the opposite party who is an authorized dealer of Shri Cement is only to supply the goods on the demand of the customer/purchaser against the payment and beyond that there is absolutely no role of the opposite party. Again, it reiterated that the bills for the purchases made by the complainant have been supplied to the complainant and the copies of the same which are retained by the dealer, are attached. It is wrong that the opposite party ever threatened the complainant that the opposite parties had good links with politicians and police officials or that he can do any harm, rather the reality is otherwise, the complainant, on the basis of claiming proximity with some police officials, in the first instance called the opposite parties to the police station and when the opposite parties insisted and enquired as to for which offence the opposite parties are being summoned by the police and being harassed, then a written complaint by the complainant was shown, for which a due enquiry was made by the police officials. On completion of that enquiry, the complainant has now come before this Forum. The business transactions between the manufacturer and the dealer under no stretch of imagination can be termed as being hand in gloves with each other. The product of opposite party is manufactured at all India level and supplied throughout India and carries a brand value in the market. The complainant in order to extract money from the opposite parties, in the first instance moved a false complaint and now has come out with the present complaint without there being any basis for the same and the only motive of the complainant is to get the money from the opposite party by putting him into undue harassment. As regards, the test conducted by Guru Nanak Dev University, Ludhiana, it does not spell out the quality of the cement, rather the percentage of mixture which was provided by the complainant and in no way it spells out as to whether the cement in question was substandard or faulty in any manner. The report itself is self-revealing. Using his proximity with the police the complainant filed a false and frivolous complaint and the matter was compromised. For that, the complainant, if having any cause of action, then it is not against the opposite party No.1.

3. In its separate written reply, opposite party No.2 pleaded that the complainant is not the consumer of opposite party No.2. The opposite party No.2 has neither sold any material of cement to complainant nor the opposite party No.2 is the manufacturer of the same. The opposite party No.2 has been unnecessarily impleaded in the present complaint and as such the complaint is liable to be dismissed with special compensatory cost. No request was ever made by opposite party No.2 to the complainant. In fact, the opposite party No.2 has nothing to do with the transaction of purchase of the cement by the complainant. It is wrong that the wrong and inferior quality cement was sold to the complainant in connivance with opposite party No.2. It is wrong that any test or chemical analysis has been made regarding the cement. The opposite party No.2 was not involved with any such chemical analysis or test in the laboratory and he has no participation in the same. The complaint to the police was also filed on the basis of wrong facts in order to falsely implicate the opposite party No.2 who shall take separate action against the complainant. The opposite party No.2 is not liable regarding the alleged dispute of quality of cement in the capacity of sale promoted. Even otherwise, there is no defect in the cement. There is no misrepresentation and unfair trade practice on the part of opposite party No.2. It denied other material averments of the complainant.

3. In its separate written reply, opposite parties No.3 and 4 pleaded that the complainant has leveled false allegations about quality of cement and as such, without having the cement in construction site and its joint testing from competent laboratory. It is also not clear as to whether, the complainant has used the Shree Brand of Cement. Whereas, merely having testing the mortar and ratio of mix, does not prove to the contrary about the quality of cement. The complainant neither in the past approached the company nor its officials about the quality of cement whereas, merely implicate the dealer network, under the influence/undue pressure of local police, certain documents are forcibly being undertaken,on that basis the complaint was filed and taking the support of such documents in the present complaint to harass and to extract money from dealer/company. The non speaking report does not give any reasoning and observation. The report is totally silent regarding quality of material, shuttering used, steel ratio, civil labour etc. The report is silent in respect, as to whether, the complainant followed the procedure while constructing building, whether curing time was taken, whether a soil test and water test were conducted before constructing the building. Thus it will be wrong to say that the alleged fall of plaster had occurred due to substandard quality of the cement. As the dealer of opposite parties No.3 and 4 felt, and intimated that the above compromise is done in the presence of police under duress and undue pressure hence to be ignored as a evidence to substantiate the untenable claim of the complainant. They denied other material averments of the complainant.

5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA/1 and Ex.CA/2 alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.

6. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1 to Ex.OP3 and evidence of opposite party No.1 closed by order. Further learned counsel for opposite party No.2 tendered affidavit Ex.OP2/A and closed evidence. Further learned counsel for opposite parties No.3 and 4 tendered affidavits Ex.OP3/A and Ex.OP3/B alongwith copies of documents Ex.OP3/1 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties.

8. According to the complainant, he purchased 400 bags of cement from opposite party No.1 during the period from June to September 2013, but no bills were issued by opposite party No.1. Further according to the complainant, cracks appeared in the plaster of the walls due to inferior quality of the cement. Further according to the complainant he got tested cement mortar from Guru Nanak Dev Engineering College and they gave the cement and sand ratio 1:4.10. Counsel for the complainant contended that above said report clearly shows that the ratio of the cement and sand was correct and cracks appeared in the plaster due to inferior quality of the cement sold to the complainant by opposite party No.1. He further contended that opposite party No.2 is sale promoter of the manufacturing company i.e opposite parties No.3 and 4. He further contended that complainant made complaint to the police and a compromise Ex.C10 was effected and opposite parties No.1 and 3 agreed to supply 120 bags of Shree Ultra Red Oxide OPC Cement to the complainant but later on they refused to do so. On the other hand, it has been contended by learned counsel for the opposite parties No.1 and 2 that the above said compromise is a result of police pressure and not voluntary in nature. Counsel for the opposite party No.2 contended that complainant is not consumer of opposite party No.2. Counsel for the opposite parties No.3 and 4 contended that firstly the above said compromise was effected in police station and is not voluntary in nature and as such not binding upon any of the opposite parties. He further contended that opposite party No.2 was not authorized by opposite parties No.3 and 4 to effect any compromise on its behalf. He further contended that the cracks in the plaster could be result of various other factors. He further contended that if proper curing is not done even then cracks can appear. He further contended that due to inferior quality of bricks, the plaster can fall from the wall and even cracks can appear. He further contended that the report on which the complainant is lying in no way proves that the cement was defective in nature or was of inferior quality and it simply give the ratio of the cement and sand. We have carefully considered the contentions advanced by learned counsel for the parties. In its written reply, opposite party No.1 has admitted the purchase of 100 bags by the complainant. So this fact is not disputed. The complainant has placed on record one report Ex.C6 given by the Guru Nanak Dev Engineering College, wherein percentage of cement and sand in the cement mortar is given as 1 to 4.10. This report in no way prove or indicate that the cement in question was of an inferior quality. The cracks in plaster can appear due to various other factors, such as non curing of plaster or quality of bricks. Simply on the basis of above said report, it can not be held that the cement purchased by the complainant from opposite party No.1 was inferior in quality. The above said compromise was effected before the police. This fact is admitted by the complainant in para 7 of the complaint, wherein he has pleaded that complainant has also filed a complaint to the police against opposite party No.1 and during investigation opposite parties No.1 and 2 appeared before the police and admitted and promised to compensate the complainant for the loss incurred by him, by giving 12o bags of Shree Ultra Red Oxide OPC Cement. So above said compromise was effected in the police station. So in the circumstances of the case, it can not be held to be result of free will of opposite parties No.1 and 2. Moreover, on the basis of compromise alone, the complaint can not be allowed. We are to see, if there was any defect in the cement sold by opposite party No.1 to the complainant. The complainant has failed to lead any cogent or reliable evidence to prove that cement purchased by him from the opposite party No.1 was defective or inferior in quality and due to the same cracks appeared in the plaster of walls. As already observed, the cracks in the plaster can appear due to various other factors also.

9. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

22.06.2015 Member Member President