BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.227 of 2013
Date of Institution : 24.12.2013
Date of Decision : 09.03.2017
Ram Kumar son of Shri Kanshi Ram, resident of village Nathore, Tehsil Rania, District Sirsa.
……Complainant.
Versus.
- M/s Balaji Building Material through its Prop. Vijay Kumar son of Shri Unknown, office situated at vill. Dholpalia, Tehsil Ellenabad, Distt. Sirsa.
- M/s Sirsawa Building Material, Vill. Dudianwali, Tehsil Rania, Distt. Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA…………………PRESIDENT
SHRI RANBIR SINGH PANGHAL ………..……MEMBER.
Present: Sh. S.N.Grover, Advocate for the complainant.
Sh. Madan Goyal, Advocate for opposite parties.
ORDER
Case of complainant in brief, is that he constructed a residential house in his village and for this purpose he purchased cement, concrete and iron (saria) etc. from opposite party no.2 in the year 2012 and purchased bags of Ambuja cement at the rate of Rs.290/300/- per bag from op no.1 believing upon the market advertisement of the company. The op no.2 however issued the bill in the name of op no.1 for the purchased bags of cement. The other bills of the purchased cement, sand and iron (saria) etc. were kacha bills issued in the name of complainant by op no.2. The complainant is an illiterate person and the op no.2 refused to issue original bills to the complainant by saying that in case the original bills are issued then he have to pay the sale tax etc. and as such the complainant believed upon the version of op no.2 and did not raise any objection in this regard. The complainant believing upon the assurances of ops no.1 & 2 regarding quality of the cement being branded one, got raised construction of his residential house from a well trained mason who used the quantity of cement during construction/ plaster in proper manner mixing the required quantity of other raw material for this purpose. After plaster, the water was sprinkled over the walls in proper manner. The construction of house was completed by spending an amount of Rs.12,00,000/- by complainant. It is further alleged that after raising the construction, the complainant was mentally shocked to see that the adhesive power of the Ambuja cement was very much less as the four walls/ roofs of the house started crisping and the plaster started falling down automatically and there are also cracks in the walls and floor of the house. Besides this, the roof of the house also developed cracks. The complainant immediately contacted with the mason who did the construction work and he after seeing the condition at the spot observed that these cracks and crisping are only result of less adhesive power of the cement which was of lower quality. Then complainant lodged complaint with the ops but they did not bother to see the condition of the building through their engineer. However, on the persisting requests of complainant, the engineer of the company paid the visit at his house and checked the whole condition of the Kothi as well as cracks etc. but even thereafter the ops failed to redress his grievance. Thereafter, the complainant filed an application before the SHO, P,S Rania on 30.8.2013 and got sent a legal notice on 16.9.2013 to op no.1 but no action has been taken by ops as well as by the manufacturing company and a false reply has been sent against the legal notice. That due to supply of lower quality/ misbranded cement by op no.2 on behalf of op no.1, the house of complainant is in dilapidated condition and rendered unfit for the habitation of complainant and his family members. The complainant so many times approached the ops and requested them to inspect the building of complainant with their own eyes but they did not bother to any request of complainant. They also even bluntly refused to issue the original bills of remaining material including cement etc. which prima facie proves the malafide intention of the ops. That due to supply of lower quality cement, the complainant has suffered a huge loss of Rs.12,00,000/- and the kothi of complainant lost its looks. The complainant is entitled to the above said amount from the ops alongwith compensation for harassment and also litigation expenses. Hence, this complaint.
2. Upon notice, opposite parties appeared and filed written statement taking certain preliminary objections that report of the laboratory is mandatory requirement in the complaint as per latest law and as per the provisions of Section 13 of the Act; that matter in dispute involves the complex questions of law and facts and requires voluminous evidence before civil court; that complainant has no cause of action and locus standi and is estopped by his own act and conduct to file the present complaint and that complainant does not fall under definition of the consumer of answering ops. It has also been submitted that op no.1 is authorized dealer appointed by the company. Through authorized dealers the company ensures that product of company reach to the hand of consumer. The company has a quality policy towards total commitment of customer satisfaction. To meet this requirement the company has appointed qualified Civil Engineers all over Punjab, Haryana, Himachal to attend customers problem promptly through their authorized dealers for getting the best possible results of the cements manufactured by company. The Ambuja company is manufacturing 53 Grade ordinary Portland cement (OPC) and PPC with minimum guaranteed strength 53 MPa. Each bag of the cement manufactured and sold through its stockiest and retailers is of ISI mark No.1489 (Part-I1) 1991 and the quality of cement is ensured as per Indian Standard Specification for 53 Grade OPC and PPC cement. The company is manufacturing 4,60,000 bags of cement per day all over the country and the quality of each bag is ensured by carrying out the physical and chemical tests. On merits, it has also been submitted that as per complaint, the complainant had purchased the alleged cement of Ambuja company on different dates with intervals of many days/ months but he has not disclosed the quantities of bags or date and month of purchased cement by him from the answering ops. So if the alleged cement was not upto standard then he must have not purchased the cement for the second time. The company produces best possible quality of cement and has a good compressive and adhesive strength as has been thoroughly tested in state or art laboratory as per certificate. The complainant has not specified as to what all precautions he had taken in the plastering and construction process and how the cement was stored. He has also not disclosed the ratio of cement to other ingredients used in the plastering process. The plaster work had been done by complainant under his own supervision and not under the supervision of answering ops. So, for all these lapses and failure on part of complainant, the ops cannot be held liable. There are some factors which can attributes for peeling of plaster i.e. efflorescence of bricks, improper mixing, delayed use of mortar, use of extra fine sand and excessive steel trowel and improper curing etc. Remaining contents of the complaint have also been denied.
3. By way of evidence, complainant produced his affidavit Ex.C1, affidavit of mason Krishan Ex.C2, affidavit of mason Rajinder Ex.C3, bills Ex.C4 to Ex.C6, copy of application moved to SHO, P.S. Rania Ex.C7, copy of legal notice Ex.C8, postal receipt Ex.C9, reply to legal notice Ex.C10, report of local commission Ex.C11, notice by local commission for spot inspection Ex.C12, site plan of house prepared by local commission Ex.C13, presence sheet Ex.C14 and photographs Ex.C15 to Ex.C23. On the other hand, ops produced affidavit Ex.R1 and copies of documents Ex.R2 to Ex.R21.
4. We have heard learned counsel for the parties and have gone through the case file carefully.
5. First of all, we would like to mention here that an application for appointment of some competent officer of the PWD, B&R department as local commission to assess the existing position of the house and to assess the quality of the cement in question was moved on behalf of complainant on 27.1.2015. Though, the opposite parties resisted the said application on the ground of delay but said application was allowed vide order dated 10.6.2015 with a direction to Executive Engineer, PWD (B&R) Sub Divn.II, Rania to get the kothi of complainant examined from his one of the Junior Engineers in order to assess the cause of damage, if any and extent thereof in terms of money. However, a report was received that no such office is in Rania and as such Executive Engineer, PWD (B&R), Sirsa was directed to get the kothi of complainant examined from his one of the Junior Engineers as per above said order and the case remained pending for a long time i.e. up to 11.1.2017 for awaiting of report despite reminders etc. On 11.1.2017, learned counsel for complainant made a statement that till today spot has not been examined by appointed local commission, so any of the Advocate be appointed as local commission so that report can be obtained. In view of the statement and the fact that case was of the year 2013, therefore, Ms. Anita Bansal, Advocate who was present in the Forum was appointed as Local Commission with a direction to examine the kothi of complainant in order to assess the cause of damage, if any and extent thereof in terms of money and said local commission has submitted his report which has been exhibited as Ex.C11. The local commission visited the spot after due notice to both the parties and inspected the spot in the presence of various persons as mentioned in the report. The relevant portion of the said report is that “I prepared a site plan of the kothi of complainant which consists of four rooms, kitchen, lobby, gallery etc. Copy of site plan is attached herewith. I also took photographs of the kothi of complainant on the mobile phone. The print of these photographs are also attached herewith. During my inspection, I observed that at many places, the plaster on the walls of all the rooms has left places and few pieces of such left out plaster were lying at the spot. Then I rubbed the plaster on walls with my hand and on rubbing the plaster on walls, the same left place and crumbled. This situation was present in all the rooms of the kothi of complainant. I also witnessed at the spot that few empty cement bags were lying at the spot, showing their brand name as Ambuja cement. I inspected these cement bags and noticed that on the cement bags, no manufacturing date was mentioned against the column of manufacturing date. So, it appears that the said cement may be mis-branded or of duplicate quality. It seems that the complainant has suffered losses due to inferior quality of the cement.” We have also seen the photographs of the house of complainant taken by local commission which show peeling of plaster and major cracks on walls and floor. The complainant has also placed on file affidavit Ex.C2 of Krishan Mason who did plaster work on the walls of the house of complainant Ram Kumar. In his affidavit he has testified that he used the Ambuja cement in the plaster work of the walls/ roofs etc. and as per his knowledge, complainant purchased the cement from op no.1 and he used the cement quantity in proper way while plastering the walls and roof and all safety measures have been adopted by him. He has further testified that nothing wrong has been done by him and proper watering has also been done on the walls/ roofs before doing the plaster work on the walls/ roof etc. He found that walls/ lintel of the house suffered the cracks in the wall only because of defected quality of the cement. He also saw that roof of the house also developed cracks and plaster done on the lintel of roods also crisping day by day. He inspected the site and observed that these cracks and crisping are only result of less adhesive power of the cement or that of lower quality cement. Similar is the affidavit of Rajinder Mason Ex.C3 who has testified that he did construction work of the house of complainant and used Ambuja cement purchased by complainant from op no.1. He has also testified that he inspected the site and observed that cracks and crisping are only result of less adhesive power of the cement or that of lower quality cement. The sale of 160 bags of Ambuja cement to the complainant by the opposite party no.1 is proved from bills Ex.C4 to Ex.C6 which are of dated 27.7.2012, 2.8.2012 and 14.8.2012 respectively. From the photographs Ex.C15 to Ex.C23, it is evident that major cracks have developed on the walls and floor and at some places there are concaved grooved pits in the plaster of the wall. At some places, the whole plaster gave such a abnormal appearance. The opposite parties have failed to rebut the evidence led by complainant by reliable and cogent evidence. Admittedly, the Engineer of the company visited the spot and inspected the house of complainant on complaint lodged by complainant but they failed to take sample of the cement in question for getting tested it in appropriate laboratory. The opposite parties were having sufficient time to take the sample of the alleged cement to get it tested from some laboratory but they have failed to do so. So, in our view the complainant has proved that the ops have supplied misbranded cement to the complainant due to which cracks etc. developed in the walls and floor and plaster is peeling off. We are of the considered opinion that complainant is entitled to refund of the amount of Rs.47,000/- for 160 bags of cement paid by him to the ops as per bills Ex.C4 to Ex.C6 alongwith compensation.
6. Thus, as a sequel to our above discussion, we partly allow the present complaint and direct both the opposite parties to refund an amount of Rs.47,000/- to the complainant and also to pay an amount of Rs.10,000/- as compensation to the complainant within a period of one month from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual payment. Both the ops are jointly and severally liable to comply this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 9.3.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
