JUDGMENT 16.9.2010 Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 4.9.2009 passed by District Consumer Forum-I, U.T. Chandigarh whereby his complaint bearing No.835 of 2009 was dismissed. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts as set out in the complaint are that the complainant with a view to raise construction on his dwelling unit had purchased 85 bags of Ambuja cement from OP No.3. He used the said cement in constructing one room & kitchen at the first floor of his dwelling unit and due precautions with regard to quality of material and skilled labour were taken at the time of raising construction. However, the complainant noticed that soon after the construction many cracks developed in the entire building including the side wall room ceiling and even on the top roof. The matter was then brought to the notice of OPs, who appointed an engineer. The said engineer inspected the entire building but did not give any satisfactory reply for the redressal of the grievance of the complainant. It was alleged that the cracks in the entire building of the complainant developed because of sub-standard quality of the cement sold by OPs, which not only caused him great mental tension, physical harassment but also heavy financial loss. He had purchased the cement worth Rs.30,000/- and apart from this, he spent huge amount towards other construction material and labour which was to the extent of Rs.3 lacs on the entire construction. Hence, complainant filed complaint before the District Consumer Forum seeking directions to OPs to make payment of Rs.3.5 lacs on account of loss occurred to the entire house alongwith penal interest @ 24% p.a. 4. On the other hand, OPs contested the complaint before the District Forum and filed joint reply inter-alia stating therein that OP No.1 is manufacturing OPC and PPC cement with minimum guaranteed strength as per Indian Standard Specification and selling the same through its stockists and retailers all over the country and each bag of cement is of ISI Mark and the quality of the cement is ensured as per Indian Standard Specification. The company is manufacturing about 4,60,000/- bags of cement per day from the different units in the country and per day production in Northern India by Gujarat Ambuja Cement Limited is about 3.00 lacs bags and the supplies are made to dealers in the lot of 200 bags per truck. No complaint had been made by any other customer of the cement manufactured during the relevant period. The quality of each bag is ensured by carrying out physical and chemical tests which is maintained every day and is also compiled on month basis. The company and OPs are only responsible to the extent of ensuring and maintaining the quality of its product as per specifications provided by the BIS. It was further stated that on receiving complaint of complainant, they appointed Sh.Vijay Kumar, Engineer of the Company, who inspected the site of the complainant and explained to him that the defects, which he was alleging were due to improper cover to the reinforcement and insufficient cover at the bottom of conduit pipes and that it had nothing to do with the quality of the cement, which was very good. The copy of the letter/report dated 25.5.2009 was supplied to the complainant and he was asked to get the cement tested but no cement sample was made available at the site. It was further stated that so far as the construction of a building is concerned, the cement is only one of the ingredients and not the sole ingredient for proper construction of a building and the so called cracks, if any, were due to the poor workmanship and had nothing to do with the quality of the cement. Since no testing of the cement alleged to have been purchased by the complainant had been got done by the complainant, as required under the law and ISI code, therefore the complaint was not maintainable. The complainant has failed to specify the nature of the defects due to the quality of the cement and the complainant had not suffered any loss on account of the use of the cement but because of the improper and poor masonry work. It was pleaded that the quality of the cement is unchallengeable and the complaint had been filed with malafide intention. A prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for OPs came to the conclusion that there was no merit in the complaint and dismissed the same. Still dissatisfied, complainant has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. The only noticeable point raised on behalf of the complainant is that here in the instant case the learned District Forum erred in not following the set procedure under Section 13(1) ( C) of the Consumer Protection Act that in case defect in any good could not be determined without proper analysis or tests, it shall obtain a sample of goods from the complainant and refer the sealed sample to the appropriate laboratory for proper analysis to find out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect but the District Forum never directed the complainant to bring the sample or to get the analysis done from the appropriate laboratory. Further the District Forum relied upon the report of an engineer who was paid employee of OP NO.1. However, the aforesaid points of arguments have been repelled by the learned counsel for OPs. 7. We have given our thoughtful consideration to the above submissions raised on behalf of the parties and find that the complainant had raised construction of one room & kitchen at the first floor of his dwelling unit and thereafter some cracks developed in the building. He then complained to the OPs about the supply of sub-standard quality of the cement. OPs then deputed their engineer who reported that the cracks had developed due to poor workmanship and not due to the quality of cement. Even otherwise cement is not only sole ingredient for raising construction. There are many other factors which play role in the proper construction of building. The learned District Forum on receipt of the complaint sent its notice to OPs seeking their version of the case. OPs contested the complaint by filing an elaborate reply. The onus was upon the complainant to substantiate his allegation by producing cogent and convincing evidence. However, a perusal of the complaint file shows that the complainant had engaged counsel to plead his case who appeared only once on the date of admission and thereafter none appeared on behalf of the complainant. The complainant could bring expert evidence on record to counter the evidence of OPs. Still without the active participation of the complainant the learned District Forum adjudicated upon the matter on the basis of material available on record. 8. However, during the course of arguments before this Commission it was asked from the complainant whether he had still any quantity of cement out of the quantity of cement used by him in raising the construction so that a sample could be sent to the appropriate laboratory for the purpose of testing but he replied in negative. Thus, in the absence of any corroborative evidence it cannot be said that the alleged cracks were developed in the building due to inferior quality of cement supplied by OPs. 9. In view of above discussion, we are of the considered opinion that the complainant had failed to substantiate his allegations before the District Forum and as such no relief was granted to him. Consequently we find no merit in the appeal and the same is hereby dismissed, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | | 
