DISTRICT C ONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 40 of 4.2008<br /> Decided on : 17.4.2008 <br /> <br /> Baljeet Singh alias Raj S/o Jalaur Singh, R/o Village Ghudda, Tehsil & District Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1.M/s. Kasturi Lal Sandeep Kumar, Ambuja Cement Dealer, Village Ghudda, Tehsil and District Bathinda through its proprietor/Partner Kasturi Lal.<br /> 2.Darshana Devi W/o Kasturi Lal, R/o Village Ghudda, Tehsil & District Bathinda.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh.Lakhbir Singh, President<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Gurdev Singh, Advocate<br /> For the opposite parties : A.K Jaiswal, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs. 2,00,000/- as damages, Rs.1,00,000/- as compensation on account of mental shock and agony and costs of forced litigation alongwith interest @ 2% P.A from the date of complaint till payment. <br /> 2. Version of the complainant as emanates from the complaint itself may be stated as under :-<br /> He was to construct his house. His relatives helped him for this work. Opposite parties are cement dealers at village Ghudda under the name and style of M/s. Kasturi Lal Sandeep Kumar. They are the dealers and distributors of Ambuja Cement Company. He was told by the opposite parties that the cement of this company is of best quality and is known for its durability and strength. He was further assured that there would be no complaint in case the cement of this company was used. Believing the assurance, cement and other material was purchased by him from the opposite parties. Sh. Bakhtaur Sigh S/o Sh. Gurdial Singh and Sh. Gurdial Singh were employed by him as masons besides five labourers for construction work of the house. He had purchased 80-85 bags of cement, about 52 quintals of concrete and five trollies of sand from the opposite parties. Construction of the house was completed by him by way of spending more than Rs. 2,00,000/-. After three/four months after completion of the house, plaster done had started peeling off. Major cracks had also appeared in the plaster and other parts of the house. House was badly damaged. Matter was reported to the village Panchayat. Opposite parties paid deaf ears and started making false excuses. Several applications were moved to Senior Superintendent of Police, Deputy Commissioner, Bathinda and other higher authorities, but nothing has been done. Deputy Commissioner, Bathinda vide his letter No. 5447 dated 15.11.2007 advised him to move the Consumer Fora. His allegation is that opposite parties had willfully supplied cement of poor quality due to which he has undergone loss of Rs. 2,00,000/-. His entire family has undergone mental tension and shock.<br /> 3. Opposite parties No. 1 & 2 filed their version taking legal objections that complaint against opposite party No. 2 is not maintainable as she has nothing to do with opposite party No. 1 Firm. She is the mother of Sandeep Kumar who is the proprietor of opposite party No.1. Gujarat Ambuja is a public limited company which is engaged in the business of manufacturing of cement of different grades under a licence duly issued by the Bureau of Indian Standards. Opposite party No. 1 is the authorised dealer of the opposite parties. Quality of cement is ensured as per Indian Standard Specification; no testing of the cement alleged to have been purchased has been got done as required under ISI Code and as such, complaint is not maintainable and complainant has neither placed on record the bill regarding the purchase of the cement nor mentioned the dates of purchase. On merits, they allege that complainant is not consumer. They admit that opposite party No. 1 is the dealer of the company. Complainant had no dealing with the company. He has not pointed out any defect in any part of the building except the plaster part of the house. This fact itself goes to prove that there is no defect in the cement. Whatever defect has been alleged, the same is due to excessive use of steel float (Gurmala) while plastering, use of fine and silty sand, improper mixing and use of high water compound ratio which heads to peeling off plaster and presence of efflorescence and defective method of construction. No expert opinion has been obtained by the complainant. No test report of the cement from the approved laboratory has been produced. So far as the construction of the building is concerned, cement is only one of the ingredients and not the sole ingredient for proper construction of the building. There are many factors which are relevant for proper construction of building such as dampness in the wall, efflorescence (shora) of bricks, improper mixing of cement and sand, improper curing, improper structural designing, poor workmanship etc. Results of the product of the company have been found much superior than laid down in specifications in the ISI Code. They deny the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Baljeet Singh complainant tendered into evidence his own affidavit (Ex.C.2), affidavit (Ex.C.1) of Bakhtaur Singh, photocopy of letter No. 5447 (Ex.C.3) and photocopies of account(Ex.C.4 to Ex.C.6).<br /> 5. On behalf of the opposite parties, reliance has been placed on affidavit (Ex.R.1) of Sh. Sandeep Kumar, photocopy of licence (Ex.R.2), photocopy of test report dated 31.7.2007 (Ex.R.3), photocopy of Indian Standard Code for PPC (Ex.R.4) and specimen empty bag of cement (Ex.R.5).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered the written arguments submitted by opposite parties. No. 1 & 2. <br /> 7. Opposite parties are not admitting in so many words that complainant had purchased cement from opposite party No.1. For this purpose, complainant is relying upon the affidavit Ex.C.1 of Sh. Bakhtaur Singh, his affidavit Ex.C.2 and copies of the construction material account Ex.C.4 to Ex.C.6. No bill/Cash Credit Memo issued by opposite party No. 1 regarding the sale of cement to the complainant, have been placed on the record. It is not the case of the complainant that bills for the sale of cement to him were not issued by the opposite parties. So far as Ex.C.4 to Ex.C.6 are concerned, they are the copies of the account regarding construction material etc. It is not known who has maintained this account. Learned counsel for the complainant could not show that this account has been regularly maintained in the regular course by the complainant or any of his family members. No-doubt, in Ex.C.4 to Ex.C.6, there is mention about some bags of cement, but there is nothing to the effect that bags of cement mentioned in them were purchased from opposite party No. 1 against consideration. Sh. Sandeep Kumar, Proprietor of opposite party No. 1 does not admit in any manner the alleged purchase of cement by the complainant. To the contrary, he has stated that complainant has neither enclosed copy of the bill nor has mentioned the date of purchase in the complaint. This indicates that he is not admitting the sale of the cement. Onus is upon the complainant to prove his case by way of leading cogent and convincing evidence that cement was purchased by him from opposite party No. 1 and that too, against consideration. There is no satisfactory evidence to this effect. Hence, strictly speaking there is no reliable evidence to conclude that cement was purchased from opposite party No. 1.<br /> 8. Ex.C.1 is the affidavit of Bakhtaur Singh Mason. It is to the effect that he and his father worked with the complainant as Masons for the construction of his house. He further states that for construction work, all the precautions were taken by them. After three/four months after the construction of the house, plaster had started peeling off and that there were major cracks due to the poor quality of the cement etc. sold by the opposite parties. Likewise is the affidavit of the complainant. In our view, these affidavits of the complainant and Bakhtaur Singh are not sufficient to hold that the cement was sub standard or of inferior quality. According to ISI standards for testing of chemical and physical test of the cement, sample has to be undertaken promptly i.e. within three weeks of the delivery and that all tests shall be commenced within one week of sampling. It is a matter of common knowledge that cement is a chemical product and is of perishable nature which deteriorates with the passage of time depending upon a variety of factors, including storage and weather conditions like rainfall and moisture in the air during the relevant period. In this case, complainant did not move this Forum for getting alleged purchased cement tested from any laboratory if any portion of the alleged purchased cement was in his possession. Even otherwise, he did not get the material used for construction of the house tested from any expert or laboratory after taking the sample. Bakhtaur Singh Mason in his affidavit does not disclose his qualification, experience and expertness concerning the standard of the various types of cement. It being so, his affidavit alone cannot assume any significance. On its basis, it is difficult to hold that the alleged defect in the construction is due to the poor quality of the cement. He does not state that there was proper curing of the plastered walls and ceiling. To the contrary, opposite parties have brought on record the affidavit of Sh. Sandeep Kumar and copies of the test reports and Indian Standard Code for PPC. A perusal of them reveals the process of manufacturing, standard maintained by Ambuja Cement Company and the various analysis and tests done qua the strength of the cement. Tests indicate that the ingredients of the cement of manufacturing company were as per specifications. When it so, no other conclusion can be arrived at than the one that complainant has failed to prove (even if it is taken that cement was purchased by him from opposite party No. 1) that cement was of inferior quality. In this view of the matter, we are fortified by the observations of the various State Commissions in the cases of Rattan Singh Vs. Gujarat Ambuja Cement Ltd. & another-First Appeal No. 483 of 2006 decided on 26.4.2006 by Hon'ble State Commission, Punjab, S.M. Aggarwal & another Vs. M/s. Thar Cement Ltd. & The State of Haryana Vs. M/s. Thar Cement Ltd.-complaint cases No. 51 & 71 of 1993 decided on 13.5.1997 by Hon'ble State Commission, Haryana, Sh. Dina Nath Thakur Vs. General Manager, Gujarat Ambuja Cement Ltd. & Ors.-Appeal No. 302 of 2003 decided on 28.6.2004 by Hon'ble H.P. State Commission at Shimla and Altaf hussain Lone Vs. Manager (Sales), Gujarat Ambuja Cement Ltd. & Ors.- Case File No. 927/2001 decided on 26.6.2002 by the Hon'ble State Commission, J&K.<br /> 9. It is also worth mentioning that complainant has not pointed out any defect in any part of the building except plastered part. Cement is only one of the ingredients. It is not the sole ingredient for proper construction of the building. There are so many factors which are relevant for proper construction of the building such as dampness in the wall, efflorescence (shora of bricks), improper mixing of cement and sand, improper curing, improper structural designing, poor workmanship etc. Neither complainant nor Sh. Bakhtaur Singh has stated in so many words as to what was the ratio of cement and sand used in the construction of the building. There is no specific evidence that there was no dampness in the walls and efflorescence in the bricks. Similarly, evidence regarding proper curing is missing. In these circumstances, alleged defect in the construction of the building is not due to poor quality of the cement.<br /> 10. In the premises written above, crux of the matter is that complainant has failed to prove deficiency in service or unfair trade practice on the part of the opposite parties. Accordingly, complaint being devoid of merits is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 17.4.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br />