Haryana

StateCommission

A/1373/2017

DEVENDER - Complainant(s)

Versus

M/S KAUSHIK CEMENT STORE AND OTHERS - Opp.Party(s)

VIKAS LOCHAB

03 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA Panchkula

Date of Institution:14.11.2017                      

    Date of final hearing:03.05.2023

        Date of pronouncement:26.05.2023

                                                                    

FIRST APPEAL No.1373 of 2017

 

IN THE MATTER OF:                                       

 

Devender son of Sube Singh resident of Patti Brahmanan, Tehsil Ganaur and District Sonipat.

                                                                                            .….Appellant

Through counsel Mr. Vikash Lochab, Advocate

 

Versus

 

1.  M/s Kaushik Cement Store, Railway Road, Kaushik Chowk, Ganaur, District Sonipat, through its Prop. Ajit Kaushik.

….Respondent No.1

Proceeded against ex-parte

2.  M/s Binani Cement Ltd. Corporate Office at Merecantile Chambers, 12, JN Heredia Marg, Ballard Estate, Mumbai-400001 India through its Managing Director.

3.  M/s Binani Cement Ltd., works (factory) at post office Binani Gram, Tehsil pindwra-307031 Distt. Sirohi, Rajasthan through its General Manager.

…..Respondents No.2 & 3

Through counsel Mr. Ammish Goyal, Advocate

 

CORAM:    S.C. Kaushik, Member.

 

Present:-    Mr. Vikash Lochab, counsel for the appellant.

                   Respondent No.1 already proceeded against ex-parte.

                   Mr. Ammish Goyal, counsel for respondents No.2 & 3.

                  

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for disposal of the present case are that on 08.10.2014, the complainant had purchased 30 bags of Binani cement from opposite party No.1 (‘OP No.1’) @ Rs.265/- per bag alongwith other building material for construction of temple premises and paid an amount of Rs.7950/-. It was alleged that it was found that there was no strength power in the cement and complainant got tested the said cement from DCRUST, Murthal and it was reported that the strength of the cement was below standard. It was further alleged that due to inferior quality of cement supplied by OP No.1, the building of temple has been damaged and the complainant suffered a loss to the tune of Rs.82,030/-. Thereafter, complainant requested the OPs to compensate him for supplying of inferior quality of cement, but of no use. Hence, there was deficiency in service on the part of Ops.  

2.                Notice of the complaint was issued to the Ops, upon which they appeared and filed their joint written version by submitting therein that the complaint was not maintainable; complainant has no locus standi and complainant is estopped by his own act and conduct etc. On merits, it was submitted that the engineer of OPs had gone to the alleged spot but the complainant did not co-operate with the engineer of OPs. It was further submitted that even the engineer of OPs was not allowed to check the material nor he was allowed to take samples of the concrete used at the spot. The engineer of OPs asked the complainant to supply him the sample of cement but he did not supply the same. It was further submitted that the loss, if any, was due to the fault by the construction team and use of wrong mixture of building material. There was no defect in the cement supplied by the OPs to the complainant. Finally, it was submitted that there was no deficiency in service on the part of Ops.

3.               The District Consumer Disputes Redressal Forum, Sonepat (now “learned District Commission’) after taking into consideration the material available on record, allowed the complainant vide order dated 09.10.2017 and directed the Ops as under:-

“Accordingly, we hereby direct the respondents to compensate the complainant by providing 150 bags of cement of 43 grade free of cost for spiritual purposes i.e. for the construction of building of temple. The respondents are directed to make the compliance of this order within 45 days from the date of passing of this order, failing which, after expiry of 45 days they shall pay Rs.50/- per day as donation for construction of building of temple till the date of compliance.”

 

4.                Feeling aggrieved by the order of learned District Commission, Sonepat, complainant-appellant has preferred this appeal before this Commission for enhancement of the compensation.

5.                The arguments have been advanced by Mr. Vikas Lochab, Advocate, learned counsel for the appellant and Mr. Ammish Goyal, Advocate for Mr. D.K. Singhal, learned counsel for the respondents No.2 & 3. With their kind assistance entire appeal & record has been properly perused and examined.

6.                Mr. Vikas Lochab, learned counsel for appellant has argued that due to inferior quality of cement supplied by respondent No.1, the building of temple has been damaged and appellant suffered a loss to the tune of Rs.82,030/-. He further argued that though the learned District Commission has allowed the complaint filed by the complainant-appellant and directed to supply 150 bags of 43 grade cement, but failed to consider that appellant has also suffered the loss of bricks, sand, labour, iron rod and other items. He further argued that the learned District Commission also failed to consider that appellant is a Pujari in the temple and he also suffered from mental and spiritual loss due to the act of OPs and no compensation has been awarded on this ground. He further argued that no litigation expenses have been awarded by learned District Commission and prayed that the present appeal be accepted by modifying the impugned order dated 09.10.2017.

7.               On the other hand, Mr. Ammish Goyal, Advocate for Mr. D.K. Singhal, learned counsel for the respondents No.2 & 3 has argued that the engineer of respondents No.2 & 3 had visited the alleged spot, but the appellant did not co-operate with them as the engineer was not allowed to check the material nor he was allowed to take samples of the concrete used at the spot. The engineer of respondents asked the appellant to supply the sample of cement but he did not supply the same. He further argued that the loss, if any, was due to the fault by the construction team and use of wrong mixture of building material and there was no defect in the cement supplied by the respondents No.2 & 3. He further argued that the present appeal may, therefore, be dismissed.

8.                It is not in dispute that on 08.10.2014, the appellant purchased 30 bags of Binani cement from respondent No.1 @ Rs.265/- per bag alongwith other building material for construction of temple premises and paid an amount of Rs.7950/-. It is also not in dispute that as per the testing report from DCRUST, Murthal, strength of said cement was below standard. However, the learned District Commission, Sonepat allowed the complaint and issued directions as mentioned in para 3^rd supra, but failed to compensate the complainant on account of mental harassment, physical agony and litigation expenses.

9.                In view of the abovementioned facts and circumstances, this Commission modify the impugned order dated 09.10.2017, passed by learned District Commission, Sonepat by awarding an amount of Rs.10,000/- on account of mental harassment and physical agony alongwith an amount of Rs.5500/- as litigation expenses. Remaining part of the impugned order does not call for any interference and thus remains as it is. With these modifications, appeal stands partly allowed. Further, the respondents are directed to comply with these directions within a period of 30 days from the date of passing of this order, failing which they shall be liable to pay interest @ 9% p.a. for the defaulting period.

10.              Application(s) pending, if any, stand disposed of in terms of the aforesaid Order.

11.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. The Order be uploaded forthwith on the website of the commission for the perusal of the parties.

  12.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 26^th May, 2023

 

                                                                                               

 

                                                                                               

                                                                                                S.C. Kaushik

                                                                                                Member

R.K                                                                                               Addl. Bench