Haryana

Yamunanagar

CC/428/2013

Suleman S/o Rafiq - Complainant(s)

Versus

M/s Lamba Enterprises - Opp.Party(s)

Avinash Chadha

18 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR. 

Complaint Case No.428 of 2013
Date of Institution: 05.06.2013
Date of Decision:     18.08.2017 

 

Suleman aged about 40 years, son of Shri Rafiqe, resident of village Mamli, PO Bherthal, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                 

                                                                                                              ….COMPLAINANT

Versus

1. M/s Lamba Enterprises, old Grain Market, Jagadhri, District Yamuna Nagar, through its Proprietor/Dealing Hand (Dealing in Steel Iron, Cement and all kinds of Building Material).
2. Gujrat Ambuja Cement Limited, having its office at SC No.42-43, 1^st Floor, Sector 9-D Madhya Marg, Chandigarh.
3. Gujrat Ambuja Cement Limited having Corporate Office at Elegant Business Park, MIDC Cross Road “B”, Off- Andheri Kurla Road, Andheri (E) Mumbai 400059 (Maharashtra).

                                                                                            ….OPPOSITE PARTIES

 

BEFORE:       SH. DHARAM PAL …………..……….. PRESIDENT.

                       SH. S.C.SHARMA………………………….MEMBER.

                       SMT. VEENA RANI SHEOKAND…..…… MEMBER

 

Present:          Shri Avinash Chadha , Advocate for complainant.

           Shri  Pardeep Rathore, Advocate for OPs

 

ORDER         (DHARAM PAL, PRESIDENT)

 

 

1.                     The complainant Suleman has filed the present complaint under section 12 of the Consumer Protection Act 1986 against respondents (herein after Respondents will be referred as OPs).

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant had purchased Ambuja Cement i.e. 150 Bags on 23.07.2012, 100 bags on 31.07.2012 and 100 Bags on 08.08.2012 from the OP No.1 who is the retail dealer of the OP No.2 in Jagadhri City. The complainant had raised the construction from plinth to roof with Ambuja Cement and at the time of purchasing the said cement, the OP No.1 had assured that Ambuja Cement is good in use for the construction and lintel purpose. In the month of August, 2012 the complainant put the lintel of his residential house and thereafter, covered the walls by doing plaster on the same. Now, in the month of March, 2013 cracks put in the lintel of roof of the residential house of the complainant and the complainant immediately noticed the same and thereafter the complainant contacted the OP No.1 with the request to get the same checked up from some expert, but the OP No.1 started showing indifferent attitude towards the complainant. The complainant is doing the work of mason from the last more than 25 years and have good experience as a mason and further the complainant had raised the construction of his residential house with due care and a good ratio of cement and sand was also used by the complainant for the construction and lintel etc. and the cracks put in the lintel due to lower quality of the cement supplied by the OP No.1 to the complainant. Hence, this compliant. Wherein it has been prayed that the OPs may be directed to pay Rs.4,00,000/- as compensation to the complainant for the supply of lower quality  cement and on account of mental as well as physical harassment, economic loss etc. suffered by him.

                        Upon notice, OP appeared and filed its written statement separately. OP No.1  filed written statement by taking some preliminary objections such as complaint of the complainant is not maintainable; present complaint of the complainant is a counter blast because of the fact that the complainant and the answering OP was closely known to each other for the past some years and the complainant purchased total 430 bags of Ambuja Cement on different dates amounting to Rs.1,27,400/- and due to good relations these cement bags were sold by the answering OP to the complainant on credit basis and under the faith that he would make the payment as per the promise made him; the complainant has got no cause of action to file the present complaint; complainant has no locus standi to file the present complaint; complaint of the complainant is hopelessly time barred. Complainant in his complaint has concealed the true and material facts, complainant is stopped from filling the present complaint by his own act and conduct and on merit it is stated that the complainant have purchased total  430 bags on different dates. On 06.04.2012 vide bill No.2 the complainant purchased 80 bags amounting to Rs.22,400/- and on 28.07.2012 the complainant again purchased 150 bags amounting to Rs.45,000/- vide bill No.49 instead of 23.07.2012. On 31.07.2012 and 08.08.2012 the complainant has purchased vide bill no.50 and 52 the bags 200 amounting to Rs.60,000/- (i.e. Rs.30,000/- on each dates) and has not come to this Court with clean hands. It is further submitted that at the time of construction it seems that no proper norms were adopted by the complainant. It is the answering OP who approached many times to the complainant and also demanded his money which was due against the complainant as mentioned above that the above cement was purchased from the answering OP on credit basis and he put off the matter on one pretext or the other. The complainant is not doing the job of mason (Raj Mistri) but in fact he is an agriculturist and doing agriculture job at village Mamli and story put forward in this para is totally wrong and hence denied. Rather it is stated that there are several factors which are not adopted by complainant at the time of construction as follows:-

1. Architectural design/structural design.
2. Insufficient water curing and improper Hydration after laying slab.
3. Insufficient and poor quality of steel and faulty laying of steels.
4. The quality of bricks used for the construction.
5. The quality of cement used and the ratio of the cement in proportion to the other building material i.e. sand and bajri etc. used for construction.
6. Not proper mixing of cement, sand and Bajri for the slab.

Lastly prayed for dismissal of the complaint qua the OPs.

                        OP no. 2 and 3 appeared and filed their written statement taking some preliminary objections such as complainant has got no cause of action; complainant has no locus standi to file the present complaint; complainant is stopped from filling the present complaint; complainant has concealed the true and material facts and has not come to the Forum with clean hands and on merit and it is stated that the company is engaged in the business of manufacturing of different grades under a license duly issued by the Bureau of Indian standards duly empowered under the Bureau of Indian Standards Act, 1986 (63 of 1986). The OP no.1 is the authorized dealer appointed by the company and there is no such designation of the OP No.2 through whom the company ensures the product of the company to reach to the hand of the customer. The company has a policy towards total commitment of the customer satisfaction. To meet this requirement the company has appointed qualified Civil Engineers all over Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, Uttaranchal to attend customers problem promptly through their authorized dealers for guiding and educating the customers for getting the best possible results of the cements manufactured by the company. Each bag produced by the company is printed with the ISI Mark issued by the Bureau of Indian standards and each stockist, retailer and purchaser at liberty to get the contents of the cement tested for verification as per norms laid down by the Bureau of Indian Standards, which reads as follows:

11. Sampling

11.1 Samples for testing and by whom to be taken. A sample or samples for testing many be taken by the purchaser or his representative, or by any person appointed to super-intend the works of the purpose of which the cement is required or by the latter’s representative.

11.1.1             The samples shall be taken within three weeks of the delivery and all the tests shall be commenced within one seek of sampling.

11.1.2.            When it is not possible to test the samples within one week, the samples shall be packed and stored in air tight containers till such time, they are tested.

11.2                In addition to the requirements of 11.1 the method and procedure of sampling shall be in accordance with IS 3535:1986.

11.3.               Facilities for sampling and identifying: The manufacturers or supplier shall afford every facility, including labour and materials for taking and packing the samples for testing the cement and for subsequent identification of the cement sampled.

12. TESTS

12.1.   The sample or samples or pozzolana cement drawn as described in 11. Shall be tested as per methods referred to in relevant clauses.

12.2.   The temperature for carrying out physical tests shall as far as possible, be 27+ (-) 2 C. However, the actual temperature during the testing shall be recorded.

11.1. Consistency of standard Cement Paste-

The quantity of water required to produce a paste of standard consistency to be used for determination of the water contents of mortar for the compressive thrength test and for determination of soundness and setting time shall be obtained by the method described in IS 4031 (Part-04)1988.

12.4 Independent Testing:-

12.4.1             If the purchaser of his representative requires the independent tests, the samples shall be taken before or immediately after delivery at the option of the purchaser or his representative and the test shall be carried out in accordance with this standard on the written instructions of the purchaser or his representative.

12.4.2. Cost of Testing

                        The manufacturer shall supply, free of charge, the cement required for testing. Unless otherwise specified in the enquiry and order, the costs of the tests shall be borne as follows:

1. By manufacturer if the results show that the cement does not comply with the standard, and
2. By the purchaser if the results show that the cement complies with this standard.

Rejection: -

13.1          Cement consignment may be rejected if it does not comply with any of the requirement of this specification.

13.2          Cement remaining in bulk storage at the Mill. Prior to shipment for more than six months or cement in bags in local storage in the hands of a vendor for more than three months after compaction of tests may be retested before use and may be rejected it if fails to confirm to any of the requirements in this specification.

Since no testing of the cement alleged to have been purchased by the complainant has been got done as required under the law and IS Code issued by the Bureau Standards. Therefore, no complaint is maintainable against the OPs. Rest contents of the complaint were denied

4.                     Learned counsel for the complainant failed to adduce any evidence and the evidence of the complainant is closed by Court order vide order dated 21.12.2015.

5.                     On the other hand, learned counsel for the OPs tendered into evidence affidavit of Shri Amitabh Rajat Senior Manager (Legal) of Ambuja Cements as Annexure RW/A and documents such as Annexure R1 to R4 and closed the evidence on behalf of OPs. 

6.                     We have heard the learned counsel for the parties and have also perused the record.

7.                     The case of the complainant is that OP No.1 deals in sale of cement and he had purchased Ambuja Cement i.e. 150 Bags on 23.07.2012, 100 bags on 31.07.2012 and 100 Bags on 08.08.2012 from the OP No.1 who is the retail dealer of the OP No.2 in Jagadhri City for the construction of his residential house and after construction it was found that there was defect in the cement as  cracks put in the lintel of roof of the residential house of the complainant which was due to lower quality of cement. On the other hand, learned counsel for OPs has categorically stated that each bag produced by the company is printed with the ISI Mark issued by the Bureau of Indian standards and each stockiest, retailer and purchaser at liberty to get the contents of the cement tested for verification as per norms laid down by the Bureau of Indian Standards. There is also no evidence that the cement allegedly supplied by the OP was of sub standard or poor quality. It was incumbent upon the complainant to send a sample of cement scratched from the construction of building in view of Section 13(1) of the consumer Protection Act for examination or analysis or test from the appropriate laboratory. If a report had been received from the laboratory that the cement was of sub standard and inferior quality, then it would have been a clinching evidence. Thus, there is no evidence that OPs had supplied cement of inferior or sub standard quality.

8.                     In view of the above discussion, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs. Hence, the present complaint is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.             

Dated: 18.08.2017  

 

                                                                        (DHARAMPAL)

                                                                        PRESIDENT

                                                                  D.C.D.R.F.YAMUNA NAGAR

                                                                  AT JAGADHRI

 

 

(VEENA RANI SHEOKAND)                    (S.C.SHARMA)

MEMBER                                                      MEMBER

 

 

Note: Each and every page of this order has been duly signed by me.

 

                                                                  (DHARAMPAL)

                                                                  PRESIDENT

                                                                  D.C.D.R.F.YAMUNA NAGAR

                                                                  AT JAGADHRI