1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 27.09.2013 passed by the learned State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (“the State Commission”), in Consumer Complaint No. 68 of 2011, wherein the Complaint filed by the Complainants (Appellants herein) was dismissed.

2.      There is a delay of 47 days in filing the present Appeal. For the reason stated in IA/7941/2013, the delay was condoned vide order dated 18.07.2014.

3.      For the sake of Convenience, the parties in the present Appeal being referred to as mentioned in the Complaint before the State Commission. “Kamla Devi & Anr.” are referred as the Complainants. “M/s. Ambuja Cement Limited & Ors” are referred to as the Opposite Party Nos.1, 2 & 3 (OPs) respectively in this matter.

4.      Brief facts of the case, as per the Complainant, are that he filed a Complaint before the State Commission against OP-1 & 2 who are manufacturers for supplying the inferior quality of cement and OP-3, the Authorized Dealer. The Complainant started constructing ground floor and first floor of his house on 18.11.2009 and purchased 500 bags of cement from OP-3 between 19.11.2009 to 3.01.2011. Another 300 bags were purchased from OP-3 of which no bill was given by OP-3. On 28.01.2011 and 29.01.2011 there was heavy rain in his village Chirawa following which his RCC roof started leaking. He also noticed mortar walls peeling off. A complaint was made by him on 30.1.2011 and OP-3 inspected the site and informed the cement manufacturers. On 03.02.2011 one Mr. Prakash R. Sharma and one Engineer visited the construction site. On inspection, the representatives of the OPs agreed that cement is defective, and they had suggested that he should get the cement tested from Birla Institute of Technology and Science ('BITS'). On this advice, he deposited the requisite fees with BITS Pilani and got the mortar and cement tested from this Iinstitute and obtained a report. Based on the report, the Complainant demanded compensation from the OPs.

5.      The complaint was opposed by the OPs on the ground that cement supplied was not defective and testing reports submitted by the complainant are not acceptable. They alleged that while constructing his house the cement was not mixed in proportionate quantity and construction was done with dry bricks. They have also referred to Section 13(1)(c) of the Consumer Protection Act, 1986 and provisions of Bureau of Indian Standards under which methods of sampling and analysis of concrete have been given. 

6.      The learned State Commission vide order dated 27.09.2013 dismissed the complaint with the following Order: -

“8.      We are of the opinion that the complainant has not been able to establish supply of inferior cement to him. Ex. P 19 report indicates that proper quantity of cement was not mixed with sand stone that is why the mortar was pealing of. The complainant has not followed the provisions for getting the samples analysed from authorised laboratory. Secondly, he has also not followed the procedure for sampling and testing as prescribed by Bureau of Indian Standards. The report Ex. P 22 is itself suspicious in the sense that the report was prepared by Dr. P.Chakravarty who gave no definite conclusion about his test but at the end of report a handwritten note has been appended by Head of Department, Civil Engineer BITS that cement lacks strength. No affidavit of Head of Department has been submitted and how Dr.P. Chakravarty has not given any definite conclusion when he had analysed the cement.

9.        We would like to follow the principles laid down by the Hon'ble National Commission in the cases referred by the learned counsel for the opposite parties and there is no evidence in the shape of report from appropriate laboratory and procedure of s.13 (1) (c) of the Act had not been adopted.  Thus, the complaint is liable to be dismissed and the same is dismissed accordingly.”

7.      Being aggrieved by the impugned order, the Complainant filed this present Appeal no. 861 of 2013 with the following prayer:

1. Call for the records of the Complaint Case No.68 of 2011 and allow the present appeal in terms of the prayer made in the Appellants’ complaint (Case No.68 of 2011); and in that behalf

2. Pass any other/further order(s) as this Hon’ble Court may deem fit and proper in facts and circumstances of the present case.

8.      In the appeal, the Appellant mainly highlighted that the State Commission failed to recognize the evidence presented i.e. report of the laboratory of Birla Institute of Technology & Science (BITS), Pilani, Rajasthan and the State Commission erred in law holding that BITS is not an “authorised laboratory”. The Appellant submitted that the test envisaged in Section 13(1)(c) of the Act is not of an “authorised laboratory” but of an “appropriate laboratory”. In other words, the Act or the Rules made thereunder, do not provide a list of authorized laboratories. The expression used in the Section is “appropriate laboratory” meaning that the concerned laboratory should have all the equipment and expert manpower to render competent opinions on a particular subject-matter.  It is submitted that BITS is an institution and laboratory of eminence, whose experts’ opinions are widely respected. 

9.      Upon the notice on the memo of Appeal, the Respondents/ Opposite Parties have not filed any reply to the present Appeal and filed brief synopsis.

10.    In his arguments, the learned Counsel for the Appellant comprehensively reiterated the grounds of appeal and sought the impugned order be set aside and the complaint filed before the State Commission be allowed.  He has relied upon the following judgments to support his arguments:

(a) Ambuja Cements Ltd Vs. Atmaram, R.P. No.297 of 2018, decided on 02.0.2020 by the NCDRC;

(b) National Seeds Corporation Limited Vs. M.Madhusudhan Reddy and Anr., (2012) 2 SCC 506.

(c) N.S.C. Ltd. Vs. Guruswamy, (2002) 1 CPJ 13 (NC).

11.    The learned Counsel for the Respondents/OPs argued that the cement supplied was not defective and testing reports submitted by the complainant are not acceptable. He asserted that while constructing his house, the cement was not mixed in proportionate quantity and construction was done with dry bricks. He referred to Section 13(1)(c) of the Consumer Protection Act, 1986 and provisions of Bureau of Indian Standards, under which methods of sampling and analysis of concrete have been given. To support his arguments, he relied upon the judgments of Jai Prakash Verma Vs. J. K. Lakshmi Cement Limited & Anr., R.P. No.3665 of 2012, decided on 01.02.2013 decided by NCDRC.

12.    I have examined the pleadings and associated documents placed on record and the rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.

13.    The primary issue for determination is whether Appellant/ Complainant established that the cement purchased by him from OPs for construction of his house was of poor quality.

14.    The reports on the said cement samples dated 23.12.2011 and 19.05.2011 produced by the Complainant indicate that ‘the cement has very low strength in comparison to strengths of standard grade 43 and/or grade 53 cement’. ‘Quality of the sand was found to be substandard and not suitable for RCC structures’. While it is not clear as to which sample was forwarded for testing, it is also not established as to what procedure was followed for sampling and testing as prescribed by Bureau of Indian Standards. Evidently the Complainant has not followed the provisions for getting the samples analysed from authorised laboratory. In any case, no affidavit has been filed in support of the report. Thus, the report in question is not in adherence with the procedure under Section 13(1) (c) of the Act.

15.    In view of the foregoing deliberations, the Appellant has not brought out anything substantial to warrant any interference with the detailed and reasoned order passed by the State Commission dated 27.09.2013. The First Appeal No. 861 of 2013 is Dismissed.

16.    There shall be no orders as to costs.

17.    All pending Applications, if any, are disposed of accordingly.