The titled complainant Manjit Kaur falling aggrieved at the faulty cum obstructed spread of the time-outed Ready Mix Concrete (Time-Outed: somewhat firmed but not set, as yet) on the First Floor Lintel Roof of her U/Construction House – on account of the mis-functioning/jamming of the Spread-Pipes/Pumps resulting into total-loss of material, time and labor; has filed the present complaint against the titled opposite parties seeking some directives to them to pay for the entire laying-out of the one new/fresh first-floor roof-slab lintel along with a suitable cost and compensation etc.
2. The complainant has furthered that she has undertaken construction of her house over her self-purchased plot (Ex.C1 -copy of sale-deed) at ward 8, Dhariwal, Gurdaspur and for the purposes of laying of its 2000 sq ft First Floor Lintel Slab (Ex.C2 - Copy of site plan) has given the contract for supply and spreading of Ready Mix Concrete to the OP1company @ Rs.1.0 Lac as was paid in advance by her through her father Sh. Avtar Singh. She had also paid Rs.1.25 Lac, in advance, to the Mason Contractor Lakhbir Masih for the purpose.
3. The Lintel Slab was mutually agreed-upon to be laid on 29.08.2018 at 10:00 AM and the Ready Mix Concrete was to be supplied in four trucks on the site, at the fixed time. The complainant further alleges that first the trucks arrived late and thereafter the laying-out pumps got struck and the work had to be abandoned for three hours to conduct repair to the pumps by the OP1 representatives, as no trained technician/engineer OP2 had been accompanying the Ready Mix Trucks. However, the OP1 Labor completed the Mix lay-out job and had left by 6:00 PM. On the next day, at the advice of the OP1 company the laid out slab was flooded with water for the purposes of slab setting-in and for checking of the water seeping/leakage etc. The requisite inspection was duly conducted by the contractor mason Lakhbir Masih (Ex.C3) and the complainant's architect Mandeep Singh (Ex.C4) who both had detected cracks in the Lintel through which water was found seeping down. The route challan of the two Trucks transporting the Concrete Mix are exhibited Ex.C5 & Ex.C6. Lastly, the final inspection was got conducted from the Building Experts - Puri & Associates (Ex.C7) along with that of the ACC Cement Co. (Ex.C8) along with the photographs (Ex.C9 to Ex.C18) all show the defects (cracks and creeks) in the Lintel but the OP1 Co. as well as the OP2 Engineer refused to admit either their delinquency/fault(s) or to admit the claim as put forth by the complainant. And, thus prompted the present complaint praying for directives to the opposite parties to pay her Rs.3.0 Lac for demolishing of the roof-slab and another Rs.3.0 Lac for laying-out of the fresh slab, Rs.1.0 Lac as already paid for Roof Slab Mixture, Rs.70,000/- as compensation for harassment, mental pain etc and Rs.30,000/- as cost of litigation all in the interest of justice.
4. The titled opposite parties (the OP1 & the OP2), in response to the commission’s notice/summons appeared through their counsel and filed the written reply stating therein preliminary as well as other objections (on merits) as: Firstly, the complainant was stated to have no locus -standee to file the present complaint since there's no privity of contract with her as they had been approached by one AvtarSingh for supply of Ready Mix Concrete and had compelled them to put ACC Gold Cement in the mixture in spite of telling him of its shorter setting-in time (2-3 hours) measured against their preferred cement-use of the Ultra Tech having a longer setting-in time of 4-5 hours. Further, their Concrete Laying-out Pump had suddenly developed some technical snag and thus the OP2 Engineer contacted Avtar Singh over the telephone to ask him to release the Mix Loaded Trucks to another site for use there so as to avoid setting-in of the therein loaded mix he will be supplied with fresh Mix once the Laying-out Pump gets repaired but Avtar Singh refused to release the Mix Loaded Trucks and insisted use of this very concrete-mix upon the lintel-slab under the laying-out process. The OP have also placed forth this very telephonic conversation in the records vide an electronic CD and its transcript (Ex.OP1). Thus the complainant cannot take benefit of her own wrongs and is estopped vide her own act and conduct from filing the present complaint. On merits, the OP have merely denied most of the contents of present complaint while repeating their preliminary objections to the rest and adding that they were not associated with the so-called pseudo investigations conducted by the contractor mason, the architect and the building expert and have addressed all these reports as false and stage managed. Lastly, the OP have again contested and denied the statutory relation qua consumer visa'-a'-vis' vendor/service provider with the complainant and have prayed for dismissal of the present complaint with heavy costs, in the interest of justice.
5. The complainant has duly filed her rejoinder to the written reply reaffirming her allegations as already put forth in her present complaint.
6. However, none of parties have paid compliance to the Regulation 13(2) of the Consumer Protection Regulations, 2020 and have instead got recorded their respective statements to consider their respective pleadings vide the complaint/written reply as their respective written arguments.
7. We have duly heard (at length) the learned counsels for the contesting litigants in the back drop of the legally applicable merit of the supporting evidence/document(s) as produced on records in order to statutorily resolve the inter-se dispute (under Consumer Protection Act’ 2019) prompting the present complaint. We are of the considered opinion that it shall be pertinent here to discuss first the backdrop of the instant inter-se dispute between the litigants to adjudicate the same in an apparently fair and judicious manner.
8. We find that the complainant Manjit Kaur had purchased Ready Mix Concrete and had also hired the services for laying-out of the same over the 2000 sq ft of the First-floor Roof-Slab from the opposite party1 Construction Company @ Rs.100,000/- as stood paid, in advance. The related transaction and its collateral as well as its details were negotiated by the complainant Manjit Kaur through her father Avtar Singh for construction of House over her pre-owned plot of land and thus Manjit Kaur, being the ultimate beneficiary, has been the statutory consumer of the opposite parties whose related objection does stand hereby, over-ruled. Then, comes the OP1's next pleading that Avtar Singh had compelled them to use ACC Gold Cement in the Mix, in spite of their having told him that they do use Ultra Tech Cement on account of its longer setting-in time of 4-5 hours (so safer transit to the Site at Dhariwal, in terms of time) measured against the set-in time of 2-3 hours for the ACC Gold Cement. We observe this pleading of the OP1 Co. to be in close proximity to a sort of admission that they had used ACC Gold Cement in the Mix knowing well of its short set-in time and the enhanced risk in transportation to the kilometres away Site, in terms of the seen/ unforeseen obstacles, on the way. Somehow, the OP1 Co. in its endeavor to garner business acted in close proximity to employ of unfair trade practices that amounts to legal as well as statutory misconduct in consumer-law parlance and thus attracts a penal award. Finally, to top it all the OP1 Co.'s Mix Spread Pump broke-down at the site and delayed the Mix Laying-out Process by another three hours. Here, the OP1 pleading that Avtar Singhdid not allow/release the Mix-filled Trucks to an adjoining site and/or they were forced to lay/spread-out the time-outed Mix at the complainant's site does not absolve them of their statutory liability to provide the specified goods by way of a satisfactory service U/Statute.
9. Further, we observe that the lone evidence by way of the electronic CD and its transcript (Ex.OP1) are not admissible in evidence by virtue of the provisions of the IT Act and also vide the recent judgment of the honorable apex court as it mars the individual's right to free speech. Moreover, Avtar Singh never had any authority over the OP that they were first compelled by him to use 'cement' with short set-in time and then to spread/lay-out the time-outed Mix over, there.
10. We also observe that the opposite parties here have not filed their self-attested affidavits/depositions. Even, the C-D as well as its transcript has been filed, unsigned. All these observations do together weaken the defense of the titled opposite parties. We do take judicial notice of the settled principle in law that a litigant not optimally availing the opportunity to defend oneself does not have much to produce/plead in his defense but at the same time the adjudicatory authority shall ensure that no undue prejudice is caused to the legal rights and interests of such litigant(s).
11. Finally, we find that the OP Co.'s admitted cum proved act of employ of unfair trade practices by using the ACC Cement knowing well of its shorter set-in time and deficiency in service by way of breaking down of the Mix Spread-out Pump even before the Mix Laying-out Process lines them up to an adverse statutory award under the applicable statute by way of refund of the receipted payment of Rs.100,000/- along with interest @ 6% PA from the date of receipt besides Rs.3,50,000/- in lump sum as compensation for having got/to get fresh construction of the Lintel-slab and for having borne multi-grievances cum cost of litigation etc within 45 days of receipt of these orders otherwise all the awarded amounts shall attract an additional interest @ 3% PA from the date of the orders till actual payment, in totality.
12. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
AUG. 17, 2022. Member.
YP.
