Haryana

Ambala

CC/181/2020

Raj Kumar - Complainant(s)

Versus

Nukul Bindal Prop Aggarwal Cement Store - Opp.Party(s)

In Person

19 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	181 of 2020
Date of Institution	:	08.09.2020
Date of decision	:	19.12.2022

Raj Kumar son of Sh. Om Parkash aged about 47 years, resident of village and Post Office Patrehri, Tehsil Naraingarh, District Ambala-Haryana.

…..Complainant

Versus

 

1. Nukul Bindal, Prop. Aggarwal Cement Store, Opposite Petrol Pump, Karasan, District Ambala.
2. Ultra Tech Cement Limited (Cement Business Marketing) SCO 111, 1st Floor, Sector-7, Urban Estate, Ambala city-134 003.
3. Ultra Tech Cement Ltd, Ahura Centre, B Wing, 2nd Floor, Mahakali Caves Road, Andheri (East) Mumbai-400 093

 

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Rajiv Walia, Advocate, counsel for the complainant.

                     Shri Anand Garg, Advocate, counsel for the OPs No.1 and 3.

                   OP No.2 already ex parte.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To pay Rs.7 lacs to the complainant which he has spent on his house.

(ii) To pay Rs. Two Lakhs to the complainant on account of mental agony and adoption of unfair trade practice.

(iii) To pay Rs 50,000/- to the complainant as litigation expenses.

                                       OR

 (iv)Grant any other relief, which this Commission may deems fit.  

2.             Brief facts of this case are that the complainant is a permanent resident of Village Patrehri, District Ambala Haryana and he is doing the private job. The complainant with his hard earnings; help of his father and other close relatives, started construction of his house in the said village, after demolishing the old house in the total area of 1350 Square Feet. He purchased 100 bags of Cement from the OP No.1 for a total sum of Rs.39,000/- and the amount was paid in cash on 09-05-2020. The said  100 bags of cements were purchased for lantern of the house, which was completed by the concerned masons and labourers on 12-05-2020..  When the lantern was opened on 02-06-2020, it was looking all good, but during raining season i.e. July 2020, the complainant was shocked to notice many cracks in the said lantern and it started leaking.  The complainant immediately reported the matter to OP No.1, who gave contact number of Ultra Tech care centre and Mobile Numbers of Deepak and Jatin i.e. Field Officers of Ultra Tech Cement. The complainant reported the matter to the officials Ultra Tech Care Centre on many occasions who advised them to send email. After calling Deepak and Jatin, Field Officers of Ultra Tech Cements, they came to the house of the complainant during the month of July 2020 and  inspected the roof of the house. They made excuses that the masons have not done their work properly and wrong adjustments of iron beams etc. and advised the complainant to fill chemicals etc. in the cracks. However, the complainant was not compensated for the loss suffered by him because of the defective/inferior cement supplied by the OPs. Hence, the present complaint.
3.           OPs No.1 and 3 appeared through counsel and filed their separate written versions.
4.           Upon notice, the OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, estoppal, jurisdiction, not come with clean hands and suppressed the material facts etc. On merits, it has been stated that OP No.1 is not an authorized dealer of OPs No.2 and 3.  Smt. Shimla Rani, the mother of the Nakul Bindal is the sole proprietor of firm Aggarwal Cement Store. The said firm is indulged in business of sale of cement since long. No complaint has ever been received from any consumer regarding the cement sold by the said firm. The present complaint has been filed only to grab money from OP No.1. The complainant has not placed on record any proof regarding the purchase of other building material. The alleged cracks in the lantern can be caused only due to faulty construction method adopted by the mason and due to faulty mixture i.e. ratio of cement, sand and bajri etc. The complainant had also failed to comply with the mandatory provisions under Section 13(1)(c) of Consumer Protection Act, as he had not got the sample of the cement tested from the authorized laboratory. The complainant had not put any proof regarding the use of the cement in the construction of the building. The complainant had purchased 100 bags cement worth Rs.39,000/- on 9.5.2020 vide bill number 1543 on cash basis from the firm. The said firm is also going to take appropriate action against the complainant for the recovery of above said amount of Rs.39,000/-. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with heavy costs.
5.           Upon notice, none appeared on behalf of the OP No.2, before this Commission, therefore, it was proceeded against ex-parte vide order dated 28.01.2021.
6.           Upon notice, the OP No.3 appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, estoppal, jurisdiction, not come with clean hands and suppressed the material facts etc. On merits, it has been stated that OP No.3 is engaged in business of manufacturing of cement of different grades under a license duly issued by Bureau of Indian Standard duly empowered under the Bureau of Indian Standard Act, 1986 (63 of 1986). The company is manufacturing various types of cement and selling the same through its authorized stockiest and retailers only all over the country. Each bag of the cement bears relevant IS Mark number and the quality of cement confirms to ISI Specification. The quality of each bag is ensured by carrying out the physical and chemical tests, which is maintained every day and is also complied on monthly basis. No testing of cement alleged to have been purchased by the complainant has been got done by the complainant as required under the ISI Code issued by the Bureau of Indian Standard. Since the product manufactured by OP No.3 is produced under the strict and physical chemical test reports taken every day, therefore the quality of the cement is unchallengeable. The cracks in the lantern is only due to faulty construction method adopted by the mason and due to faulty mixture i.e. ratio of cement, sand and bajri etc. The complainant had also failed to comply with the mandatory provisions under Section 13 (1) (c) of Consumer Protection Act, as he had not got the sample of the cement tested from the authorized laboratory. The complainant had not put any proof regarding the use of the cement in the construction of the building. As per the complainant, he has raised the construction of his house measuring 1350 sq. feet after demolishing the old construction and had further alleged that he had purchased 100 bags of cement worth Rs.39,000/- from OP no.1 exclusively for putting the lantern, meaning thereby the complainant impliedly admits that he had used cement of two different companies i.e., cement of OP No.3 for the of laying the lantern and of some other company for the construction of rest of the house. Even otherwise also, the construction of residential house in an area of 1350 Sq. feet is practically not possible with only 100 bags of cement. The complainant has not placed on record any proof regarding the purchase of cement of other company and had not even placed on record any purchase bill regarding the other building material required for construction of the house. The complainant has not given any proof regarding the source wherefrom the complainant had allegedly spent such huge amount on the alleged construction. The complainant has not even placed on record any agreement with any contractor engaged for raising the alleged construction of house. There is no evidence to the effect that the cement allegedly purchased by the complainant is used in the construction of alleged house. Moreover, no Batch number & Lot number has been mentioned by the complainant in the present complaint, had the same been provided then OP No.2 would have provided the Test Certificate of said Batch number & Lot number. Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint with heavy costs.
7.           Complainant has filed replication to the written statement filed by the OP No.3, wherein it has been stated that all the preliminary objections taken by the OP No.3 are false and misconceived. After reiterating the same facts as mentioned in the complaint, prayer has been made that the complaint may be allowed with costs.
8.           Learned counsel for the complainant tendered affidavit of the complainant and affidavit of Shri Maya Ram son of Pala Ram, R/o # 177, Harijan Mohalla, near Hospital, Patraheri, Tehsil Naraingarh, District Ambala as Annexure CA & CB alongwith documents as Annexure C-1 to C-22 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.1 tendered affidavit of Nakul Bindal son of Ravinder Kumar, R/o near Old Quilla, VPO Sehzadpur, District Ambala as Annexure OP-1/A alongwith document Annexure OP-1 to OP-1/4 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.3 tendered affidavit of Sandeep Tikmani, Authorized Person M/s Ultra Tech Cement Limited Registered office at B Wing, Ahura Centre, 2^nd Floor, Mahakali Canes Road, Andheri (East), Mumbai-Maharashtra and regional office at SCO-4, 3^rd Floor, Sector-14 Old Delhi Road Gurgaon (Haryana) as Annexure OP-3/A alongwith document Annexure OP-3/1 to OP-3/3 and closed the evidence on behalf of OP No.3.
9.           We have heard the learned counsel for the complainant and learned counsel for OP No.1 and 3 and carefully gone through the case file.
10.           Learned counsel for the complainant submitted that it was on account of supply of defective/inferior quality of the cement that the cracks occurred in the roof of the newly built house of the complainant, yet, by not compensating the complainant for the same, the OPs have indulged into unfair trade practice and also deficient in providing service. 
11.           On the contrary, learned counsel for the OPs No.1 and 3 submitted that the complainant has failed to prove that the cement supplied to him was of defective/inferior quality, whereas, on the other hand, he was provided with the expert report, wherein, it was clearly opined that the cement sold to him  meets BIS standards.
12.           Since, neither the purchase of cement by the complainant from the OPs nor the defects/cracks which arose in roof of the house of the complainant are in dispute, as such, the only moot question which falls for consideration is, as to whether, the complainant  is entitled for any compensation or not.. It may be stated here that though the learned counsel for the complainant while reiterating the contents of the complaint contended with vehemence that it was on account of supply of defective/inferior quality of the cement that the cracks occurred in the roof of the newly built house of the complainant, yet, it is significant to mention here that not even a single evidence in the shape of any expert report or otherwise, has been placed on record by the complainant to prove his case. Mere placing on record the photographs of the roof, showing cracks therein is not sufficient to hold that the said cracks have developed due to defective/inferior quality of cement supplied by the OPs. Cracks may develop in the construction because of many reasons such as faulty mixture of sand, bajri, water, faulty construction by mason etc. On the other hand, there is Test Certificates dated 23.07.2020, Annexure C-3, having been provided to the complainant by Aditya Birla, Ultratech, for the batch of Cement supplied to the complainant, which is a detailed one and it shows that the cement supplied to him was surpassing the BIS standards. This certificate has been placed on record by the complainant himself and no contrary convincing evidence to this has been placed on record by him.  Thus, it cannot be said that the crack in the roofs of the house of the  complainant has occurred due to the cement provided by the OPs and the same might have  occurred due to some other reasons such as faulty mixture of sand, bajri, water, faulty construction by mason etc.
13.           In this view of the matter, it is held that since the complainant has failed to prove his case, as such, no relief can be granted to him in that regard. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.                      

Announced:- 19.12.2022

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President