BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI

Complaint No.92/15.

Date of instt.: 30.03.2015.

                                                 Date of Decision:23.01.2020.

Raj Kumar son of Harphul resident of village Shyamkalal Tehsil Badra District Bhiwani.

                                                        ……….Complainant.                                                      Versus

1. Proshtam Proprietor M Kedia Iorn and Cement Store, Digawa Tehsil Loharu District Bhiwani.

2. Incharge Ultratec Cement United Unit Kotputli Cement Works village Mohanpura Tehsil Kotputli District Jaipur Rajasthan.

                                                        ..………Opposite Parties.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.

Before:      Sh.Nagender Singh, President.

                   Shri Shriniwas Khundia, Member.

Present:    Sh.Sanjay Dadma, Advocate for complainant.

                   Shri Aashish Mittal, Advocate for OP No.1.

                   Shri R.K.Verma, Advocate for Op No.2.      

ORDER

(NAGENDER SINGH, PRESIDENT).

                The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he had purchased 125 bags of Cement from opposite party No.1 during the period from 31.07.2014 to 30.08.2014, duly manufactured by opposite party No.2 and used the same for the construction of two rooms, water tank and  boundary wall.  The opposite party No.1 had issued bill only for 25 bags only. It has been further averred that the plaster made from the cement started falling from the wall. The complainant made enquiry regarding this and found that it all happened due to inferior quality of cement being very old, sold by the opposite party No.1 as the cement could not made grip to other components such as sand and bricks. The complainant lodged complaint with the opposite parties but they refused to compensate the complainant. The act and conduct of the  opposite parties clearly amounts to deficiency in service and unfair trade practice on their part.  Hence, this complaint.

2.             Upon notice, opposite parties appeared opposite parties appeared and filed their separate replies. Opposite party No.1 in its reply has taken preliminary objections such as locus standi, cause of action, concealment of material facts and jurisdiction etc. It has been submitted that the complainant had only purchased 25 bags of cement. The complainant was to pay Rs.30,000/- on account of building material purchased form the shop of replying opposite party and when the said amount was demanded, he had filed the present complaint.  A technical team was deputed by the opposite party No.2 for testing the quality of the cement which collected the sample  and tested the same in the mobile lab and found no manufacturing defect in the same.  It has been also found that the land upon which the house of the complainant was constructed is of salty  nature (sore wali) and the water used in the construction was also salty in nature. The opposite party No.1 had also sold the cement manufactured by opposite party No.2 to other customers also but there is no complaint about the quality of the product. There is no deficiency in service on the part of the replying opposite party. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

3.             Opposite party No.2 in its reply has taken preliminary objections such as cause of action, locus standi, maintainability and concealment of material facts etc. It has been submitted that UltraTech Cement is one of the leading manufacturer of cement in India as well as in world and is having mechanism on quality control  system. The complainant had not purchased the bags from the opposite party No.1 at one time. He had also purchased other construction material from the opposite party No.1 and did not make the payment of Rs.30,000/-.  The complainant had lodged claim regarding quality of cement, therefore, technical team of replying opposite party had visited the premises of the complainant and collected the sample and after testing the same in the mobile lab no manufacturing defect was found in it.  It has been further submitted that the land upon which the house of the complainant was constructed is of salty nature (sore wali) and the water used in the construction was also salty in nature.  There is no deficiency in service on the part of the replying opposite party. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

4.             Thereafter, the parties have led their respective evidence. Learned counsel for the complainant has tendered affidavits Ex.CW1/A, Ex.CW2/A and documents Annexure C1 to Annexure C6 and closed the evidence on 08.03.2019. On the other hand learned counsel for the opposite party No.2  has tendered documents Annexure R1 and Annexure R2 and closed the evidence on 11.04.2019. No evidence on because of opposite party No.1 has been led and the same was closed on 19.12.2019.

5.             We have heard the learned counsels for the parties and perused the case file carefully and minutely.

6.             Learned counsel for the complainant has argued that the cement bags allegedly purchased from opposite party No.1 were of inferior quality being old one  and due to this the plaster (Masala) used in the construction of the house could not grip the other components and started falling from the walls. It has been further argued that the opposite parties have failed to compensate the complainant on this count.

7.                     On the other hand learned counsels for the opposite parties have argued that the quality of cement was not inferior quality rather the land on which house of the complainant was constructed is of salty nature (sore wali) and the water used in the construction was also salty in nature.  It has been further argued that on the complaint of the complainant sample was tested in the mobile lab and the investigation report, duly signed by the complainant consenting his satisfaction, is placed on the case file as Annexure R1.  It has been further argued that in order  to bring home the allegation of inferior quality of the cement bought by the complainant, he had to follow the provisions of section 13(1)(c) of CP Act which was not done in this case.  It has been further argued that the assertions made by the complainant are without any basis as the complainant has even failed to produce the report of any technical person of the specific field on the case file and the affidavit Ex.CW2/A of Samer Singh son of Pehlad, meson has no value in the eyes of law being not qualified and technical officer.

8.                     After going through the material available on the case file it is clear that the complainant had purchased 25 bags of UltraTech cement from the opposite party No.1 vide invoice Annexure C1. The complainant alleged that the cement in question was of sub-standard and poor quality but there is no cogent evidence that the alleged cement was of sub-standard or poor quality. It was incumbent upon the complainant to send a sample of cement/mixture/MASALA for examination or analysis test from the appropriate laboratory, if he was not satisfied with the testing got done by the opposite party No.2. If a report had been received from the laboratory that the cement was of sub-standard and inferior quality, then it would have been clinching evidence.  On this point reliance can be taken from case laws titled The Associated Cement Companies &.... vs Mangal Singh on 4 August, 2010, FA No.2274 of 2004 decided on 04.08.2010 (Haryana State Commission) wherein the Hon’ble State Commission has relied upon the authority titled as Kamalinder Singh versus Hanuman Trader, 2004(2) CLT 612 (H.P.State Commission), wherein it was held Consumer Protection Act, 1986, Section 13(1)(C)-Practice and procedure-Cement defective-Mere bald assertion of defectiveness not acceptable Absence of producing the sample in the court for further test in laboratory as per Section 13(1)(C)-Also absence of any expert evidence that poor quality of construction due to bad quality of cement-Plea of defective cement not acceptable-Order of District Forum held well based calling for no interference.

8.                     Though the meson Samer Singh in his affidavit Ex.CW2/A has deposed that the cement/plaster started falling from the wall but it does not mean that the cement was of inferior quality because the said meson was not technically competent to depose about the quality of the cement. Neither the complainant has produced on record any expert evidence to show that the cement sold by the opposite party No.1 was of inferior quality and due to this he has suffered economical loss nor has he produced any document which could show that any sample for testing the cement was ever taken by the engineer on the asking of complainant nor he made request to this forum at the time of filing the complaint for taking sample from the remaining cement. It is a settled law that if the procedure with regard to testing of the cement is not followed, then no relief can be granted to the complainant on the mere assertions made by the complainant. Moreover, the complainant has also put his signature on the investigation report Annexure R1 being satisfied with the same. In these facts and circumstances of the case of the considered view that the complainant has failed to prove the allegations by producing cogent evidence and hence, the complainant has failed to prove any deficiency on the part of opposite parties.

9.                     Thus, as a sequel of above discussion, we find no merit in the complaint and accordingly, the same is hereby dismissed. No order as to costs. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.

Announced.

Dt.23.01.2020.                   

                                                                (Nagender Singh)

                                                                      President

        (Shriniwas Khundia)                     District Consumer Disputes

                 Member                            Redressal Forum, Bhiwani.