Haryana

StateCommission

A/247/2015

BINANI CEMENT LTD. - Complainant(s)

Versus

RAJESH AND ORS. - Opp.Party(s)

P.S.BEDI

18 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

First Appeal No.179 of 2015

Date of the Institution:24.02.2015

Date of Decision:18.01.2017

 

Rajesh @ Raju Kaushik S/o Sh. Dev Dutt Shashtri, R/o Village Nakloi, Tehsil Kharkhoda, District Sonepat.

                                                                             .….Appellant

Versus

1.      Gulia Traders, Gohana Road, Near Shiv Mandir Shambhu Dayal School, sonepat, through its Prop. Mahender Singh Gulia.

2.      M/s Binani Cement Ltd., Office Flat No.1109, 11^th Floor, Surya Kiran Building, 19 KG Marg, New Delhi, though its Manager.

3.      Vinod son of Mahabir, R/o Gali No.3, Malviya Nagar, Mehlana Road, Sonepat (Contractor).

                                                                                                .….Respondents

Present:-    Mr.  M.S. Rana, Advocate counsel for the appellant.

                    Mr. Varun Chawla, Advocate counsel for the respondent No.1.

                   Mr. P.S. Bedi, Advocate counsel for respondent No.2.

Service of respondent No.3 is dispensed with vide order dated 07.08.2015.

 

First Appeal No.247 of 2015

Date of the Institution:12.03.2015

Date of Decision:18.01.2017

 

M/s Binani Cement Ltd., Office Flat No.1109, 11^th Floor, Surya Kiran Building, 19 KG Marg, New Delhi, though its Manager.

                                                                             .….Appellant

Versus

1.      Rajesh @ Raju Kaushik S/o Sh. Dev Dutt Shashtri, R/o Village Nakloi, Tehsil Kharkhoda, District Sonepat.

 2.     Gulia Traders, Gohana Road, Near Shiv Mandir Shambhu Dayal School, sonepat, through its Prop. Mahender Singh Gulia.

3.      Vinod son of Mahabir, R/o Gali No.3, Malviya Nagar, Mehlana Road, Sonepat (Contractor).

                                                                                                .….Respondents

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.P.S. Bedi, Advocate counsel for the appellant.

                    Mr. M.S. Rana, Advocate counsel for the respondent No.1.

                   Mr. Varun Chawla, Advocate counsel for respondent No.2.

Service of respondent No.3 is dispensed with vide order dated 07.08.2015.

 

O R D E R

URVASHI AGNIHOTRI, MEMBER:

 

 

1. This Order will dispose of Appeal 179/2015 filed by Rajesh alias Raju Kaushik–complainant for modification of the order 27.01.2015 and Appeal No.247/2015 filed by M/s Binani Cement Ltd. -OP against the Order dated 27.01.2015 passed by the learned District Consumer Disputes Redressal Forum, Sonepat (for short ‘District Forum’), whereby the complaint of Rajesh alies Raju Kaushik has been allowed by directing the OP-2  to compensate the complainant to the tune of Rs.2.00 lacs for supply of substandard quality of cement.           

2.  Briefly stated, according to the complainant, he got constructed his house situated in Garhi Ghasita, Sonepat through OP No.3 (Vinod, contractor) and for the purpose of construction of the house, the complainant had purchased 90 bags of Binani Cement from OP No.1 @ Rs.250/- per bag – total for Rs.22,700/- vide bills No.1223 and 1227 dated 28.08.2013 and 30.08.2013 respectively. But when it was used in lintel, beams, staircase, walls etc. the cement started coming down like sand and cracks developed in the lintel of the house. The complainant had spent Rs.3.00 lacs on the construction of the house and on coming to know that the cement was sub standard and of inferior quality, he reported the matter to OP No.1, who inspected the site and further informed OP No.2. Two engineers of OPs inspected the site and assured that they would compensate the complainant, but it was  a totally false assurance. Aggrieved against this, the complainant approached the District Forum for directing the OPs to compensate him with the payment of Rs.10.00 lacs.

3.  Pursuant to notice, the opposite parties appeared and denied that the cement was sub standard. The concrete mix used in the construction was below standard norms. On receipt of the complaint OPs deputed the Engineers to inspect the site and they reported that the Mason did not do the construction work properly. The complainant filed this complaint only to harass, humiliate and to extract compensation and prayed for the dismissal of the complaint. However, the learned District Forum rejected the pleas raised by the OPs and accepted the complaint vide order dated 27.01.2015 granting the aforesaid relief. 

4.  In the appeal filed by the OP-2 (Appeal No.247/2015) the appellants have reiterated their pleas as raised before the District Forum and have contended that the learned District Forum failed to appreciate the evidence on record properly and to follow the binding precedent on the issues involved. On the other hand in the appeal filed by the complainant plea for enhancement of compensation has been pressed on the ground that he has suffered a lot due to supply of sub standard cement. We heard the learned counsel for the parties and have gone through the record. It is evident on the record that material issue involved in the whole matter is as to whether the cement supplied by the OPs and used by the complainant was of an inferior quality and sub standard one or not. We find from the record that the quality of cement was allegedly got tested by the complainant himself before actually approaching the District Forum. In fact according to Section 13 (1) ( C) of the Consumer Protection Act, 1986, it was for the District Forum to have the quality of cement got tested from the laboratory. But the learned District Forum failed to comply with this mandatory provisions of law. On the other hand, the sample sent by the complainant and tested by the laboratory was not of cement alone but was of plaster containing sand, water etc. We have the advantage of various decisions of our own Commission on this subject, one of which (F.A. No.1497 of 2007, dated 15.02.2012, M/s Binani Cement and Anr. Vs. Bal Ram), is as under:-

“the Local Commissioner had taken the plaster by breaking down the lintel with the help of hammer and the test report of the laboratory was not of much significance as it could not be ascertained from the plastered cement that whether the cement used was of defective quality. Even there was not method available with the testing laboratory to ascertain the quality of cement which was already used to make the plaster or mortar. District Consumer Forum violated mandatory provisions of Section 13(1)( C) of the Consumer Protection Act, 1986 in order to find out the alleged defect in the cement. More so, in the report Annexure C-8, there is nothing to suggest that the cement was of inferior quality. In support his arguments, learned counsel for the appellants has referred to the judgment of this Commission cited as PALA RAM versues AMIT CEMENT STORE & ORS., II(2006) CPJ 294 wherein the complaint was dismissed on the ground that the mandatory provisions of Section 13(1) ( C) of the Act, 1986 were not complied with”.

Therefore, no firm finding regarding the supply of inferior quality of cement can be reached in the present case as the testing report does not clarify and disclose the testing of detailed concrete mixture used in the construction.

5.    Under the circumstances we do no agree with the conclusions arrived at by the learned District Forum and allow the appeal filed by the OP-2. In view of our decisions regarding acceptance of the appeal of OP-2, the appeal filed the complainant for the enhancement of the compensation awarded by the learned District Forum stand dismissed with no order as to costs.

6.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal No.247 of 2015 be refunded to the appellant against proper receipt and identification in accordance with rules.

 

January 18th , 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

R.K.