BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.
Consumer Complaint No.194 of 2017.
Date of instt.:19.9.2017.
Date of Decision: 06.1.2020.
Ved Parkash (DOB 07.3.1983) s/o Shri Gurpal, r/o H.No.77, Jalkheri, Tehsil Thanesar, District Kurukshetra.
…….Complainant. Versus
- M/s Ravi Building Material, Barara Road, Babain, District Kurukshetra through its Proprietor/partner.
- M/s J.K. Lakshmi Cement Ltd., Jhajjar Unit, Village Bajitpur, P.O. Jhamri, District Jhajjar-124142 (Haryana) through its Managing Director/Chairperson/owner.
- M/s J.K. Lakshmi Cement Ltd., 4 Nehru House, Bahudurshah Zaffar Marg, New Delhi, through its Managing Director/Chairperson/owner.
….…Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Smt. Neelam Kashyap, President.
Ms. Neelam, Member.
Shri Issam Singh Sagwal, Member.
Present: Shri Akhil Bhasin, Advocate for the complainant.
Shri Karan Tanwar, Advocate for opposite parties.
ORDER
This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Ved Parkash against M/s Ravi Building Material and another, the opposite parties.
2. The brief facts of the complaint are that the complainant purchased 80 bags of cement from the OP No.1 vide bill No.1545 dated 07.9.2016 for construction of Lantil of house at village Jalkheri measuring about 1000 sq. feet. At the time of purchasing the said cement, the OP No.1 assured that cement is of good quality and good strength. The lentil was constructed with proper workmanship, labour and proper machinery like vibrator, mixer etc. The lentil was constructed on 08.9.2016 and after about 15 days i.e. on 23.9.2016, shuttering of the lentil was opened. At that time, the condition of the lentil/building could not be grasped. When the house of the complainant faced the first shower/rain, then it revealed that there is some defect in his lentil/building, as there was leakage of showered water everywhere in the house. He checked the roof of his house and could not get anything, but with the passage of time, the lentil started cracking and widening as there was some defect in the cement. That he approached the OP No.1 and disclosed him all facts. Thereafter, he also complained/informed the OP No.2 in the month of June 2017, upon which, the OPs No.1 & 2 sent their engineer who checked the construction and said that a suitable compensation would be provided to him, but they lingered on the matter for about 2 months. Lastly, he served legal notice upon the OPs on 04.7.2017, which was received by them, but they sent a vague reply dated 16.8.2017 and refused to accept his claim. He had suffered a lot due to the defective material supplied by the OPs. This way, the OPs are deficient in services. Hence, this complaint.
3. Upon notice, the opposite party No.1 appeared and filed written statement stating therein that the complainant did not comply the provisions of Section 13(1) (c) of the Act. On receipt of the complaint, the OP No.1 immediately forwarded the complaint to the OPs No.2 & 3, who deputed an engineer to visit the site of the complainant. The said engineer visited the site of complainant on 08.6.2017 and after carefully & thoroughly examining the site, structure, methodology applied in construction, the associated construction material used and after taking into account the other factors, he assessed and came to the conclusion that the alleged leakage in the slab (lantern) was due to poor workmanship as well as due to use of “fine sand” as well as due to absence of use of vibrator/mixture for carrying out the construction. Due to absence of use of vibrator/mixture, there was improper, inappropriate and inadequate mixing of cement and aggregates, resulting into porous concrete mixture. The cement manufactured by the OPs No.2 & 3 conforms to the international standards and is supported by the laboratory tests before the dispatch of the material to the various outlets. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same.
Upon notice, the opposite parties No.2 & 3 appeared and filed written statement the complainant did not comply the provisions of Section 13(1) (c) of the Act. On receipt of the complaint, the OPs No.2 & 3 deputed an engineer to visit the site of the complainant. The said engineer visited the site of complainant on 08.6.2017 and after carefully & thoroughly examining the site, structure, methodology applied in construction, the associated construction material used and after taking into account the other factors, he assessed the following:
- Leakage in the slab (lanter) was due to poor workmanship as well as due to use of “fine sand”
- The complainant did not use vibrator/mixture for making concrete mixture in the construction due to which there was improper, inappropriate and inadequate mixing of cement and aggregates and the resultant concrete was not dense and thus was permeable to water or in simple words the concrete was not “water resistant”.
- The complainant had used “flowing concrete” which means that excess water was added to make the concrete “flowable” for easy and quick finishing which reduced the strength of concrete making it more susceptible to water leakage.
- There was honey combining and exposed reinforcement in the structure which concludes that cover blocks were not provided during construction at the time of laying of RCCF slab and establishes poor workmanship.
- Honey combing also establishes that ratio of sand aggregate cement was not proper and poorly graded aggregates had been used as well as use of fine sand resulting into cracks.
- There were many depressions and unevenness in the structure and proper slope had not been provided for free flow of water due to which rain water became stagnant and seeped inside the structure resulting into widening of hair line cracks (which had developed as a result of faulty construction practice & materials) and said hair line cracks were not noticed by the complainant during construction.
The cement manufactured by the OPs No.2 & 3 conforms to the international standards and is supported by the laboratory tests before the dispatch of the material to the various outlets. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same.
4. The complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C1 to Ex. C18 in his evidence. On the other hand, the OPs tendered affidavits Ex.RW1/A, Ex.RW1/B alongwith documents Ex.R-1 & Ex.R-2 in their evidence. However, it is pertinent to mention here that the complainant moved an application u/s 13 (1) (c) of CP Act and the same was allowed vide order dated 20.9.2018. Thereafter, the complainant moved another application for changing the expert which was decided vide order dated 15.11.2018 and accordingly, Quality Control, Sub Division, PWD (B&R), Karnal was appointed to inspect the building/house of the complainant, who submitted its report dated 25.2.2019 on the case file.
5. We have heard the complainant and learned counsel of the OPs and carefully gone through the case file.
6. The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that the complainant purchased 80 bags of cement from the OP No.1 for construction of Lentil of his house with the assurance that cement is of good quality and good strength. The lentil was constructed with proper workmanship, labour and proper machinery like vibrator, mixer etc. The lentil was constructed on 08.9.2016 and at that time, the condition of the lentil/building could not be grasped. When the house of the complainant faced the first shower/rain, then it revealed that there is some defect in his lentil/building, as there was leakage of showered water everywhere in the house. He checked the roof of his house and could not get anything, but with the passage of time, the lentil started cracking and widening as there was some defect in the cement. He further argued that in the month of June 2017, the OPs No.1 & 2 sent their engineer who checked the construction and said that a suitable compensation would be provided to him, but they lingered on the matter for about 2 months. He further argued that the Test report produced by the OPs do not bear any signature. He further argued that report dated 25.2.2019 submitted by the expert on the case file is fake one, which was procured by the OPs in connivance with the expert as the said expert prepared their report without checking the sample of the cement in question. In support to his contention, he placed reliance upon case laws titled Ramco Cements Ltd. Vs. Anandaraj K.N. & Anr., Revision Petition No.2265 of 2016 in Appeal No.34 of 2015, dod 23.5.2017 (NC) AND Bhopal Steels Vs. Govindlal Sahu and Ors., Revision Petition No.3431-32 of 2006 and 3334 of 2006 in appeal No.2174 of 2005, dod 15.4.2008.
7. Contrary to it, the learned counsel for the OPs has argued that on receipt of the complaint, the OPs No.2 & 3 deputed an engineer to visit the site of the complainant, who visited the site of complainant on 08.6.2017 and after carefully & thoroughly examining the site, structure, methodology applied in construction, the associated construction material used and after taking into account the other factors, he assessed and came to the conclusion that the alleged leakage in the slab (lantern) was due to poor workmanship as well as due to use of “fine sand” as well as due to absence of use of vibrator/mixture for carrying out the construction. Due to absence of use of vibrator/mixture, there was improper, inappropriate and inadequate mixing of cement and aggregates, resulting into porous concrete mixture. The cement manufactured by the OPs No.2 & 3 conforms to the international standards and is supported by the laboratory tests before the dispatch of the material to the various outlets. He further argued that the expert report dated 25.2.2019 do not support the case of the complainant, that’s why the complainant was raising objections on that report, which is genuine one. To support their contention, he placed reliance upon case laws titled Joginder Pal Vs. Gujrat Ambuja & Ors., Appeal Case No.639 of 2009 (SC) and Jai Prakash Verma Vs. J.K. Lakshmi Cement Ltd. & Anr., Revision Petition No.3665 of 2012 in First Appeal No.1713 of 2010 dod 01.2.2013 (NC).
8. From the pleadings and evidence of the parties, it is evident that the complainant purchased 80 bags of cement from the OP No.1 vide bill dated 07.9.2016 Ex.C-3. The grievance of the complainant is that he used the said cement in lentil/construction of building, but with the passage of time, the lentil started cracking and widening as there was some defect in the cement. In this regard, the complainant produced photographs on the case file as Ex.C10 to Ex.C17. The complainant produced copy of legal notice issued to the OPs Ex.C8. Contrary to it, the OPs produced Test report dated 14.10.2016 of the cement Portland Pozzolana Cement (used by the complainant) on the case file as Ex.R1 and Ex.R2. Shri Nirmal Kumar Jain, Sub Divisional Engineer, Quality Control Sub Division, PWD (B&R), Karnal submitted its report dated 25.2.2019 on the case file after inspecting the building/house of the complainant. However, the Mason & Barbender were also called to join the said inspection by the inspecting team. From Para A) Quality of Cement used in the premises of said report, it is evident that the cement used by the complainant on 09.9.2016 was about 2½ years prior to the date of inspection. Moreover, the said inspecting team reported that there is no parameter to evolve the quality of cement in the absence of sample of cement. The extract part of para (B) Reason of cracks in the premises is relevant which reads as under:-
- The effective size of beams and the steel used in the RCC slab of the premises as told by Bar Bender was observed to be not as per norms as no structural design was evolved. Only the layman techniques (experience of Bar Bender) were used in binding/bending of steel bars for reinforcement of RCC slabs and beams. Also the load of slab & beams was transferred through non-load bearing walls (4½” walls) which is not desirable/safe at all and is considered as prime cause of these cracks. However, poor (uncontrolled) water cement ratio, use of fine sand, river borne aggregates etc. may also adversely affect the strength of concrete.
So, in that report the expert nowhere reported that there is any fault in the cement, rather they found that poor (uncontrolled) water cement ratio, use of fine sand, river borne aggregates etc. may also adversely affect the strength of concrete. The whole case of the complainant depends on that expert report, but this report nowhere support the contentions of the complainant. It is pertinent to mention here that mere allegations are not sufficient, those are necessary to be proved by cogent evidence. In the present case, the complainant failed to prove his case by leading any cogent and convincing evidence. Thus, in the absence of any corroborative evidence it cannot be said that alleged cracks/widening were developed in the building due to inferior quality of cement supplied by the OPs. Our view is supported by the case law titled Jai Prakash Verma Vs. J.K. Lakshmi Cement Ltd. & Anr., wherein, the Hon’ble National Commission has held that Purchase of Cement bags- Cement found to be of bad quality due to which plaster had started pealing and lintel started chipping within four months of construction – Deficiency in service – Complaint filed – Compensation awarded – Order reversed by State Commission holding that onus was primarily on complainant to prove that material sold to him was of substandard quality- Challenged by revision petition – Held, no evidence in shape of report brought from appropriate laboratory to prove that cement is substandard- Thus, procedure under Section 13 (1) (c) was not adopted- Impugned order upheld, Revision dismissed. Moreover, in the case of Joginder Pal Vs. Gujrat Ambuja & Ors., the Hon’ble Chandigarh State Commission has held that “Goods- Cement – Sub-standard- Allegation of – As per inspection report, cracks, if any, were due to poor workmanship and had nothing to do with quality of cement – Complaint – Dismissed by District Forum- Hence, this appeal – Report of engineer that cement was not defected- Cement is only one of ingredients and not sole ingredient for proper construction – Onus was upon complainant to substantiate for his allegation by giving cogent and convincing evidence – Thus, in absence of any corroborative evidence it cannot be said that alleged cracks were developed in building due to inferior quality of cement supplied by OPs- Complainant had failed to substantiate his allegations before District Forum and as such no relief was granted to him – No merit in appeal and same is dismissed. The case laws produced by the OPs are fully applicable to the facts & circumstances of the present case, whereas, the case laws produced the complainant are not applicable to the facts and circumstances of the present case. Keeping in view the case laws referred to above and the facts and circumstances of the present case, we are of the considered opinion that the complainant has failed to prove allegations leveled in his complaint. Hence, we found no deficiency on the part of OPs.
9. In view of the aforesaid discussion, we find no merit in the present complaint and same is hereby dismissed with no order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.
Announced in open Forum:
Dt.:06.1.2020. (Neelam Kashyap)
President.
(Issam Singh Sagwal), (Neelam)
Member Member.
