BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.127 of 2019

Date of Instt. 26.04.2019

Date of Decision:21.07.2022

Raj Kumar S/o Sagar Lal R/o Vill. Innowal, Mianwal Molvian, Jalandhar, 144702.

..........Complainant

Versus

1.       Satish Aggarwal Co. Chiti Road, Lambra, Jalandhar. Through it’s Manager.

2.       ACC Cement Ladowali Rd. Master Tara Singh Nagar, Jalandhar, Punjab 144001. Through it’s Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Mehul Khanna, Adv. Counsel for the Complainant.

                   Sh. Anupam Pathania, Adv. Counsel for OP No.1.

                   OP No.2 exparte.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant wanted to construct his house and for the said purpose he contacted with the OP No.1 who deals in “ready mix concrete” and ordered 2 (two) trucks of ready mix concrete worth Rs.65,000/- including their workers and engineer and he paid for the same too. The OP No.1 took the whole responsibility of their work to get the process of lenter making done in the house of the complainant and also the process done with the indulgence of management and work “via their own workers and engineer” in order to get the work complete through themselves and they did it for a consideration of Rs.65,000/-. The OP No.1 on 07.07.2018 sent their ready mix cement at the house of complainant. They did their performance of work and gave us the receipts of data which is res ispa loquitor. When the lenter was opened after 15 days the cracks were visible on it, and when the complainant asked about it to the OP No.1 they informed the complainant that it is fault of OP No.2 as they have provided inferior quality stuff to the OP No.1 and they further said that they are traders only not the manufactures as it’s a manufacturing defect. When the rain poured in the locality days after, it was found by the complainant that their roof was leaking defectively. When OP No.2 was contacted they started to allege over OP No.1 that the cement was not mixed well and properly by them. This negligence of the OP No.1 and OP No.2 has made the whole building worth Rs.15,00,000/- inhabitable too which shows the damage is more than the amount of refund in itself. This incident which occurred has caused a great amount of mental agony to the complainant because the house which he made by the worth of his hard earned money has lost it’s value as the act of the OPs has made it inhabitable and also got his money wasted and his assets in vain causing him a dual aspect loss and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the said amount of Rs.65,000/- alongwith for the damages caused and the compensation worth of Rs.12,00,000/- and legal expenses of Rs.15,000/-.

2.                Notice of the complaint was given to the OPs, but despite service OP No.2 did not appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form. The complainant is barred by his own acts and conduct from filing the present complaint. The truth of the matter is that there was no dealing of any kind between the OP No.1 and the complainant. The OP No.1 has been wrongly with malicious intention made party in this complaint. The present complaint has been filed by the complainant by concocting a false story and placing on record vague photographs is trying to get relief from this Commission which he is not entitled. No service was ever provided by the OP No.1 to the complainant neither there was any contract or agreement between the complainant and the OP No.1 for performing any work as alleged by the complainant. The complainant in the garb of this false and frivolous complaint is trying to extort money from the OP No.1. On merits, it is admitted that the answering OP deals with ready mix concrete, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement of OP No.1, filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the arguments from learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

6.                This fact is admitted by the OP No.1 that the OP No.1 deals with ready mix concrete. The complainant has alleged that he contacted the OP No.1 for the construction of his house and the OP No.1 agreed and took the responsibility of their work to get the process of lenter making done in the house of the complainant with their own workers and engineers. The OP No.1 agreed to do work for the complainant for a consideration of Rs.65,000/-. The complainant has proved on record the document Ex.C-2, which is the receipt of data, which is res ispa loquitor. Ex.C-2 is consisting of two pages duly initialed and Ex.C-5 has been proved by the complainant, the same is the visiting card of OP No.1. Ex.C-6 is the receipt showing that the total amount of Rs.65,000/- has been mentioned and out of this, the amount of Rs.35,000/- has been shown as advance amount and Rs.30,000/- remained balance and this is for two trucks, which is duly initialed. The same amount has been mentioned on the back of the Ex.C-6. The complainant has alleged that when the lenter was opened, after 15 days there were cracks visible on it and when he contacted the OP No.1, he informed that the OP No.2 has provided inferior quality stuff to OP No.1 and they are traders only and not manufacturers. The same is manufacturing defect.

7.                All these facts have been denied by the OP. They have denied even the fact that the complainant ever engaged the OP No.1 for the construction of his house. The OP has denied the receipt of money also. The OP No.1 has not produced on record any document to rebut that Ex.C-6 does not bear the initials of anyone from their company nor has proved this fact that they never took advance as shown in Ex.C-6 from the complainant on 05.07.2018. There is a simple denial of allegations by the OPs. However, the complainant has proved on record the photographs Ex.C-1 (consisting of three pages) to show that there were cracks in the lenter, when the same was opened and the cracks are visible in Ex.C-3 (consisting of two pages). To prove these photographs, the complainant has examined Rajinder Singh, who tendered his affidavit Ex.C-4 and he has stated that on 07.07.2018 employees of Satish Aggarwal and Co. i.e. of OP No.1 came at the spot of the residence of the complainant and put lenter. He has identified the persons captured in the photographic evidence and categorically stated that he was present at the moment and place, when and where the work was being carried on. He has also stated that they sent their ready mix concrete cement at the house of the complainant. Balwinder Singh has also been examined by the complainant and he has tendered his affidavit Ex.C-5. He is the person, who worked in the house of the complainant for construction as Mason and he admitted that he referred the complainant to the OP No.1 to get his work done from them. He himself went with the complainant to the office of the OP No.1 to make the deal. He has identified the persons in the photographs, who are the employees of the OP No.1 and who had worked in the house of the complainant for the construction of the house and put lenter. He also proved that the Truck of the ready mix concrete was standing outside the house with the name of Satish Aggarwal & Co. on it. The same has been proved by the complainant as Ex.C-3.

8.                The OP No.1 has not examined any witness to rebut that Balwinder Singh is not a Mason nor he had contacted the OP No.1 with the complainant for the deal. The OP No.1 has simply produced the affidavit of the OP No.1 and has simply denied the factum of any deal between the complainant and OP No.1. The OP No.1 has also not rebutted nor produced any document that the data Ex.C-2 consisting of two pages was never sent by them nor it bears the initials of the persons of OP No.1. The OP No.1 has alleged that the complainant in the garb of false and frivolous complaint is trying to extort money from the OP No.1, but this fact is not supported by any document or any witness. The OP No.1 has failed to prove any enmity between the complainant and the OP No.1 and the reason for filing false and frivolous complaint in order to get money from the OP No.1. Once there was no dealing between the complainant and the OP No.1, as alleged, no question of extorting money by filing the false and frivolous complaint arises. As per the complainant, the OP No.1 has stated that the OP No.2 has provided inferior quality stuff to OP No.1, if this is the true fact, then it was the responsibility of the OP No.1 to get good quality stuff from the OP No.2 as he agreed to complete the work of the complainant through his own workers and engineers.

9.                The complainant has alleged that due to the negligence of the OP No.1, the entire building of the complainant has become inhabitable and he has demanded the refund of the amount of Rs.65,000/-, but the complainant has not proved on record that he has paid the entire consideration of Rs.65,000/- to the OP No.1. Perusal of Ex.C-6 shows that only Rs.35,000/- was given to OP No.1 as an advance. Once the complainant has failed to prove the payment of Rs.65,000/-, he cannot be granted such relief. In his written arguments, the complainant has alleged that he has to re-construct and to incur expenses of the wear and tear occurring in the result of re-destruction and re-construction, but he has failed to prove that how much loss has occurred to him due to the alleged negligence of the OP No.1. He has simply proved that cracks were found in the lenter which was put on by the OP No.1 and due to rain, the water blocked in it, but he has not proved on record the assessment of alleged loss, therefore no such amount of alleged loss can be granted to him.

10.              In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the amount of Rs.35,000/- as the same has been proved by the complainant and further OPs are directed to pay Rs.5000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr.Harveen Bhardwaj     

21.07.2022         Member                          Member           President