District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 370/2022
Date of Institution:13.07.2022
Date of Order:21.08.2023
Ankur Agrawal S/o Shri Satish Agrawal, House No. 78, Sector-15A, Faridabad – 121007 (Haryana).
…….Complainant……..
Versus
1. SDV Builders, Plot NO. 2546, Sector-49, Sainik Colony, Faridabad – 121001 through its proprietor Sh. Goverdhan.
2. M/s. Garg Redimix Pvt. Ltd. Village Sikri, Ballabgarh, District Faridabad through its Director. ……..Deleted vide order dated 10.08.2023.
…Opposite parties
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Ankur Gosain , counsel for the complainant.
Defence of opposite party No.1 struck off V.O.D 21.3.2023.
(Sh. Gianender Tyagi , counsel for opposite party No.1.)
Sh. Harish Parashar, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant was raising construction over his factory premises i.e plot NO. 826, Sector-69, IMT, HSIDC, Faridabad for earning his livelihood, the opposite party No.1 i.e . M/s. SDV Builders was the proprietorship firm engaged in the business of raising construction and Sh. Goverdhan was the proprietor of the firm. The opposite party No.1 asked the complainant to give the contract of raising construction of the factory of the complainant to the opposite party No.1 and the opposite party No.1 also assured the complainant that opposite party No.1 would provide good quality services of raising construction and would use good quality material. The opposite party No.1 also assured the complainant that the opposite party No. 1 was an expert in his field of raising construction therefore it would be good if the complainant gives the ‘with material contract’ to opposite party No.1. Upon such assurance given by the opposite party NO.1, the complainant gave the contract of raising construction to opposite party No.1. At the time of giving the contract, it was agreed that the opposite party No.1 would arrange the material for construction of his own. Thereafter on 01.03.2020 the complainant provided the specifications for construction to the opposite party No.1 and settled the rate for raising construction in writing and the same was signed by the opposite party No.1, the details of the specifications and rates settled were as follows:
i. Mezzanine flooring – Rs.110/- per sq. ft.
Saria 8mm (22-C/C), 4” RCC (M-25)
Hardner, Tre-Mix, Grove Cutting & Fitting.
ii. Boundary wall as per drawing – 7500/- running meter.
iii. Water Tank as per drawing – Rs.14/- per litre.
iv. Outer Floor – Rs.150/- per sq. ft.
WBM-6”, PCC-3” Sarai 8mm (300-C/C), 5” RCC(M-25)
Hardner, Te-mix, Groove Cutting and filling.
During the entire period when the construction was in process the opposite parpty No.1 kept on assuring the complainant that he was using the same material which had been agreed between the complainant and the opposite party No.1 and also assured that it was the best quality RMC being used by the opposite party No.1. The opposite party No.1 in connivance with opposite party No.2 in order to mislead the complainant kept on showing the bill issued by opposite party No.2 i.e. M/s. gArg Redimix Private Limited in which it was shown that Redimix (RMC) M-25 Quality had been purchased by the opposite party No.1 and the same had been delivered and used for laying down mezzanine flooring on the steel structure of the factory of the complainant. Opposite party No.2 had fight with complainant’s supervisor by opposing to fill sample blocks of RMC from each lot to get the quality of RMC tested and even work remained stopped for 2 to 3 days. Upon which opposite party No.1 assured the complainant about the quality of the RMC and restarted the work. The complainant got the sample blocks tested form M/s. Star Wire Pvt. Ltd. Testing Division, Faridabad in the presence of authorized representative of opposite party No.2 at the lab of M/s. star Wire and was astonished to find that the concrete used in the flooring was of only ranging from M-8.3 to M-14.7 compressive strength instead of M-25 as agreed whereas the opposite party No.1 at the time of taking contract and also while raising construction informed the complainant that he was using only RMC of strength M-25 and had also charged the complainant for RMC M-25 showing the bills issued by opposite party No.2. Moreover the bills in respect of RMC issued by opposite party No.2 clearly stated that RMC strength to be M-25. When the results of lab
test were brought to the notice of opposite party No.1 even then the opposite party No.1 refused to accept that the RMC was of lesser strength and asked the complainant to get the core cutting tested. On insistence of opposite party No.1 the complainant agreed to get the core cutting tested and also asked the opposite party No.1 and if at all he had any choice of laboratory upon which the opposite party No.1 told the complainant he would be satisfied if the core was got tested from the same laboratory i.e M/s. Star Wire Pvt. Ltd., Testing Division, Faridabad. Thereafter the core cutting was got tested in the presence of opposite party No.1 from M/s. Star Wire Pvt. Ltd., Testing Division, Faridabad and again vide report dated 11.08.2020 the results of RMC strength were found to be ranging from M-12 to M-17 strength whereas the same were claimed to be of M-25 strength by opposite parties Nos.1 & 2. Thereafter opinion was sought by the complainant from structure design experts orally as to whether the mazzanine floor already constructed would be capable of taking the load of machines which were proposed to be installed. The structure design expert inspected the building and also perused the reports of M/s. Star Wire Pvt. Ltd. And informed the complainant that the concrete used was of lower grade strength i.e sub standard quality and was not capable of bearing load of 600 kgM2 for which the Mazzanine/building was designed. Upon this, the complainant approached structural design engineer i.e. M/s. structure Design Studio in order to conduct a thorough inspection of construction raised by opposite party No.1 and give the report. As per the report issued by M/s. Structure Design Studio, the compressive strength of the concrete used in the flooring of Mezzanine floor was M-11/M-12 instead of M25. It was also mentioned in the report that RMC of strength of M11/M122 was non sufficient to carry out the work having load of 600kg per m2 at the mezzanine floor due to which the complainant would had to break the existing floor and redo mezzanine flooring with M25 strength concrete. M/s. Structure Design Studio in
its report had also assessed the cost of rework which would be required. In view of the above facts, it was crystal clear that opposite party NOs.1 & 2 in connivance with each had used inferior quality RMC in laying of mezzainine floor of the complainant and the opposite party No.1 had extracted a sum of Rs.10,00,000/- showing the bills of RMC issued by opposite party No.2 in which the strength of RMC was reflected as M-25. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) refund the amount of Rs.10,00,000/- charged by the opposite party No.1 from complainant for raising construction and for using good quality construction material, jointly or severally.
b) pay Rs.12,74,495.27/- to the complainant on account of cost of breaking the existing floor and reconstructing the same, jointly & severally.
c) pay a sum of Rs.25,00,000/- on account of loss suffered due to the delay in setting up of project of the complainant.
d) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 25,000 /-as litigation expenses.
2. The perusal of the file reveals that opposite party No.1 had availed several opportunities for this purpose. The period of 45 days had been elapsed. Therefore, the defence of opposite party No.1 was hereby struck off vide order dated 21.03.2023.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the present complaint had been filed by the complainant on the basis of some contract or agreement with the opposite party No.1. Therefore, this
was a commercial transaction as the complainant as well as the opposite party No.1 were the commercial entities therefore the complainant was not covered under the purview of definition of Consumer as enshrined in Consumer Protection Act. The complainant had pleaded a false and frivolous complaint against the opposite party No.2. The opposite party No.2 was not aware with any terms and conditons agreed upon between the complainant and the opposite party No.1 or the payments given or received by the complainant and opposite party No.1. The opposite party No.2 had supplied the material on the orders of opposite party No.2 to opposite party No.1 only according to specification of the order placed by him It was conclusively clear from the invoices/bills annexed by the complainant alongwith this complaint The alleged report of Star Wire (India) Ltd., placed by the complainant alongwith the complaint were false and frivolous on the face of it. It was submitted that it was mentioned in the report’s that the samples of RMC blocks had been given by the customer and the report of the same had been issued to Alewian Infratech Private Limited, therefore the five reports out of six had been to some other person or company. Apparently on the face of it the complainant had no concern with the alleged report. It was also not clear form the report that from where the samples had been taken. Therefore it was clear that reports were used and fabricated by the complainant to mislead this commission with malafide intentions. One report had been issued to the complainant allegedly by the Star Wire (India) Ltd. In that report also it had not been mentioned form where the sample had been taken by whom. In one of the reports the presence of the opposite party No.2 had been mentioned at any point of time. In the report neither the vehicle number has been mentioned from which the samples had been taken nor the invoice number had been mentioned. Even the date when the material had been taken for sample had not been mentioned. The complainant had also not
mentioned the site from which the samples had been taken. Needless to say all the acts had been allegedly committed at the back of the complainant without giving any opportunity to the opposite party No.2 to counter the allegations. Therefore, the reports placed by the complainant were nothing more than a bundle of lies and had no concern with the material supplied by the opposite party No.2 to opposite party No.1. It was also submitted that the opposite party No.2 had supplied the material as per the order placed by the opposite party No.1 as per the specifications. Opposite party No.1 had not paid the amount of opposite party No.2 hence the opposite party No.2 had filed a civil suit for recovery of the invoice amount. The suit was pending in the court of Civil Judge, Faridabad. The present complaint had been filed by the complainant in collusion with opposite party No.1 to avoid the payment of opposite party No.2. Opposite party No.2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties–SDV Builders and Another with the prayer to: a) refund the amount of Rs.10,00,000/- charged by the opposite party No.1 from complainant for raising construction and for using good quality construction material, jointly or severally. b) pay Rs.12,74,495.27/- to the complainant on account of cost of breaking the existing floor and reconstructing the same, jointly & severally. c) pay a sum of Rs.25,00,000/- on account of loss suffered due to the delay in setting up of project of the complainant. d)pay Rs. 5,00,000/- as compensation for causing
mental agony and harassment . e) pay Rs. 25,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Ankur Agrawal, Ex.C1 – Report of Mezzanine Floor for Plot NO. 826, Sector-68, IMT, Faridabad, Ex.C-2 – Test reports, Ex.C-3 to C16 – Invoices, Ex.C-17 – details of Mezzanine dated 01.03.2020, Ex.C-18 to C-22 – photographs.
On the other hand counsel for the opposite party No.2 strongly agitated and opposed. As per the evidence of the opposite party No.2 Ex.RW2/A – affidavit of Shri Pankaj Garg, Director of M/s. Garg Redimix Pvt. Ltd., Village Sikri, Ballabgarh, District, Faridabad, Ex.R-2/2 – uncertified copy of complaint titled M/s. Garg Redimix Pvt. Ltd. Vs. M/s. S.D.V Builders filed before the Hon’ble Civil Judge (Sr. Divn.), Faridabad,
6. As per the report issued by M/s. Structure Designs Studio vide Ex.C1, the compressive strength of the concrete used in the flooring of Mezzanine Floor is M-11/M-12 instead of M25. It was also mentioned in the report that RMC of strength of M11/M12 is non sufficient to carry out the work having load of 600Kg per m2 at mezzanine floor due to which the complainant will have to break the existing floor and redo mezzanine flooring with M25 strength concrete. M/s. Structure Design Studio in its report has also assessed the cost of rework which would be required.
On the other hand, after availing several opportunities, reply to main complaint on behalf of opposite party No.1 has not been filed. The counsel for the complainant has filed an application for striking off the defence of opposite party No.1 has been filed. Reply on behalf opposite party No.1 has not been filed. Learned counsel for opposite party No.1 request for an adjournment. Heard. The perusal of the file reveals that the opposite party No.1has availed several opportunities for this purpose. The period of 45 days has been elapsed. Therefore, the defence of opposite party No.1 is hereby struck off vide order dated 21.03.2023.
7. Now a days there are lot of cases where the bridges and the buildings
are collapsed due to bad material such as artificial cements. In this case, there is an expert report of the grade of RMC is lower and the opposite party never rebutted evidence of the complainant. Hence the complaint is allowed with the direction to opposite party No.1 to pay the build amount of Rs. Rs. 12,74,495.27/- to the complainant. Opposite party No.1 is also directed to pay Rs.3,00,000/- in lumpsum on account of loss suffered due to the delay in setting up of the project and compensation for causing mental agony & harassment to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 21.08.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
