SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing opposite party No.1 to pay Rs.2 crore to the complainant after possession of the property of the complainant where the construction was made by using damaged cement of opposite party No.1 as alleged by the complainant.

            Brief facts of the complaint are as follows complainant is the owner in possession of the property in Eruvessy.  He approached ACC Cements dealer Brightogen agencies Kunnumkai, West Eleri (PO), Kerala.  The dealer represented by OP1 that he will supply the cement of good quality at his site in the vehicle arranged by dealer.  As such he placed the order of 180 bags of ACC Lp and Rs.73,800/- paid accordingly by invoice No.162 dated 09/06/2023.  OP2 had supplied the same at his worksite.  On 10/06/2023 while the concrete mixing process was started ACC cements bags were opened but it was shocky to him that most of the cements bags were not fit for usage and most of the cements bags war in a rigid stage which is not suitable for concreting.  Complainant immediately reported the complaint to OP1 as well as manufacturer’s dealer through telephone and E-mail.  But no response for that side as well as from the side of dealer.  Though he started concreting work and constrains to use damaged cement bags for the concreting work.  The few damaged bags are also still in the custody of the complainant.  According to complainant supply of blocked bags of cement to a customer is an unfair trade practice as well as defecting service and dereliction of duty.

            After receiving notice OP No.1 neither  appeared nor contest the allegation against him.  OP No.2 dealer of OP No.1 filed version stating that complainant ordered 180 bags of ACC cement, which were billed and were transported to the site of complainant on 09/06/2023.  OP contended that, complainant himself admitted that before delivery, he has verified and confirmed that the product was properly packed and there was not complaint at the time of unloading.  OP submitted that their supplier re-affirmed the physical condition and quality of cement supplied to the complainant was checked and verified.  OP submitted that if there is any damage happened to the cement unloading, it would have been noted by the complainant.  The cement was directly delivered from the Godown of OP No.1 and were of new stock.  Further submitted, that it was raining season, at the time of doing concrete work by the complainant.  OP alleged that due to improper storage at the site, due to which clots may have formed in some of the bags.  OP No.2 submitted that there is no deficiency in service on their part and more over, complainant did not claim any relief from OP No.2.  Hence, prayed for the dismissal of the complaint against OP No.2.

            OP No.1 duly received the notice sent from this commission but remained absent. Hence OP No.1 was set ex-parte and the complaint is proceeded against OP No.1.

            While pendency of this complaint, complainant has taken steps to appoint an expert commission to inspect the premises of the complainant and file report.

            As per the application, expert was appointed and after inspection he has filed report.

            At the evidence stage, complainant filed his proof affidavit and documents, examined as Pw1, marked Ext.A1 to A7 and C1.  OP2 filed chief affidavit and was examined as Dw1.  After that complainant and learned counsel of OP No.2 filed argument notes.

            The expert has observed that upon inspecting the cement lumps samples and concrete work videos, it was evident that the cement, conforming to IS 16415:2015 Composite cement manufactured by ACC cement used for concrete work, faced serious issues.  Moisture ingress resulted in a chemical reaction, significantly reducing the cement’s strength.    Further, reported that the manufacturing date on the cement bag was noted as week 21 of 2023, suggesting that the distributed cement was not from old stock during distribution.  The delivery record from the warehouse at Valapattanam generated on 09/06/2023, 4.50 PM.  Thus it’s apparent that cement deterioration occurred before it reached the site.  Utilizing cement with lumps for concrete is not recommended, as observed in a few samples onsite.  This could seriously impact the strength and lifespan of the constructed concrete slab if supplied bags contained lumps and were used in the concrete.   No signs of deterioration or seepage were observed to date.  Given the presence of lumps in the cement, the actual mix ratio might have been altered due to the removal of the lumpy portion of cement.  This could lead to potential concrete leakage in the future.

            OP contended that the expert is a colleague of complainant, so his observations in Ext.C1 cannot be accepted as a whole.  Complainant also not tried to examine the expert to prove the veracity of the observations of the Expert.  On analysis of Ext.C1, it is evident that utilizing cement with lumps for concrete is not recommended.  This could seriously impact the strength and life span of the constructed concrete slab if supplied bags contained lumps and were used in the concrete.  Further observed that “No signs of deterioration or see page were observed to date”.

            It is evident that complainant admitted that before delivery, there was no moisture found on the cement bag and the OP No.1 was covered the cement bags with tarpa.  Further the cement was not from old stock.  Further Pw1 deposed that 2023 ജൂൺ 10 നാണ് concrete നടക്കുന്നത്, മഴയുള്ള സമയമായിരുന്നു. Cement ഇറക്കിയത് രാവിലെ 8.15 മണിക്ക് (10/06/2023) ആണ്.  10 മണിക്ക് അല്ല. A7ൽ 9 മണിക്കാണ് എന്നുപറഞ്ഞാൽ?  ശരിയല്ല.  നന്നായി പൊതിഞ്ഞ് മഴ നനയാതതെയാണ് cement OP2 അവിടെ എത്തിച്ചത്?  ശരിയാണ്.  Further Expiry കഴിയാത്ത cement ആണ് നിങ്ങൾ എത്തിച്ചത്?  ശരിയാണ്.  C1ല് പറയുന്നുണ്ട് Expiry കഴിയാത്ത cement ആണ് എന്ന്?  ശരിയാണ്.

            From the entire evidence, it is revealed that complainant used cement with lumps for concrete, which is not recommended by the expert. On seeing lumps in the cement, complainant should have avoided concrete a work and informed to OPs, especially as complainant is not a layman.  So there is lapses form the side of complainant himself.  In the complaint, complainant is not claiming relief form OP No.2, so OP No.2 is exonerated from the liability.

            As far as OP No.1 is concerned, the ACC cement Ltd. company did not contest the allegations of the complainant against them.  But from the evidence it is revealed that the cement supplied by OP 1 was not an expiry product and the season was rainy.  Complainant admitted that before unloading of the cement, it was perfectly covered with tarpa etc. and if it was in a good condition.  More over complainant admitted that, it was a rainy day.  From the circumstances, we can assume that lumps might have happened in the cement due to moistering happened to the cement from the premises of complainant.  Lump cement should not use for concrete work.

            From the entire evidence, we are of the view that as OP No.1 is not contesting the matter despite received due notice from this commission, we are constrained to find that there is deficiency in service on the part of OP No.1.  But it is not proper to allow the complainant’s prayer to take over his property and pay Rs.2 crore to him.  The expert opinioned that on his visit, there was no signs of deterioration or see page on the building.  We cannot impose penalty assuming the damages will cause in future.  From the evidence, it is revealed that some of the cement bags became damaged.

            Considering the entire facts and circumstances of this case, we allow the complaint in part.  Opposite party No.1 is directed to pay Rs.35,000/- (half of the amount paid by the complainant for the cement) to the complainant. withRs.10,000/- towards compensation and cost within one month from the date of receipt of this order.  Failing which Rs.35,000/- carries interest @ 9% per annum from the date of order till realization.  Complainant is at liberty to execute the order as per provisions in Consumer Protection Act 2019.

Exts.

A1- Tax invoice (subject to proof)

A2- E-way bill  (subject to proof)

A3- Copy of e-mail dated 10/06/2023

A4- Photographs (print out -  subject to proof)

A5-Pen drive (subject to proof)

A6- Photographs dated 27/06/2023 (print out -  subject to proof)

A7- Reply notice

C1- Expert commission report (subject to proof)

Pw1- Complainant

Dw1-OP2

    Sd/                                                                                   Sd/                                                       Sd/

PRESIDENT                                                                 MEMBER                                              MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forwarded by order/

Assistant Registrar