Haryana

Ambala

CC/164/2020

Darshan Lal - Complainant(s)

Versus

The Arora Shuttering & Cement Store - Opp.Party(s)

Akash Garg

02 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	164 of 2020
Date of Institution	:	21.08.2020
Date of decision	:	02.02.2023

Darshan Lal age about 74 years S/o Sh. Desh Raj R/o Village Ugala Tehsil Barara, District Ambala.

…..Complainant

VS

1. The Arora Shuttering & Cement Store situated at village Ugala, District Ambala (Haryana) 133205, through its authorized signatory.
2. Ultrateck Cement having its office at Ahura Centre, B Wing, 2nd Floor, Mahakali Caves Road, Andheri East Mumbai Maharashtra 400093 through its Managing Director/authorized signatory.
3. Hem Raj S/o Sh. Dharam Pal R/o Village Ugala, Tehsil Barara, District Ambala.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       None for the complainant.

                     Shri Manish Kashyap, Advocate, counsel for the OP No.1.

                    Shri Anand Garg, Advocate, counsel for the OP No.2.

                    None for the OP No.3. 

Order:        Smt. Neena Sandhu, President.

1.                The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of directions to them to pay compensation amount of Rs.5 Lacs to the complainant along with interest @ 24% per annum; to pay damages amount on account of unnecessary harassment to the complainant; and to pay litigation expenses or grant any other relief, which this Hon’ble Commission may deems fit. 

2.             Brief facts of this case are that the complainant is owner of the property measuring 750 square feet situated in District Ambala and he wanted to construct his residential house and engaged OP No.3 as mason for construction of his residential house, who is experienced and very talented. The complainant purchased Ultra Tech Cement for construction of his residential house from OP No.1 vide Invoice no. 2161 dated 15-05-2020 manufactured by OP No.2. The boundary wall of the house of the complainant was completed and linter/slab work on the roof of the house of the complainant was completed on 15.05.2020.  After 2-3 days of the construction/slab casting, the complainant saw cracks in the linter/slab of the roof and as such contacted number of masons, who disclosed that construction work was done properly but the cracks have occurred due to the use of sub-standard quality of cement. As such, the complainant contacted OP No.1, who visited the house of the complainant and saw the cracks in the linter/slab. It was answered that the said cracks have occurred only due to defective or sub-standard quality of cement and assured the complainant that request will be made to OP No.2 to compensate the complainant. On the request of the complainant, OPs No.1 & 2 appointed a surveyor to visit the spot and to report about reason of cracks in linter of the house of the complainant. The said surveyor visited the premises of the complainant but neither the complainant nor his son Sh. Ravi Chawla was present at that time. The surveyor prepared an inappropriate report with an intent to favour OP No.1 & 2. The surveyor reported that some shrinkage is due to high temperature and some major cracks due to settlement of shuttering. Thereafter complainant appointed a surveyor who visited the spot and disclosed that all the cracks have occurred due to inferior quality of cement. On 26-05-2020, the complainant appointed Sh. Sushil Sharma (Architect) Barara, District Ambala, who visited the site and submitted the report dated 26.05.2020, stating therein that the shuttering work of the R.C.C. slab was done well there. The complainant contacted OPs No.1 and 2 many times  but he was not compensated for the loss suffered. The complainant is a poor person and only a Karyana merchant in the village so due to the negligence and supplying of sub standard quality of cement, he has not only suffered financial loss but mental and physical harassment due to the above said act and conduct of the OP No.1 & 2. The complainant also served a legal notice dated 18.06.2020 to the OPs but they failed to reply the same. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts, jurisdiction and cause of action etc. On merits, it has been stated that OP No.1 is the authorized dealer of OP no.2. OP no.2 is manufacturing various types of cement and selling the same through it’s authorized stockiest and retailers only, all over the country. Each bag of the cement bears relevant IS Mark number and the quality of cement confirms to ISI Specification. The quality of each bag is ensured by carrying out the physical and chemical tests, which is maintained every day and is also complied on monthly basis. The presence of cracks only in the lintel and not in any other part of alleged construction is only due to faulty construction method adopted by the mason and due to faulty mixture i.e. ratio of cement, sand and bajri etc. The complainant has not put any proof regarding the use of the cement in the alleged construction of the residential house. As per the complainant, he had purchased cement on 15.5.2020 from O.P no. 1 for raising the construction of his residential house ad-measuring 750 sq. feet situated in Abadi of Village Ugala Tehsil Barara, Distt. Ambala and as per the alleged invoice the complainant had allegedly purchased 64 bags of cement for raising the above said alleged construction, which is totally wrong and denied because the construction of residential house in an area of 750 Sq. feet is practically not possible with only 64 bags of cement. The complainant had further alleged in para no. 3 and 4 of the complaint that he had purchased the cement on 15.5.2020 and the boundary wall of the house along with lintel of the alleged residential house was completed on the very same day i.e., 15.5.2020 which is totally impractical and not possible. The complainant is near relative of the OP no.1 and he used to purchase construction material from other shops also including OP no.1 but on 15-5-2020 the complainant purchased 64 bags of cement from the OP no.1 and purchased the construction material from other shops. The complainant has not cleared the payment of OP No.1 and amount of bill is still outstanding against the complainant. Moreover, while raising construction various works like wood work, electricity work and plumber work were also done and if there would be any problem then the said work could have not been carried out.  OP no.3 has not done proper mixing and shuttering of the lintel which lead to small crack but the same is not in lintel rather it is towards the upper surface, which might have occurred because of rubbing of extra cement by the OP No.3 and the same is caused due to high temperature as the construction was done in the month of May, 2020. If wrong mixing is done while constructing lintel then there are chances of small cracks, which might have occurred due to high temperature.  Report dated 26.5.2020 is false and procured one and copy of the same was not provided to the answering OP. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with exemplary costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, estoppal, jurisdiction, not come with clean hands and suppressed the material facts etc. On merits, it has been stated that OP No.2 is engaged in business of manufacturing of cement of different grades under a license duly issued by Bureau of Indian Standard duly empowered under the Bureau of Indian Standard Act, 1986 (63 of 1986). No testing of cement alleged to have been purchased by the complainant has been got done by the complainant as required under the ISI Code issued by the Bureau of Indian Standard. Presence of cracks only in the lintel and not in any other part of alleged construction is only due to faulty construction method adopted by the mason and due to faulty mixture i.e. ratio of cement, sand and bajri etc. The complainant has not put any proof regarding the use of the cement in the alleged construction of the residential house. As per the complainant, he purchased cement on 15.5.2020 from O.P no. 1 for raising the construction of his residential house ad-measuring 750 sq. Feet situated in Abadi of Village Ugala Tehsil Barara, Distt. Ambala and as per the alleged invoice the complainant had allegedly purchased 64 bags of cement for raising the above said alleged construction, which is totally wrong and denied because the construction of residential house in an area of 750 Sq. feet is practically not possible with only 64 bags of cement. The complainant had further alleged in para no. 3 and 4 of the complaint that he had purchased the cement on 15.5.2020 and the boundary wall of the house along with lintel of the alleged residential house was completed on the very same day i.e., 15.5.2020 which is totally impractical and not possible. It seems that either the complainant had not used the cement allegedly purchased on 15.5.2020 in the alleged construction but had used the cement of some other company. The complainant has not placed on record any proof regarding the purchase of cement of other company and has not even placed on record any purchase bill regarding the other building material required for construction of the house. The complainant has not given any proof regarding the source wherefrom he spent such huge amount on the alleged construction. The complainant has not attached any site plan sanctioned from any competent authority before raising the construction. There is no evidence to the effect that the cement allegedly purchased by the complainant is used in the construction of alleged house. Moreover, no Batch number & Lot number has been mentioned by the complainant in the present complaint, if the same has been provided then OP No.2 would have provided the Test Certificate of the said Batch number & Lot number. Report dated 26.5.2020 is false and procured one. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with heavy costs.
5.           OP No.3 in its written version stated that after 2-3 days of the construction/slab casting, the complainant saw the cracks in the linter/slab of the roof and thereafter he contacted number of masons and they disclosed that construction work was done properly but the cracks in the slab of roof have occurred due to the use of sub-Standard quality of cement. Thereafter, the complainant contacted OP No.1 who visited the house of the complainant and saw the cracks in the linter/slab and stated that it occurred only due to defective or sub-standard quality of cement and assured the complainant that he will contact OP No.2 and will request the OP No.2 to compensate the complainant. On the request of the complainant OP No.1 & 2 appointed a surveyor to visit the spot and to report about reason of cracks in linter of the house of the complainant. The said surveyor did not visit the spot in presence of the complainant and son of the complainant namely Sh. Ravi Chawla. The surveyor prepared an inappropriate report with an intent to favour the OP No.1 & 2. The surveyor reported that some shrinkage is due to high temperature and some major cracks due to settlement of shuttering. The report given by the surveyor is totally wrong and biased and prepared in favour of the OP No.1 & 2. The shuttering work of the R.C.C. slab was done well and properly by OP No.3 and OP No.3 was also not called at the time when the alleged spot inspection was conducted by the alleged surveyor of the OP No.1 & 2. On 26-05-2020, the complainant appointed Sh. Sushil Sharma (Architect) Barara, District Ambala, who visited the site and in  his report dated 26.05.2020 has stated that the shuttering work of the R.C.C. slab was done well there. Sh. Sushil Singla visited the spot in presence of OP No.3 and inspected the spot carefully and properly by following all the mandatory provisions and thereafter he submitted his legal and valid report.
6.           Learned counsel for the complainant tendered affidavit of the complainant and affidavit of Shri Satish Kumar son of Shri Chamela Ram, R/o Village Ugala, Tehsil Barara, District Ambala as Annexure CA and CB alongwith documents as Annexure C-1 to C-7 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.1 tendered affidavit of Subhash Arora, Proprietor of M/s Arora Shuttering and Cement Store, Village Ugala District Ambala as Annexure OP-1/A alongwith documents Annexure OP-1/1 to OP-1/6 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Sandeep Tikmani, Authorized Person M/s Ultra Tech Cement Limited, Registered office at ‘B’ Wing, Ahura Centre, 2^nd Floor, Mahakali Caves Road, Andheri (East), Mumbai-Maharashtra and regional office at SCO-4, 3^rd Floor, Sector-14 Old Delhi Road Gurgaon (Haryana) as  Annexure OP-2/A alongwith documents Annexure OP-2/1 to OP-2/2 and closed the evidence on behalf of OP No.2. Since OP No.3 failed to tender evidence, despite opportunity given to it, as such, its evidence was closed vide order dated 05.12.2022
7.           On the date of arguments, none put in appearance on behalf of the complainant and OP No.3, as such, this Commission heard the arguments put forth by the learned counsel for the OP No.1 and 2 and carefully gone through the case file.
8.           Learned counsels for the OPs No.1 and 2 took similar submissions and submitted that the complainant has not placed on record any expert report, as such, he has failed to prove that the cement supplied to him was of defective/inferior quality, whereas, on the other hand, he was provided with the expert report, wherein, it was clearly opined that the surveyor reported that some shrinkage in lintel is found is due to high temperature and some major cracks due to settlement of shuttering. In support of his contention, the learned counsel for the OP No.1 has placed reliance on the case law cited as Laxmi Versus Satbir 1(2008) CPJ 186 (SCDRC U.T. Chandigarh).
9.           The question which falls for consideration is, as to whether, the cement supplied to the complainant was defective or of inferior quality and complainant is entitled for any compensation or not. It may be stated here that the complainant in his complaint has stated that it was on account of supply of defective/inferior quality of the cement that the cracks occurred in the roof/lintel of his residence. In support of this contention the complainant has placed on record the photographs of the roof Annexure C-5 to C-7, showing cracks therein and also site report dated 26.05.2020, Annexure C-2. On the other hand, the learned counsel for the OP No.1 has submitted that the cement supplied to the complainant was of superior quality and cracks might have developed due to some other reasons. He has drawn our attention to the Investigation Report dated 19.05.2020, Annexure OP-1/1 having been issued by the Technical Manager-Deepak Kumar Gupta, which has admittedly been made in the presence of OP No.3, wherein it was clearly opined that cracks have occurred due to shrinkage which is the result of high temperature and less curing and that some major cracks are also found due to settlement of shuttering. The said investigation report, containing batch no., grade etc. of the cement. On the other hand, the complainant has placed on record report dated 26.05.2020, of Aakriti Associates, Annexure C-2, wherein the concerned architect has stated that he certifies that he had seen the under construction residential house site and found the shuttering work of the R.C.C. Slab was done well there and that shuttering is neither poor nor it has fallen down. It is significant to mention here that site report Annexure C-2, was prepared on 26.05.2020, i.e after the investigation report dated 19.05.2020, Annexure OP1/1. Furthermore, in the site report dated 26.05.2020, there is no mention of cracks in the roof of the premises of the complainant and not about the quality of the cement. This report is also silent on mixture of sand, bajri, water, construction by mason etc. Thus merely by placing reliance on site report dated 26.05.2020, Annexure C-2, in the absence of any other cogent and convincing evidence, it cannot be said that the cracks in the roof/lintel of the house of the complainant has occurred due to cement provided by the OPs No.1 and 2. Our this view is fully supported by the ratio of law laid down by the Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh, in the case of Luxmi Versus Satbir (Supra), wherein it has been held that- “Lack of expert evidence in support-Sample of cement not sent for laboratory analysis-Cement will not have binding force if more quantity of sand is mixed in cement-Inferior or sub-standard quality cement supplied, not proved-No relief entitled”.
10.           In this view of the matter, it is held that since the complainant has failed to prove his case, as such, no relief can be granted to him in that regard. Resultantly, this complaint stands dismissed with no order as to cost. 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.

Announced:- 02.02.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President