By. Sri. A. S. Subhagan, Member:-

            This is a complaint filed under section 12 of the Consumer Protection Act 1986.

            2.  Facts of the case in brief:-  The Complainant had purchased 23 bags of Sankar cements from 1^st Opposite Party paying Rs.9,889.67/- along with other items on 04.08.2020.  The Complainant had spent Rs.1,000/- towards transportation charges for the same to the Complainant’s home. Including labour charges, the Complainant had spent more than Rs.50,000/- for the construction of a cow shed by using this cement. Thereafter, Complainant noticed that cracks were developed in the ground floor and feed storage started crumbling.

            3.  This matter was intimated to the 1^st Opposite Party several times but the 1^st Opposite Party evaded from compensating it saying one or other excuses.  The defect was occurred due to the poor quality of the cement.  The Complainant convinced that the cements had manufacturing defects.  The 1^st Opposite Party sold substandard cement to the Complainant.  This act of the Opposite Parties is unfair trade practice.  The Opposite Parties are not willing to reconstruct the cattle shed of the Complainant using new cement of good quality.  Due to the acts and negligence of the Opposite Parties, the Complainant is put to great mental agony and financial loss.  There is deficiency in service on the part of the Opposite Parties.  Therefore, the Opposite Parties are jointly and severally liable to compensate the Complainant.  The Opposite Parties are liable to bear all the expenses required for the reconstruction of the cattle shed.

            4. Hence the Complainant has approached the Commission with prayers  as follows:-

1. To direct the Opposite Parties to refund the amount of Rs.9,889/- collected from the Complainant.
2. To direct the Opposite Parties to remove the constructed cow shed and to reconstruct a new one in that place using good quality cement at the expenses of Opposite Parties.
3. To direct the Opposite Parties to pay Rs.1,50,000/-  towards compensation and
4. To direct the Opposite Parties to pay the cost of this complaint.

5.  Summons was issued to the Opposite Parties.  They appeared and filed version.  The contents of which are as follows:- 

The Opposite Party No. 1 is the dealer of Opposite Party No.2, which is a company incorporated under the provisions of the Indian Companies Act, 1913 and is one of the largest manufacturers of Cement in South India since 1946 with its wide range brand image, goodwill and has successfully completed 75 years with the highest reputation in the market. As a part of the values, it sincerely adheres to maintain all the prescribed standards of Bureau of Indian Standards (“BIS”), and it has in place a well-defined regulated system of inspection, testing, monitoring and quality control and under the regular and periodical supervision of BIS regulatory authorities. It had installed the most modern and sophisticated equipment’s and testing facilities in its manufacturing units to achieve the object of supplying quality cement. There is no complaint of any sort from any quarter regarding quality of its cement, much less regard to Batch No. 31/2020 of Cement which the Complainant alleges to have purchased. 

6.  The Complainant has falsely alleged that he used Opposite Party No.2’s cement for his cow shed and later found that cracks have been developed to the roof and walls. The Opposite Party No.2 has once again verified the batch of Cement supplied to the Complainant and concluded that the said batch is as per the prescribed standards without any defect therein. As such, there is no deficiency of quality of neither product nor service as stated by Complainant. Moreover, Opposite Party No.2 have not received any quality issue nor complaint from any other purchasers of the above mentioned batch products.

7. It is pertinent to mention that if any such cracks and leaks are there in the roof and walls as alleged, they may be the result of the poor quality of construction, wrong mixture of water and sand with cement and poor unskilled workmanship, which would play vital role in the quality of construction. It is solely because of such poor quality or substandard quality of masons and unskilled workers only. If any such cracks or leaks are caused due to faulty design and poor workmanship of construction of basement, plinth beams and slab structural cracks as a result of the negligence of the Complainant’s workman only, and the Complainant cannot point fingers at Opposite Party No.2 for his own fault.

8.  It is not out of place to mention here that the Complainant’s own pleadings would speak volumes about the fallacy in his case. At any cost, the Complainant cannot complete the construction of his cowshed (walls, flooring, and roof) with mere 23 bags of cement. It is to submit further that on consideration of the point for maintainability of the complaint, it is submitted that the petitioner has not approached this Hon’ble Forum with clean hands.

9. This complaint is to be rejected for non-joinder of necessary parties, as the workmen who have constructed this cow shed have not been arrayed as parties and thus on this count as well this is to be rejected. The said cracks in the walls and roof are not true since there is no sign of constructing walls and roof as alleged in the cowshed. The cracks can be due to several other technical factors such as poor workmanship, plat form used for mixing cement with water ratio is not proper, and mixing place is not a pacca platform etc . The Complainant has not stated the exact dimensions of the cow shed, nor filed photographs of the Cow Shed with roof and walls, which are the vital evidence of the complaint wherein he alleges cracks to roof and walls causing leakage. Moreover he has not stated which other material are used for construction of roof and walls and the mixing of sand water cement ratio.  The Complainant has not stated as to thickness of roof and walls, and other ancillary materials used, and the proportion ratio of its usage, which amount to suppression of material facts in order to derive undue advantage under the guise of this false and frivolous complaint.

10. It is to submit that on enquiries made by Opposite Party No.2, it is observed that the said cow shed has no cement concrete roof at all nor walls were constructed, but some sheet is used as roof like of iron or Aluminum as roofing and all its sides are open without any cement plastered walls. Hence, the allegation of water leakage from roof and walls, great mental agony, in the very absence of concrete roof and walls, is utterfalse and thus the present Lis is an arm twisting tactics and the allegations made herein are purely a concocted story only to enrich unjustly from a well reputed organization like Opposite Party No.2.

11.  Consumer Protection Act, 1986 S.2(1 )(f) Goods of poor and substandard quality cannot be proved if sample of cement not sent for laboratory analysis will not have binding force if more quantity of sand is mixed in cement than required. As per S.13(4) of the Consumer Protection Act , it is mandatory for the Complainant to send the samples of cement for laboratory analysis. S.13(1 )C of the Act states that mere bald allegation of defectiveness is not acceptable. Hence this petition itself is liable to be discarded.

12.  Further, that this claim is barred by limitation and that this forum has no jurisdiction to entertain this claim.

13.  Hence, for the reasons stated above, there is no deficiency of quality of cement supplied as stated in the complaint, and thus the complaint is liable to be dismissed with cost to the Opposite Parties.

14.  The Opposite Parties denied the contentions of the Complainant in additional version.  According to them there is no complaint of any sort from any quarter regarding quality of its cement.  They alleged that the defect may due to the poor quality of construction, wrong mixture of water and sand with cement and poor unskilled workmanship.

15.  Chief affidavit was filed by the Complainant, Exts.A1 was marked from his side and he was examined as PW1.  From the side of the Complainant, one Sivaraman was examined as PW2.  Chief affidavit was filed by Opposite Party No.1 and 2.  Ext.B1 to B7 were marked from Opposite Parties side but B5 to B7 subject to proof but no proof was produced in this respect.  One Hemant. T, Technical Head of the Company was examined as OPW1 from the side of the Opposite Parties.

16. Considering the complaint, version and documents marked, affidavits filed and the depositions of PW1, PW2 and OPW1, Commission raised the following points for consideration.

1. Whether this complaint is maintainable?
2. Whether there has been unfair trade practice or deficiency in service from the part of the Opposite Parties?
3. If so, whether the Complainant is entitled to get compensation?
4. Other Relief and Cost….?

17.  Point No.1:-  Ext.A1 proves that the Complainant had purchased cements from Opposite Party No.1, manufactured by Opposite Party No.2 Company for the use of construction of his cow shed.  So, the Complainant is a consumer under section 2(d) of Consumer Protection Act 1986.  The Complainant says that the cement was purchased by the Complainant on 04.08.2020 and the complaint is seen filed on 30.11.2020 which is not disproved by the Opposite Parties.  Therefore the complaint is not barred by limitation.  Therefore this complaint is maintainable under the provisions of Consumer Protection Act 1986.  Hence the complaint is maintainable.

18.  Point No.2:-  Ext.A1 is the Tax Invoice issued by the 1^st Opposite Party for the purchase of the cement by the Complainant.  The Complainant was examined as PW1. In cross-examination he has deposed that the Opposite Parties had substituted 8 bags of cement in addition to the defective cement and also had given to the Complainant the amount of another 8 sacks of cements.  He has also admitted that altogether an amount of Rs.7,000/- was given (8 bags of Cement + cash for another 8 bags of cement) by the dealer to him.  The Complainant denied that the dealer had given him Rs.10,000/-.  In cross-examination, OPW1 has stated that:-

1. physical verification has not been done.
2. Application of cement has not been seen.
3. For finding fault in the mixing or poor skilled work, no steps have been taken. 
4. If it is stated that Rs.10,000/- was given, (as in cross-examination of PW1 due to the defect of the cement), it was paid by the dealer.
5.  If complaint has been received, usually samples shall be collected, but, here no sample was collected.
6. The dealer has stated that the same cement was used for construction.
7. To show that no defect was there to others, in the same batch of cement, no record has been produced. 

19.  In cross-examination, PW2 stated that he had done the mixing of the cement and had done the construction work.  He has also deposed that the Complainant had also assisted him in mixing of the cement.  From his statements, it is revealed that the mixing for concrete was done in the ratio of 4:2:1 respectively for metal, sand and cement and, for flooring purpose, the mix was made in the ratio of 4:1 respectively for sand and cement.

20.  It is evident that the cement was purchased from the shop of the 1^st Opposite Party by the Complainant, which is supported by Ext.A1.  The allegation of the Complainant is that the cement supplied by the Opposite Parties was defective and as a consequence, the Complainant noticed cracks in the ground floor and the feed storage started crumbling.  OPW1 admitted that it was usual to collect the samples for testing in similar cases, they also had admitted that, in this case sample was not collected for testing the quality of cement supplied to the Complainant.  So from the depositions of OPW1 and PW2, Commission is of the view that the cement supplied to the Complainant was not of good quality.  Any of the documents produced and marked from the side of the Opposite Parties is not sufficient to prove that the cement was of good quality. Moreover, the substitute cement supplied by the 1^st Opposite Party and the cash given by him to the Complainant is clear evidence that the cement had some defects.  Otherwise, they would not pay any such amount or give substituted cement to the Complainant.  So the evidence brought up before the Commission conclusively proved that there has been some defect in the cement supplied by the Opposite Parties to the Complainant, as per Ext.A1.  So there has been deficiency in service/unfair trade practice from the part of the Opposite Parties, for which they are liable to compensate the Complainant.

21.  Point No.3:-  As per Point No.2 deficiency in service/unfair trade practice is proved against the Opposite Parties.  So the Complainant is entitled to get compensation but the amount of compensation of Rs.1,50,000/- claimed is seen highly exorbitant.  In our view, the Complainant is entitled to get Rs.25,000/- as compensation. 

22. Point No.4:- Though the Complainant has prayed for cost of the complaint, the amount of cost has not been specified and as such.  In our view, it is desirable to allow a cost of Rs.6,000/- to the Complainant.

In the result, the complaint is partly allowed and the Opposite Parties are directed to

1. Refund Rs.2,889/- (Rupees Two Thousand Eight Hundred and Eighty Nine Only) being the difference between the bill amount of the cement ie Rs.9,889/- and the amount of Rs.7,000/- already received (cost of 8 sags of cement + amount in cash for other 8 bags of cement) received by the Complainant from the 1^st Opposite Party. 
2. The Opposite Parties are directed to pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) being the cost of reconstruction of the cow shed to the Complainant.
3. The Opposite Parties are also directed to pay an amount of Rs.6,000/- (Rupees Six Thousand Only) as cost of this complaint.

The above amounts shall be paid jointly and severally by the Opposite Parties to the Complainant within 30 days from the date of receipt of this Order, failing which the amounts will carry interest @ 9% per annum from the date of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 29^th day of August 2024.

Date of Filing:-25.11.2020.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Sureshkumar. P. K.                                    Cattle breeding.

PW2.              Sivaraman.                                       Mason.

Witness for the Opposite Parties:-

OPW1.          Hemanth. T.                                     State Technical Head, ICL.

Exhibits for the Complainant:

A1.                  Tax Invoice.                                                              Dt:04.08.2020

Exhibits for the Opposite Parties:-

B1.                  Authorization Letter.                                            Dt:02.01.2023.

B2.                  Copy of BIS Certificate.

B3.                  Frequency of Sampling and Testing Parameters.

B4(a).             Copy of Test Certificate.                                       Dt:21.08.2020.                  

B4(b).                        Copy of Test Certificate.                                       Dt:28.08.2020.

B4(c).             Copy of Test Certificate.                                       Dt:04.09.2020.

B4(d).                        Copy of Test Certificate.                                       Dt:11.09.2020.

B5.                  The details of the production of cements in various batched during

the 52 weeks of the year starting from 01.01.2020 to 31.12.2020.

B6.                  Certificate U/sub.sec(4) of S.65 B of the Indian Evidence Act.

B7.                  Estimate Chart.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-