DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

                                                         Dated this the 24^th day of October 2024                                                                                             

  Filed on : 06.03.2020

PRESENT

Shri. D.B.Binu                                                                                                                                                President

Shri. V.Ramachandran                                                                                                                                  Member

Smt. Sreevidhia.T.N                                                                                                                                       Member     

C.C. No. 106 of 2020

COMPLAINANT

Mr. Jain, S/o V. L. James, aged 36 years, residing at Variath House, Oruma Lane, Thoppil, Thrikkakara P.O., Ernakulam PIN-682 021

(Complainant Rep. By Adv. Litto Palathinkal, Adv. Riya Jacob, M/s Peter & Karunakar, Lawyers, Alfa Towers, I.S. Press Road, Cochin – 682 018)

Vs

OPPOSITE PARTIES

1. Zuari Cement Ltd., Krishna Nagar, Yerraguntla, Andhrapradesh PIN-516309 represented by its Managing Director
2. Zuari Cement, Regional Office, Willingdon Island, Kochi Ernakulam, PIN-682 003 represented by its manager
1.  
3. Jemis Enterprises, South Kalamassery, Ernakulam PIN-682 033 represented by its manager.

F I N A L   O R D E R

D.B. Binu, President.

1)       A brief statement of facts of this complaint is as stated below:

            The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The complainant, son of Mr. V.L. James, is constructing a residential house in Thrikkakara, Kerala, under a permit issued by the Thrikkakara Municipality on February 5, 2019. For this construction, the complainant purchased 50 bags of cement from the third opposite party, a stockist and distributor of the first opposite party, a cement manufacturing company, on February 1, 2020, for Rs. 15,500.

The complainant used 47 bags of the cement for plastering, concreting, and other construction works. During construction, the workers observed that wheat grains were falling out from the cemented walls, indicating a defect in the cement. Upon inspection, it was discovered that even the remaining three bags contained wheat grains, rendering them unusable. The defective cement caused wastage of materials and labour expenses.

Despite raising the issue with the opposite parties, they acknowledged the defect but refused to replace the product or provide compensation. This led to delays in construction, forcing the complainant to continue living in a rented house, causing financial loss and mental agony.

The complainant asserts that the actions of the opposite parties amount to negligence, unfair trade practices, and deficiency in service under the Consumer Protection Act, 1986. The first opposite party, the manufacturer, is liable under Section 86, while the second and third opposite parties are liable under Section 84 of the Act.

The complainant seeks recovery of Rs. 15,500 for the cement and additional compensation of Rs. 4,10,000 for labour, material losses, demolition, reconstruction, delayed construction, and mental agony, along with costs of the complaint.

2)       Notices

Notices were issued by the Commission to all opposite parties. The first and second opposite parties filed their versions. The third opposite party received the notice but did not file their version. Consequently, the third opposite party was set ex-parte on 31.05.22.

3)       THE VERSION OF THE FIRST AND SECOND OPPOSITE PARTIES.

The complaint is baseless, filed with the intention of harassing them and misusing the provisions of the Consumer Protection Act. They deny all allegations and assert that they manufacture cement according to the highest standards, following BIS regulations, and ensuring no defects.

The opposite parties deny that any wheat grains were present in the cement bags they supplied. They claim that the entire manufacturing and packaging process is highly automated, leaving no possibility for foreign materials like wheat to enter the product. They also question the complainant's claim that the cement used at the construction site was entirely from the 50 bags supplied by them, as the complaint is unclear about other materials used.

The opposite parties emphasize that if any wheat grains were found in the mixture, they likely originated from other construction materials like sand or ingredients brought by the workers. They suggest that the issue was caused by poor workmanship on the part of the labourers hired by the complainant.

The opposite parties state they never received any protest from the complainant about defective cement and deny ever supplying defective products. They stated that delays in construction and any losses suffered are not their responsibility, as they are not liable for the actions of the labourers engaged by the complainant.

The opposite parties assert that there was no deficiency of service, negligence, or unfair trade practices on their part. They stated that the complainant is not entitled to any compensation or relief from them, as there is no valid cause of action. Accordingly, the opposite parties request that the complaint be dismissed by the commission.

4) Evidence

The complainant filed a proof affidavit and two documents, which were marked as Exhibits A1 and A2. The complainant was examined as PW1. Advocate commission report also marked as Exhibit C1.

• Exhibit A1:       General Building Permit issued by Thrikkakara Municipality  No. TP1-BA(26373)/2019 dated 05/02/2019.
• Exhibit A2:       Tax Invoice issued Jemis Enterprises dated 01/02/2020.
• Exhibit C1:       Advocate commission report .

5)       The main points to be analysed in this case are as follows:

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties  to the complainant?
3. If so, whether the complainant is entitled to get any relief from the side of the opposite parties ?
4. Costs of the proceedings if any?

6)       Summary of the Advocate Commissioner's Report EXHIBIT C1

The Advocate Commissioner, Smt. Surya J., inspected the complainant’s house on March 7, 2020, at 5:15 PM, following an order from the Commission. Despite providing notice to the opposite parties, none of them attended the inspection. The complainant and their counsel were present.

Findings during the Inspection:

1. Status of Construction:
   • The house construction was in its final stages, with carpentry work in progress and around 12 labourers present at the site.
2. Presence of Wheat Grains in Plastered Walls:
   • The commissioner observed small wheat grains embedded in the cemented walls throughout the house.
   • In the living room, dining room, kitchen, and bedrooms, she found projections on the plastered walls. Upon checking with a pen, she confirmed the presence of whole and part wheat grains in multiple areas, including walls on the ground floor, first floor, and balcony.
   • Nearly 75% of the plastering work had been completed, and the wheat grains were visible across most walls.
3. Inspection of Cement Sacks:
   • The commissioner opened both sealed and unsealed cement sacks.
   • Wheat grains and plastic waste were found in the unsealed cement sacks, and the commissioner verified them by holding the grains in her hand. However, the report does not indicate finding any wheat grains inside sealed sacks.
4. Photographic Evidence:
   • Photographs documenting the wheat grains in the walls and cement sacks were taken by a photographer hired by the complainant. These photographs, along with a CD and 7 photo sheets, are submitted with the report for reference.

The report concludes with all collected evidence, including the photographs and acknowledgment from the third opposite party.

7)       Summary of Objection to the Commission Report Filed by Opposite Parties 1 and 2

The opposite parties 1 and 2 raise objections to the Commission Report, denying its findings and claiming they were not informed about the inspection at the complainant’s house on March 7, 2020. They argue that serving the notice to the third opposite party (a dealer) does not bind them, as the third party is not their agent or partner.

The opposite parties emphasize that their cement manufacturing process is highly automated and sophisticated, with no possibility of foreign material contamination. They highlight that the cement is produced at temperatures of 1200-1400°C, which would destroy any biological material like wheat grains. The cement is packed using electronic systems in laminated polypropylene bags, ensuring no contamination during transportation.

The report’s findings, including the presence of wheat grains and plastic waste in unsealed cement sacks, are dismissed as staged or fabricated by the complainant to create false evidence. The opposite parties assert that no liability can be imposed on them based on unsealed sacks, as these could have been tampered with by the complainant. They suggest the wheat grains might have entered through unsieved sand or other construction materials used by the labourers.

The opposite parties argue that the commissioner’s observations about the wheat grains’ origin are speculative and unreliable. They claim that the complainant is trying to shift blame for poor workmanship onto them to gain wrongful compensation.

Additionally, they express concerns about not receiving the photographic evidence referenced in the report, reserving the right to raise further objections upon receiving these materials.

In conclusion, the opposite parties request that the Commission Report be rejected in its entirety, deeming it inadmissible as evidence.

8)       Summary of Argument Notes on Behalf of the Complainant

The complaint, filed under Section 12 of the Consumer Protection Act, 1986, seeks Rs. 15,500 as reimbursement for defective cement bags and Rs. 4,10,000 in compensation for losses, damages, and mental agony.

Facts of the Case

The complainant and his father purchased 50 bags of cement from the third opposite party on 01.02.2020 to construct their residential house, paying Rs. 15,500. The invoice (Exhibit A2) confirms the purchase, and the building permit (Exhibit A1) issued by Thrikkakara Municipality supports the construction. The cement was purchased in good faith based on the opposite parties  advertisement of ISO-BIS certified, high-quality products.

During the construction, 47 bags were used for concreting and plastering, but workers discovered whole and part grains of wheat falling out of the walls. Upon inspection, the remaining 3 unopened bags also contained wheat grains, rendering the cement unusable. The complainant informed the opposite parties, who visited the site, acknowledged the defect, but refused to replace the product or compensate for damages.

The Commission Report (Exhibit C1) supports the complainant's case by confirming the presence of wheat grains in cemented walls and the unopened sacks. Photographs documenting these findings were also submitted.

Legal Provisions and Case Laws

Deficiency of Service:

Defined under Section 2(10) of the Consumer Protection Act, meaning any shortcoming or imperfection in product quality.

Veena Khanna v. Ansal Properties & Industries Ltd. (2007): Compensation was awarded for delayed service, highlighting liability under the Consumer Protection Act.

Unfair Trade Practice:

The unfair practices are using deceptive methods to promote sales, including false claims about product quality.

Sapient Corporation Employees v. HDFC Bank Ltd. (2012): The court clarified that non-compliance with contractual obligations can constitute a deficiency in service.

A product seller can also be held accountable if they fail to exercise reasonable care or pass on manufacturer warnings.

The complainant argues that the defective cement caused waste of construction materials and labour and required demolition and reconstruction, resulting in additional costs and delays. The complainant claims:

Rs. 80,000 for labour,

Rs. 20,000 for transportation,

Rs. 1,00,000 for wasted materials (sand, crusher powder, water),

Rs. 1,00,000 for demolition and reconstruction,

Rs. 50,000 for the delay in construction, and

Rs. 50,000 for mental agony and suffering.

Conclusion

The complainant argues that the defective cement and the opposite parties' refusal to address the issue constitute a deficiency of service and unfair trade practice under the Consumer Protection Act. The case is proven through documentary evidence and admissions. The complainant is entitled to Rs. 15,500 for the cement bags and Rs. 4,10,000 as compensation for damages, expenses, and mental suffering.

9)       Summary of Argument Notes by Counsel for Opposite Parties 1 and 2

The counsel for the first and second opposite parties argue that the complainant has provided no evidence proving the presence of wheat grains in any of the sealed cement bags. The Advocate Commissioner’s report (Ext. C1) confirms that wheat grains were only found in unsealed cement sacks, not in the sealed ones. The complainant admitted during cross-examination that the cement bags were sealed at the time of purchase and were packed in thick multi-layer paper sacks.

The counsel argues that the complainant has no grounds to sue, as the building permit is in the name of the complainant’s father, who is not a party to the complaint. Furthermore, the labour contractor, Prakashan Puthalath, who was responsible for the construction, has not been examined as a witness. It was the complainant himself, not the contractor, who allegedly found wheat grains in the plastering. This raises suspicion that the issue may have arisen from negligence or poor workmanship by the labourers, not a defect in the cement.

The counsel highlights that the complainant admitted to making cash payments without records to the contractor and acknowledged that no transportation or water costs were incurred. Additionally, there is no evidence to support the claimed expenses, such as demolition or reconstruction costs.

The counsel submits that the complainant is wrongfully shifting blame onto the cement manufacturer while shielding the labour contractor. Since the contractor was never examined, there is no independent evidence to support the complainant's case. Therefore, the reliefs sought should not be granted, and the complaint against the first and second opposite parties should be dismissed.

We have also noticed that Notices were issued from the Commission to the third opposite party but did not file their version. Hence the 3^rd opposite party is set ex-parte. The complainant had produced two documents marked as Exbt.A1 and  A2.  All in support of his case. However, the third  opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission or set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary and unjustified act of the third Opposite Party amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and hardship to the complainant.

The third opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them.  Here, the case of the complainants stands unchallenged by the third opposite party.  We have no reason to disbelieve the words of the complainant.  The Hon’ble National Consumer Disputes Redressal Commission in its Order dated 09/10/2017 in RP No. 579/2017 (2017(4) C.P.R 590) also held a similar stance. 

 We have meticulously considered the detailed submissions made by both parties and thoroughly reviewed the entire record of evidence, including the argument notes presented.

10. Analysis and Legal Reasoning

i). Maintainability of the Complaint

The complainant purchased cement from the third opposite party, a distributor of the first opposite party, for constructing a residential house in Thrikkakara, Kerala. Section 12(1) of the Consumer Protection Act, of 1986 allows consumers to file complaints when there is a deficiency in service or defect in goods purchased.

The complainant has established himself as a "consumer" under the Consumer Protection Act as the cement was purchased for personal construction, not for any commercial purpose.

Thus, the complaint is maintainable.

ii). Deficiency in Service and Negligence of the Opposite Parties

The complainant has demonstrated that 50 bags of cement were purchased, and during construction, the workers discovered wheat grains embedded in the plastered walls. This indicates a defect in the cement, confirmed by the Advocate Commissioner’s report (Exhibit C1), which found wheat grains in both plastered walls and unsealed cement sacks.

iii). Negligence and Deficiency in Service

The presence of wheat grains in cement suggests poor manufacturing and quality control by the first and second opposite parties, violating their obligations under the Consumer Protection Act, which defines deficiency as any imperfection or shortcoming in the quality, nature, or manner of performance that is required. The refusal to replace the defective product or compensate for the damages amounts to unfair trade practices under the Act.

In the present case, the first and second opposite parties failed to ensure the product's quality. Subsequently, they refused to address the defect, despite the complainant bringing it to their notice.

iv). Liability of the Opposite Parties and Entitlement to Relief

Joint Liability of Manufacturer and Distributor

The first and second opposite parties denied the defect but failed to substantiate their claims with any independent evidence, as they did not attend the Advocate Commissioner’s inspection. Their assertion that their cement manufacturing process is automated and free from contamination is unsupported by any technical report.

The manufacturers cannot escape liability by merely denying defects when reasonable evidence of a defect is provided by the consumer.

v) Third Opposite Party’s Liability

The third opposite party was set ex-parte for failing to appear before the Commission despite receiving notice. The National Consumer Disputes Redressal Commission (RP No. 579/2017) held that failure to respond to a complaint amounts to an admission of the allegations. As the distributor, the third opposite party shares responsibility under the Consumer Protection Act, which makes both the seller and the manufacturer liable for defective products.

The evidence provided (Exhibits A1, A2, and C1) establishes that the complainant suffered actual losses due to the defective cement, including the need for demolition and rework. The refusal of the opposite parties to address the issue caused delays, forcing the complainant to incur additional rent expenses.

vi)  Costs of the Proceedings

The complainant is entitled to recover the costs of the proceedings, given the time and effort required to pursue the case.

The Advocate Commissioner’s report has been crucial in establishing the presence of wheat grains in the cement used in the complainant's house. The objections raised by the first and second opposite parties are unsupported by any evidence, and their claim that wheat grains may have come from other materials is speculative.

The third opposite party's failure to participate in the proceedings further strengthens the complainant’s case, as their non-appearance amounts to an admission of negligence. The first and second opposite parties are liable for the defect under product liability principles, and the third opposite party, the distributor, shares joint liability.

          We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency and unfair trade practices on the part of the opposite parties.  Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite parties.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.

Hence, the prayer is allowed as follows:

1. The opposite parties shall refund Rs. 15,500 (fifteen thousand five hundred only) to the complainant for the cost of the defective cement, as evidenced by Exhibit A2: Tax Invoice.
2. The opposite parties shall pay Rs. 1,00,000 (one lakh only) to the complainant as compensation for mental agony, financial loss, and inconvenience suffered. This amount is awarded for deficiency in service and unfair trade practices, along with the mental and physical hardships endured by the complainant.
3. The opposite parties shall pay Rs. 20,000 (twenty thousand only) to the complainant towards the cost of the proceedings

The opposite parties are liable to fulfil the above orders, which must be executed within 30 days from the date of receiving this order. Failure to comply with the payment orders under points (I) and (II) will result in interest at the rate of 9% per annum from the date of filing the complaint (06.03.2020) until full payment is made.

Pronounced on this the 24^th  day of October  2024.

Sd/-

D.B. Binu, President

Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia T.N, Member

Forwarded/By Order,

                                                                                             Assistant Registrar

APPENDIX

Complainant’s Evidence

• Exhibit A1:       General Building Permit issued by Thrikkakara Municipality  No. TP1-BA(26373)/2019 dated 05/02/2019.
• Exhibit A2:       Tax Invoice issued Jemis Enterprises dated 01/02/2020.
• Exhibit C1:       Advocate commission report .

Opposite Parties’ Evidence

NIL

Date of Despatch

By Hand      ::

By post        ::

AKR/

Order in CC No. 106/2020

Date: 24/10/2024