DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 31^th  day of October 2023

CC.383/2015

Complainant

                  Koyamu,

S/o Kadiri,

Puthiyottil, Kodiyathur .P.O,

                  Mukkom,

Kozhikode – 673602

                    (By Adv. Sri. R.M. Subair)

Opposite parties

1.               Dalmia Cement Bharat Ltd,

Corporate Office, 4,

Scindia House, Connaught Place,

New Delhi - 110001

2.               Dalmia Cement Bharat Ltd,

No. 101, Embassy Square,

No. 148, 1^st Floor, Infantry Road,

Opposite to Commissioner Office,

                        Bangalore

3.              Dalmia Cement Bharat Ltd,

Sruthi House,

K.T. Gopalan Road, Kottooli,

Calicut - 673016

4.               Dilbab Building Materials,

Near GMUP Shool, Kodiyathur,

                        Kozhikode

                      (Op.1 to Op. 3 by Adv. Sri. Shyam Padman

                       Op. 4 by Adv. Sri. M. Musthafa)

ORDER

By Sri. V. BALAKRISHNAN – MEMBER   

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

2. The case of the complainant, in brief, is as follows:

On 4/8/2013 the complainant purchased 42 bags of cement from the 4^th opposite party. The cement was manufactured by the 1^st opposite party. From the advertisement made by opposite parties 1 to 3 he came to know the said product is one of the best quality available cements in the market. The 4^th opposite party also informed him that the same product is the best and complaint less cement available in the market.

3. He had used the cement for plastering the interior walls of his newly built house and the work was done by well experienced masons using good quality river sand and pure water. Sufficient curing was also done for the plastering. Even though work was done in rainy season later several cracks were noticed on the plastered walls within one month. The cracks appeared on the cement plastered area and not on laterite stone of the wall. The 3^rd opposite party was immediately informed and as per their advice the cracks were got examined by a qualified engineer. According to his opinion the cracks appeared due to the low quality cement used. Later experts from the 2^nd opposite party visited the site and were also convinced that cracks happened due to the low quality cement. 
4. On 12/06/2014 the complainant again purchased the same brand of cement for doing the plastering of exterior walls of same building. The work was done by the same masons who had done the plastering of interior walls and using the same ingredients, in the same specifications of plastering done as in interior walls. No cracks appeared on the portion of exterior walls. So it is evident that the cracks were occurred on the interior walls due to the defective cement used. Even though the representatives of the 3^rd opposite party and experts of 2^nd opposite party offered to do the needful, there was no response from their side. Supplying low quality cement is a deficiency in service on the part of the opposite parties which has caused financial loss, mental agony and hardship to the complainant. So the complainant has approached this commission to pass an order directing the opposite parties.

1. To remove the plastering done by using the defective cement and do the plastering with good quality cement and river sand and paint the wall at the risk and cost of the opposite parties.
2. And to pay Rs.25,000/- as compensation for the mental and physical agony sustained by the complainant due to the selling of defective cement by the opposite parties.
   •  
3. To pay a total sum of Rs. 1,00,490/- (Rs. 14,490/- being the cost of cement,  plus Rs. 28,000/- being the cost of the labour plus Rs. 23,000/- being the cost of the river sand used, and Rs. 10,000/- for removing and cleaning the plastering done with defective cement, along with Rs.25,000/- as compensation for the mental and physical agony sustained by the complainant)

5. The opposite parties 1 to 3 jointly filed the version. Almost all the allegations and claims contained in the complaint are denied by them. According to them the complainant is not a consumer and there is no defects in goods or deficiency in service on the part of these opposite parties. The 1^st opposite party is pioneer in cement manufacturing industries and their products are manufactured to meet the complete satisfaction of the customers. The opposite parties received the intimation of the complaint only on 05/04/2014, only after a period of 7 months from the date of purchase of the cement. They conducted site inspection on 08/04/2014. On closer inspection it was found that some cracks were present at the joints between the concrete and masonry. With the absence of empty bags of cement used at the site they failed to track the specific lot of the cement supplied. By conducting enquiry with dealers and suppliers to whom the cement was supplied during that period it was realized that no complaint had been received by them from any of the customers, with regard to cement manufactured and distributed by the opposite parties during the said period. According to them, the cracks can happen due to the factors that are more related to workmanship. It can happen due to curing, over finishing, settlement, mix ratio, fineness of FA etc. As the allegations are of defects in goods, the complainant is bound to comply with the mandatory procedure of testing under consumer protection act. As there is no negligence or deficiency in service on the part of the opposite parties, they are not liable or responsible to pay any compensation. Hence they pray that the complaint may be dismissed.
6.  The 4^th opposite party filed version separately. In the version he admitted that the cement worth Rs. 14,490/- was sold to the complainant on 4/08/2013. During this period the cement bags manufactured by the same company and kept in his shop were sold to many other customers and no complaints about the quality were raised by any others. He is only a dealer selling the product manufactured by opposite parties 1 to 3 and not liable for any defects in quality. He prays that the complaint against him may be dismissed.
7. The points that arise for determination in this case are ;

1. Whether the complaint is maintainable?
2. Whether there is any unfair trade practice or deficiency of service on the part of the opposite parties?
3. Reliefs and costs.

8. The complainant filed the affidavit and given evidence as PW1. Ext. A1 to A4 were marked. Ext. C1, the expert commission report was also marked. Oral evidence was given by PW2, the expert commissioner. No evidence was let in by opposite parties.
9. Point No.1: As per the section 2.1(d) of Consumer Protection Act 1986,   a person who buys any goods for consideration is a consumer. Ext. A1 is the purchase bill of cement obtained from the 4^th opposite party. This cement was purchased for consideration for his residential building construction. Being a consumer he is competent to approach this commission with the present complaint wherein the allegation is about unfair trade practice and deficiency of service of the opposite parties. So the complaint is maintainable before this commission.
10. Point No. 2:  The case of the complainant is that the 4rth opposite party sold cement to him which was manufactured by the first opposite party which is later proved to be of substandard and poor quality when used for plastering the interior walls of the house. According to the complainant the work of plastering in the interior wall was done with highly experienced masons. There was no crack developed in the exterior walls where plastering was done with same brand of cement supplied by the opposite party after 10 months. The complainant alleges that only reason for the appearance of cracks in plastering of interior walls could be attributed to the manufacturing defects of cement supplied by opposite parties.
11. The main contention of opposite parties is that, quality plastering depends on the quality standards of other ingredients like sand etc. According to the opposite parties cracks can develop due to the factors affecting workmanship, over finishing, settlement, mix ratio etc. According to them as per section 13(1)(c) of the Act the testing of the alleged defective goods is to be done in appropriate laboratories to find out whether such goods suffer from any defects as alleged.
12. It is an admitted fact that cracks are developed in the interior plastering of the building constructed. The main ingredients of plastering are cement, fine aggregate and water. The quality and specific quantity in specific proportion together with perfect workmanship will decide the perfection of plastered surface. Of course, cement is the main ingredient and Bureau of Indian standards specifies certain codes like IS 269, IS 1489 etc. specifying quality of good cements.
13. Indian standard Specification for sand, IS 2116 – 1980 defines the quality of sand. It is specified in the code that the sand shall be hard, durable, clean and free from adherent coatings and organic matter and shall not contain clay, silt and fine dust not more than 5% by mass. The presence of clay and other fine particles above the allowable limit will lead to cracks in plastered walls.
14. There is no doubt that usage of adulterated or defective cement will lead to plastering cracks. There are also other reasons that cracks can develop in cement plastered surface. The most common cause of cracks in plaster is drying shrinkage as the plaster dries, it loses moisture and shrinks slightly. If the plaster is not mixed properly it may not have a consistence texture and composition. This can lead to areas that dry and cure differently, which can, in turn, cause cracks to form. Due to poor workmanship, if the plaster is not applied evenly or if the surface is not properly prepared cracks can be developed. The other reasons of the cracks are settlement, thermal movement and moisture expansion.  
15. In the present case to prove the allegation about manufacturing defects of cement an expert commission was appointed. Ext.C1 is the commission report prepared by a first grade draftsman, L.S.G.D – subdivision Koduvally. In the findings he observed about the possibility of chemical composition / variation in manufacturing process. No tests on cement or plastering is seen conducted by the expert.
16. Section 13(1)(c) of Consumer Protection Act, 1986 states that when the complainant alleges a defect in the goods appropriate laboratory test is to be carried out to find out whether such goods suffer any defects alleged in complaint. Here neither the cement sample nor the core of plaster is seen tested.
17. The learned counsel for the complainant produced the order dated 23/05/2017 in RIVISION PETETION NO. 2265/2016 (RAMCO CEMENTS VS ANANTHARAJ KN AND ANR) of the Honorable National Consumer Disputes Redressal Commission. The counsel relayed on the above decision pointed out that if the commission is satisfied that cement is of poor quality, testing or analysis in appropriate laboratory is not necessary. Going through the above order of the National Commission it can be seen that there is an authentic report by a competent expert. Para 7 of the above order of the National Commission mention that the expert commissioner brought out the compressive strength figures of cement after 3 days, 7 days and 28 days. So it is evident that the authentic report by a competent expert is arrived based on a Test Report. The learned counsel for the complainant also relayed on the decision reported in 2012 ICO 39 dated 16/01/2012 of Honorable Supreme Court of India (National Seeds Corporation Limited Vs. M Madhusudhan Reddy & Anr) pointed out that if the commission is satisfied that the cement is poor quality, testing or analysis in appropriate laboratory is not necessary. They failure pattern in case of natural seed is entirely different from a manufactured product. In the present case the cement is a manufactured product of Calcareous and Argelatious materials and manufacturing defects can very well be attributed. It can be tested in the sample of outcome of the cement product like plastering by taking core cut methods. The fact situation in the above decision and in the case in hand is different. Therefore, the above decision is not applicable to the fact situation in this case. 
18. It is an admitted fact that plastering work is done by mixing cement in proper proportion with fine aggregates and required quantity of water. The Indian standard code for plain and Reinforced concrete, I.S 456 – 2000 5.4 clearly specify that the water used for mixing and curing cement shall be clean and free from injurious amounts of oils, acids, alkalis, salts, sugar, organic materials etc. Also I.S code 2116 – 1980 defines the quality of sand. It specifies that it should be free from adherent coatings and organic matter and excess quantity of silt and clay above the limits prescribed could cause the cracks in plastering.
19. The Expert Commission Report in this case says only the possibility of variations in chemical composition of cement and the learned expert is not certain about the manufacturing defect. The Expert Report is seen prepared by a 1^st grade Draftsman and not by a qualified Engineer. So with such a report we are not in a position to arrive at conclusion that cracks are developed from the sole reason of manufacturing defects in the cement and there are no possibilities of poor workmanship, substandard fine aggregates and any contamination in mixing water.
20. To sum up, in the absence of any proof of manufacturing defects of the cement unfair trade practice or deficiency of service as alleged is not established and consequently the complainant is not entitled to claim any compensation from the opposite parties.
21. Point No. 3: In view of the finding on the above points, the complainant is not entitled to the relief sort for, and complaint is only to be dismissed.

In the result, the complaint is dismissed.

No order as to costs.

Pronounce in open commission on this the 31^st day of October 2023.          

Date of filing: 22/07/2015             

                                Sd/-                                                             Sd/-                                                            Sd/-

                       PRESIDENT                                                 MEMBER                                                MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Purchase bill of opposite party four dated 04/08/2013.

Ext.A2 – Purchase bill of opposite party four dated 12/06/2014.

Ext.A3 – Acknowledgement card.

Ext.A4 – Reply letter of advocate on behalf of opposite party two. 

Exhibits for the Opposite Party

Nil

Commission Exhibits

Ext C1  - Expert Commission Report.

Witnesses for the Complainant

PW1 -  Koyamu (Complainant)

PW2 – Ashraf Kalladiyil

                                 Sd/-                                                      Sd/-                                                                Sd/-

                       PRESIDENT                                           MEMBER                                                      MEMBER

True Copy,      

                                                                                                                                                          Sd/-

                                                           Assistant Registrar.