The complainant Darshan Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against M/s. Patasa Ram Sat Pal and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that he proposed to construct a residential house for his family in a property measuring 1 Kanal 6 Marlas having covered area of 1900 sq.ft. The complainant got prepared site plan from Goyal Architects, Bathinda, for this purpose.
It is alleged that complainant got started construction work of the said residential house for which he purchased construction material including cement, crushed stones, sand and iron bars from opposite party No.1. and also spent sufficient amount for the purchase of bricks. The complainant purchased cement from the opposite party No.1. The opposite party No. 1 allured the complainant to use cement of Ambuja Company manufactured by opposite party No. 2 alleging that the same is of best quality and there is no complaint from any corner regarding the quality of the cement. The complainant, bonafidely believing the assurance of opposite party No. 1, purchased 175 bags of cement @ Rs.350.00 each, for a total sum of Rs. 47,852.00 + GST, totaling to Rs.61,250.00 vide Invoice No.315 dated 19.2.2018 for laying the lintel of the first floor portion which was laid on 20.2.2018. The iron bars for the same were purchased by complainant from opposite party No. 1 through bill No. 293 dated 26.1.2018 for Rs. 67,084.00, bill No. 299 dated 28.1.2018 for Rs. 77,413.00. The complainant also purchased 60 bags Cement vide Invoice No. 358 dated 10.3.2018 @ Rs. 350.00 per bag worth Rs. 16,406.00 + GST totaling to Rs.20,999.00 and iron bars through bill No. 312 dated 2.2.2018 for. Rs.70,932.00 for laying the lintel of the second floor portion which was laid on 11.3.2018.
It is alleged that the complainant used the said cement as per specifications provided by the opposite parties and further the construction work was also got done by the skilled Mason and labourers. The officials of opposite party No. 2 were also present at the time of laying the lintels of the first floor portion and second floor portion and the cement was used as per the specifications as well as instructions of the officials of the opposite party No.2.
It is also alleged that after laying the lintel of the house, there was seepage of water from both lintels (first & second floor) which was only due to the poor and cheap quality of the cement manufactured by opposite party No. 2 and sold by the opposite party No. 1 as a result of which, the total construction work of the complainant is giving very shabby look. Due to the continuous seepage and leakage of the water through the lintel of the roof, it is practically impossible for the complainant to live in the said house and to continue with the construction work rather the same construction work of the house has been hanged out.
The complainant alleged that he complained about the same to the opposite parties and the officials of the opposite party No. 2 visited the site and after inspection, they also realized the seepage and leakage of water from the lintel but failed to do any needful rather started making lame excuses that the said seepage and leakage is result of some other factors, only in order to avoid liability. Due to the said act of the opposite parties, the complainant has suffered from grave mental tension, agony, botheration, harassment, humiliation and huge financial losses on account of cost of the construction material i.e. cement,. crushed stones, iron bars and labour etc., for which he claims Rs.4,50,000/-. The complainant also claimed Rs. 2,00,000/- as compensation for harassment on account of demolition of constructed house and for construction of house a fresh.
It is also alleged that complainant repeatedly requested the opposite parties to admit his lawful claim and to compensate him for the loss suffered, but to no effect rather the opposite parties have been putting the matter off under one or the other false pretext.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Rs.4,50,000/- on account of financial loss and Rs.2,00,000/- as compensation for mental tension, botheration and harassment in addition to Rs. 11,000/- as litigation expenses.
Upon notice, opposite parties put an appearance through counsel and contested the complaint by filing separate written version.
The opposite party No. 1 in its written version raised preliminary objections that opposite party No.1 is the authorized dealer appointed by the company through whom the company ensures the product of the company to reach to the hand of the customer. The company has a policy towards total commitment of customer satisfaction. To meet this requirement the company has appointed qualified Civil Engineers to attend customers queries promptly through their authorized dealers for guiding and educating the customers for getting the best possible results of the cements manufactured by the company. The opposite party No. 2 is engaged in the business of manufacturing of different grades of cement under a license duly issued by the Bureau of Indian Standards duly empowered under the Bureau of Indian Standards duly empowered under the Bureau of Indian Standard Act, 1986 (63 of 1986). The cement so purchased by the complainant was manufactured at Nalagarh unit of opposite party No. 2.
It has been pleaded that the complaint filed by the complainant and the accusations made against opposite party No. 1 are false unjustified, groundless and unsubstantiated made with sole intention of extorting money from the opposite parties. Complainant had deliberately mentioned the wrong date of purchase of cement as 19.02.2018, and further wrongly stated about lintel of the first floor on 20.02.2018.
It has also been pleaded that the true fact is that the complainant had purchased cement (175 bags) on 09.02.2018 and on the same date the lintel slab was constructed. The cement 175 bags were moved against the challan as the complainant had not made full payment. The opposite party No. 1 forwarded request to opposite party No. 2 to arrange for an Engineer to educate and advise the complainant about the usage of the cement and also for taking the samples of the cement sold to the complainant. Accordingly, Mr. Avinash Singh of opposite party No. 2 visited the site of complainant and inspected the work going on. A concrete sample was made and collected at the site. It was specifically advised and instructed to the complainant and his contractor that cement must be used in the prescribed proportion only. Thereafter sample was collected from the cement mixture prepared under the guidance of the engineer. It is pleaded that after completing the sampling process and before leaving the site, the Engineer of opposite party No. 1 directed complainant and his contractor that proportion advised must be followed for whole of the process to get the best results .The Engineer of the opposite party No. 2 was at the site for around half an hour. The sample so collected was tested at the laboratory of opposite party No. 2 and the report was also shared with the complainant. The report clearly suggests that there is no issue with the strength of the cement which proves that there is no deficiency in the quality of the cement. The report has also been duly shared with the complainant who had deliberately suppressed the fact about sampling and report of the opposite parties and made wrong and incorrect allegations about the quality of cement manufactured by opposite party No. 2.
It has been pleaded that the complainant had no issues thereafter and did not lodge any complaint with opposite party No. 1. It was only in the month of April 2018 that a complaint routed through opposite party No. 1 and again the engineer of the company visited the site on 18.04.2018. On the insistence of the complainant, site was again visited by enginer of opposite party No. 2 on 09.05.2018 and finally on 06.06.2018. The allegations of the deficiency in the quality of cement are wholly misconceived, baseless, untenable, unjustified and does not hold any weight.
On merits, the opposite party No. 1 has pleaded that the Company has a policy of customer satisfaction. To meet this requirement the company has appointed qualified Civil Engineers all over the country to attend customer queries promptly through their authorized dealers. Bare statement that the cement manufactured by the opposite party is of poor quality will not be sufficient .As already stated it has been proved through prescribed test that cement manufactured by the opposite party is free from any deficiency. In further reply, the opposite party No. 1 reiterated its version as pleaded in preliminary objections and detailed above. After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its written reply raised preliminary objections that the company is engaged in the business of manufacturing of different grades of cement under a license duly issued by the Bureau of Indian Standards duly empowered under the Bureau of Indian Standards duly empowered under the Bureau of Indian Standard Act, 1986 (63 of 1986). The cement so purchased by the complainant was manufactured at Nalagarh unit of opposite party No. 2. That the complainant has not come to this Commission with clean hands as such, the instant complaint deserves to be dismissed with exemplary costs. Thereafter the opposite party No. 2 raised similar preliminary objections as has been raised by opposite party No. 1.
The opposite party No. 2 has pleaded that company is manufacturing Ordinary Portland Cement (OPC) and PPCs with guaranteed strength as per Indian Standard Specification and selling the same through its stockiest and Retailers all over the country. Each bag of the cement manufactured and sold through its Stockiest and Retailers is of 181 Mark No.1489 (Part-I) 1991 and the quality of cement is ensured as per Indian Standard Specification for OPC and PPC Cement. The company is manufacturing about 12,00,000 bags of cement per day from the different units in the country. The plants in North India itself at Bhatinda, Ropar ,Darlaghat, Rabriyawas ,Dadri and Nalagarh are producing around 5,00,000 bags per day and the quality of each bag is ensured by carrying out the physical and chemical tests which is maintained every day and is also compiled on monthly basis. That Bureau of Indian Standards has provided the Indian Standards Specification for PPC and OPC and the company after ensuring the specifications provided by the code issued by the Bureau of Indian Standards has been allotted the 1Sl Mark No.1489 (Part-1) 1991. Each bag produced by the Company is printed with the ISI Mark issued by the Bureau of Indian Standards and each Stockiest, retailer and purchaser is at liberty to get the contents of the cement tested for verification as per norms laid down by the Bureau of Indian Standards, That the testing of the cement alleged to have been purchased by the complainant has been got done as required under the law and IS Code issued by the Bureau of Indian Standards. Therefore claim of the complainant that the cement manufactured by opposite party No. 2 is of deficient quality is baseless bald assertion with no evidence in support, as such no complaint is maintainable against opposite party No. 2. That Company is supplying to its authorized stockiest and retailers and the product is certified by independent authority viz: Bureau of Indian Standards, which is a Government of India undertaking and final authority with regard to the specifications, each bag produced by the Company ensures its quality by putting its ISI mark No.1489 (Part-1) 1991. ISI Mark is issued only if the product ensures the specifications provided by the Bureau of Indian Standards. Since, the product ensures the specifications, which is produced under the strict physical and chemical tests report taken every day and complied on monthly basis, therefore, the quality of the cement is un-challengeable. It is further added and clarified that ISI Mark and the licence by Bureau of Indian Standards is given to the Company after total inspection of the plant, manufacturing process and quality control of the product.
It has been further pleaded that company is supplying PPC Cement and of other grades in totally sealed bags to it's authorized stockiest and retailers to authorized transporter to ensure the delivery of genuine quality of the product to its stockiest and retailers and from them to the purchasers.
The opposite party No. 2 has also pleaded that the company and the opposite parties are only responsible to the extent of ensuring and maintaining the quality of its product as per specifications provided by the Bureau of Indian Standards and each bag of cement produced by the Company is ensured to that extent and marked with its ISI mark. The Company also ensures that testing and sampling of the product as per norms and guidelines provided under IS Code issued by Bureau of Indian Standards by virtue of powers conferred by the Indian Standards Act 1986 (63 of 1986). The present complaint therefore deserves to be dismissed with exemplary cost on account of dragging the opposite party No. 2 into false and vexatious litigation, which effects the reputation of the company.
On merits, the opposite party No. 2 reiterated its version as pleaded in preliminary objections and detailed above. The opposite party No. 2 controverted all other averments of the complainant, and prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 14-8-2018 (Ex. C-1), photocopy of bills (Ex. C-2 to Ex. C-6), photographs (Ex. C-7 to Ex.C-12) and site plan (Ex.C-13) and further tendered into additional evidence Expert Report (Ex. C-14), photographs (Ex. C-15 to Ex. C-30) and site Plan (Ex. C-31).
In order to rebut the evidence of complainant, the opposite parties tendered into evidence affidavit dated 18-10-18 of Vakil Singh (Ex. OP-1/1), photocopy of bill (Ex. OP-1/2), affidavit dated 28-9-18 of Naveen Sharma (Ex. OP-2/1), photocopy of power of attorney (Ex. OP-2/2), photocopy of letter (Ex. OP-2/3 to Ex. OP-2/6), photocopy of attending quality complaint (Ex. OP-2/7), photocopy of letter (Ex. OP-2/8), photocopy of attending quality complaint (Ex. OP-2/9), photocopy of letter (Ex. OP-2/10), photocopy of attending quality complaint (Ex. OP-2/11), photocopy of report (Ex. OP-2/12), photocopy of rules of Part 1 Fly Ash Based (Ex. OP-2/13), photocopy of rules of methods of sampling (Ex. OP-2/14), photocopy of Indian Standard Methods of Tests for Strength of Concrete (Ex. OP-2/15), photocopy of Portland Pozzolana Cement Specification (Ex. OP-2/16).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heard learned counsel for the parties and gone through the record.
There is no dispute between the parties regarding purchase of Ambuja Cement by complainant from opposite party No. 1, manufactured by opposite party No. 2.
The grudge of the complainant is that the cement manufactured by opposite party No. 2 and sold by opposite party No. 1 to the complainant is of cheap and poor quality due to which there is seepage and leakage of water from both lintels (first and second floor) of the house of the complainant. The version of the opposite parties is that each bag of the cement manufactured and sold through its stockiest and retailers is of ISI Mark No. 1489 (Part 1) of 1991 and the quality of cement is ensured as per Indian Standard Specification for OPC and PPC Cement. The pleading of the opposite parties is also that the company has appointed qualified Civil Engineers all over the country to attend customers queries promptly through their authorised dealers for guiding and educating the customers for getting the best possible results of the cements manufactured by the company.
Hon'ble Supreme Court of India in case titled Ravneet Singh Bagga Vs. M/s.KLM Royal Dutch Airlines and another, 2001 (1) CLT (SC) held:-
Deficiency in service-Burden of proof-The burden of proving the deficiency in service is upon the person who alleges it.”
To prove his case, complainant mainly relied upon the report of Sahil Associates dated 18-8-2019 (Ex. C-14).
In the case in hand, on 29-11-2018, complainant moved an application before this Commission for appointment of expert for the inspection of his building regarding seepage from the lintels of first and second floor. The said application was later on, on 10-4-2019 was withdrawn by complainant. Thereafter complainant moved another application on the same day i.e. 10-4-2019 for permission for leading expert report in additional evidence. This Commission, in the interest of justice, allowed that application and complainant tendered in additional evidence report of Sahil Associates dated 18-3-2019 (Ex. C-14). At the end of the report the Er Sahil Gupta of Sahil Associates, has opined that :
“In my view there is no default in workmanship in construction of house. That there is no cracks in walls or slab but somewhere few cracks are visible in slab and roof projection due to fault in cement. In room lobby dampness is also appears in slab. So, as per my opinion the premises in dispute caused by the fault of cement.”
So, according to this report the opinion given by Er Sahil Gupta is itself contradictory as on the one hand he has opined that there is no cracks in walls or slab and on the other hand, he has also opined “but somewhere few cracks are visible in slab and roof projection”. He has also mentioned in his report that house is under construction, finishing is still pending and the condition of residential house seems good from inside.
So far as the report (Ex. C-14) which has been placed on file by complainant as expert report, is concerned this Commission is of the view that when the application moved by complainant for appointment of expert for inspection of disputed building was pending before this Commission, before decision of this Commission on that application, the complainant moved another application to tender this report and withdrawn is previous application. This report was got issued by complainant himself, during pendency of complaint when his application for appointment of expert in this Commission was pending and that too without any notice to opposite parties. As per report (Ex. C-14) when condition of building seems good from inside, walls have no cracks, it cannot be said that opposite parties sold poor/inferior quality cement to complainant.
A perusal of this report (Ex. C-14) reveals that there is nothing about leakage and seepage in this report. The said report is prepared on the basis of visual examination without any labaratory analysis of cement. Er. Sahil Gupta, has not mentioned length, breadth and depth of cracks and has not joined the masson who constructed the building. He has also not opined about the loss, if any, to building. The said expert has also not opined about the other ingredients of said lintel.
Lintel was laid on 20-2-18 and Er. Sahil Gupta visited the site on 11-3-19 i.e. after more than one year. The complainant neither tendered affidavit of said expert in evidence nor tendered affidavit of masson who constructed the building. The evidence of masson could be material in this case but the complainant could not even mentioned the name of masson or placed on file any document regarding his experience or expertise for the reasons best known to him.
The opposite parties have pleaded that at the time of lintel, engineer of the opposite parties visited site and took sample of concrete cubes report of which was placed on file as Ex. OP-2/5. The opposite parties have also pleaded that on the complaints of complainants, engineer of the opposite parties visited site thrice and all the reports have been placed on file. Ex. OP-2/6 is the report regarding complaint dated 18-4-2018. Mr. Avinash Singh, Inspecting Engineer has submitted his report to the opposite parties wherein he has opinion that there is a problem due to wrong construction practice and not proper use of vibrator at faulty area. This opinion of engineer Avinash Singh gets corroborated by the report of Er. Sahil Gupta of Sahil Associates (Ex. C-14) placed on file by complainant himself wherein Er. Sahil Gupta has opined that there is no crack on walls and but some cracks are visible in slabs and roof projection meaning thereby that fault took place due to improper use of vibrator at faulty area. Ex. OP-2/8 is the report regarding complaint dated 9-5-18 whereby Er. Avinash Singh has opined that during his first visit on 18-4-18, he found wrong construction practice as vibrator was not used properly in faulty area but during second visit, there was no problem of any kind but customer asking for compensation again and again but not ready to listen anything about problem. Ex. OP-2/10 is the report of Er. Avinash Singh regading complaint dated 6-6-18 which reveals that he visited the site again with opposite party No. 1 and discussed in detail with complainant but complainant did not want to listen about problem and only asked for compensation.
Thus, the evidence led by opposite parties proved that problem/fault took place due to improper use of vibrator in lintel but to rebut this evidence of opposite parties, complainant has not placed on file any affidavit of mason or any other document on file.
Hon'ble Chandigarh State Commission, in the case titled Joginder Pal Vs. Gujarat Ambuja & Ors ( 2011(2) CPJ 189 has held :
“..Report of engineer that cement was not defective – Cement is only one of ingredients and not sole ingredient for proper constructions – Onus was upon complainant to substantiate his allegation by giving cogent and convincing evidence- Thus, in absence of any corroborative evidence it cannot be said that alleged cracks were developed in building due to inferior quality of cement supplied by opposite parties.”
In the case titled Jai Prakash Verma Vs. J K Lakshmi Cement Ltd., & Anr (2013(2) CPJ 54, Hon'ble National Commission has observed that :
“ No evidence in shape of report brought from appropriate laboratory to prove that cement is substandard. The burden of proof lies with the complainant and that he has failed to discharge it.”
Hence, keeping in view the facts, circumstances and the evidence placed on file by the parties, this Commission is of the considered opinion that complainant has failed to prove by leading cogent and convincing evidence that cement manufactured by opposite party No. 2 and sold by opposite party No. 1 to complainant was of poor/inferior quality whereas opposite parties have placed on file sufficient evidence to prove that cement sold by them is of ISI mark and ensures the specifications provided by the Bureau of Indian Standards.
In the result, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
31-3-2022
(Kanwar Sandeep Singh)
President
(Shivdev Singh)
Member
(Paramjeet Kaur)
Member
