Chandigarh

StateCommission

CC/100/2020

Sanjay Mahajan - Complainant(s)

Versus

Ultratech Cement Ltd. - Opp.Party(s)

Shreenath A. Khemka Adv.

27 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint No.	:	100 of 2020
Date of Institution	:	28.05.2020
Date of Decision	:	27.05.2022

 

 

 

 

 

 

SANJAY MAHAJAN, aged 54 years S/o Late Om Prakash Mahajan R/o House No.245, Sector 19A, Chandigarh-160019.

……Complainant.

Versus

1.      ULTRATECH CEMENT LTD., through its Managing Director O/o Plot No.B33, Industrial Area, Phase III, Mohali, SASNagar, Punjab – 160055; also at: B-Wing, 2^nd Floor, Ahura Centre, Mahakali Caves Road, Andheri (East), Mumbai – 400093.

…..Opposite Party.

 

2.      DHARAMVIR (site Supervisor of the Building), aged 34 years S/o Shiv Prasad R/o House No.503/1, Sector 52, Chandigarh – 160036.

 

…..Proforma Opposite Party.

 

 

COMPLAINT U/S17(1)(A)(I) OF CONSUMER PROTECTION ACT 1986

 

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MRS. PADMA PANDEY, MEMBER

                  MR. RAJESH K. ARYA, MEMBER

 

Present:-      

Sh. Amit Jhanji, Sr. Advocate assisted by Sh. Siddharth Bhukkal, Advocate and Sh. Shreenath A. Khemka, Advocate for the complainant.

Sh. D. K. Singhal, Advocate for Opposite Party No.1.

Sh. Sarthak Gupta, Advocate for Opposite Party No.2.

 

 

PER  RAJESH K. ARYA, MEMBER

 

                    The facts in brief are that the complainant, for construction of his house No.245, Sector 19-A, Chandigarh and on the assurance that UltraTech M30 Aquaseal Cement would provide waterproofing for the roof and certified with a 10 year guarantee, purchased the same by making advance payment of Rs.1,50,000/- vide cheque dated 03.01.2020, Annexure C-1. On 05.01.2020, three trucks of opposite parties arrived at construction site and about 6-7 m³ of concrete of the said cement was poured on the roof of the house. However, realizing that there was significant inconsistency in the poured concrete by the Contractor, all the three trucks were sent back. Since the strength of the structure, the most vital aspect of a new house, was under question due to level of service provided, the complainant sent email to the opposite party on 05.01.2020 itself, Annexure C-2 but just for want of phone number, the opposite party closed the incident vide email dated 06.01.2020, Annexure C-3. Again alleging lackadaisical and perfunctory attitude on the part of the opposite party, complainant sent email dated 06.01.2020, Annexure C-4. However, vide subsequent email dated 03.02.2020, Annexure C-5, opposite party admitted that the concrete supplied was in fact deficient due to incorrect proportion of the waterproofing chemical in the admixture.

2.                It has further been averred that on assurance given by the opposite party that the quality of the roof would remain unaffected, as the concrete already laid would merely require additional time to ossify, the opposite party poured the rest of the concrete on the remaining part of the roof. However, after a week’s time, when supporting shutters were removed, a huge portion of the roof was completely ruined and all handmade cornices and designs were rendered unstable. In order to obfuscate the extent of their liability, the opposite party obtained and settled a deficient quotation with the Builder, despite the absence of any privity between them. However, vide emails dated 16.01.2020-17.01.2020, Annexure C-6 (Colly.), a sum of Rs.2 Lakhs was purported to have been settled and accepted. It has been averred that by raising two bills dated 08.02.2020 for Rs.43,400/- and Rs.24,800/-, Annexure C-7 (Colly.) for resupply of the deficient concrete, the opposite party indulged into unscrupulous trade practice. On receiving no reply to email dated 06.01.2020, Annexure C-4, the complainant served legal notice dated 17.02.2020, Annexure C-9 but surprisingly, the opposite party vide reply dated 07.03.2020, Annexure C-10, denied all liability merely on the ground that on past occasions, the complainant had voiced no grievance regarding the concrete being supplied. Hence this complaint has been filed by the complainant seeking directions to the opposite party to pay total sum of Rs.25,00,000/-, breakup whereof, as mentioned in Para IV of Para 13, is given as under:-

 

No.	Particulars	Amount (Rs.)
1.	Reconstruction cost of the roof	5,67,000.00
2.	Material costs for delay and wastage	7,40,000.00
3.	Excess rental payment for 2 months @ INR 80,000 p.m.	1,60,000.00
4.	Excess living costs (utilities and rations for family and workers) for 2 months @ INR 1,40,000 p.m.	2,80,000.00
5.	Harassment and mental agony	6,53,000.00
6.	Litigation costs	1,00,000.00
Net Amount		25,00,000.00

 

3.                Opposite party No.1 – Ultratech Cement Ltd., in its reply, while admitting the factual matrix of the case, has raised certain preliminary objections to the effect that:-

1. this Commission has no territorial jurisdiction to entertain the present complaint, as the supply order for Ultratech concrete was given by the complainant to opposite party No.1 based at Mohali and as per invoice/bills, all the disputes would be subject to Delhi jurisdiction;
2. that the dispute between the parties is purely of civil nature and involves intricate questions of facts and law, which can only be decided by a civil court of competent jurisdiction;
3. that the complainant has no locus standi to file the present complaint as he cannot be permitted to take benefit of his own wrong and;
4. that since the net losses from opposite party No.1’s alleged deficiency aggregates to Rs.25 Lakhs, hence, this Commission does not have the pecuniary jurisdiction to entertain the complaint.

4.                However, on merits, the averment of contractor realizing that there was significant inconsistency in the concrete poured has been denied. It has been pleaded that as per procedure and practice, the site engineer of opposite party No.1 was deputed and he remained present since delivery of the first consignment of M30 concrete. It has further been pleaded that initially only 5 cum of concrete was poured from the first truck when the workability issue was detected by the deputed engineer and only on instructions of the said engineer, 2 cum concrete had been sent back for another round of quality check so that similar issue would not be experienced by the complainant. It has further been pleaded that the other two trucks waiting for unloading had also been sent back and only when the issue was diagnosed by the expert team of opposite party No.1, the material had been sent back to the construction site. It has further been pleaded that the workability issue mainly arose because of variation in admixture and setting of concrete was further delayed due to extreme weather conditions and on 05.01.2020, the weather was extremely cold and it was raining, due to which, moisture had been there and due to continuous rain after pouring the concrete, the portion of 5 cum supplied from the first truck was not set. However, it has been admitted by opposite party No.1 that its representative promised the complainant that the quality of the roof would remain unaffected, as the concrete already laid would require additional time to ossify. It has further been pleaded that the concerned official of opposite party No.1 was in constant touch with the complainant and the process of dismantling and recasting of affected portion was undertaken and the task was completed on 08.02.2020 to the complete satisfaction of the complainant as per Feedback Form dated 8.02.2020, Annexure OP-1/4. It has further been pleaded that the quotation of Rs.2 Lakhs was given by the contractor of the complainant for dismantling and relaying the affected portion vide email dated 7.01.2020 and since the issue vis-à-vis relaying of slab was to be resolved, opposite party No.1 had offered the said amount of Rs.2 Lakhs as quoted by the said contractor for relaying of slab. Denying raising of two bills of Rs.43,400/- & Rs.24,800/-, it has been pleaded that firstly, proper communication was given to the complainant that the supply for the affected area would be free of cost and secondly, bills had been generated for the said supply but at the same time, credit note had been issued to the complainant. It has further been pleaded that the complainant had never been asked to pay any amount against the said bills as the said bills were only generated for maintaining the records of the supply done. It has further been pleaded that a credit balance of Rs.51,488/- in the name of the complainant has been still reflecting in the account books of opposite party No.1, which duly proves that opposite party No.1 never indulged in any unscrupulous act as alleged by the complainant. The averment of spending amounts of Rs.5,67,000/- for reconstruction cost of the roof, Rs.7,40,000- for material cost for delay and wastage, Rs.1,60,000/- for excess rental payment for two months @Rs.80,000/- per month, Rs.2,80,000/- as excess living costs have been specifically denied by opposite party No.1. Lastly prayer for dismissal of complaint has been made by opposite party No.1.

5.                Opposite Party No.2 – Sh. Dharamvir (Site Supervisor), in his counter affidavit dated 01.12.2020 has testified that being the Site Supervisor, he was overseeing the construction of the complainant’s house and on 05.01.2020, pouring of M30 concrete started on the roof of the complainant’s house, when it was observed that the consistency of the aggregate cement mixture was thinner than usual, the rest of the pouring was halted and the reminder of the mixture was sent back and till then, about 6-7 m³ of the mixture had already been poured. He has further testified that opposite party No.1 assured the complainant that the difference in the consistency would not be of any adverse consequence, except for requiring additional time to set. It has further been testified that on the said assurance, the remainder of the mixture was poured on to the roof. It has further been testified that after giving adequate time of more than a week to set, the underlying supporting structure from beneath the roof was removed, unfortunately, the concrete had not property set, because of which the entire roof had eroded and required to be demolished and reconstructed. He has further testified that as per email dated 03.02.2020, Annexure C-5 placed on record by the complainant, it is clear that there was fault in the proportion of the aggregate-cement mixture as supplied by opposite party No.1 because of which the mixture was thinner than usual. He has admitted that because of the same, the mixture did not set in time and thus, any and all damage that arose was on account of opposite party No.1 negligence and not the answering opposite party. Lastly, prayer for dismissal of complaint qua him has been made.

6.                The complainant filed rejoinder to the written statement of opposite party No.1, wherein he reiterated the averments made in the complaint and repudiated those as pleaded by opposite party No.1.

7.                The parties led evidence in support of their case.

8.                We have heard the arguments of the contesting parties and have also gone through the entire record of the cases and written arguments also very carefully.

9.                So far as the first objection taken by opposite party No.1 that this Commission has no territorial jurisdiction to entertain the present complaint, as the supply order for Ultratech concrete was given by the complainant to opposite party No.1 based at Mohali and as per invoice/bills, all the disputes would be subject to Delhi jurisdiction, it may be stated here that this objection deserves rejection for the simple reason that firstly, the M30 concrete mixture was delivered/poured by opposite party No.1 at the residence of the complainant situated in Chandigarh and secondly, the alleged dispute qua the said poured mixture being not proper was raised by the complainant at Chandigarh, when some part of the roof fell. As such, this State Commission has the territorial jurisdiction to entertain and try the present complaint and the objection raised to the contrary stands rejected.

10.              The next objection raised by opposite party No.1 to the effect that the dispute between the parties is purely of civil nature and involves intricate questions of facts and law, which can only be decided by a civil court of competent jurisdiction deserves rejection as the Hon’ble Supreme Court in the case titled ‘Dr. J. J. Merchant vs. Shrinath Chaturvedi III (2002) CPJ 8 (SC); and ‘C. Venkatachalam v. Ajit kumar C. Shah III (2011) CPJ 33 (SC) has specifically held that remedy under the Consumer Protection Act cannot be denied because complicated question was involved.  As such, the objection raised being not sustainable in the eyes of law stands rejected.

11.              With regard to the next objection raised by opposite party No.1 to the effect that the complainant has no locus standi to file the present complaint, it may be stated here that the complainant has very much the locus-standi to file the complaint as specific allegation as regards the M30 concrete mixture being defective has been raised in the complaint for which, he has sought refund of amount paid, compensation etc. Thus, the objection raised stands rejected.

12.              The next objection raised by opposite party No.1 is that this Commission has no pecuniary jurisdiction to entertain the compliant as the complainant has claimed an amount of Rs.25 Lakhs on different counts. In this regard, it may be stated here that this complaint filed on 28.05.2020 is very much within the pecuniary jurisdiction of this Commission because on the said date, the old Consumer Protection Act, 1986 was very much in operation, as per Section 17 thereof, the pecuniary limit for filing the complaint before this Commission was starting from Rs.20 Lakhs up-to Rs.1 Crore. Therefore, this objection being devoid of any substance also stands rejected.

13.              Now coming to the merits of the case, the only question, which falls for consideration before this Commission is that whether the M30 concrete mixture poured for the purpose of laying of roof at the residence of the complainant was defective, if so, to what relief the complainant is entitled to for such deficiency in rendering service on the part of opposite party No.1. In this regard, it is important to mention here that opposite party No.1, in its reply, has categorically stated that initially only 5 cum of concrete was poured from the first truck when the workability issue was detected by the deputed engineer and only on instructions of the said engineer, 2 cum concrete had been sent back for another round of quality check so that similar issue would not be experienced by the complainant. It further stated that the other two trucks waiting for unloading had also been sent back and only when the issue was diagnosed by the expert team of opposite party No.1, the material had been sent back to the construction site. Not only this, in Para 5 of its reply to legal notice, opposite party No.1 conceded that there was workability issue due to the variation in the admixture and existence of moisture in the admixture.  Further in Para 9, opposite party No.1 admitted that the affected portion of roof had to be dismantled as due to continuous rain and extreme cold weather conditions, the said portion of 5 m³  supplied from first truck was not set. The clinching document placed on record by the complainant to establish deficiency on the part of opposite party No.1, is email dated 03.02.2020, Annexure C-5, whereby, one Sanjay Kumar Gupta, Cluster in Charge QC & VAC of Ultra Tech Cement Limited (opposite party No.1) admitted that there was problem in the admixture motor, resulting in excess admixture in the concrete in that particular TM. The said email, being relevant reads thus:-

“Dear Sir,

We have done analysis and found that on dated 05.01.2020 during loading of TM no-PB65AK-4995 at 05:09 am, there was problem in the admixture motor, resulting in excess admixture in the concrete in that particular TM. As a results there was delay in setting of concrete supplied in this particular TM. However, in the concrete supplied in the subsequent TMs, the admixture dosage was as per requirement and hence the setting of concrete was also as required.”

14.              Thus, it is very much proved from the contents of aforesaid email dated 03.02.2020, Annexure C-5 that there was excess admixture in the concrete in that particular TM, was happened due to problem in the admixture motor. Not only this, opposite party No.2 – Sh. Dharamvir (Site Supervisor), in his counter affidavit dated 01.12.2020, has also supported the case of the complainant by stating that he was overseeing the construction of the complainant’s house and on 05.01.2020, pouring of M30 concrete started on the roof of the complainant’s house, when it was observed that the consistency of the aggregate cement mixture was thinner than usual, the rest of the pouring was halted and the remainder of the mixture was sent back and till then, about 6-7 m³ of the mixture had already been poured. Moreover, the defective lot of M30 concrete mixture was immediately taken back by opposite party No.1 and replaced with fresh lot by making the deficiency good. When deficiency in service on the part of opposite party No.1 stands established as regards the defective M30 concrete mixture, to what extent the complainant is entitled to be compensated is to be determined. To establish his loss, the complainant has placed on record quotation/estimate prepared by his Builder (Parveen Gupta – M/s Shambhu Shivam Construction Works) who were constructing the house of the complainant, vide email dated 16.01.2020, Annexure C-6, which, inter-alia, reads thus:-

                “Calculation of area                                        in Sq. ft.

                        Slab

                        28′6″ x 9′9″                                                    277.87

                        20′0″ x 17′0″                                                  340.00

                        4′0″ x 3′0″                                                         12.00

                       

                        Beam

                       

                        20′0″ x 1′3″                                                      25.00

                                                                                                654.87

                        Cornices                                                       200.00

                        Total Area                                                     854.87

 

                        Schedule of work

                        Roof and cornices demolition

                        Removal of all shuttering

                        Removal of all concrete and cleaning of

                        malwa

                        Cleansing of steel and re-shuttering

                        Remaking all cornices and steel binding

                        Cost per square feet                                  400.00

                        Total construction cost                  3,41,948.00

                        Semi-bond adhesive

                        25 kg @ Rs.1500 per kg                      37,500.00

                        Total cost                                            3,79,448.00”

15.              Subsequently, the said Builder (Parveen Gupta – M/s Shambhu Shivam Construction Works) vide email dated 17.01.2020, part of Annexure C-6, gave revised quote for the work to be done at the house of the complainant, again showing the total construction cost as Rs.3,79,448.00. Thus, it is established beyond doubt that the complainant actually suffered loss of Rs.3,79,448.00 against the projected construction cost of Rs.5,45,000/- placed on record vide estimate, Annexure C-11. It may be stated here that this estimate, Annexure C-11 is undated and seems to have been prepared to raise the claim qua construction cost. Therefore, no help can be derived by the complainant from Annexure C-11. It may also be stated here that the defective lot of M30 concrete mixture was immediately taken back by opposite party No.1 and replaced with fresh lot by making the deficiency good without charging anything from the complainant. Moreover, the alleged two bills of Rs.43,400/- & Rs.24,800/- were generated by opposite party No.1 qua the extent of supply of fresh material against defective material, just for the purpose of their records. The complainant himself in his written arguments has stated that opposite party No.1 in Para 22 of its reply to the legal notice has stated that the “The faulty concrete supplied to your Client was replaced by my Client free of cost on 08.02.2019…” and in Para 22 of the said reply, they have categorically admitted that mixture was faulty which was replaced. The complainant has further stated that the only underlying issue is that replacing the concrete free of cost does not tackle the losses incurred by the complainant on account of such deficiency by a renowned brand which has caused irreparable damage. No doubt, as stated above, the complainant has suffered losses but he has tried to exaggerate the actual loss suffered by him vide email dated 13.01.2020, Annexure C-8 wherein he has mentioned the losses suffered and incurred expenses to the tune of approximately Rs.12 Lakhs, which has now gone up-to Rs.25 Lakhs in the present complaint. No doubt, the complainant suffered actual loss of Rs.3,79,448.00 but it has to kept in mind that the said deficiency occurred due to the fault in mixture/machine, which further resulted in improper ratio of M30 concrete mixture. Apart from the above loss of Rs.3,79,448.00 actually suffered by the complainant, he has also suffered mental agony and physical harassment on account of deficiency in rendering service, for which, he is also entitled to some amount of compensation. In our concerted view, a consolidated amount of Rs.1,50,000/- if  awarded towards compensation and litigation expenses would meet the ends of justice.

16.              However, since DHARAMVIR (site Supervisor of the Building) opposite party No.2 was only supervising the laying of M30 concrete mixture on behalf of opposite party No.1 and since, on his noticing the deficiency in the said mixture, the same was called back and replaced with a new lot. Not only this, on his observing that the consistency of the aggregate cement mixture was thinner than usual, the rest of the pouring was halted and the remainder of the mixture was sent back and till then, about 6-7 m3 of the mixture had already been poured. Therefore, we do not find any lapse on his part in performance of duties being supervisory in nature. Hence, the complaint against him (opposite party No.2) deserves to be dismissed.

17.              In support of its contentions, opposite party No.1 has placed reliance on following  judgments, which are distinguishable on facts, for the reasons to be recorded herein below:-

(i)                The first judgment relied upon is Swaraj Mazda Ltd. versus P. K. Chakkappore And Anr., 2005 (2) C.P.J 72 (NC); wherein the complainant had alleged manufacturing defect in the vehicle which could not be removed. However, the Hon’ble National Commission, after going through the job cards observed that as far as the defects in the engine is concerned, the Hon’ble National Commission was unable to appreciate as to how the State Commission arrived at the conclusion about manufacturing defects. After considering the report of Local Commissioner, the Hon’ble National Commission observed that the State Commission should have taken pains to appoint a qualified person in this regard for going into any technical issues involved rather than appointing a loss assessor based on a list supplied by the complainant. It is not the case here. Therefore, no help can be derived from the cited judgment.

(ii)               The next judgment relied upon is again that of Hon’ble National Commission in case “Omprabha Malviya Versus Godrej Photo-Me Ltd. and others”, 2012 (1) C.P.J. 14 (NC), wherein the complainant, who was a housewife and had no knowledge about the mechanical operation of photo-imager machine, failed to place on record any expert opinion to establish manufacturing defect in the said machine and thus, the complaint was dismissed by the State Commission, which order was then upheld by the Hon’ble National Commission. Again, this is not the position in the case in hand, as it is the admitted case of opposite party No.1 that there was problem in the admixture motor, resulting in excess admixture in the concrete in that particular TM.

(iii)              The next judgment in case “M/s Toyota Kirloskar Motors P. Ltd. And Anr. Versus Tirath Singh Oberoi, 2017(1) C.P.J. 2020 (NC), relied upon by opposite party No.1 pertains to manufacturing defect in the vehicle as SRS air bag of the said vehicle did not deploy during accident. The Hon’ble National Commission allowed the revision petition by setting aside the order of Consumer Fora below which had allowed the complaint. Therefore, this case is also distinguishable on facts.

(iv)              Again, in case “R.C. Grover Versus Tata Motors Ltd. & anr.” 2015(3) CLT 93 (NC), reliance whereupon has been placed by opposite party No.1, the Hon’ble National Commission held that without proof of manufacturing defect, complainant was not entitled to replacement of vehicle by new vehicle. We may reiterate here that it is not the case here. Thus, no help can be derived by this judgment being distinguishable on facts.

(v)               The next case “Dr. Nilesh G. Nimavat Versus Medipicks & anr.”, 2015 (1) C.P.J. 46 (NC), relied upon by opposite party No.1 pertains to medical negligence on account of supply of defective X-Ray machine. The Hon’ble National Commission held the order of both Consumer Fora below i.e. the District Forum as well as State Commission, which had dismissed the complaint as the complainant had failed to prove any defects in the X-ray machine and also failed to establish that X-Ray machine was emitting excessive radiation due to which, the complainant had suffered ailments. The facts of the case relied upon being distinguishable are of no help to opposite party No.1.

(vi)              Similar is the next case “Rajiv Gulati Versus Tata Engineering and Locomotive Company Ltd. and others”, 2013(3) C.P.J. 273 (NC), which again pertains to manufacturing defect in the vehicle, which the complainant failed to prove and while dismissing the appeal filed by the complainant and allowing that of Tata Engineering and Locomotive Company Ltd. and others, the Hon’ble National Commission dismissed the complaint by setting aside the impugned order.

(vii)             The next judgment relied upon by opposite party No.1 in case “M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd. and another.”, 2010 (4) CPJ 38 (NC)”, pertains to an open transit Insurance Policy wherein the Hon’ble National Commission held that in the contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception or relaxation can be given on the ground of equity. This case being distinguishable on facts is of no help to opposite party No.1.

18.              Not only above, even the case laws relied upon by the complainant i.e. “Om Parkash v. Reliance General Insurance & Anr.” Civil Appeal No.15611 of 2017 decided by Hon’ble Supreme Court of India on 04.10.2017 pertaining to theft of vehicle and “SBD Infrastructure Pvt. Ltd. & Ors. V. Sanjeet Kumar Sharma”, Revision Petition No.3185 of 2016 decided by Hon’ble National Commission on 20.12.2018 pertaining to delay in delivery of possession flat by the builder, are of no help to the complainant being distinguishable on facts.

19.              For the reasons recorded above, the complaint is partly allowed with costs against opposite party No.1 and opposite party No.1 is directed as under:-

1. to pay an amount of Rs.3,79,448.00 to the complainant for the loss actually suffered by him within a period of 30 days from the date of receipt of certified copy of this order failing which, the said amount shall carry interest @9% per annum (simple) from the date of passing of this order till actual realization.
2. To pay a consolidated amount of Rs.1,50,000/- to the complainant towards compensation and litigation expenses within a period of 30 days from the date of receipt of certified copy of this order failing which, the said amount shall carry interest @9% per annum (simple) from the date of passing of this order till actual realization.

20.              However, the complaint against opposite party No.2 (Dharamvir) stands dismissed.

21.              Certified copies of this order be sent to the parties free of charge.

22.              The files be consigned to Record Room, after completion.

Pronounced

27.05.2022.

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (PADMA PANDEY)

          MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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