State Consumer Disputes Redressal Commission
R.S. Vaideeswaran No.6, Landons Road ... vs The Proprietor M/S. Sri Karumariamman ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) F.A.NO.563/2010 (Against order in CC.NO.81/2008 on the file of the DCDRF, Chennai (North) DATED THIS THE 30th DAY OF DECEMBER 2011 R.S. Vaideeswaran No.6, Landons Road Kilpauk, Chennai- 600 010 Appellant/ Complainant Vs. 1.
The Proprietor M/s. Sri Karumariamman Hardwares No.44, MTH Road, Villivakkam Chennai- 600 049
2. The Manager M/s. India Traders LANCO Cement Distributor L-19/2, TNHB Colony Korattur, Chennai- 600 080
3. The Managing Director M/s. LANCO Industrial Ltd., Rathagunneri, Sri Kalasthri Chittoor District, Andhra Pradesh Respondent/Opposite parties The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.34000/- towards cost of purchase of cement, alongwith compensation of Rs.1 lakh, and cost. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.05.2010 in CC.No.81/2008.
This petition coming before us for hearing finally on 08.12.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant: M/s. N.A.Padmanabha Rao Counsel for the Respondents/Opposite parties : M/s. P.R. Raman M. THANIKACHALAM J, PRESIDENT
1. The consumer unable to get a favourable order as desired, has come before us, as appellant.
2. Brief facts, necessary for the disposal of the complaint:
The complainant had purchased 30 bags of LANCO brand cement on 23.10.2007, from the 1st opposite party, who is the seller, from the dealer/ 2nd opposite party, which was manufactured, by 3rd opposite party, for the purpose of doing weathering work in his building. When the weathering work was carried out, the cement does not get set, causing problem, which was informed to the 1st opposite party, who inturn informed the matter to the 2nd opposite party.
3. A person in charge of the 2nd opposite party, requested the complainant to wait for a day, to get the cement to set, but the cement did not get set at all, which was informed, for which the 2nd opposite party, admitting that they have sold defective BAGS of cement, agreed to replace 10 bags of cement, for which the complainant is not willing. Because of the non-settling of the cement, supplied by the opposite parties, and additional work involved, the complainant suffered mental agony, hardships, for which he should be compensated by paying a sum of Rs.1 lakh, in addition to a sum of Rs.34000/-, being the cost of purchase of 30 bags of cement, as well as the value of the cement, labour charges etc., Thus, alleging defective cement supplied (probably manufacturing defect), a consumer complaint was filed, before the District Forum.
4. The 1st opposite party, admitting the purchase of cement, from them by the complainant, opposed the case, adopting the written version of the 3rd opposite party.
5. The 2nd opposite party also, admitting the sale of cement to the 1st opposite party opposed the claim, adopting the statement of the 3rd opposite party.
6. The 3rd opposite party, admitting the supply of cements to the 2nd opposite party, who in turn should have sold to the 1st opposite party, who in turn should have sold to the complainant, resisted the case interalia contending, that upon report the 2nd opposite party collected samples of available cement, from the site on 29.10.2007, which proved upon test, that it was manufactured as per the industry standard, that the complainant had used 4 units of sand for 30 bags of cement, and the works were carried out during the rainy season, which might be the reason for the delayed setting, for which they cannot be held responsible, in view of the fact, the complainant has used an unsually large quantity of the sand, to mix the mortar, during the rainy season, that the alleged expenses incurred by the complainant is also not known to the opposite party, and that they being the manufacturer of a quality cement, since they have not committed any deficiency, not liable to pay any damage or to return the value of the cement, purchased by the complainant, praying for the dismissal of the complaint.
7. The District Forum, considering the documents produced on either side, as well as the fact, the complainant has not proved the manufacturing defect, adopting Sec.13 (c) of the Consumer Protection Act, came to the conclusion, that the complainant had miserably failed to prove the manufacturing defect, or anyother defect in the cement, and therefore as such the non-compliance of the complainants request, to return the amount, will not come within the meaning of deficiency in service. In this view, the complaint was dismissed as per order dt.10.5.2010, which is under challenge in this appeal, seeking relief as prayed for.
8. Now it is an admitted fact, as well as we can say proved fact also, that the complainant had purchased 30 bags of LANCO brand cement, manufactured by the 3rd opposite party, sold by the opposite parties 2 and 1 on 23.10.2007, for consideration. It is also more or less an admitted fact, that using the said cement, the complainant had carried out the weathering work in his building. It appears, the cement did not get set at all, while fixing the tiles, resulting complications, despite waiting. Therefore, he reported the matter to the 1st opposite party, who in turn reported the matter to the 2nd opposite party, whose man also came to the spot, even as admitted by the complainant in paragraph 4 of the complaint. But, the request of the complainant to compensate him, was not conceded, resulting the consumer complaint, which also ended in failure, resulting this appeal.
9. As seen from the averments in the complaint, the defect reported appears to be manufacturing defect in the cement, because it did not get set at all, against the character of cement. Therefore, it is for the complainant to make out the case, by sending the sample to the expert, getting a report, that the cement manufactured by the 3rd opposite party, purchased by him from the 1st opposite party, did not confirm the standard prescribed for quality cement. Admittedly, the complainant has to taken any steps.
Even the complainant has not filed the proof affidavit of the contractor or the maistry, as the case may be, who should have carried out the weathering course, who alone could speak effectively, under what circumstances the cement failed to set at all, though estimate was filed for replacement of the tiles, and additional expenses etc., which are all germane, and will come into operation, if manufacturing defect is proved. Therefore, the District Forum, considering the mandatory provisions of Sec.13(c ), as well as relying upon the decision, regarding expert opinion, came to the conclusion, that in the absence of test report viz. public analyst report, regarding the quality of the cement, it is impossible to come to a conclusion that the 3rd opposite party had manufactured, defective cement, and marketed the same, practicing unfair trade practice. In this context we have to see, the pleadings regarding the mixture of the cement.
10. In the original complaint, it was said, that the complainant had spent two loads of sand (4 units) for mixing with 30 bags of cement. It is the case of the opposite party, that the complainant had used more sand, than the prescribed standard viz. 1:5, and that may be one of the reasons for not setting quickly.
Realising this mistake, the complaint was amended, correcting 4 units as 2 units, this cannot be ignored, though amendment was allowed, despite objection. To explain, that there was proper mixing of sand, and cement, as indicated by us, the complainant should have obtained affidavit from the mason, who had mixed the sand, and cement for the purpose of carrying out weathering course, and in the absence of proof affidavit, as well as in the absence of public analyst report, regarding the quality of the cement, it was not possible to believe the case of the complainant alone, that too when it was inconsistent at one stage, regarding the mixing of the sabd, which is the case of the 3rd opposite party, as well as the 2nd opposite party also, in addition to rainy season, adding more water, and that may be one of the reason for not quick setting also. In this context we have to see what was the steps taken by the opposite parties.
11. As admitted by the complainant, on complaint, 2nd opposite party man reached the spot. It is the case of the opposite parties, that the 2nd opposite party had collected samples from the site on 29.10.2007,which was tested as per the IS 4031-1988, which is the industry standard for setting, and the same was complied with the requirement of IS455-1989, the cement being classified as Portland slag cement. To prove the above facts, aid was sought from Ex.B1 and B2, which prove that the cement manufactured, sold to 2nd opposite party, who inturn supplied the same to the 1st opposite party, who inturn sold the same to the complainant, was in conformity with the standard prescribed, not disclosing any manufacturing defect. In the absence of any contra report, from the side of the complainant, taking into account the affidavit of the opposite parties also, we are inclined to accept the case of the opposite parties, that they should have collected the sample from the site and tested the same, which the complainant failed to do so, though there was a duty upon him to prove the manufacturing defect. Thus accepting Ex.B1 & B2, we are constrained to hold that the defect alleged if at all, should have had happened by the excess sand, used by the complainant, that too during rainy season and if the complainant not satisfied about the setting, he should have voluntarily removed the tiles, incurred additional expenses, for which we cannot hold the opposite parties responsible, who appears to have sold quality cement, manufactured according to the standard, as proved. The District Forum, properly analyzing the above facts and circumstances of the case, has rightly dismissed the case of the complainant, which is in our view, to be confirmed, unhesitatingly.
12. In the result, the appeal is dismissed, confirming the order of the District Forum in CC.No.81/2008 dt.10.5.2010. There will be no order as to cost in this appeal.
J. JAYARAM M. THANIKACHALAM JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Miscellaneous