State Consumer Disputes Redressal Commission
Acc Ltd. vs Harinder Kaur on 9 March, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 97 of 2015
Date of institution: 28.1.2015
Date of Decision: 9.3.2016
ACC Limited, Area Office at SCO No. 2907-2908, Sector 22-C,
Chandigarh, through its duly authorized person Alok Upadhaya, General
Manager.
Appellant/Op No. 1
Versus
1. Harinder Kaur wife of Harinder Singh
2. Harminder Singh son of Harcharan Singh,
Both resident of House No. 4, Golden City, Mundi Kharar, Tehsil
Kharar, District SAS Nagar, Mohali.
Respondents/Complainants
First Appeal against the order dated
28.10.2014 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Navin Chowdhri, Advocate
For the respondents : Sh. H.S. Saini, Advocate
2nd Appeal
First Appeal No. 101 of 2015
First Appeal No. 97 of 2015 2
Date of institution: 29.1.2015
M/s Jaswant Steel Industries, Authorized Dealer of ACC Cement,
Chandigarh Road, Village Desu Majra, SAS Nagar (Mohali), through its
Proprietor Jaswant Singh.
Appellant/Op No. 2
Versus
1. Harinder Kaur wife of Harinder Singh
2. Harminder Singh son of Harcharan Singh,
Both resident of House No. 4, Golden City, Mundi Kharar, Tehsil
Kharar, District SAS Nagar, Mohali.
Respondent Nos. 1&2/Complainants
3. ACC Limited, Area Office at SCO No. 2907-2908, Sector 22-C,
Chandigarh through its duly authorized person.
Performa Respondent
First Appeal against the order dated
28.10.2014 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. M.S. Cheema, Advocate
For respondents No.1&2 : Sh. H.S. Saini, Advocate
For respondent No.3 : Sh. Navin Choudhary, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the appeals filed by Op Nos. 1 & 2 arising out of the order dated 28.10.2014 passed in First Appeal No. 97 of 2015 3 Consumer Complaint No. 643 dated 19.12.2013 by District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short the "District Forum") vide which the complaint filed by complainant was allowed with the direction to Ops to pay a lumpsum compensation amount of Rs. 1,00,000/-.
2. Complaint was filed by complainants under the Consumer Protection Act, 1986 (in short 'the Act') against OPs on the averments that Op No. 1 is manufacturer of cement ACC whereas Op No. 2 is its authorised Dealer. For the construction of their residential house, they purchased 120 bags of ACC Gold cement for construction of Lintel of the top floor from Op No. 2 @ Rs. 330/- per bag amounting to Rs. 39,600/- on 14.8.2013 vide bill No. 1221. He used these 120 bags for laying lintel of the top floor according to the specification and instructions so advised by Ops and shuttering was opened on 28.8.2013. However, complainants were surprised and astonished to see that roof, developed some cracks and cement mortar from the roof started falling at some places and upon putting water on the roof, there was leakage of water from the roof and ultimately, it was found that ACC Gold so supplied by Ops used in the lintel was defective in its quality. Complainant reported the matter to Ops and narrated the factual position. They sent their officials to the site of the complainant. The officials assured that complainants should not worry and their grievances would be redressed by Ops. They were also advised by the officials to take some photograph of some affected portion of the roof. Accordingly, photographs were clicked and sent by email to Op No. 1 on 28.8.2013 but with no result. Then a legal notice was First Appeal No. 97 of 2015 4 served, which was replied on 3.12.2013 in which they totally declined the claim of the complainant and further alleged that the complainant had used the sub-standard material and insufficient material while constructing the lintel. They also stated that the sample so taken was got tested in the laboratory and failed. Ops failed to make out the loss suffered by the complainants. This act of Ops for selling defective goods amounted to unfair trade practice and deficiency in service. Accordingly, the complaint was filed for refund of Rs. 39,600/- for the purchase of cement, Rs. 1,00,000/- on account of labour for getting removed the defects, Rs. 1,00,000/- on account of loss/cost of steel, electric material etc., Rs. 1,00,000/- on account of damages for causing mental pain and Rs. 20,000/- on account of litigation charges and they also granted interest @ 18% p.a. on this amount w.e.f. 14.8.2013 till payment.
3. Complaint was contested by Ops. Op No. 1 in its written reply took the preliminary objections that Op No. 1 was/is running the business under the name and style of ACC Ltd. and not under the name and style of ACC Cement Ltd.; complaint as framed was not maintainable; complaint was bad due to non-joinder of contractor as leakage in slab appeared due to sand, bricks and water accumulated on roof top as well as less cement and sub-standard sand; complainant had not approached the Forum with clean hands and had taken false pleas in order to get undue advantage; complaint was false, vague and concocted, therefore, liable to be dismissed; complainant was not a consumer qua Op No. 1 as complainant had not paid any consideration to Op No. 1; Cement manufactured by Op First Appeal No. 97 of 2015 5 No. 1 was of highest quality; Op No. 1 is authorised to use the standard mark on its cement with the sign of highest quality as the standard mark is governed by the provisions of Bureau of Indian Standard Act, 1986. Op No. 1 had got the licence of manufacturing cement IS 1489 Part I and entire manufacturing unit was to follow the relevant provisions of the scheme. Cement is released in market after test by the Company at Gagal Cement Works and the report of the same is upto mark and fulfil the requirements and parameters as per IS 1489-1991 and cement of this Op is of very good quality. This Bureau of Indian Standard is making regular inspections as well as surprise visit to the market and take samples from the market. This Op had given supply of cement to various Dealers in the month of July, August, 2013 from the same plant and had not received even a single complaint from any corner. Complainant was the only person in the State of Punjab, who filed the present complaint. Even the complainant continued to purchase his cement after 28.8.2013. Cement is product the quality which can only be judged under the Cement (Quality Control) Order, 2003 published on 17.2.2003. As per Bureau of Indian Standard, the scheme of testing and inspection i.e. DOC:STI/1489(Part-1) & (Part-2) for certification and IS 1489/1991 reprinting in 1993. Reaffirmed in 2000 gives the requirements to be fulfilled and the mode of sampling making of the product of cement and ACC strictly following the same, which provide that if any sample is taken within three weeks of the delivery and all the tests done within one week of the sampling. However, no Local Commissioner can be appointed in contravention of the said provisions. For getting First Appeal No. 97 of 2015 6 the best results, a proper mixing of cements, sand, quality of iron, quantity of water was to be taken into consideration. The test result from cement for concrete purposes, the ratio is 1:2:4 to have good results. In the case of slab, quality and proper placement of reinforcement steel is also to be taken into consideration. On receipt of the complaint of complainant, customer care official of this Op had visited the site and due report was made duly signed by the complainant. The sample of the cement was not available on the site, however, the sample of sand and cement mortar was taken from the site. The report of the cement mortar specified the ratio of cement, sand was 1:4:3 by weight and 1:4 by volume. The sample of the sand had failed as silt content in the sand was found 5.7% whereas maximum limit was 3%, therefore, the damage, if any, was due to the negligence on the part of the complainant for using sand with high silt contents. Otherwise there was no fault in the cement and consequently, no unfair trade practice or deficiency in service on the part of this Op. Complaint was without merit, therefore, liable to be dismissed. On merits, the averments taken in the preliminary objections were reiterated. It was stated that the cement was not defective. The grievance as alleged in his complaint was due to other factors stated above in the preliminary objections. Therefore, the goods sold to complainants were not defective in nature and there was no deficiency in service on the part of this Op. Complaint was without merit, therefore, it be dismissed.
4. Op No. 2 in its written reply took the preliminary objections that the complaint as framed was not maintainable as First Appeal No. 97 of 2015 7 leakage in the slab had appeared due to sand, bricks and water accumulated on roof as well as using less cement and sub-standard sand; complainant had presented a fabricated story; he had not approached the Forum with clean hands and had taken false pleas. The same was manufactured by Op No. 1, it was of highest quality. In order to get the best results from cement for slab purposes, the ratio was/is 1:2:4 alongwith quality of sand, water, place of mixing, interval of curing etc. After receipt of the complaint, customer care official had visited the site alongwith this Op and detailed report was made, which was duly signed by this Op and officials of the Company. The sample of the cement was not available at the site. However, sample of sand and concrete were taken from the site, which specify the ratio of the same sand in the mortar was 1:4:3 by weight 1:4 by volume. The sample of sand failed as silt content was 5.7% present against permissible limit of 3%. Op No. 1 had sold the same throughout the State of Punjab but except this complaint, no other complaint was received. On merits, the averments taken in the preliminary objections were reiterated. It was again reiterated that cement was not defective, however, the procedure adopted by the complainant was defective. On checking the ration of cement, sand was found 1:4:3 whereas for best result, it should be 1:2:4. In that area, atleast 170 bags of the cement were required to be used whereas the complainant used only 120 bags. The cement manufactured by Op No. 1 was tested from time to time and is according to the provisions of Bureau of Indian Standard Act, 1986, therefore, complaint so filed by the complainant was without any merit, it be dismissed. First Appeal No. 97 of 2015 8
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Harminder Kaur Ex. CW-1/1, copies of pamphlet Ex. C-1, bill Ex. C-2, legal notice Ex. C-3, postal receipts Exs. C-4 & 5, reply to legal notice Ex. C-6, photographs Exs. C-7 to C-16. On the other hand, Op No. 1 had tendered into evidence affidavit of Siddharath Kothiya Ex. Op-1/1, certificate of incorporation Ex. Op-1, letter of authority Ex. Op-2, test reports Exs. Op-3 to Op- 12, information report Ex. Op-13, test reports Ex. Op-14 & 15, Gazette notification Ex. Op-16, scheme of testing Ex. Op-17, IS specifications Ex. Op-18. Op No. 2 had tendered affidavit of Jaswant Singh Ex. Op-2/1, bills of material purchased Exs. Op-19 to 24, bills related to purchase by complainants Exs. Op-25 to 66.
7. After going through the allegations in the complaint, written versions filed by Ops, evidence and documents brought on the record, the complaint was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/OP No.1 has filed First Appeal No. 97 of 2015 whereas Op No. 2 has filed First Appeal No. 101 of 2015.
9. We have heard the learned counsel for the parties.
10. The order passed by the District Forum has been challenged on the ground that the impugned order is illegal, being arbitrary, unlawful, against the principles of natural justice because the mandatory provisions as contained under Section 13(1)(c) of the Act were not complied with. The District Forum has totally ignored the First Appeal No. 97 of 2015 9 pleadings of the appellant/Op that leakage, if any, was due to bad quality of sand, which resulted into alleged cracks and report Ex. Op- 4 was wrongly brushed aside by the District Forum. The reports obtained by Ops with regard to quality of their cement Exs. Op-3 to Op-12 were not considered that these does not pertain to the specific samples. The inspection report was also ignored in which the sand quality was found to be bad whereas cement was not available, therefore, sample of cement was not taken. Quality of water, sand and concrete are also to be taken into consideration, which were not considered by the District Forum. It was also pleaded that instead of 170 bags only 120 bags were used, therefore, cement was used in lacks. Therefore, the impugned order is not justified and liable to be set-aside.
11. Whereas on the other hand, the counsel for the respondent/complainant Mr. H.S. Saini, Advocate argued that when after opening the shuttering of the lintel, there were cracks in the ceiling and immediately report was made to Ops and team of Ops had come and they had taken the samples of sand etc. but no sample of cement was taken. So far as the report of the bad quality of sand is concerned, no notice was given to complainant at the time of inspection of the sand used in the lintel, therefore, any report taken at the back of the complainant cannot be considered against the complainant. Once the report was made to Ops then it was the duty of Ops to have taken the sample of the cement used in the lintel because Ops had claimed that it is such cement and by its use, no cracks will appear. The said advertisement is Ex. C-1 on the record. First Appeal No. 97 of 2015 10 There is no specific evidence that there was any other fault in the use of the cement. The test report Ex. Op-3 to Op-15 cannot be relied upon as these were not related to the specific cement used in the lintel of the complainant. Therefore, the District Forum has rightly observed that it was due to the defective cement, which was used in the lintel of the complainant, it resulted into cracks when the shuttering was opened. No parameter has been given by Ops that cement used was less or otherwise, the ratio of the cement, sand and gravel was 1:2:4, which is a standard being followed. Therefore, the plea taken by Ops that less cement was used is incorrect. The order passed by the District Forum is justified and be affirmed.
12. We have considered the contentions as raised by the counsel for the parties. Complainant while constructing his house for fixing lintel of his house had purchased 120 bags of ACC Gold cement after seeing the advertisement issued by Op No. 2 that in case ACC Gold cement is used then there will be no cracks on the ceiling or the walls. After the use of the cement when the shuttering of the lintel was opened, as per the complaint filed by the complainant, there were cracks in the lintel and report was made to Op No. 2. Op No. 2 with the assistance of Op No. 1 had sent their team for the purpose of inspection and inspection was conducted. Inspection report has been placed on the record as Ex. Op-14 vide which sample of concrete and sand was taken whereas ACC cement was not available at the site and the report of the sand is Ex. Op-14 according to which silt and clay percentage was 5.7% whereas permissible limit was 3.0%, therefore, it was due to the bad quality of First Appeal No. 97 of 2015 11 the sand, which resulted into cracks in the lintel. Otherwise, Ops have their standard reports of the cement, manufactured by them from time to time, these are Exs. Op-3 to Op-12 for the period 25.6.2013 to 2.9.2013. As per the pleadings of the complainant, this cement was purchased by him on 14.8.2013 vide bill No. 1221. The test report of the cement, manufactured during this period is Ex. Op-10 for the period 13.8.2013 to 19.8.2013 and its results were of standard quality. Therefore, in case the complainant alleged that the cement purchased from Op was of sub-standard then onus was upon the complainant to prove this fact. However, no expert opinion has been taken by the complainant and no expert was examined by the complainant during the trial before the District Forum, apart from his own affidavit and the affidavit of his wife no other affidavit has been filed. Advertisement given by Op No. 2 is Ex. C-1, bill of cement purchase is Ex. C-2, legal notice Ex. C-3, postal receipts Exs. C-4 & C-5, reply to the notice received from Ops Ex. C-6 and photographs Exs. C-7 to C-16. Even when the complaint was filed, no application was given by the complainant under Section 13(1)(c) of the Act to send the sample to the laboratory for test and even the learned District Forum did not bother to comply with the provisions of Section 13(1)(c) of the Act. For ready reference, Section 13(1)(c) is reproduced as under:-
"13(1)(c) Procedure on admission of complaint. -- Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the First Appeal No. 97 of 2015 12 complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty- five days of the receipt of the reference or within such extended period as may be granted by the District Forum;"
13. The provision is mandatory. The counsel for Ops has relied upon some judgments on this point. He has referred to Appeal No. 330 of 2004 "Harkamal Singh Lehal versus M/s Chadha Trading Co. & Anr." decided on 29.11.2004 by the State Commission, Punjab wherein it was held that there is nothing on the record to show that the complainant ever made any effort to take steps to send the sample of cement to an appropriate lab as required under Section 13(1)(c) of the Act and accordingly, the order passed by the District Forum dismissing the complaint was upheld. On the same point is the order passed by the State Commission, Haryana in First Appeal No. 11 of 2008 "The Associated Cement Companies Ltd. & Anr. Versus Hukam Singh" decided on 9.5.2011; First Appeal No. 1713 of 2010 "J.K. Lakshmi Cement Ltd. & Anr. Versus Jai Parkash Verma"
decided by State Commission, Haryana on 12.6.2012, First Appeal No. 2931 of 2007 "Sukhveer Singh versus M/s Hukam Singh & Sons & Ors." decided on 13.3.2012. He has further referred to II (1994) CPJ 34 (NC) "Hotel Nandadeep versus Ramachandra Baburao Kokil First Appeal No. 97 of 2015 13 & Ors." In that case, complainant used cement for construction of a slab. Found a layer of white powder on the following day. Quality of cement on test was found doubtful. In that judgment, it was observed by the Hon'ble National Commission that it was mandatory for the State Commission to have the sample of the slab sent for analysis or test to the appropriate laboratory under Section 13(1)(c) of the Consumer Protection Act. This was not done. Accordingly, order passed by the District Forum was set-aside and appeal was accepted.
14. Whereas on the other hand, the counsel for the complainant argued that when he found defect in the slab, he gave intimation. Their inspection team had come and had taken the samples and assured that they will get the report but report was taken at the back of the complainant, which is not binding upon the complainant. It is clear from the record that the sample of sand and concrete was taken in the presence of the complainant on 4.9.2013, it has the signatures of the customer but when it was sent to Dr. Uppal's Testing and Analytical Laboratory, no intimation was sent to the complainant. Therefore, report was taken by Ops at the back of the complainant. Even if it is admitted then at the most this report will not be binding upon the complainant. In that eventuality, again the onus was upon the complainant to get it tested, get any expert report or have moved an application before the District Forum that sample of the cement be sent to an appropriate laboratory as required under Section 13(1)(c) of the Act but no such application was moved and such a procedure was also not adopted by the District Forum, which First Appeal No. 97 of 2015 14 was mandatory in nature. Therefore, again the complainant has not been able to prove on the record that the cement purchased by the complainant was defective in nature. Onus was upon the complainant and he cannot shift the onus to Ops because Ops have placed on the record the report of their laboratory of a specific period, during which the cement was purchased by the complainant. The reports are Exs. Op-3 to Op-12. Once those reports were on the record then onus was again on the complainant to controvert those reports by having an other report giving circumstances that the cement so purchased by the complainant was defective in nature. Therefore, in the absence of any specific report, it cannot be held that the cement purchased by the complainant from Ops was defective in nature. The District Forum while discussing this point observed that Exs. Op-3 to Op-15 are not the samples collected from the site and its benefit cannot be extended to Ops without discussing that onus was upon the complainant to prove this fact and provisions as contained under Section 13(1)(c) of the Act. Counsel for the complainant was unable to rebut the judgments relied upon by the counsel for Ops i.e. of our own State Commission, State Commission, Haryana and Hon'ble National Commission that provisions under Section 13(1)(c) of the Act are mandatory in nature, which were not followed by the District Forum and the complainant had also not brought any evidence to say that the cement purchased by the complainant from Ops was defective in nature.
15. It is further argued by the counsel for the appellant/Op that it is not necessary that leakage was due to defective cement, it First Appeal No. 97 of 2015 15 can be due to bad quality of sand, concrete etc.. Counsel for the appellant has referred to the judgment of this Bench in First Appeal No. 1541 of 2014 "Gur Gain Singh Killiwala versus New Vicky Cement Store" decided on 20.1.2015 wherein it was observed that merely because of the fact that lintel of the house had fallen, the findings cannot be recorded that the same was of poor quality because in the lintel not only cement is used, sand, gravel and iron rods are used. Its proper fixation and ratio is very important. A reference has also been made to the judgment of the Hon'ble National Commission, II (1994) CPJ 34 (NC) "Hotel Nandadeep versus Ramachandra Baburao Kokil & Ors." in para No. 9 (v) it has been mentioned as under:-
"(v) It was emphasised that apart from cement, sand and water also had been used and any defect in the quality of the sand could also produce white powder. Again the aggregate of cement, sand and water must be in proper proportion 1:2:4 and must be cured. In other words it cannot be maintained that the alleged defect in the slab was entirely and exclusively due to defective cement. It could be also due to the other component viz. quality of sand used in casting the slab or due to the proportion of the constituents of the aggregate not being as prescribed."
16. In this case, the quality of the sand has been reported to be poor. Even if as referred above that report cannot be accepted against complainants as it was taken at the back of the complainant. The complainant has not placed on the record any evidence that First Appeal No. 97 of 2015 16 cement was defective, therefore, if any cracks had appeared in the lintel, number of factors are relevant and it cannot be said that these appeared only due to the defect in the cement.
17. No other point has been argued.
18. In view of the above, we are of the opinion that learned District Forum has not properly appreciated the facts of the case. Firstly, no expert opinion or any Lab report was taken by the complainant that cement purchased by the complainant from Ops was defective in nature. After filing the complaint before the District Forum, no request was made by the complainant to refer the cement used in the lintel to an appropriate lab and no effort was made even by the District Forum to do so when the provision under Section 13(1)(c) are of mandatory nature. No doubt that some cracks had appeared in the lintel of the complainant but there is no positive evidence in favour of the complainant that it was due to defective cement only. It can be due to inappropriate mixture of sand, concrete and cement. Moreover, Ops have placed on the record their test reports of the relevant period during which the cement was manufactured and the laboratory reports Exs. Op-3 to Op-12 say that cement manufactured in the unit of Ops was of a required standard quality and against that no evidence has been brought on the record by the complainant. The onus was heavy upon the complainant whereas the learned District Forum has shifted the onus to Ops. In these circumstances, the order so passed by the District Forum is not legally sustainable.
First Appeal No. 97 of 2015 17
19. In view of the above, we accept the appeal. Impugned order is set-aside. Consequently, the complaint filed by the complainant is hereby dismissed as the complainant has failed to lead cogent evidence on the record to prove that cement so purchased by the complainant from Ops was defective as a result of that lintel of the complainant had received the cracks.
20. The appellant-ACC Limited in F.A. No. 97 of 2015 had deposited an amount of Rs. 25,000/- and Rs. 25,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
FIRST APPEAL NO. 101 OF 2015
21. This appeal has been filed by Op No. 2. He has challenged the order of the District Forum on the same grounds as challenged by Op No. 1. In this regard, the findings so recorded by us in First Appeal No. 97 of 2015 are relevant and be also read in this appeal as well. In view of those findings, it cannot be said that the cement so purchased by the complainant from Op No. 2 was defective. Accordingly, the impugned order cannot stand against Op No. 2 as well.
22. In view of the above, we accept First Appeal No. 101 of 2015.
23. The appellant-M/s Jaswant Steel Industries in F.A. No. 101 of 2015 had deposited an amount of Rs. 25,000/- and Rs. First Appeal No. 97 of 2015 18 25,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to appellant-M/s Jaswant Steel Industries by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
24. The arguments in these appeals were heard on 26.2.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
25. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
26. Copy of this order be attached in First Appeal No. 101 of 2015.
(Gurcharan Singh Saran)
Presiding Judicial Member
March 9, 2016. (Jasbir Singh Gill)
as Member