State Consumer Disputes Redressal Commission
Area Sales Manager,Rajashree Cement ... vs Shri Dadasaheb Vishnu Patil on 7 October, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.2270/1999 Date of Filing:-26/11/1999 IN CONSUMER COMPLAINT NO.159/1999 Date of Order:-07/10/2009 DISTRICT CONSUMER FORUM, SANGLI 1) Area Sales Manager, Rajashree Cement (Birla Cement ) Plot No.L-31, Super Mill Compound, MIDC Kupwad, Sangli, District-Sangli 2) General Manager, Birla Super Cement, Plant-Hotgi, Hotgi, District-Solapur 3) Bombay Steel, 213/66, Peth Islampur Road, Islampur, Taluka-Walwa, District-Sangli 4) Grasim Industries Limited, 9, Tara Heights, Wakdewadi, Mumbai-Pune Road, Pune-411 003 ... Appellants (Org. Respondents) -Versus Shri Dadasaheb Vishnu Patil, Residing at 9, MIDC Industrial Area,Islampur, Taluka-Walwa, District-Sangli ... Respondent (Org.Complainant) Quorum :- Mr.P.N.Kashalkar,Honble Presiding Judicial Member, Mrs.S.P.Lale, Honble Member.
Present :- Mr.Anand Kulkarni, Adv. for the Appellants.
Respondent present in person O R A L O R D E R Per Mr.P.N.Kashalkar,Honble Presiding Judicial Member 1) Being
aggrieved by the judgment and award passed by the District Consumer Forum, Sangli in Consumer Complaint No.159/1999 decided on 28/10/1999 whereby while allowing the complaint, the Forum below directed O.Ps to pay to the complainant a sum of Rs.1,25,000/- as compensation and Rs.5,000/- for mental agony and Rs.1,000/- as cost.
2) Briefly case of the parties in the Forum below as under :
3) Complainant is an entrepreneur of Sangli. He was having industrial plot at M.I.D.C. Islampur, District Sangli. He wanted to install milk processing plant on the said industrial plot. He wanted to make construction for the said plant.
For construction he purchased cement bags from Bombay Steel, Islampur, District Sangli. He purchased Birla super cement from O.P.No.3 manufactured by O.P.No.1. However, he found that the cement supplied by O.P.No.3 and manufactured by O.P.No.1,2 & 4 was substandard and his construction was not upto the mark and he suffered loss of Rs.3,10,500/- and plant could be started after about ten months delay. He therefore claimed compensation, cost and damages for mental agony by filing consumer complaint. Along with his affidavit, he filed architects affidavit, affidavit of civil contractor, affidavit of mistry and some other persons. He also enclosed copy of notice sent to the O.Ps and reply received from them along with the complaint.
4) O.Ps No.1 to 3 filed written statement and denied the allegations made by the complainant. According to them the cement supplied to the complainant was of highest quality. It was not having any manufacturing defect. It was not substandard as alleged by the complainant. After receipt of complaint, their expert went to the site of the complainant on 25/4/1998 and inspected the construction of the complainant. The complainant did not supply the sample of the cement he had used. According to the report received, the cement was not substandard but concreting mixture was not prepared by the complainant properly and therefore construction quality of the building was found to be substandard and was not upto the mark. The O.Ps pleaded that it was manufacturing best quality cement and it was producing cement in most modern plant which was having ISO 9002 certification. They were producing 2 lakhs bag of cement per day of the same consistent quality. So it is not possible to produce a few bags of lower quality cement. The technical officer of the company conducted few field tests on the columns constructed by the complainant but the complainant did not provide sample of cement. In fact, the complainant was advised to improve quality of workmanship and he was given customer service by giving complete advice for proper construction of the building by using Birla cement. The company pleaded that complainant used cement on 28/2/1999 but registered the complaint on 25/4/1999. Normally, within 48 hours quality problem is noticed by any person if there is any problem in the concrete because of substandard cement used in the construction. The company further pleaded that it was well known fact that a bad and poor workmanship employed at the construction site for making concrete may affect quality of construction even by using best quality cement would show poor quality parameters. The O.Ps pleaded that complainant had not employed good workmanship at the site and had not followed standard construction engineering practices. The concrete had shown slightly less strength due to excessive quantity of water mixed while making concrete and therefore the concrete mixture was ultimately found to be of a poor quality but it was not on account of poor quality of cement supplied by them. They pleaded that report of Walchand College of Engineering did not reveal that they had rejected quality of concrete outrightly. They pleaded that there was no bad quality cement supplied to the complainant by its authorized dealer. They therefore pleaded that complaint should be dismissed with cost.
5) On the basis of documents and affidavits produced on record and after hearing rival counsels, the Forum below was pleased to hold O.Ps guilty of deficiency in service. It held that the cement supplied to the complainant was not upto the mark. It was substandard one and report of Walchand College of Engineering clearly proved substandardness of the cement and therefore it was pleased to allow the complaint and passed impugned award and as such O.Ps have filed this appeal taking strong exception to the said award.
6) We heard submissions of Mr.Anand Kulkarni, Adv. for the appellants and respondent in person. We are finding that the order passed by the Forum below is appearing to be erroneous and bad in law in as much as the Forum below simply relied upon report of Walchand College of Engineering who had tested the concrete sample of construction columns. The college was not given sample of cement. By simply striking hammer the principal appears to have given report that at some places concrete column appears to be soft. The Principal of Walchand College of Engineering in his report mentioned as under :
To sum up the strength of concrete in the columns cast at certain places is slightly less than required strength of 150 Kg./Sq.Cm. Before continuing the construction further it is suggested to cast an RCC band (150 CM) around the external column around the cast.
This report in our view is not the report pointing out substandardness or bad quality of the cement manufactured by the appellant company. The opinion given by the Principal of Walchand Collge of Engineering was in respect of strength of the concrete columns erected at the site by the complainant at the construction site of his milk processing plant. It had nothing to do with the quality of cement. He has not commented upon the quality of the cement. The college had not tested cement to examine its purity as such cement or its substandardness as alleged by the complainant.
7) In the like case, (In Hotel Nandadeep V/s- Ramchandra Baburao Kokil & others ) Narmada Cement Company had supplied to the complainants hotel Nandadeep project cement bags. It was alleged that the cement supplied by Narmada Cement Company was substandard. Walchand College of Engineering had given report after examining columns of concrete. Matter ultimately went to before Honble National Commission. It perused the report of Dr.Krishnaswamy, Vice Principal of Walchand College of Engineering and Honble National Commission held that the report of Walchand College of Engineering was not sufficient to hold that the cement supplied by Narmada Cement Company was defective or inferior in quality. The Honble National Commission observed that O.Ps had disputed the correctness of cement test report to determine whether it was defective or deficient on the ground that sample of cement slab was not sent for analysis or test to the appropriate laboratory U/s 13(1)(c) of Consumer Protection Act and Walchand College of Engineering was not proper laboratory as defined U/s 2(1)(a) of Consumer Protection Act. Thus, the Honble National Commission agreed with the submission of O.P./Narmada Cement Company and held that complainant had failed to prove that quality of cement supplied by Narmada Cement Company was inferior or the cement supplied by it was defective. Therefore, the Honble National Commission allowed the appeal, set aside the order of the State Commission and dismissed the complaint of the complainant. This judgment is reported in II (1994) CPJ 34 (NC). In the light of this observation, we are of the view that the report of Principal of Walchand College of Engineering is not helpful the complainant/respondent to establish that the cement supplied by the appellants was defective or inferior in quality. In fact, in this case actual cement used in the construction by the complainant was not sent for examination by Walchand College of Engineering. What was sent was column of pieces of slab to know the strength of cement columns erected at the site. This report in no way is helping the complainant to allege that the cement supplied by the appellants was inferior in quality or in any manner defective in nature. In this view of the matter, we are finding that award passed by the Forum below is per se bad in law and can not be allowed to sustain in law. The learned District Forum did not appreciate the facts on record in the right perspective and gave erroneous finding. As such, by allowing this appeal, the judgment and award passed by the Forum below will have to be quashed and set aside. In the result, we pass following order.
O R D E R
1) Appeal is allowed.
2) Impugned judgment and award passed by the Forum below in Consumer Complaint No.159/1999 is hereby quashed and set aside. 3) Complaint stands dismissed. 4) Parties are left to bear their own costs. 5) Inform the parties accordingly. ( Smt.S.P.Lale ) (P.N.Kashalkar ) Member Presiding Judicial Member A. Malve/-