Birender Singh vs Jagdish & Anr

Prem Narain, J

These revision petitions arise out of the common order dated 27th February 2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula, Additional Bench ('the State Commission') in FA no. 111 of 2011 which was filed by the original complainant Mr Jagdish against the order dated 27th December 2010 passed by the District Consumer Disputes Redressal Forum, Jind ('the District Forum') in Complaint no. 191 of 2010, dismissing the complaint. For the convenience, the parties will be referred as complainant and OPs as mentioned in the order of the District Forum.

The brief facts relevant for the disposal of these revision petitions are that the complainant Jagdish purchased 362 bags of cement @ 227/- Per bag on 27.11.2009 at a cost of Rs.82,174/- vide bill no. 101. The complainant used the cement for his construction, however, after sometime the plaster started pouring down in bits and pieces and finally within a period of three months all the plastering on the walls came down. The complainant sent a legal notice on 17.02.2010. Opposite party no.1 - Proprietor M/s Shree Laxmi Cement denied that any cement was purchased by the complainant from his shop/ agency. Consequently, the complainant filed the consumer complaint being Complaint no.191 of 2010, before the District Forum against the OPs. Both the parties contested the complaint and District Forum dismissed the complaint vide its order dated 27.12.2010.

Complainant preferred an appeal against the order of the District Forum before the State Commission being FA no. 111 of 2011. The State Commission vide its order dated 27.02.2012, held as under:

"Accordingly this appeal is accepted impugned order is set aside and complaint of the complainant is allowed with the directions to the opposite parties to pay the damages to the tune of Rs.1,02,174/- as compensation (82,174/- as cement price and Rs.20,000/- as labour and construction charges) and Rs.10,000/- due to mental agony, harassment, physical pain and suffering. Order be complied within 45 days failing which the amount will carry on interest @ 9% from the date of filing of the complaint of the complainant till realisation. Opposite parties shall be jointly and severally liable".

Heard the learned counsel for the parties and perused the record.

Learned counsel for the complainant has stated that he has filed the revision petition for enhancement of compensation awarded by the State Commission. The State Commission has not considered the report of the Engineer and has not ordered the compensation to the tune of Rs.10.00 lakh, the amount assessed by the Engineer. The Engineer's report dated 04.09.2010 reads as under:

"Conclusion:

Conclusion from the above facts I am of firm opinion that the above building is unsafe, unfit for human habitation and can fall in due course of time if cement mortar of walls and plastering continuously loses its strength due to poor quality of binding material because cement is used as a binding material with water for bonding solid particles of different sizes like bricks, stones to form a monolithic mass and sample of water taken to lab by Shri Jagdish Chander on 23.08.2010.

Damage Area at G F

(1675.32 + 169.25) sq ft.

i/c Proj. Part

1844.57 sq ft

Damage Area at F F

(420.00 +141.25) sq ft

i/c Proj. Part

561.25 sq ft

Total Damage Area

2405.82 sq ft

Total construction cost of existing building @Rs.600 per sq ft=14,43,492/- (Fourteen lakh forty three thousand four hundred ninety two rupees). Therefore, total damage of existing building (70% of total construction cost) = Rs.10,10,444/- (Ten lakh ten thousand four hundred forty four only)"

The learned counsel for the complainant has stated that all his efforts and time in constructing the house has gone waste as the plaster had already fallen and the whole house can fall at any time as apprehended by the qualified Civil Engineer. It was requested to award compensation as recommended by the Engineer.

On the other hand, the learned counsel for OP no.1 the dealer stated that the District Forum has correctly appreciated all the facts and points involved in the present case. The District Forum has clearly observed that the report of the Engineer dated 04.09.2010 lacks in many aspects. The learned counsel also pointed out the following observations of the District Forum, which reads as under:

"9. On scrutiny of the evidence, pleadings and submissions of the parties, we find that the house was constructed between November 2009 and January 2010 (bricks for constructions purchased on 10.11.2009 and legal notice after completion of house given on 17.02.2010) but the complainant has nowhere pointed out the date of start and completion of the house in which the cement, water and other building material was used. Even the mason who did masonry work did not mention in his affidavit about the start and completion of the house.

In the Technical and Damage Assessment Report dated 04.09.2010, the Engineer says that the soundness of the building depends on the quality of cement and water, but does not say anything about the quality of masonry work done, ratio of cement and sand mixed whether the brick masonry was executed and mud mortar then how will the cement plaster, will react on walls and flooring of the house has not been mentioned in the report. The Engineer is also silent in his report regarding the quality whether coarse or fine sand has been used and whether there was proper curing of the cemented area and the masonry work down in cement mortar. The report also does not suggest any laboratory test of the constructed material.

Further, the sample of water was taken by the complainant Shri Jagdish Chander himself on 23.08.2010 to Haryana PWD B & R Research Laboratory Hisar, for its lab test after about 6/7 months of the construction of the house. The samples of water used in the construction work should have been collected by some official of the Public Works Department or representative of the laboratory in sealed pots for laboratory test. The water taken for lab test by the complainant himself after about 6/7 months cannot be said to be a representative sample of the water used in the construction. It seems that sample of the water has been taken for lab test on 23.08.2010 on the advice of Engineer R K Jaglan who inspected the alleged damaged building of the complainant on 24.07.2010 just to create evidence in his report dated 04.09.2010. Therefore, and adverse inference of the lab report dated 01.09.2010 is drawn.

From the above observation, it can be said that the damage assessment report of the Engineer dated 04.09.2010 lacks many major requirements and does not cover all the aspects of the construction work of the building and therefore, it cannot be held complete and conclusive report. The mason believed to have been expert and experienced in masonry work also did not pin pointed the cement of being inferior quality during the course of construction of the house. At this stage the affidavit of Samsher the expert and experienced person (Mason) has been produced only to create evidence on which we do not find any justification to place reliance.

We further find that the cement may lose its strength with the passage of time, but in the instant case, the cement was tested for its strength only on 26.11.2009 on the date of its supply to the purchaser and the same was utilised between 26.11.2009 and January 2010 so it cannot be said that cement lost its strength due to its old manufacturing. There was the only option for the complainant to get the cement tested in laboratory in case it was found that the cement was of inferior quality during the course of construction."

On the basis of the above factual observations of the District Forum the learned counsel for the OP no.1 argued that without any clear proof the cement cannot be assessed as to be of bad quality only on the presumption that if water is of good quality the cement has to be of bad quality. Though the State Commission has also not accepted the report of the Engineer in toto, however, the State Commission has accepted that the cement was not of good quality and the price of the cement along with some compensation has been ordered to be paid to the complainant. When there is no deficiency on the part of OP no.1 who has only sold the cement, the order passed by the State Commission is not based on proper appreciation of facts and evidence.

The learned counsel for the opposite party no.1 has stated that if there is some deficiency in the quality of the cement, OP no.1 cannot be held responsible. Learned counsel for OP no.1 has further argued that no laboratory test has been conducted on the used cement to find out the quality of the cement. The cement cannot be claimed to be sub-standard without any chemical test under a proper laboratory.

It was further pointed out by OP no.1 that the revision petition filed by OP no.1 has been filed with a delay and the circumstances of the delay have been explained in the application for condonation of delay. It was requested that as the cross petitions of the complainant and the petition filed by the OP no. 2 have already been entertained, the delay in filing the revision petition by OP no.1 be condoned on the grounds mentioned in the application for condonation of delay.

Learned counsel for OP no.2 - the Manufacturer of the Cement has stated that right from the very beginning the stand of OP no.2 was that the cement was tested in the laboratory on 26.11.2009 and was found to be as per the standards laid down by the Bureau of India Standards (BIS). If the cement was not upto the mark, the complainant should have got it tested from a proper laboratory. Thus, the cement was of proper quality and the plaster may have come out because of any other reasons as pointed out by the District Forum.

I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. First of all there is a delay of 761 days in filing the revision petition by OP no.1, i.e., the dealer. As the cross petitions filed by the complainant as well as the petition filed by OP no.2, have already been entertained by this Commission no purpose will be served if the revision petition filed by OP no.1/ dealer is rejected on technical grounds of delay. Hence, the delay in filing the revision petition by OP no.1 is condoned on the grounds mentioned in the application for condonation of delay. The report of the Civil Engineer dated 04.09.2010 clearly indicates that the cement used was not of a proper quality and that is why all the plaster fell down. The total material used was for Rs.3,96,250/-. However, apart from the cement, bricks and iron rods etc., can be used again and looking at the circumstantial evidence, the State Commission has allowed the refund of the price of the cement as well as some compensation for the mental harassment and agony. The report of the Engineer is sufficient to prove that there was some deficiency in the cement used. The argument that the cement was tested on 26.11.2009 and was found to be correct and therefore, the cement supplied to the complainant should also be of standard quality, cannot be accepted because it does not seem to be possible that same cement which was tested on 26.11.2009 could be supplied to the complainant on 27.11.2009. Hence, this laboratory test cannot be accepted to be the lab test for the cement that was sold to the complainant. The State Commission has observed that the OPs have not filed any report or any other document to counter the report of the Civil Engineer dated 04.09.2010. Therefore, in the absence of any other expert report, the State Commission has relied on the Engineer's report so far as it relates to the quality of the cement. It is true that there is no lab test report from any laboratory, however, the Civil Engineer who is on the panel of Haryana Urban Development Authority (HUDA) is expected to make a basic assessment about the material used in the building. As the proceedings under the Consumer Protection Act, 1986 are summary proceedings, the State Commission has relied on this crude report and that is why a reasonable compensation has been granted to the complainant. Thus, I do not find any merit in the revision petitions filed by OP no.1 and OP no. 2 being RP no. 2767 of 2012 and RP no.897 of 2015. So far as the revision petition no. 2405 of 2012 filed by the complainant is concerned, the complainant has demanded a huge compensation of Rs.10.00 lakh. The total assessment of the Engineer suffers from many short comings mentioned by the District Forum and the same therefore, cannot be accepted in totality. The loss to the complainant has been for the price of the cement so far as OP nos.1 and 2 are concerned.

Based on the above discussion, I do not find any merit in the orders passed by the State Commission in FA no.111 of 2011 which calls for interference from this Commission, consequently, RP nos. 2405 and 2767 of 2012 and 897 of 2015 are dismissed.