Ranjeet Singh vs M/s Krishna Sales Corporation & Anr

Subhash Chandra, Presiding Member

This review petition filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the Haryana State Consumer Dispute Redressal Commission, Panchkula, Haryana (in short, ‘State Commission’) in First Appeal No. 300 of 2015 and Appeal No. 130 of 2015 which were disposed of by way of a common order dated 02.11.2015 setting aside the order of the District Forum, Hisar (in short, ‘District Forum’) dated 08.01.2015 in Complaint No. 407 of 2011.

The revision petitioner/complainant has alleged that he was sold substandard cement by the respondent for which compensation is sought. It is averred that he had purchased 100 bags of cement manufactured by respondent no. 2 from respondent no. 1 who is a dealer for Shree Cement Ltd. for the flooring of his house. He engaged a local mason and undertook the work with proportionate mixing which was left to cure for 15 to 20 days. However, the cement did not set properly and was attributed by the mason to the poor quality of the cement. As there was no redress provided by the respondents, the petitioner approached the District Forum, Hisar by way of Consumer Complaint No. 4017 of 2011 which allowed the complaint and awarded compensation of Rs 1,20,000/- with interest @ 9%, Rs 10,000/- for mental agony and litigation costs of Rs 1100/-. Both parties approached the State Commission against this order, seeking enhancement of compensation and for setting aside the order respectively. By way of a common order, the State Commission dismissed the appeal of the revision petitioner herein for enhancement and allowed the respondent’s appeal to set the order of the District Forum aside. This order is impugned before this Commission in the present revision petition.

The order of the State Commission in First Appeal No. 300 of 2015 and Appeal No. 130 of 2015 dated 02.11.2015 reads as below:

“6.  We have heard the learned counsel for the parties, in their respective appeals and have ourselves gone through the pleadings and the documentary evidence produced by the parties. It is evident and squarely proved on record that the complainant did not get the sample of the flooring tested from any lab., in order to substantiate that the cement used was of a poor quality. Further, apart from the evidence of the mason, who no doubt may be possessing more than 15 years of experience of laying the floor mill remains an unqualified person, the complainant did not produce any other trained or qualified engineer or mason to prove his claim. Since, he had approached the learned District Forum with the allegation that the cement was sub-standard and poor in quality; the burden of proof lay on him to have the sample analysed from the lab. He has completely failed in discharging his burden and proving his case. Moreover, the complainant also has not rebutted the assertion of the OPs that for laying sq ft flooring 175 bags of cement were required, whereas 100 bags were actually used by the complainant. In addition, the complainant has not rebutted the averments of the OPs that neither the curing of the floor was proper nor the mixture of the material applied by the mason Lili Ram was in order.

In view of this overwhelming evidence produced by the OPs, the order of the District Forum does not stand the scrutiny of law and is liable to be set aside. Accordingly, the Appeal no. 130 of 2015 of the Appellant – M/s Krishan Sales Corporation, Hissar is allowed, appeal no.300 of 2015 filed by Ranjeet Singh, complainant for the modifications of the order stands dismissed and the impugned order dated 08.01.2015 passed by the learned District Forum, Hissar is set aside. Resultantly, the complaint of Ranjeet Singh, complainant is dismissed with no order as to costs. Amount, if any, already deposited by the appellant – OP 1 shall be refunded to OP 1.

The statutory amount of Rs.25,000/- deposited at the time of filing the appeal bearing no.130 of 2015 be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/ revision, if any”.

Heard the learned counsels for both the parties and perused the records. Both parties filed their short synopsis. The revision petitioner has argued essentially on the lines of his submissions before the lower fora alleging that the quality of cement sold to him was of an inferior quality which failed to set as required and that he deserved to be compensated for his loss. It is argued that the award of compensation by the District Forum was meager and should be enhanced. As regards expert opinion that needs to be filed as per the State Commission, he relies upon the affidavit of his mason Lilu Ram who had executed the flooring work and submits that the same be accepted.

The respondent has relied upon the order of the State Commission and submits that the petitioner’s claim that the cement was of poor quality was not substantiated by any expert opinion or report of a laboratory authorized in this regard. He relies upon the report of one Sanjeev Mishra, a Civil Engineer deputed by him to inspect the flooring work carried out. It is submitted that the report of the mason, however experienced, is not admissible especially when the burden of proof lies upon the petitioner. It is also contended by the respondent that the quantity of cement used for 2600 sq ft of flooring was only 100 bags whereas the requirement was 175 bags. Lastly, it is argued that the composition of the mixture of materials including cement for the flooring was not correctly done as also the curing of the floor for the mixture to set properly. Reliance is placed on section 13 (1)(c) of the Act with regard to obtaining a report of an appropriate laboratory since the complaint pertains to a defect in the quality of cement which cannot be determined without a proper test of the same. He has also relied on several case laws to buttress his arguments.

The crux of the issue is whether the quality of cement sold by respondent 1 to the petitioner was substandard. The petitioner relies upon the affidavit of his mason. However, there is merit in the respondent’s reliance on section 13(1)(c) of the Act since the issue relates to the quality of the cement. Section 13(1)(c) reads as follows:

Procedure on admission of complaint (1) The District Forum shall, on admission of a complaint, if it relates to any goods -

(c) 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 complainant, seal it and authenticate it in the manner as may be 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 Commission 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.

The findings of the lower fora are divergent. This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record. It can interfere with the findings of the foras below if they are either perverse or if fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is, therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretations of same sets of facts have been held to be not permissible by the Hon’ble Supreme Court.

In view of the fact that there is no expert opinion produced by the petitioner with regard to the quality of the cement, the onus of which lay squarely upon him, and the fact that the affidavit of his mason cannot be a substitute for this, the order of the District Forum dated 08.01.2015 is clearly perverse and deserves to be set aside. The impugned order of the State Commission has correctly set aside this order through a reasoned and speaking order.

In view of the foregoing, I do not find any reason to interfere with the impugned order of the State Commission. The order of the State Commission is affirmed and the revision petition is disallowed.