Arvind Kumar Gupta vs CHANDRA PRAKASH DIXIT

THIS appeal is directed against the judgment and order dated 7.8.1992 passed by District Consumer Forum, Etawah in Complaint Case No. 103/1991.

BRIEFLY stated the facts of the case are that the complainant took up the expansion of his house in village Nauli, District Etawah. To put up the lintel, he purchased 35 bags of cement from the opposite party @ Rs. 96/- per bag and a cash memo was obtained. Thus, an amount of Rs. 3,360/- was paid to the opposite party in terms of the said transaction. The said cement was used in putting up the lintel on 8.4.1991 and the lintel was opened on 23.4.1991. The entire lintel came down because of the defective cement. Information to this effect was given to the opposite party and an amount of Rs. 1,000/- was paid to the complainant as compensation and it was promised to him that an amount of Rs. 3,000/- would be paid by 11.8.1991. The complainant was made to understand that a claim would be lodged with the Cement Company and as soon as the amount is received from the Company the same would be given to the complainant but the amount of Rs. 3,360/- was not paid to the complainant and ultimately the opposite party refused to make the payment. The complainant lodged a claim before the District Consumer Forum for recovery of Rs. 13,895/-which includes the cost of the cement and the damages caused to the construction and compensation. The version of the opposite party before the District Consumer Forum was that 35 bags of cement were sold to the complainant on 7.4.1991 but the complainant did not use the cement in a proper manner and the construction carried out by the complainant was defective. The cement was purchased from M/s. Indas Lemenenters Private Limited and was the portland cement of ISI mark. The amount of Rs. 1,000/- as compensation was not paid to the complainant nor there was any understanding between the two parties about the return of the rest of the amount of damages.

During the course of hearing the District Consumer Forum appointed an Amin to visit the spot in the presence of the parties. The complainant also produced himself before the District Forum as a witness and was cross-examined by the opposite parties but the opposite parties did not file any other evidence.

AFTER hearing the complainant and Counsel for the opposite parties, the District Consumer Forum came to the conclusion that the cement supplied was defective. The complaint was, therefore, decreed and it was directed that the opposite parties shall pay to the complainant an amount of Rs. 10,000/- within a period of one month failing which interest @ 12% per annum shall also be payable to the complainant. Aggrieved of this order of the District Consumer Forum the appellant has preferred this appeal.

NOTICE was issued to the appellant in the month of November, 2001 for the date fixed for hearing on 11.2.2002. On 11.2.2002 the appellant was not present nor the notice come back unserved, hence the service has been presumed sufficient. Mr. Deepak Mehrotra was present on behalf of the respondent. We have gone through the evidence placed on the appeal file. In the memo of appeal, it has been stated that the District Forum did not consider the entire aspects of the matter and without affording proper opportunity, the complaint was decreed against the opposite parties. At the appellate stage, an application was moved on behalf of the appellant that the manufacturer of cement M/s. Indas Lemenenters Private Limited, Kanpur be impleaded as necessary party in this case. It has also been stated that the cement in question was not put through the lab analysis. A perusal of the judgment and order and other papers filed before the District Forum will go to show that these points were not raised before the District Forum. Since these points were not raised before the Forum, these cannot be considered at the appellate stage. The complainant was examined as a witness before the District Forum and he was thoroughly cross-examined by the Counsel for the opposite party. On the contrary the opposite party did not opt for being produced as a witness before the District Forum. A point was raised before the District Forum that agreement to the effect that damages will be paid to the complainant was not the one in which the appellant was a signatory. The agreement was allegedly signed by Satya Narayan Gupta who later on denied before the District Forum that there was such an agreement. The District Forum has observed that Sri Satya Narayan Gupta also did not produce himself as a witness before the District Forum and, therefore, relied on the evidence adduced by the complainant to the effect that an amount of Rs. 1,000/- was given to him as part damages and rest of the damages of Rs. 3,000/- were promised to be paid on the receipt of the same from the Company from whom the cement was procured by the appellant. We do not find any flaw in the judgment and order passed by the Forum. In the circumstances, the appeal is liable to be dismissed and the judgment and order of the District Forum are liable to be confirmed. ORDER The appeal is dismissed. The judgment and order of the learned District Forum are confirmed. There will be no order as to the costs in this appeal. Let compliance of this order be made within a period of six weeks from the date of this order. Let copy of this order be made available to the parties as per rules. Appeal dismissed.