HOTEL NANDADEEP vs RAMACHANDRA BABURAO KOKIL

THESE are cross appeals against a common order of 4th June, 1992 passed by the State Commission of Maharashtra in Complaint No. 9 of 1990.

IN Appeal No. 259 of 1992 the appellant Hotel Nandadeep was the complainant before the State Commission, and Shri Ramachandra Baburao Kokil, the local stockist M/s. Narmada Cement Co. Ltd. the manufacturer and Suyog Sales Corporation, the distributor of the cement, were the opposite parties/respondents before the State Commission. In Cross Appeal No. 270 of 1992 the appellant is M/s. Narmada Cement Co. Ltd. For convenience, in this order Hotel Nandadeep will be described as complainant and M/s. Narmada Cement Co. Ltd. and others as the opposite parties.

The facts alleged are that Hotel Nandadeep was being constructed by the Complainant through a contractor at Sangli. On 14th December, 1989 the complainant purchased 125 cement bags said to have been manufactured by the opposite party M/s. Narmada Cement Co. Ltd. through its local stockist Shri Ramachandra Baburao Kokil which had been supplied to the stockists by the third opposite party Suyog Sales Corporation. The Complainant used the cement on the same date for the construction of a slab on the ground floor in the hotel. On the following day the complainant found that there was a layer of white powder and white coating on the slab. A sample of the white powder was collected from the slab by an expert of the manufacturer on 17- 1-90 and sent for examination to Walchand College of Engineering, Sangli. But according to the order of the State Commission no test report of this sample was forthcoming. On 25th February, 1990 Dr. Krishnaswamy, Vice-Principal of the Walchand Engineering College along with some others collected four samples of the slab with hammer test and also collected the white powder for the purpose of examination. Dr. Krishnaswamy on 8th March, 1990 after examination, reported that the quality of cement used in the slab was doubtful. In consequence the further work of the hotel was stopped for four months causing heavy loss of Rs. 6.35 lakhs to the complainant.

THE State Commission, after examination, allowed the complaint and directed that the opposite parties should jointly and severally pay the complainant Rs. 2 lakhs as compensation. It also allowed as costs Rs. 5,000 to the complainant. The complainant has in its appeal of 13-7- 92, against the order of the State Commission, prayed that the balance compensation of Rs. 4.45 lakhs and also compensation for the losses during the period after the complaint was filed before the State Commission.

THE opposite party in its appeal against the order of the State Commission has challenged the finding of the State Commission that the cement purchased by the complainant from the opposite party was defective and that the cement was not purchased for a commercial purpose. So far as the challenge on the ground that the cement was purchased for a commercial purpose is concerned, this Commission by its order of 8th July, 1991 in Revision Petition No. 74 of 1991 had observed that "it was in agreement with the view taken by the State Commission that the transaction of purchase of cement in the instant case was not one of purchase for a commercial purpose". As such, it is not open to the parties to agitate this further as it has been con eluded finally as far back as July, 1991. However, the opposite parties have disputed the correctness of the cement test report to determine whether it was defective and deficient on various counts as under : (i) 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. (ii) The sample of the slab was not sent in the manner provided under Section 13(1)(c) of the Act. (iii) The Walchand Engineering College, Sangli was not the proper laboratory as defined under Section 2(1)(a) of the Act to conduct the test. (iv) No sample of the cement manufactured and supplied by the opposite party manufacturer was tested; what was tested was the slab said to have been cast from the cement supplied and some white powder formation on the slab. Again only 500 grams of cement lying at the site was taken for analysis and this cement could not be identified as the cement supplied by the Opposite Party and the size of sample viz. 500 grams was inadequate. (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. (vi) The shuttering for casting the slab could also affect strength of the slab if the shuttering was not proper. According to the Opposite Party, Dr. Krishnaswamy "did not accept" the shuttering used for the slab. (vii) The method of drawing sample for testing and analysis was not proper inasmuch as no panchnama was prepared at the time of drawing the sample from the slab and nor was it done in the presence of the opposite party manufacturer or his agent. (viii) The test report was furnished 76 days after the slab was laid for which the samples were taken, on 25th February, 1990 long after the defect in the slab were noticed viz. on 14th December, 1989. (ix) The State Commission ignored the evidence of other purchasers of cement in Sangli who averred that the cement was of satisfactory quality and that they had encountered no problems with the cement supplied.

THE complainant in its reply has only controverted the Additional Grounds of Appeal filed on 3-9-93 and not the original grounds of appeal filed on 13-7-93. He has not been able to assail the objections taken by the opposite party to the analysis report of Dr. Krishnaswamy which is the foundation of the finding regarding the defective cement having been supplied by the opposite party Narmada Co. Ltd.

IN view of all this we cannot disregard the submissions made by the opposite party Narmada Cement Co. Ltd. that they had supplied cement to other parties perhaps during this period and that no complaint about the quality of cement had been received. In view of the above, we are of opinion that it has not been satisfactorily established that the cement supplied was defective. We, therefore, allow the appeal of the opposite parties, set aside the order of the State Commission and dismiss the appeal of the complainant. There is no order as to costs. Ordered accordingly.