RAMCO CEMENTS LIMITED vs ANANDARAJ K.N. & ANR.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 29.02.2016, passed by the Kerala State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. 34/2015, "Ramco Cements Ltd. formerly known as Madras Cements Ltd. versus Anandraj K.N. & Anr.", vide which, while dismissing the appeal, the order dated 29.11.2014, passed by the District Forum, Kozhikode (Calicut) in consumer complaint No. 55/2008, filed by the present respondent No. 1, allowing the said complaint, was upheld.

The brief facts of the case are that the complainant / respondent No. 1 Anandraj K.N. purchased 65 bags of cement from respondent No. 2/OP-1 Shaji Thomas for construction of his residential building in Puthuppadi village, District Kozhikode. The said cement had been manufactured by the present petitioner, the Ramco Cements Limited, formerly known as Madras Cements Limited. It is alleged in the consumer complaint that the main RCC slab and slab of bathroom were cast on 03.02.2007, using about 58 bags of the Ramco Cement, purchased from OP-1. However, on the very next day, they saw a number of cracks all over the main slab and the bathroom slab. Water was found leaking from the slabs. The matter was brought to the notice of the OP-1 dealer and subsequently to the OP-2 manufacturer/petitioner, but without any result. The consumer complaint dated 07.03.2008 was then filed, seeking directions to the OPs to pay compensation of 5 lakh for supplying cement of inferior quality to the complainant.

During proceedings before the District Forum, the complainant filed an application for appointment of an expert to check the building. Shri Santosh G. Thampi, Associate Professor of Civil Engineering, National Institute of Technology (NIT) Calicut, was appointed as Expert Commissioner, who inspected the building in question on 18.07.2009 after giving due notice to the parties and filed his report dated 25.02.2011. The Expert Commissioner concluded in his report that the cracks in the building could have developed due to poor quality of cement. He also stated that the cost of laying a new slab will be about 1,35,000/-. Based on the report of the Commissioner, the District Forum allowed the complaint on 29.11.2014 and directed the petitioner/OP-2 to pay a sum of 1,35,000/- to the complainant towards cost of casting new slab and to pay 10,000/- as compensation and further 5,000/- as cost. Being aggrieved against the order of the District Forum, the petitioner/OP-2 challenged the same by way of appeal before the State Commission. However, the said appeal having been dismissed vide impugned order, the petitioner/OP-2 is before this Commission by way of the present revision petition.

It was averred by the learned counsel for the petitioner/OP-2/manufacturer of cement that there could not be any fault in the quality of cement supplied to the complainant, as they were a well-reputed firm, manufacturing cement since many years and had a well-defined system of inspection, testing and quality control and were under the supervision of the Bureau of Indian Standards. They had installed most modern and sophisticated equipment in their plant. There had not been any complaint from any other quarter regarding the quality of their cement. The learned counsel further stated that it was not clear from record whether the Expert Commissioner had got tested the cement manufactured by them, or the cement made by some other company. There was no mention of any batch number etc. in the sample taken by the Expert. The learned counsel further stated that they had received notice from the Expert Commissioner, in which the date of inspection was mentioned as 20.07.2009, but it was not clear how the said inspection was carried out 2 days earlier, i.e., on 18.02.2009. The learned counsel argued that the results in the report were based on visual inspection only, and no scientific testing was got done. The petitioner had filed their written objections to the report of the Commissioner, in which they had mentioned all the points stated above. Moreover, the inspection is stated to have been conducted on 18.07.2009 whereas the report was filed by the expert after a long time, i.e., on 25.02.2011. The delay in filing the report has not been explained anywhere. The learned counsel vehemently argued that the reliance placed by the consumer fora below on the report of the Expert Commissioner only, was totally erroneous and hence, the orders passed by them were not in accordance with law. The learned counsel further stated that the District Forum had passed their order ex-parte against them and hence, they were denied the opportunity of presenting their case before them. In fact, the counsel appearing for the petitioner had been elevated as a Judge and the Junior Advocate could not appear due to shifting of the office.

Per contra, the learned counsel for the complainant/respondent No.1 argued that the contention raised by the petitioner in their arguments were totally unfounded. In fact, the Expert Commissioner had issued due notice for inspection of the premises on 18.07.2009, and not on 20.07.2009. The learned counsel showed the original notice sent by the Expert Commissioner during arguments, in which the date of inspection has been stated as 18.07.2009. However, on the other hand, the petitioner has produced a copy of the said notice, in which there is an apparent cutting made on the date and the said date has been shown as 20.07.2009. The learned counsel argued that the petitioner had tried to mislead the consumer fora on this score. Even the State Commission had touched upon this issue and observed that the petitioner had mischievously erased the date and approached the forum, pleading that they were not at fault.

Further, during proceedings in appeal before the State Commission, the petitioner never requested for the remand of the case to the District Forum on the ground that they should be afforded proper opportunity to defend the case. The learned counsel pointed out that the petitioner had placed a document dated 28.11.2016 on record before this Commission in which the quality parameters corresponding to the samples of cement sold during the period in question had been explained. This document had been signed by Sh. M. Srinivasan, President (Manufacturing) of the Petitioner Company. In the parameters regarding the fitness/comprehensive strength of cement, it had been stated in the said document as follows:-

"As per BIS specifications for PPC, minimum compressive strength for 3 days, 7 days and 28 days is 16 MPa, 22 MPa and 33MPa respectively."

The report made by the Expert Commissioner brought out that the compressive strength after 3 days, 7 days and 28 days was found to be 10.2, 17.4 and 29.2 respectively, which was much less than the parameters mentioned by the petitioner themselves. It was clear, therefore, that the cement in question was definitely of inferior quality.

The learned counsel for the complainant/respondent No. 1 has further drawn attention to an order passed by the Hon''ble Supreme Court in " Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], " saying that the scope of interference in the exercise of revisional jurisdiction was limited, as there were concurrent findings of the consumer fora below. The orders passed by the Fora below could be interfered in revision petition only, if there was a jurisdictional error or material defect in the said orders. The present revision petition should, therefore, be dismissed.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The main issue for our consideration in the present revision petition is related to the quality of cement manufactured by the petitioner as sold to the complainant/respondent No. 1 by the dealer/respondent No.2. The crucial document to take a view about the said issue is the report of the Expert Commissioner filed by Dr. Santosh G. Thampi, Associate Professor of Civil Engineering, NIT, Calicut. It is brought out in the said report that leakage of water was observed in the roof slabs at many locations in the building, over all parts like bedroom, kitchen, dining hall, toilet, etc. The Expert opined that the cracks could have developed due to poor quality of cement. The expert also estimated that the cost of laying a new slab would be about 1,35,000/-. No doubt, that the petitioner have tried to project that they were reputed manufacturers of cement and had installed modern and sophisticated equipment for the same and had not received complaints from any other quarter, but the fact remains that as per their own document dated 28.11.2016 placed on record regarding the quality parameters, the compressive strength of cement has been shown to be much more than brought out in the report of the Expert Commissioner. The petitioners have not been able to establish, therefore, how the findings in the report of the Expert Commissioner are wrong in any manner.

Further, a crucial aspect in the whole episode is the date of inspection of the building by the Expert Commissioner. From a copy of the document produced on record by the petitioner themselves, it is stated that the date of inspection was fixed as 20.07.2009 at 2:30PM. In the said document, the numeral ''20'' has been clearly written as over-writing after erasing the previous numeral. On the other hand, the complainant has produced the original notice sent by the Expert Commissioner, in which the date of expert inspection is stated to be 18.07.2009. We have no hesitation to conclude from these facts that the petitioner have not come before the Consumer Fora with clean hands. We have nothing to dispute the observation of the State Commission that the petitioners mischievously erased the date and approached the forum as if they were innocent. In addition, the petitioners have not offered any valid explanation for their non-appearance before the District Forum. It is clear from their own assertion that they had due knowledge about the hearing before the District Forum. In addition to the above, we do agree with the assertion of the counsel for the complainant/respondent No. 1 that the scope of interference in the exercise of revisional jurisdiction is limited. A reappraisal of evidence is generally not done while hearing a revision petition. In the given circumstances, there does not appear to be any jurisdictional error or material defect in the orders passed by the consumer fora below. The present revision petition is, therefore, ordered to be dismissed and the orders passed by the consumer fora below upheld. There shall be no order as to costs.