KATWA CEMENTS PVT LTD Vs. MALLAPPA LAXMAN JODAR

JUDGEMENT

(1.) This appeal, by the opposite party, is directed against the order dated 5.6.1993, passed by the District Forum, Belgaum, in Complaint No.235/ 91, directing the opposite party to pay to the complainant a sum of Rs.15,000/- as compensation. The facts, briefly stated, are as follows : 1. O. P. No.1 is the manufacturer of cement known as KATWA CEMENTS and O. P. No.2 is its dealer.

(2.) It is the case of the complainant that he purchased, in all 28 bags of cement from O. P. No.2 for putting up the sujja, that is, concrete roof of his house. The complainant purchased 5 bags on 10.5.1990,12 bags on 15.8.90,10 bags on 19.8.90 and 1 bag on 8.2.1991. It is the case of the complainant that the cement bags purchased on 10.5.90 and 15.8.1990 were good but the 11 bags of cement purchased on 19.8.90 and 8.2.91 were not good so the sujja that was put up making the use of such a cement, became defective and broke down and in consequence of which the complainant suffered loss. The complainant, on the basis of these averments, sought compensation in a sum of Rs.25,000/- from the opposite parties.4. The opposite parties filed their version and averred that they were not aware whether the cement alleged to have been purchased from O. P. No.2 was made use of for putting up of the sujja by the complainant. The opposite parties, further averred that the cement sold to the complainant was not adulterated or defective in any way. The opposite parties, on the basis of these averments, sought the complaint to be dismissed During enquiry, the complainant examined himself as P. W-1 and a Lucturer in the Engineering College who had tested the cement, was examined as P. W-2. Ex. P-1 to P-15 came to be marked on the part of the complainant. The opposite party examined D. W-2 and one of the Directors of O. P. I as D. VV-1, a chartered engineer was examined as D. W-3. The documents of the opposite parties came to be maked as Ex. D-1 to D-5.5. The District Forum, considering this material placed on record by the parties, held that the cement sold by O. P. No.2 to the complainant was defective in nature and in that view awarded compensation to the complainant in a sum of Rs.15,000/-.6. We have called for the records and received. We have perused the material on record.7. The complainant has produced bills, Exs. P-1, P-2, P-3 and P-4, to show that he had purchased 28 bags of cement from O. P. No.2. they were purchased in the month of August, 1990. The grievance of the complainant is that the cement that was purchased by him on 19.8.1990 and 8.2.1991 were found to be adulterated and in consequence of which the sujja, for which he had made use of that cement, collapsed and sustained loss.8. This complaint came to be filed in the month of October, 1991. The District Forum obtained the sample cement from the complainanton 14.2.1992. The order sheet dated 14.2.1992 shows that half a bag of cement was taken for sending it for analysis and testing, but it does not show mat the District Forum obtained the sample of the cement from the complainant, sealed it and authenticated it. The order sheet dated 14.2.1992 does not show that half a bag of cement taken from the complainant was sealed and authenticated by the Forum as required under Sec.13 (1) (c) of the C. P Act, 1986. It also does not show that it was KATWA cement.9. The said sample, so taken, was sent to the Assistant Executive Engineer, Quality Control, Minor Irrigation, Sub-Division, Bangalore. But the Assistant Executive Engineer, Quality Control, Bangalore sent back the said cement to the Forum without examining the same stating that it had no equipment to test the cement and so the A. E. E. , by his letter dated 21.2.92 as per Ex. P-12 suggested that the said cement may be got tested at National Highway, Quality Control Sub-Division, Hubli. He has also stated that it was fully equipped for testing the cement. The District Forum did not send the same to the said National Highway Quality Control Sub-Division Hubli, for testing, but it sent the same to the Government Polytechnic College, Belgaum wherein PW-2 tested the same on 14.5.1992 and gave his report - as per Ex. P-13. The order sheet maintained by the District Forum, dated 18.4.92 shows that the said cement was sent to the Government Polytechnic College, Belgaum, for testing and fcr analy sis. The Di strict Forum has, at the end of the said order dated 18.4.1992, has stated, thus : "sealed cement sample be entrusted to the complainant or his Advocate. " 10. Even the said order does not show that the sample of cement which was sent for testing was sealed and it was authenticated by the Forum. Therefore, it is clear that the District Forum failed to comply with the provisions of Sec.13 (1) (c) of the C. P. Act while sending the sample of the cement for testing and analysis. So the report of the Engineer, testing of such cement, would not carry any weight.11. Ex. P-13 is the said report. Ex. P-13 is dated 14.5.1992. The said report, reads, as under : "obtained cement quality is below the stan-dard quality as per ISI. " even the said report, Ex. P-13, does not show that the cement that was sent for testing was found sealed and authenticated. Though, PW-2 has stated that it was found sealed and it was opened in the presence of his superiors, but in the absence of such a fact in the report, Ex. P-13 itself, it would not be just and proper to accept the say of PW-2.12. There is no material on record to show as to why the said cement was not sent to the National Highway, Quality Control Sub-Division, Hubli for testing.13. Admittedly, the cement was purchased in the month of August, 1990 and it was sent for testing and it was tested only in the month of May, 1992 -almost after a lapse of a period of one year and nine months. There is no material on record to show as to the place and the manner in which the complainant had preserved this cement for such a long period.14. The order of the District Forum, at paras 4, 5 and 6, would go to show that the District Forum has entirely based its finding holding the cement as defective and adulterated on the basis of the report - Ex. P-13, and the evidence of PW-2.15 As referred above, even the sample taken by the Forum was not in conformity with the provisions under Sec.13 (1) (c) of the C. P. Act and the fact that the cement was tested after a lapse of period of 1 year and 9 months, we are unable to agree with the finding of the District Forum that the cement supplied by O. P. No.2 to the complainant was abulterated and defective.16. Having regard to these facts and in the circumstances of the case, we are constrained to hold that the finding recorded by the District Forum is erroneous and unsustainable. ORDER in the result, therefore, this appeal is allowed. The order dated 5.6.1993, recorded by the District Forum, Belgaum, in Complaint No.235/91 is set aside. The complaint of the complainant is dismissed. The parties are directed to pay and bear their own costs in this appeal.