Judgment:
Oral Order: (R. Lakshminarasimha Rao, Member)
1. The complainant is the appellant. Her complaint was dismissed on the premise that the appellant has to claim compensation from the builder and not from the respondents and the builder is responsible for laying the slab to the building of the appellant.
2. The brief facts of the case as seen from the complaint are that the appellant purchased a lorry load of Hemandri cement from the first respondent for construction of house in her plot no.509 at Kukatpalli, Hyderabad. The appellant paid an amount of `54,250/- towards the lorry load of cement on 29.12.2008. The slab laid with the cement was not dried up in normal time and it took 21 days to dry up. The appellant was informed that the cement was of inferior quality and the structure cannot withstand and it has to be removed. The appellant suffered loss to the extent of `12,00,000/-which was spent on the structure till the slab was laid. The appellant brought to the notice of the first respondent of the inferior quality of the cement and on advice of the first respondent she informed the matter to the second respondent and third respondent who are the suppliers and manufacturers of the cement.
3. The appellant contends that the second respondent and third respondent advised her to get the slab tested by technician and assured her that if the cement is reported to be of inferior quality they would compensate her the loss she suffered in using the cement for laying the slab. The appellant got tested the cement by Jawaharlal Nehru Technological University which issued report on 16.02.2008 that as the slab was laid due to inferior quality of cement, the entire cement was washed away while ash and cement remained in the slab and that the cement is of substandard quality and not suitable for laying slab. The appellant furnished copy to the report to the respondents and demanded them to pay compensation.
4. The appellant lodged complaint with the police Kukatpalli who registered case in Crime No. 775 of 2009 against the respondents The respondent no.3 obtained piece of slab and got tested it and found that the cement supplied was of inferior quality and not suitable for laying the slab. As the respondents had not paid compensation, the appellant got issued notice to them and filed the complaint.
5. The respondent no.1 resisted the claim contending that he is a professional builder having no concern with the construction of the appellants house. The first respondent is neighbour of the appellant and in view of his association with the third respondent, he obtained approval of the third respondent and delivered lorry load of cement through invoice bearing number 8800/29-12-2009 in lorry bearing registration number AP 16TW 9135. The cement was purchased for M/s Swarnamukhi Constructions from the respondent no.2 and the appellant has no locus standi to maintain the complaint. The appellant has no receipt to show purchase of cement from the respondents no.2 and 3 and she has to pay the cost the cement. The cost of the cement was paid by the first respondent. It is contended that any dispute in regard to the cement is between the appellant and the third respondent.
6. The second respondent contended that the cement was supplied to M/s Swarnamukhi Construction on 29.12.2008 and the amount has not been received from the first respondent. The second respondent has not received any adverse report of the cement from the dealer or purchasers such as M/s Tirumala Cement Agencies, M/s Balaji Marketing Associates who purchased it from the second respondent. In the report issued by JNTU, core test is mentioned showing the proportions of mixing of the cement with sand and concrete is poor. The appellant suppressed the test report dated 20.02.2009 and filed test report dated 6.05.2009. The appellant annexed to the notice dated 16.05.2009 the test report dated 20.02.2009.
7. There is lapse of two months between the two test reports and there is inconsistency in the two reports. The appellant has not collected sample in presence of the second respondent or its representative while sending the same for testing and the procedure adopted was not in accordance with the Standard procedure laid in Indian Standard Specifications. The entire quantity manufactured by the second respondent company comes out the factory after it being tested as per th requirements of IS:12269/1987. The workmen engaged by the appellant for construction of her house are not competent and the test result shows imporper mixing of sand and concrete as a result of which the slab was not dried up in normal time. It is stated that there is no negligence of the second respondent and prayed for dismissal of the complaint.
8. The third respondent contested the claim on the same grounds of defence as adopted by the second respondent. It is contended that the cement supplied to the appellant is not of inferior quality and the third respondent has not received any adverse reports from the dealers or customers. The test report of JNTU shows improper mixing of sand and concrete and quality of concrete in beams is poor. It is contended that the appellant suppressed report issued by JNTU on 20.02.2009 and filed report dated 6.05.2009. The appellant had not adopted standard procedure while sending the sample for testing to JNTU. The third respondent advised the appellant to get tested the cement and it had not given any assurance to the appellant that it would compensate her for the loss she sustained in using the cement for construction of the house.
9. The test report dated 8.01.2009 issued by Grade Ordinary Port Land Cement before dispatching the contents show that the test results are in accordance with in the required parameters. The third respondent issued reply to the notice of the appellant. The leakage of cement slurry is due to improper centring while laying slab and aggregate mixing is not in proper way due to lack of proper supervision. The respondent no.3 has prayed for dismissal of the complaint.
10. The appellant filed her affidavit and the documents, ExA1 to A26. On behalf of the respondents, the Managing Director of the respondent no.3, Dealer, Quality Control Manager and Cement Expert have filed their affidavits and the documents, B1 to B15.
11. The complainant has filed appeal contending that the District Forum failed to consider documentary evidence of the appellant and the District Forum failed to see that due to oversight the date in ExA3 is mentioned as 30.12.2009 instead of 30.12.2008 and it is impossible to file complaint on 24.09.2009 when the document is executed on 30.12.2009. It is contended that the District Forum dismissed the applications for amendment of pleadings and examination of witnesses. The District Forum has refused to receive two applications for examination of chief coordinator of JNTU and cross examination of DW1 to DW3.
12. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
13. The appellant possessing land in plot no. 509 at Kukatpalli in Hyderabad is not disputed. Initially, the respondents disputed purchase of the cement by the appellant and payment of cost of the cement; subsequently they had given up the plea and contested the claim on the premise that the workmen employed by the appellant are not competent and they did not mix the concrete and sand in required proportions as also the cement supplied by them is of not inferior quality. It is an admitted fact that the appellant got tested the sample of cement on 16.02.2009 and 6.05.2009 by JNTU and on 28.08.2009 by A.P. Engineering Laboratories, Hyderabad.
14. During pendency of the complaint, the appellant filed applications, I.A.Nos.367 and 368 of 2011 and the District Forum dismissed them on the premise that one of the applications seeking for amendment of pleadings would amount to change of cause of action. The respondents contended that there is inconsistency in the reports issued by JNTU on 20.02.2009 and 6.05.2009. In the circumstances, the appellant has rightly applied for permission to examine chief coordinator of JNTU and for cross examination of the witnesses who filed their affidavits on behalf of the respondents.
15. The respondent no.3 in its reply dated to the 15.07.2009 to the notice of the appellant had referred to Test Certificate dated 8.01.2009 and improper mixing of concrete and sand as also improper centring while laying the slab. It is the constant version of the appellant that the respondent supplied inferior quality of cement misrepresenting the cement as of quality and suitable for construction of building. Paturi Sri Laxmi, .Aduri Krshna Nivedita, B.Dean Kumar, associate professors JNTU, and professor M.V.Seshagiri Rao, Head of Civil Engineering Department, JNTU, Hyderabad stated before the Police that the test result of the cement does not satisfy codal provisions of IS 12269:1987 and the cement manufactured by the third respondent which is purchased by the appellant is not recommended for construction. The District Forum considering the statements of the associate professors and professor of JNTU ought to have permitted the appellant to examine them in order to prove her claim.
16. It is cardinal principle of justice that the party cannot be deprived of opportunity to produce evidence in support of his claim. It is not that the appellant intended to examine the professors of JNTU without filing the test report. The appellant had taken all necessary steps in the course of enquiry of the complaint before the District Forum. The District Forum in its order has not referred to the entire documentary evidence produced by the appellant. The District Forum held the documents, ExB1/B2 and ExA5/B3, ExA7, Ex20, ExA24 invalid for the reason that there is no whisper about ExB1 and B2 in the affidavit or written arguments of the appellant. Not mentioning in the appellants affidavit of two documents filed by the respondents is made the basis to discard the documents ExA7, Ex20, ExA24 which is not inconsonance with the spirit of law.
17. The District Forum has not given any reason for not considering the documents particularly test reports issued by JNTU and others and proceeded to hold the builder responsible for the debacle without there being any evidence. Paragraph 38 of the order reads as under:
On perusal of the Ex.B1/B2 Test Report dt.20.02.2009 Ex.A15 and Ex.A24 we feel that the person or the contractor or the builder who has laid the slab is responsible for laying the slab in the plot of the complainant on 31.12.2008 and while laying the slab, without following the due course of the construction process he might have mixed âMore sand, Poor quality of the concrete and Lesser Ratio of the Cementâ., so even after 21 days after laying the slab also the slab was not dried. Hence we are of considered opinion that, the person who is responsible for paying the compensation to the complainant for causing damages is, the person who is responsible for laying the slab on 31.12.2008â.
18. The Honble Supreme Court emphasised the need for giving reason for decision and failure to give reasons was held the order unsustainable. In âVishnu Dev Sharma vs State of Utter Pradesh and othersâ 2008(10SCJ 765 the supreme Court held that right to reason is an indispensable part of a sound judicial system, reason sufficient to indicate application of mind to the matter before court .
19. The Supreme Court held in âUnited India Insurance Company and others vs Roshan Lal Oil Mills Ltd and othersâ (2000)10 SCC19 that non-consideration of documentary evidence would result in serious miscarriage of justice and vitiates the order or judgement passed by the Forum or Court.
20. We are of view that the matter need be remitted back to the District Forum giving opportunity to the appellant to lead evidence as also the respondent will have opportunity to lead evidence. The District Forum shall permit the appellant to examine the witnesses she intends to prove her claim. The respondents are equally entitled to examine witnesses of their choice. The matter as a whole requires fresh adjudication and is required to be remanded to the District Forum. The District Forum has to come to the conclusion independently, uninfluenced by any observations made by us in the order.
21. In the result the appeal is allowed setting aside the order passed by the District Forum. The matter is remitted back to the District Forum for fresh adjudication.The District Forum is directed to dispose of the matter in accordance with law after giving opportunity to both sides to lead evidence. In the circumstances, there shall be no order as to costs.