Full Judgment
A.P. Chowdhri, President:
1. Facts giving rise to this appeal are brief and simple. The complainant purchased 175 bags of ACC Cement from V.P. Pathak, Prop. M/s. Swastik Traders, B-93, Okhla Industrial Area, Phase-II, New Delhi through 3 cash memos dated 20.3.93, 4.4.93 and 15.4.93 respectively. He laid a roof with the said cement on 9.4.93. The shuttering was removed on 23.4.93 when a portion of the roof and balcony fell down. The Architect and the contractor who were connected with the construction were of the view that the roof fell down because the cement was sub-standard and spurious. The complainant lodged a report with the police the same day and also contacted Opposite party 1 to see things for himself. Opposite party-1 is stated to have agreed to pay Rs. 70,000/- as compensation. In part payment he is further stated to have paid Rs. 15,000/- in cash. The complainant also reported the matter to ACC Ltd., opposite party 2. Opposite party 2 got an enquiry made and informed the complainant that the cement was adulterated and spurious and the same had not been manufactured by them. Opposite party 2 also lodged a report with the police in this behalf. The complainant got a sample of the cement tested from Sri Ram Institute for Industrial Research, Delhi. The said Institute reported that the sample did not conform to the prescribed standard for ordinary portland cement. The complainant having failed to receive the amount settled with OP-1, filed a complaint before the District Forum-II claiming a total compensation of Rs. 2,02,399/-. Later on, the amount of compensation was sought to be increased to Rs. 2,29,455/-. Opposite party 2 was impleaded as party during the pendency of the proceedings.
2. The stand of opposite party 1 was that he never sold any cement to the complainant. He pleaded that in fact, he was carrying on business in the name and style of âMaster Buildersâ and not as âSwastik Tradersâ, as alleged by the complainant. It was further denied that the cash memos relied upon by the complainant had been issued by him or any one on his behalf. It was further stated that the complainant should seek his remedy against the person who had supplied the alleged spurious cement. He also denied that any settlement was reached with the complainant or any amount was paid to him. He further pleaded that some officer from opposite party 2 had contacted him but it could not be found as to who had supplied the cement to the complainant.
3. The plea of opposite party 2 was that there was no allegation against them in the complaint. It was further stated that as soon as the present instance of cheating came to their notice they issued an advertisement in a leading newspaper advising prospective buyers to purchase cement only from the Companys authorised dealers. They also admitted having lodged a report with the police and stated that they were pursuing the same with the Police Authorities.
4. On a consideration of the material placed before it by the parties and for the reasons given in the detailed order under appeal, the D.F. held that undisputedly the cement, the question, was spurious. It was further held that the cement had been sold by the opposite party 1 to the complainant and the said opposite party was liable to compensate the complainant for the loss suffered by him. With regard to the amount of compensation, the D.F. held that keeping in view the facts and circumstances of the case, a total compensation of Rs. 1,50,000/- including costs of the proceedings would meet the ends of justice. Opposite party 1 was, therefore directed to pay the said amount with interest @18% p.a. within one month on pain of proceedings under Section 27.
5. Aggrieved by the order, opposite party 1 has preferred this appeal. We have heard Mr. M.K. Vashisht, Counsel for the appellant and Mr. S.M. Aich, respondent in person. We have also perused the record of the D.F. After careful consideration we find ourselves in agreement with the conclusions reached by the D.F. It is, therefore, not necessary to reiterate the various reasons which have been given by the D.F. We would, therefore, confine ourselves to certain additional points which, according to us, support the same conclusion.
6. Admittedly, there is no background of any animosity between the parties. It is, therefore, difficult to imagine that the complainant would involve opposite party 1 for claiming compensation without any basis. We have seen the original visiting cards of Swastik Traders, on the one hand, and Master Builders, on the other hand. The address of Master Builders appearing on the visiting card is B-93, Okhla Industrial Area, Phase-II, New Delhi. According to the complainant, Swastik Traders also operated from the same premises and this significant fact was mentioned by the complainant at the earliest possible opportunity when report was lodged with the police. Two of the telephone numbers appearing on the two visiting cards are common and third telephone number has been added in hand and by naked eye the writing of the said additional telephone in the two cards bears striking resemblance. Learned Counsel of the appellant could not deny that so far V.P. Pathak, prop of Master Builders had not complained either to the Sales Tax Authorities or Telephone Authorities or the police that someone else was unauthorisedly using his telephone numbers and business address with which he has no connection whatsoever.
7. We find no merit in the contention of Mr. Vashisht that even though the cement is stated to have been purchased through one Pradeep Chatterji, Sales Agent, he had not been impleaded as a party. A perusal of the report made to the police as well as the averments made in the complaint are against Mr. V.P. Pathak as proprietor of Swastik Traders and it is only as their Sales Agent that the name of Pradeep Chatterji has been mentioned. We also find that there is no merit in the contention that the affidavit relied on by the complainant suffers from some irregularities. If those irregularities had been pointed out at any earlier stage, the same could be easily removed. The irregularities pointed out are of mere form. Mr. Vashisht also contended that he was not afforded any opportunity to cross- examine the person who had filed affidavit in support of the case of the complainant. Mr. Vashisht admits that the opposite party never made an application either before the District Forum or during the pendency of this appeal seeking to cross-examine the persons who had filed the affidavit. No opportunity having been claimed, no grievance on that account can be made at this stage.
8. It was lastly contended that the compensation awarded to the respondent was not justified in the facts and circumstances of the case. It was pointed out that the cement component was only to the extent of Rs. 18,475/-. Our attention was also invited to the fact that on the record of the D.F. the respondents own Architect had appended a certificate dated 7.6.93 to the effect that expenditure of Rs. 77,939/- had been incurred on the construction of the building which had become in fructuous due to supply of spurious and adulterated cement. It was vehemently contended that no amount could be awarded exceeding the one which had been certified by respondents own Architect. We find that the certificate of the respondents Architect, Deepankar Chakravarty is dated 7.6.93. According to the respondent the building has not yet been constructed and since the time the construction already made was found to be useless till now there had been unprecedented escalation. He has given item-wise details of the expenditure which he would be required to make if he wants to undertake the construction originally planned. According to the respondent the amount would be much more than Rs. 2 lacs. He would, however, be satisfied if the amount awarded by the D.F. was maintained. We find force in the contention of the respondent. We further notice that the D.F. had appointed a local commissioner who inspected the premises and submitted his report dated 31.8.93 giving details of the construction which existed and which required to be pulled down because of the sub-standard quality of cement which had been used. In the totality of facts and circumstances, therefore, we are clearly of the view that the amount of compensation awarded is just and reasonable.
9. For these reasons we find no merit in this appeal. It is accordingly dismissed with Rs. 250/- as costs. Copy of this order be communicated to both the parties as well as D.F.-II.
Appeal dismissed with costs.