Mr. Justice Surinder Sarup, President—This appeal is directed against the order of the learned District Forum, Shimla, Camp at Solan, dated 19.9.2003, whereby the complaint of the appellant/complainant has been dismissed.

2. The complainant’s case, in brief, is that he purchased 140 bags of Ambuja Cement from the respondent on 20.10.2000 for the construction of godown in which the raw material for his flour mill, mini rice sheller and an oil extraction machine was to be stored. It has been alleged that out of total quantity, the respondent has supplied some 111 bags of 43 grade cement which is only meant for Government approved contractors and not for general public including the complainant. Consequent upon the use of the said cement in the construction of the alleged godown, the roof of the godown started leaking profusely endangering its safety. It has further been alleged that the matter was brought to the notice of the respondent and it was assured by the opposite party that leakage would stop automatically, but it did not. Hence, the complaint, seeking Rs. 1 lakh on account of destruction of law material stored in the godown and further Rs. 1 lakh on account of poor quality of the cement which resulted in unsafe construction entailing the danger of the roof being collapsed or demolished.

3. By filing reply, the complaint containing the sole allegation of poor quality of the cement supplied by the respondent, who is authorised stockist of Gujarat Ambuja Cement Ltd., has been resisted by the opposite party on grounds of their cement having been duly certified by an independent authority of the Government i.e., Bureau of Indian Standards based on certain specifications which are duly met by their product. The cement before it is offered for sale as an ultimate product, is put under strict physical and chemical test and report taken every day and complied on monthly basis. Certain variations in grade of cement supplied to the appellant as alleged in para-4 of the complaint have also been denied to be true and based on facts. It has also been the contention of the respondent that insofar as the construction of a building is concerned, the cement is only one of the ingredients and not the sole ingredient for proper construction of the building and, therefore, the defect in the construction cannot be attributed to cement only on the ground of its being defective. Rejoinder to the reply has also been filed on behalf of the appellant controverting what has been averred in the reply of the respondent. The allegations of the variation in grade and that of licence Nos. printed on the bags of the cement supplied, have been reiterated.

4. By way of evidence, only the affidavits of the appellant as well as the respondent are on the record of the case containing allegations and counter allegations without any cogent evidence to substantiate the allegations of the cement in question being defective. Be it stated here that supply of cement in question in terms of quantity has been admitted by the respondent. It is somewhat elementary that in order to succeed the complainant herein has to establish that the cement in question was defective.

5. From the evidence and pleadings of the parties on record, we find that no evidence is forthcoming so as to establish the defectiveness of cement which goes to the root of the matter in order to adjudicate upon the controversy between the parties.

6. The learned Forum below has based its reasoning on the mandatory requirement of Section 13(1)(c) of the Consumer Protection Act, 1986 hereinafter to be called the Act, which makes it obligatory upon the complainant to produce a sample of the alleged defective cement for being sent to the appropriate laboratory for carrying out chemical test or analysis so as to enable the learned District Forum to arrive at a definite conclusion in order to establish the essential ingredients of consumer apathy i.e., deficiency in service and unfair trade practice, for wh