The inability to ascertain the quality of cement once it has been used in plaster or mortar, and the requirement for the complainant to produce a sample of the cement for testing under Section 13(1)(c) of the Consumer Protection Act, 1986.

Mr. Justice R.C. Kathuria, President—This appeal is directed against the order dated 6.1.2006 passed by the District Consumer Disputes Redressal Forum, Kurukshetra whereby the complaint filed by the appellant-complainant against the respondent-opposite parties has been dismissed.

2. Put shortly the facts of the case as can be gathered from the record are that the complainant had purchased initially 55 bags of J.K. Cement from opposite party on 25.2.2004 vide receipt No. 401 for the construction of his house. The said cement was used for lintel purpose. Thereafter, the complainant purchased further cement J.K. brand for Rs. 24,541 for the purpose of plaster and flooring of the house, on different dates for which receipts were obtained by the complainant. The area of the house covered under plaster was 1600 sq. feet. The complainant had incurred Rs. 20,000 as labour charges for plaster and flooring etc. and another Rs. 20,000 for related material and Rs. 20,000 for removal of the defective plaster and flooring etc. because of the sub-standard cement supplied by the opposite parties. He claimed Rs. 2,45,541 inclusive of expenses incurred and damages from the opposite parties. The opposite parties refused to pay any amount to him. Alleging deficiency of service on the part of the opposite parties, the complainant instituted the present complaint seeking directions against the opposite parties to pay a sum of Rs. 1,45,541 alongwith interst @ 12% p.a. from the date of purchase of the cement till realization and Rs. 1,00,000 on account of mental agony and harassment suffered by him.

3. The claim was contested by the opposite parties. The opposite party No. 1 in his separate written statement took the stand that he had purchased the cement from opposite party No. 3, who are authorised dealer of opposite party No. 2. It was further averred by them that no technical expert report has been attached by the complainant and for that reason the complaint is not maintainable. At the same time he admitted that the complainant had purchased cement in question from him. The opposite party No. 2 in its separate written statement, while refuting the stand of the complainant, raised a preliminary objection with regard to the jurisdiction of the District Forum to try the present complaint as the dispute raised required a good deal of oral and documentary evidence to be led by the parties. On merits it was pleaded that the complainant had failed to produce any bag of the cement in order to get a sample of the cement tested from the competent laboratory after analysis and as the complainant had not complied with the mandatory provisions of Section 13(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act 1986), the complaint was liable to be rejected. Opposite party No. 2 took up the stand that the complainant had purchased approximate 250 bags of 43 Grade Cement from the opposite party No. 1 for construction and plaster for different segments of his house in the early months of 2004 and the same had been used by the complainant for the said purpose. It was further stated that the defect in construction was noticed due to improper mixing, late use of mixed mortar and due to masonary default which resulted in rubbing of the cement at different places and prayed for the dismissal of the complaint. The opposite party No. 3 filed a separate written statement wherein he took the similar stand taken by the opposite party No. 1.

4. The District Forum on scrutiny of the pleadings of the parties and evidence on record, found no substance in the complaint and dismissed the same as per order dated 6.1.2006. It is against this order the present complaint has been filed.

5. Learned Counsel representing the appellants has been heard at length.

6. It has come on record that on the request of the complainant, S.D.O. P.W.D. & R. Sub Division, Pipli was appointed as Local Commissioner to visit the spot and to report about the quality of cement/m