IMPORTANT POINT
Where Complainant miserably failed to prove, that because of substandard quality of cement supplied by opposite parties alone, cracks were developed in his building, opposite parties could not be held liable for unfair trade practice.

M. Thanikachalam, President— The 1st and 2nd opposite parties are the appellants.

2. The 1st respondent in this appeal, as complainant has filed a case, on the following grounds, seeking a direction, for the payment of Rs. 5 lakhs levelling deficiency / unfair trade practice, against the opposite parties.

3. The complainant, in order to construct a building, had purchased 400 bags of cement, on 19.9.2000, and 29.1.0.2000, for a sum of Rs. 71,884, from the 3rd opposite party / dealer, the cement being manufactured by opposite parties 1 and 2. The complainant, following the procedure, using the good quality of other materials, has put up RCC pillars, and after curing the same, he has put up horizontal earth beam, measuring east-west 10 feet, north-south 16 feet, using proper material, with correct ratio of mixture. Though the complainant had used, quality bricks, standard steels, adopted proper curing method, employing supervision of good qualified site engineer, had noticed, cracks on the wall on 26.11.2000, which was informed to the engineer, who has noticed, after checking the cement mixture, that the cement was not having its binding and setting properties. Out of 400 bags, the complainant had consumed 310 bags of defective cement.

4. On 8.12.2000, the complainant reported the same to the 1st opposite party, who had sent their staffs, for inspection, who had taken samples in the polythene cover, from the structures as well as, from the cement bags. In order to set right the cracks in the structure, the complainant demolished the earth beam, thereby incurred expenses also. On 12.12.00, the complainant has given samples, from the remaining bags to the Regional Test Laboratory at Madurai, who had certified, after testing that the cement has not confirmed the prescribed standard. Therefore, it is clear, that there was not only deficiency of service, in selling the bad quality of the cement, but also, the practice of unfair trade, for which all the opposite parties, should be held responsible. The complainant had incurred a total sum of Rs. 4,94,000, in addition to a sum of Rs. 1lakh, for demolition and removal of the cracked structure. Though the complainant is entitled to a sum of Rs. 6,94,984, including compensation for mental agony, the claim is restricted to Rs. 5 lakh. Hence it is prayed, appropriate order may be passed against the opposite parties.

5. The defence of the opposite parties 1 and 2 are as follows:

The product of cement is sold to the public, only after subjecting to proper test, with a view to determine, its quality as per ISI standard, and this being the positiol1 question of unfair trade practice, is unknown to the opposite parties, as incorrectly alleged in the complaint.

6. The complainant satisfying himself about the quality of the cement, had purchased cement form the 3rd opposite party, who is the dealer of opposite parties 1 and 2. Due to violent vibration, or due to defective construction designed, if at all cracks would have been appeared on the wall, constructed by the complainant as alleged, for which the opposite parties cannot be held responsible. The claim of the complainant, that he sent samples from the lot, received on 19.9.2000, and 30.10.2000, must be incorrect, since he had ordered second consignment, after exhausting the first consignment. This being the position, there would not have been any cement for sending examination, purchased on 19.9.2000. While sending the sample, procedure contemplated under the Act, have not been followed, and therefore the test report is not acceptable, cannot be relied on.

7. The complainant has improperly designed the construction of his building, and he should have constructed over the beam, before curing period of 21 days, causing damage, fur which, cement cannot be blamed. Even while £storing the cement also, the complainant would not have followed the correct procedure, resulting quality deterioration, for which manufacturer of the cement cannot be h