The burden of proof lies with the complainant to provide sufficient evidence to support the claim of deficiency in service.

ORDER

K.C. Gupta, President - Briefly stated the facts are that the respondent is doing the business of sale of cement. The complainant purchased 250 bags of cement up to 15.5.1999 from the respondent for the construction of his farm house and respondent used to send the same to his farm house on his carrier at Kalwan and he also paid carriage charges to him. However, respondent did not issue any receipt except one simple receipt for the purchase of cement.

2. It was further averred that after the entire construction was over, he found that the plaster on the building was of inferior quality and was falling by mere touch and rubbing with the thumb as the same was lacking binding force and was of sub-grade.

3. It was next averred that he got the building examined from the building expert Sh. Kalyan Singh who also reported that the cement supplied was of poor and sub-standard quality.

4. Alleging deficiency in service, he claimed Rs. 5,66,000 on account of supplying poor quality cement as alleged in para-7 of the complaint and Rs. 50,000 as damages for mental tension and harassment, etc. With these allegations, the complaint was filed on 10.7.2000 in the Haryana State Commission which was subsequently transferred to this commission by the order of Hon'ble National Commission.

5. Respondent contested the complaint and filed written reply. He stated that he was working as clerk in the Kalwan Cooperative Credit and Service Society Ltd., Kalwan and was in no way connected with the sale of cement. He further stated that he neither sold any cement to the complainant, nor, issued any receipt to him and complaint had been falsely filed. He also stated that he did not issue any receipt /bill to the complainant for the sale of cement and if any receipt had been produced then same was false and fabricated. Thus, he prayed that the complaint should be dismissed.

6. Parties adduced their evidence by way of affidavits.

7. We have heard Counsel for complainant Mr. Naveen Gupta, Counsel for respondent Mr. Neeraj Sharma and carefully gone through the file.

8. The case of the complainant is that respondent deals in sale of cement and he had purchased 250 bags of cement upto 15.5.1999 from him for the construction of his farmhouse and after construction, it was found that there was defect in the cement as plaster of the building was of poor quality and the same was falling by mere touch and rubbing with the thumb as it had no binding force and was of sub-standard quality. Respondent has categorically stated in the written reply as well as affidavit that he did not deal with the sale of cement as he was employed as clerk in the Kalwan Cooperative Credit and Service Society Ltd. Kalwan, District Jind. He had categorically further stated that he neither sold the cement, nor, issued any receipt to him. No receipt has been placed on file that the complainant had purchased some bags of cement from the complainant for construction.

9. Complainant has produced on file photo-copy of some writing Annexure C-2. It is not signed by the respondent. The complainant has not examined any document expert to prove that the writing of the said document is in the hand of respondent. In the absence of any expert evidence, it cannot be said that the writing contained in Annexure C-2 is that of the respondent. Moreover, by mere writing certain bags of cement does not mean that he had supplied the cement to the complainant and had received the amount.

10. There is also no evidence that the cement allegedly supplied by the respondent was of sub-standard or poor quality. It was incumbent upon the complainant to send a sample of cement scratched from the construction of building through the State Commission in view of Section 13(4) of the Consumer Protection Act for examination or analysis or test from the appropriate laboratory. If a report had been received from the laboratory that the cement was of sub-standard and inferior quality, then it would have been a clinching evid