State Consumer Disputes Redressal Commission
Phuar Agrotech vs Vishvadev on 27 September, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 668 of 2016 Date of Institution: 20.07.2016 Date of Decision : 27.09.2017 Phuar Agrotech WZ-75, Todapur, near Inderpuri, New Delhi through its Manager Shri Uma Shankar. Appellant-Opposite Party No.1 Versus 1. Vishavdev s/o Sh. Surajmal 2. Dayanand s/o Sh. Surajmal 3. Smt. Malti Devi w/o Sh. Ram Chander, All Residents of Village Baghru, Tehsil and District Sonipat. Respondents-Complainants 4. District Horticulture Officer, Sonipat. Respondent-Opposite Party No.2 CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri D.K. Jangra, Advocate for appellant. Shri Inder Singh Sehrawat, Advocate for respondents No.1 to 3. None for respondent No.4. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred against the order dated June 03rd, 2016 passed by District Consumer Disputes Redressal Forum, Sonipat (for short 'the District Forum').
2. Vishavdev, Dayanand and Smt.Malti Devi-complainants (respondents No.1 to 3 herein) got constructed three polyhouses in the agricultural land owned by them situated within the revenue estate of Village Baghru, District Sonipat under the subsidy scheme of District Horticulture Department. These polyhouses were constructed and installed by opposite party No.1 - Phuar Agrotech. A tripartite agreement was executed in between the complainants and the opposite parties. At the time of construction of these polyhouses, the opposite party No.1 used material like skirting sheets, roll up curtains, rolling pipes and covering plastic ropes of very poor quality which caused huge monetary losses to the complainants. The monetary losses were caused due to entry of insects/pests and temperature drop etc in winter season as climate in the polyhouses could not be secured. As per tripartite agreement, the manufacturing company was required to provide three years guarantee of material, structure and the authorised representative of MIS supplier shall carry out the repairs or replacement of the instruments/components within seven working days of the receipt of the complaint in writing from the farmer or through HDMIU. Since the month of June, 2014, the complainants made so many complaints to the manufacturer as well as opposite party No.2 through e-mail and telephonically but there was no response. All the crops of cucumber, tomato and capsicum were badly damaged. The complainants had to suffer monetary loss to the tune of Rs.19.00 lacs. The opposite party No.1 is required to repair and replace the construction/structure of these polyhouses.
3. The complainants filed the present complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer that the opposite parties be directed to pay an amount of Rs.19.00 lacs on account of damage caused to the structure and crops etc with interest at the rate of 18% per annum from the date of filing of the complaint and to pay an amount of Rs.50,000/- on account of un-necessary harassment, mental torture and deficiency in service.
4. The Opposite Party No.1 has taken plea in its written version that the complaint is bad for non-joinder of necessary parties and that the complaint is not maintainable in the present form. It is admitted fact that three polyhouses were constructed by the opposite party No.1 in the agricultural land owned by the complainant situated within the revenue estate of Village Bagru, Tehsil and District Sonipat under the subsidy scheme of the Horticulture Department, Government of Haryana. The opposite party No.1 is on the panel of the Horticulture Department. It is denied that poor quality material was used at the time of construction of these three polyhouses. After completion of construction of these polyhouses, District Horticulture Officer (DHO), Sonipat and Horticulture Department, Haryana, Panchkula inspected these polyhouses and after inspection, complainant had given his satisfactory letter to the DHO, Sonipat. Out of the total cost of construction, 65% amount was paid by the Horticulture Department, Haryana as subsidy and the remaining 35% amount was paid by the farmers/complainants. As per tripartite agreement, para No.9(i) and (ii), the firm shall provide a guarantee of material from manufacturer and at least three years after sales services as well as guarantee in case of structures, against manufacturing defect in cladding material used and lapse at the level of firm. In case any damage occurred in the structure or cladding material due to non-removal of shortcomings by firm pointed out in inspection report, the firm will be held responsible. The complainants have concealed the material facts from the District Forum that M.I.S. System is not installed by Phuar agrotech-opposite party No.1. M.I.S. work is main work in polyhouses which deals with irrigation system and the same was installed by Netafim company, which is also on the panel of the Horticulture Department. On July 05th, 2014 after receiving complaint, the opposite party No.1 repaired the broken structure, pipes and all plastic wires which were broken and changed by the company. The company spent an amount of Rs.90,000/- for repair but the complainants paid only an amount of Rs.47000/- and did not pay the remaining amount. The complainants never submitted expert inspection report regarding loss caused to the tune of Rs.19.00 lacs. As per Clause 7.5 of the tripartite agreement, the opposite parties shall not be responsible for cropping plan, yield, crop damage etc. arising out of either delay in installation of structure or after handing over of structure to the complainants. In this way, the complainants have filed a false complaint with the intention to escape from payment of the loan amount and to make payment of the balance amount. The complainants are not entitled to any amount as claimed in the complaint. It is prayed that the complaint be dismissed.
5. Opposite Party No.2 - District Horticulture Officer, filed separate written version on the plea that as per terms and conditions mentioned in Tripartite agreement, the firm shall provide for guarantee of material from manufacturer and at least three years after sales service as well as guarantee in case of structures, against manufacturing defects in cladding material used and lapse at the level of firm. In case, any damage occurred in structure or cladding material due to non-removal of shortcomings by firm pointed out in inspection report, the firm will be held responsible. The authorised representative of firm shall carry out the repairs or the replacement of part/component within seven working days of the receipt of the complaint in writing from the farmer or through DHO. It is also mentioned in the tripartite agreement that the opposite parties shall not be responsible for cropping plan, yield, crop damage etc arising out of either delay in installation of structure or after handing over of structure to the farmer. It is prayed that the complaint filed by the complainants be dismissed.
6. Parties adduced evidence in support of their respective claims before the District Forum.
7. After hearing arguments, vide impugned order dated June 03rd, 2016, the complaint filed by the complainant was partly allowed directing the opposite parties to pay an amount of Rs.70,000/- each as compensation on account of loss caused to the crops of the complainants and for rendering deficient services, un-necessary harassment and litigation expenses.
8. Aggrieved with the impugned order dated June 03rd, 2016, the opposite party No.1 has filed the present appeal bearing No.668 of 2016 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainants.
9. We have heard learned counsel for the parties and perused the case file.
10. It is admitted fact that three separate polyhouses were constructed on the land owned by the complainants by the opposite party No.1, which is on the panel of the Horticulture Department, Haryana. These three polyhouses were constructed under the Government subsidy scheme. 65% of the total amount was paid by the Horticulture Department, Haryana and 35% cost amount was paid by the complainants. A tripartite agreement (Exhibit R1/1) was executed between the parties. It is evident from the letter Annexure R-65 that out of the total cost amount of Rs.30,36,880/-, regarding the polyhouse belonging to Smt. Malti Devi, an amount of Rs.19,73,972/- was paid by the Horticulture Department. Three years guarantee period has been provided under Clause 9.1 of the tripartite agreement (Annexure R-63). After sale service as well as guarantee, in case of structure, against manufacturing defect in cladding material used and lapse at the level of the firm, the opposite party was required to complete repair and construction work within seven working days from the receipt of complaint. Under Clause 7.5 of the agreement, it is also mentioned that the opposite parties shall not be responsible for cropping plan, yield, crop damage, etc arising out of either delay in installation of structure or after handing over of structure to the farmer. Under Clause 7.3, it is provided that the opposite parties shall not be responsible for damages of equipments/instruments due to any act on the part of the farmer during execution and service period. From the photographs placed on the file (Exhibits C-16 to C-27), there appears to be some damage caused to the structure, rubber pipes etc. Local Commissioner has also placed photographs on the file Exhibit LC-1 to Exhibit LC-31, which also indicate regarding some damage caused to the structure and material used for construction of the polyhouses. Shri Rajiv Chopra, Advocate, Local Commissioner was appointed in this case who submitted his report dated March 31st, 2016. Local Commissioner in his report has not mentioned anything in particular and attached with his report 31 photographs to show the condition of the polyhouses. The complainants could not adduce any convincing evidence to prove any damage caused to the structure and material used for construction of polyhouses and also to prove that material used was not of so much good quality. Anyhow from different photographs adduced in evidence by the complainants and placed on the file with the report of Local Commissioner, it clearly appears that these polyhouses are in partly damaged condition. Material used was not found in good condition at few places. It is also admitted fact that the complainants have sent complaints to the opposite party No.1 and repair work was not up to the satisfaction of the complainants.
11. In this order we shall discuss only those documents which are relevant and very much material for giving findings in this complaint. However, we have gone through the entire pleadings and the documents on the file very carefully.
12. In fact, from the pleadings and evidence on the file it appears that the complainants had to suffer monetary losses on account of carelessness and negligence on the part of opposite party No.1 which caused loss in the shape of crop and some amount is needed for repair of three polyhouses and some material needs replacement. In fact, it appears that monetary losses have been caused to the complainants but they could not produce so much convincing evidence to prove the exact loss caused to the complainants. Facing this situation and perhaps taking help of some guess work, the learned District Forum awarded an amount of Rs.70,000/- to each and every complainant as compensation on account of total monetary loss suffered by the complainants; on account of un-necessary harassment, mental agony and litigation expenses.
13. Keeping in mind the evidence adduced by the complainants and the opposite parties as well as the other material on the file, findings given by the learned District Forum appears to be justified. Resultantly, we find no illegality and invalidity in the impugned order dated June 03rd, 2016 passed by the learned District Forum. Accordingly, the findings of the learned District Forum stand affirmed and the appeal stands dismissed.
14. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.
Announced:
27.09.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL