State Consumer Disputes Redressal Commission
Sh. Vishal Ghumman. vs Deputy Director Of Agriculture. & Anr. on 24 June, 2024
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) First Appeal No. : 346/2019
Date of Presentation: 13.11.2019
Reserved on : 15.06.2024
Date of Order : 24.06.2024
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M/S Jain Irrigation System Ltd. R/o Jain Plastic Park, NH-6, Jalgaon,
Maharashtra, 425001, Through its Proprietor.
........Appellant/Opposite Party No.2.
Versus
1. Vishal Ghumman S/o Sh.Gurmail Singh, R/o Village and P.O.
Nangal Salangari, Tehsil & District Una, H.P.
.........Respondent No.1/Complainant
2. Deputy Director Agriculture Office Una, District Una, through its
Deputy Director.
........ Respondent No.2/Opposite Party No.1.
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For the Appellant : Mr.Pawan Gautam, Advocate
For Respondent No.1: Mr.Jai Ram Sharma, Advocate.
For Respondent No.2: Ms.Charu Gupta, ADA.
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(2) First Appeal No.: 56/2020
Date of Presentation: 09.03.2020
Reserved on: 15.06.2024
Date of Order: 24.06.2024
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Vishal Ghumman S/o Sh.Gurmail Singh, R/o Village and P.O. Nangal
Salangari, Tehsil & District Una, H.P.
.........Appellant/Complainant.
F.A.No.346/2019 & F.A.No.56/2020
Versus
1. Deputy Director Agriculture Office Una, District Una, through its
Deputy Director.
2. M/S Jain Irrigation System Ltd. R/o Jain Plastic Park, NH-6,
Jalgaon, Maharashtra, 425001, Through its Proprietor.
........ Respondents/Opposite parties.
...........................................................................................
Coram
Hon'ble Justice Inder Singh Mehta, President.
Hon'ble Mr.R.K.Verma, Member.
Whether approved for reporting?1
For Appellant: Mr.Jai Ram Sharma, Advocate.
For Respondent No.1: Ms.Charu Gupta, ADA.
For Respondent No.2: Mr.Pawan Gautam, Advocate.
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Per Mr.R.K.Verma, Member.
O R D E R :-
The instant appeals are arising out of the common order dated 16.05.2019 passed by the District Forum, Una, District Una, H.P. in consumer complaint No.65/2018 titled Vishal Ghumman Versus Deputy Director of Agriculture & Anr. 1 Whether Reporters of the local papers may be allowed to see the order? 2
F.A.No.346/2019 & F.A.No.56/2020 Brief facts of the Case:
2. Brief facts of the case are that the complainant for installation of poly house applied to opposite party No.1 i.e. Deputy Director, Agriculture, Una and opposite party No.1 authorized the complainant for the same vide letter No. 447, dated 07.05.2015 under Dr.Y.S.Parmar Kisan Swarozgar Yojna. Under this scheme, the complainant bear and deposit 15% share of the cost of project. The opposite party No.1/agricultural department has also directed the complainant to enter in an agreement and file affidavit of undertaking of terms and conditions with opposite party No.2 who is the only empanelled service provider company of opposite party No.1/agricultural department. The complainant has fulfilled all formalities as per the requirement and deposited 15% amount i.e. 2,46,400/- of total cost of the project i.e. 16,43,040/-. In the agreement and affidavit of undertaking it was mentioned that complainant has to utilize the project for minimum period of five years and opposite 3 F.A.No.346/2019 & F.A.No.56/2020 party No.2/service provider would remove the construction defect or any non-specified construction material if used. Then opposite parties will be responsible for removing the defect and also for the loss incurred to the complainant. The Poly house was installed in 2015. The complainant has also installed 350 feet bore-well for irrigation spending Rs. 5.00 Lacs. In January 2016, the complainant informed the opposite party No.2/service provider regarding the defect in computer part of the control penal, but they did not take any action. In March 2016 one side of the roof of poly house was blew off on which opposite party No.2/service provider repaired the roof and charged Rs.25,000/- from the complainant. In September 2016, again other side of the roof of poly house blew off and they again charged repair cost from the complainant.
Unfortunately, in April 2017, the entire roof of poly house was blown off and entire structure of the poly house damaged and destroyed. The complainant informed regarding alleged damage to the opposite parties on which surveyor and 4 F.A.No.346/2019 & F.A.No.56/2020 representative of opposite parties visited the site and inspected and reported the reasons that damage of the poly house is due to construction of wrong direction of the pillars as well as structure of poly house which means construction of poly house was defective from very beginning. Such defects are also evident from the letter No. 2041 dated 24.06.2017 and 2480 dated 07.07.2017 of opposite party No.1/agricultural department addressed to opposite party No.2/service provider, but the opposite party No.2 has not removed the defects nor took action. There is deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint.
3. The opposite party No.1 (Deputy Director, Agriculture) resisted and contested the complaint by filing reply and submitted that it was pre-requisite guidelines that before construction of poly house, bore well was to be installed. Before erection and after completion of poly house, Architecture/PIA had inspected the material and work of 5 F.A.No.346/2019 & F.A.No.56/2020 foundation. Thereafter, complainant had issued the satisfactory/completion certificate to the concerned firm. On 24.06.2017, the complainant reported regarding damage of control penal of roof. After receipt of completion certificate, this office immediately requested opposite party No.2/service provider to repair the defects. The warranty of poly house was 5 years. As per the guidelines, the poly sheet has warranty of two years and complainant had got repaired poly house from the concerned firm at his own levels, which is mentioned by him in letter without prior intimation to this office. So, there is no deficiency in service on part of opposite party No.1/agricultural department. A prayer for dismissal of complaint was made.
4. The opposite party No.2/service provider resisted and contested the complaint by filing separate reply and submitted that the opposite party No.2/service provider undertook to remove the construction defect etc. for minimum period of 5 years. Due to some natural calamities in the 6 F.A.No.346/2019 & F.A.No.56/2020 computer part of the control penal some defect was occurred which was repaired by opposite party No.2/service provider without charging any labour charge or cost. It is further submitted that no information was given by the complainant for torn of any side of the poly house roof. After the construction of poly house, material used was checked by opposite party No.1/agricultural department and after completion, the complainant issued No Objection Certificate. The information regarding defect in poly sheet was received to opposite party No.2/service provider through the opposite party No.1/agricultural department. After receiving the information, opposite party No.2/service provider visited the spot and made estimate for the cost of repair and advised the complainant to deposit 50% of the estimate value as per the Mukhya Mantri Greenhouse Renovation Scheme with opposite party No.1/agricultural department. Under this scheme 50% of the repair shall be borne by the farmer and 50% by the Government. The complainant despite of advice 7 F.A.No.346/2019 & F.A.No.56/2020 did not deposit the money with opposite party No.1/agricultural department, so the repair work was not done. A prayer for dismissal of complaint was made.
5. In rejoinder filed by the complainant, the averments made in the replies were denied and the averments of complaint were re-affirmed and reasserted.
6. Thereafter, the parties led evidence in support of their respective pleadings.
7. After hearing the parties, learned District Forum allowed the complaint of the complainant.
8. Feeling dissatisfied and aggrieved by the order of learned District Commission, the complainant and opposite party No.2/service provider filed these two separate appeals.
9. We have heard learned counsel of the parties and have also gone through the record carefully.
10. Learned counsel of the appellant/service provider has submitted that the impugned order is bad in law and liable to be set aside. He further submitted that the penalty imposed 8 F.A.No.346/2019 & F.A.No.56/2020 upon the appellant/service provider by the learned District Commission below is very harsh and same be set aside. He prays that the appeal of the appellant/service provider be allowed.
11. On the other hand, learned counsel of the respondent No.1/complainant has submitted that the impugned order does not require any interference and prays that appeal of the appellant/service provider be dismissed and appeal of the complainant/appellant be allowed. FINDINGS:
12. The admitted facts which have emerged on record are that the respondent No.1/complainant had installed poly house under Dr.Y.S.Parmar Swarozgar Yojna through the respondent No.2 and it was installed by the appellant company. The cost of the project was Rs.16,43,040/- and 15% of the share amounting to Rs.2,46,456/- was paid by the respondent No.1/complainant to the appellant. The installation of the poly house was completed in the year 2015. During the 9 F.A.No.346/2019 & F.A.No.56/2020 year 2016, both sides of the poly house were damaged which were repaired by the appellant company on payment made by the respondent No.1/complainant. In the month of September, 2017, the entire roof of the poly house was blown off and its entire structure was also damaged.
13. Case of the complainant is that there was construction defect in the poly house resulting into damage of the entire structure of the poly house and as per terms and conditions of the agreement, the appellant company is bound to repair the same free of cost. On the other hand, the stand of the appellant company is that after installation of the poly house, the same was to be maintained by the complainant himself at his own cost. However, the appellant is ready to repair the same on payment of cost.
14. The relationship between the parties is governed by agreement, Annexure C-3. As per clause 9 of this agreement if there was any construction defect or non specified construction material was used in that case, the 10 F.A.No.346/2019 & F.A.No.56/2020 appellant company was required to remove the defect at its own cost within 30 days after pointing out the defect.
15. The respondent No.1/complainant has led evidence to the effect that after installation of the poly house in the year 2015, defects were noticed in the same in the months of March, 2016 and September, 2016 respectively, when the poly house was partly damaged and the same got repaired by him at his own cost. It is further in the evidence led by the respondent No.1/complainant that in the month of September, 2017, the entire roof of the poly house was blown off and its entire structure was also damaged on account of construction defect. This fact was also acknowledged by the surveyor of the appellant. The evidence led by the complainant has gone un-rebutted on record as the appellant company has not led any evidence to show that the damage caused to the poly house was not on account of any construction defect but due to any natural calamity or any other reason. As the poly house was damaged on account of 11 F.A.No.346/2019 & F.A.No.56/2020 defective construction, therefore, in terms of the conditions stipulated in agreement, Annexure C-3 the appellant was bound to repair the same free of cost. The appellant has failed to do so despite repeated requests made by the respondent No.1/complainant in this behalf vide letters Annexure C-9 to C-11. In view of this, the appellant was deficient in rendering services to the respondent No.1/complainant as held by the District Commission below.
16. In view of the above stated facts, the impugned order passed by the learned District Commission directing the appellant to repair the poly house free of cost does not suffer from any infirmity. However, the other part of the impugned order directing the appellant to pay penalty of Rs.200/- per day in case the appellant company failed to repair the poly house within 30 days from the date of receipt of the copy of the impugned order is too harsh and the same deserves to be set aside.
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F.A.No.346/2019 & F.A.No.56/2020
17. In cross appeal No.56/2020 filed by the appellant/complainant he has sought enhancement of the compensation. However, we are not inclined to allow the same as we find that in the facts and circumstances of the present case, the relief granted to the appellant/complainant by the learned District Commission as modified by this Commission is just and reasonable.
18. As a result of above discussion, Appeal No.346/2019 filed by the appellant/opposite party No.2 is partly allowed and the impugned order dated 16.05.2019 passed by the learned District Commission is modified to the extent that the penalty of Rs.200/- per day imposed by the learned District Commission in case the impugned order was not complied with within 30 days from the date of receipt of the copy of the order is set aside while the remaining part of the impugned order is upheld. On the other hand, Appeal No.56/2020 filed by the appellant/complainant is dismissed.
19. Parties are left to bear their own costs. 13
F.A.No.346/2019 & F.A.No.56/2020
20. Certified copy of order be transmitted to parties and their counsel free of costs strictly as per rules. Certified copy of order be sent to District Commission below for information and file of State Commission be consigned to record room after due completion forthwith. Certified copy of this order be also placed on the connected appeal. The appeals are disposed of. Pending application(s) if any also disposed of.
Justice Inder Singh Mehta President R.K.Verma Member Veena 14