National Consumer Disputes Redressal
Western India Match Company Ltd. ... vs Jai Bhagwan And Ors on 3 August, 2011
This appeal is directed against the order dated 03
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW
DELHI
FIRST APPEAL No. 104 of 2004
(From the Order
dated 10.02.2004 in CC no. 30 of 1998 of Chandigarh UT Consumer Disputes
Redressal Commission, Chandigarh)
1. Western India Match Company Ltd. (Wimco)
Indian Mercantile Chambers
Ramjibhai Kamani Marg
Ballard Estate, Mumbai 400 038 Appellants
Through its Managing Director
2. Depot Area Manager, Wimco Ltd.
Kothi No. 659, Sector 6, Urban Estate
Karnal, Haryana
versus
1. Jai Bhagwan
R/o Village Sakra, Tehsil Pundri
District Kaithal, Haryana
2. National Bank for Agriculture & Rural Development
SCO No. 179 180, Sector 17 C, Chandigarh Respondents
Through its Regional Manager
3. Punjab National Bank
Kaul, Karnal, Haryana
Through its Branch Manager
FIRST APPEAL No. 126 of 2004
(From the Order dated 10.02.2004 in CC no. 30 of 1998 of Chandigarh UT
Consumer Disputes Redressal Commission, Chandigarh)
1. Jai Bhagwan
R/o Village Sakra, Tehsil Pundri Appellant
District Kaithal, Haryana
versus
1. Western India Match Company Ltd. (Wimco)
Indian Mercantile Chambers
Ramjibhai Kamani Marg
Ballard Estate, Mumbai 400 038
Through its Managing Director
2. Depot Area Manager, Wimco Ltd. Respondents
Kothi No. 659, Sector 6, Urban Estate
Karnal, Haryana
3. National Bank for Agriculture & Rural Development
SCO No. 179 180, Sector 17 C, Chandigarh
Through its Regional Manager
4. Punjab National Bank
Kaul, Karnal, Haryana (Through its Branch Manager)
FIRST APPEAL No. 91 of 2004
(From the Order dated 10.02.2004 in CC no. 47 of 1996 of Chandigarh UT
Consumer Disputes Redressal Commission, Chandigarh)
1. Western India Match Company Ltd. (Wimco),
Indian Mercantile Chambers
Ramjibhai Kamani Marg
Ballard Estate, Mumbai 400 038 Appellants
Through its Managing Director
2. Area Manager, Wimco Ltd.
Kothi No. 659, Sector 6
Urban Estate, Karnal
Haryana
versus
1. Dhara Singh
Son of Diwan Singh
R/o Village Sewli
Tehsil & District Sonepat, Haryana
Respondents
2. National Bank for Agriculture & Rural Development
Poonam Chambers, Shiv Sagar Estate, Dr Annie Besant Road
Worli, Mumbai
3. Indian Bank
Branch Office, Gita Bhavan Chowk
Sonepat, Haryana (Through its Branch Manager)
FIRST APPEAL No. 144 of 2004
(From the Order dated 10.02.2004 in CC No. 47 of 1996 of Chandigarh UT
Consumer Disputes Redressal Commission, Chandigarh)
1. Dhara Singh
Son of Diwan Singh
R/o Village Sewli
Tehsil & District Sonepat, Haryana
2. Mahabir Singh
Son & L.R of Sardara Singh Appellants
R/o Village Sewli
Tehsil & District Sonepat, Haryana
3. Satpal
Son & L.R. of Sardara Singh
R/o Village Sewli
Tehsil & District Sonepat, Haryana
versus
1. Western India Match Company Ltd. (Wimco)
Indian Mercantile Chambers
Ramjibhai Kamani Marg
Ballard Estate, Mumbai 400 038
Through its Managing Director
2. Area Manager, Wimco Ltd.
Kothi No. 659, Sector 6 Respondents
Urban Estate, Karnal
3. National Bank for Agriculture & Rural Development
Poonam Chambers, Shiv Sagar Estate, Dr Annie Besant Road
Worli, Mumbai
4. Indian Bank
Branch Office, Gita Bhavan Chowk
Sonepat, Haryana (Through its Branch Manager)
BEFORE:
Honble Mr Justice R. C. Jain Presiding Member
Honble Mr Anupam Dasgupta
Member
For the Appellants in FA 104 & 91/04 Mr. Rajesh Chaddha, Advocate
and Respondents in FA 126 & 144/04 with
Mr. Mukesh Kumar
Sr. Manager, Wimco
For Punjab National Bank Mr. S.S. Ahluwalia, Advocate
For Jai Bhagwan
NEMO
For Dhara Singh
Mr. Sunil K. Ojha, Advocate
Dated 3rd August
2011
ORDER
Anupam Dasgupta First Appeals no. 104 and 126 of 2004 These two appeals challenge a common order dated 10.02.2004 passed by the Chandigarh Union Territory Consumer Disputes Redressal Commission, Chandigarh (in short, the State Commission) in complaint case no. 30 of 1998. By this order, the State Commission partly allowed the complaint and directed as under:
It is not disputed the complainants suffered a total loss of poplar plants out purchased by him @ Rs.52.50 per plant. All these plants were to be properly cared for and proper guidance or service was to be provided by OPs no. 1 and 2 to the complainant, which they failed to provide and the plants were destroyed and the complainant was put to loss thereof. The OPs no.1 and 2 are thus liable for the deficiency in service on their part. However, under Clause 8 of the Agreement, the liability of OPs 1 and 2 is to the extent of 10% of the ETPs sold under the Agreement and they are required to replace these plants to the complainant, which it failed to do so. The complainant would thus be entitled to get the value of 10% of 1000 plants i.e. of 100 plants @ Rs.52.50 per plant, which would come to Rs.5250/-. Apart from this, the complainants are entitled to get compensation for the loss occasioned to him, which we assess at a sum of Rs.47,250/- which is the actual loss suffered by the complainants.
Resultantly, the complaint succeeds partly and is allowed to the extent that the OPs no. 1 and 2 are directed to pay a sum of Rs.5250/- the value of 10% of 1000 plants i.e. of 100 plants @ Rs.52.50 per plant. The OPs no. 1 and 2 shall further pay a sum of Rs.47,250/- to the complainant as compensation on account of actual loss suffered by him within a period of two months from the date of receipt of certified copy of this order, failing which the said amount shall carry interest @ 7% per annum till payment. The amount, if any, already paid to the complainant by the OPs shall be adjusted from a sum of Rs.47,250/-. The complainant is also awarded a sum of Rs.5000/- as litigation expenses. The complaint against the remaining OPs i.e. OPs no. 3 and 4 is dismissed leaving the parties to bear their own costs.
.
(ii) While the original OPs 1&2 have filed appeal no. 104/2004 challenging the finding of the State Commission regarding deficiency in service on their part, appeal no. 126/2004 has been filed by the original complainant seeking enhancement of the relief awarded by the State Commission.
(iii) For convenience, we refer to the parties in these appeals by their status before the State Commission.
2 (i) It is undisputed that the OPs 1&2 started a scheme to encourage farmers to undertake plantation of poplar trees by supplying entire transplant of poplar (ETPs) and also necessary extension services. It would appear that in this context refinancing by NABARD at concessional rate of interest was available to scheduled/nationalised banks which would lend money to farmers/agriculturists undertaking to plant poplar saplings to be supplied by OP 1. OP 1 had designed a standard Agreement to be entered into with each farmer participating in the scheme. The Agreement provided, inter alia, for payments by the farmer to OP 1/2, in 8 annual instalments, covering both the costs of plants and supply of requisite inputs as well as technical services/guidance. Under the Agreement, at the end of the 8-year period during which the farmer concerned was to tend the plants and grow them to their full potential, with technical support of the OPs 1&2, the latter agreed to buy the fully-grown trees, of defined harvestable size under a buy-back arrangement. The interest of OP 1 in the scheme was essentially in the fact that being a manufacturer of safety matches, it was keen to ensure uninterrupted supply of quality poplar wood (used in making matchsticks) at reasonable/pre-determined prices.
(ii) It is also undisputed that in accordance with such an Agreement dated 31.12.1987 between the parties, OP 1/2 supplied 1000 ETPs to the complainant who planted them during 1988 1989 over five acres of his agricultural land. The agreed cost of these 1000 ETPs was Rs. 52,500/- @ Rs. 52.50 per ETP, payable in 8 annual instalments beginning with 31.12.1987, as stipulated in clause 3 of the Agreement. The complainant obtained a loan of Rs. 1.31 lakh from OP 4 for this purpose and, according to the OPs, paid Rs. 40,000/- in all during the period 10.07.1990 to 21.04.1992. The loan sanction authorised OP 4 to debit the complainants loan account and pay the requisite amounts directly to OP 1/2.
(iii) However, according to the complainant, he was not made fully aware of the terms and conditions of the Agreement and was merely asked to sign a typed document. Despite the Agreement and specific assurances of OPs 1&2 as well as requests by the complainant, no representative of OP 1/2 ever came to guide him technically in the process of transplantation or further operations. Thirdly, despite assurance to the contrary, OP 1/2 obtained only a general insurance policy for all its plantations in Haryana. Further, OP 4 (PNB) charged interest at a rate much higher than 12% per annum, which was the rate OP 4 was, according to the complainant, expected to charge. As a result, the complainant ran up an outstanding loan of Rs.3, 10,575/- as on 01.10.1997 for the recovery of which OP 4 sent a notice dated 18.10.1997. OPs 1&2 supplied ETPs, which were not of good quality. As a result, the poplar plants did not grow fully and began to fall off on their own in the 3rd/4th years. The planting of poplar plants also did not allow intercropping with paddy and intercropping with wheat could be done only during the first 3-4 years and that too with wheat yields of only 1/3rd of the usual level.
(iv) These developments led the complainant to file a complaint dated 21.04.1998 before the Haryana State Consumer Disputes Redressal Commission, Chandigarh (in short, Haryana State Commission) alleging deficiency in service on the part of all OPs on various counts as well as adoption of unfair and restrictive trade practices, as a result of which the poplar plants could not grow to the desired extent and intercropping could also not be done fully, thus causing heavy financial loss to the complainant. On these allegations, the complainant prayed for compensation of Rs.7, 44,692/- from all the OPs taken together.
(v) The complaint, filed in 1998 with the Haryana State Commission, remained pending with that State Commission till 2002 when it was transferred by this Commission to the Chandigarh UT Commission. The latter decided the complaint, as stated above.
First Appeals no. 91 and 144 of 2004 3 (i) These two appeals arise out of a similar order, also dated 10.02.2004 of the Chandigarh Union Territory Consumer Disputes Redressal Commission, Chandigarh (in short, the State Commission) in complaint case no. 47 of 1996 filed by Dhara Singh and Sardara Singh, respondents no.1 and 2 in these appeals. The complaint was filed originally with the District Consumer Disputes Redressal forum, Sonepat and then withdrawn and filed with the Haryana State Commission, and finally transferred by this Commission to the State Commission, Chandigarh, as in the case of the complaint discussed in the preceding paragraphs. Here too, the State Commission partly allowed the complaint by observing as under:
It is not disputed the complainants suffered a total loss of 1500-1600 plants out of 2600 plants purchased by him @ Rs.46/- per plant. All these plants were to be properly cared for and proper guidance or service was to be provided by OPs 1 and 2 to the complainants, which they failed to provide and the plants were destroyed and the complainants were put to loss thereof. The OPs 1 and 2 are thus liable for the deficiency in service on their part. However, under Clause 6 of the Agreement, the liability of OPs 1 and 4 is to the extent of 10% of the ETPs sold under the Agreement and they are required to replace these plants to the complainant, which it failed to do so. The complainant would thus be entitled to get the value of 10% of 2600 plants i.e. of 260 plants @ Rs.46/- per plant, which would come to Rs.11,960/-. Apart from this, the complainants are entitled to get compensation for the loss occasioned to him, which we assess at a sum of Rs.1,07,640/- which is the actual loss suffered by the complainants.
Resultantly, the complaint succeeds partly and is allowed to the extent that the OPs 1 and 2 are directed to pay a sum of Rs.11,960/- the value of 10% of 2600 plants i.e. of 260 plants @ Rs.46/- per plant. The OPs 1 and 2 shall further pay a sum of Rs.1,07,640/- to the complainant as compensation on account of actual loss suffered by him within a period of two months from the date of receipt of certified copy of this order, failing which the said amount shall carry interest @ 7% per annum till payment. The amount, if any, already paid to the complainant by the OPs shall be adjusted from a sum of Rs.1,07,640/-. The complainant is also awarded a sum of Rs.5000/- as litigation expenses. The complaint against the remaining OPs i.e. OPs 3 and 4 is dismissed leaving the parties to bear their own costs.
(ii) The striking similarity between the State Commissions order reproduced above and that in appeals no. 104 &126 of 2004 apart, the facts in the complaint leading to the two appeals are also similar to those relating to the first two appeals discussed above.
(iii) Here too, Wimco (OPs 1&2) has filed appeal no. 91 of 2004 whereas the original complainants have filed appeal no. 144 of 2004.
(iv) For the sake of convenience, we once again refer to the parties according to their status before the State Commission.
4 (i) The important facts relating to these appeals are almost the same as those in appeals no. 104 & 126 of 2004 except that here the complainants were supplied with 2600 ETPs by OP 1/2 under a standard Agreement dated 31.12.1988. The complainants had to pay for the ETPs @ Rs.46 per plant, the total amount being payable in 8 annual instalments as laid down in clause 2 of the Agreement and planted them, over an area of 13 acres of their agricultural land. The lending bank in this case was the Indian Bank, Sonepat, which sanctioned loan to the complainants with similar authorisation from them to debit their loan account and pay the requisite costs directly to OPs 1/2. An additional fact in this case, however, was that the complainants lodged a claim for the loss of some poplar trees sometime in 1994 under the insurance policy taken by OPs 1/2 in respect of their plantations in Haryana. It is an admitted position that the complainants claim was allowed, albeit for a small amount of Rs.7187/- and credited directly to their bank account with OP 4. It would also appear that in this case the complainants sent written communications protesting against the quality of the saplings supplied and non-availability of technical services to be provided by OPs 1/2. During the period June 1993 - April 1994, at least three such communications appeared to have been addressed by the complainants to the local representatives of OPs 1/2. Unlike in the case discussed above alleging complete loss of all the 1000 poplar plants, the complainants in this case alleged that about 1500-1600 plants out of the 2600 planted originally died down in 1994.
(ii) However, in their complaint, for the various acts of alleged deficiencies in service on their part, the complainants prayed for compensation of Rs.13,78,000/- from the OPs, calculating the loss @ Rs.530/- for all 2600 trees (as against the claimed loss of 1500-1600 trees) and Rs.50,000/- on account of mental suffering.
5. During the pendency of the appeals before this Commission, it was brought to our notice that all the original complainants had since expired on different dates. Accordingly, under various orders of this Commission, their legal representatives as detailed below substituted them:
Name of the Complainant Name of the Legal Heir Jai Bhagwan Ram Pyari Wife Sohan Singh Son Mohan Singh Son Mahesh Singh - Son Dhara Singh Raghubir Singh Son Rajbir Singh Son Dharambir Singh Jagmander Singh Ombir Singh Sardara Singh Mahavir Singh Son Satpal Singh - Son We have noted these details here in recognition of the factual position but for the sake of convenience have not reflected them in the cause title above.
5 (i) We have heard Mr. Rajesh Chadha, learned counsel for the appellants/OPs 1& 2, Mr. S.S. Ahluwalia, learned counsel for the Punjab National Bank and Mr. Sunil K. Ojha, Advocate for Dhara Singh.
(ii) Mr. Chadha, learned counsel for the appellants/OPs also submitted synopsis of his submissions along with copies of judgments on which he wished to reply.
(iii) The main points urged by Mr. Chadha are as under:
(a) The complainants in these cases undertook cultivation of poplar trees for commercial purpose, inasmuch as they intended to sell the fully-grown trees to OP 1/2 in accordance with the Agreement executed by them in this behalf.
Therefore, these farmers could not qualify to be consumer under the provisions of section 2 (1) (d) of the Consumer Protection Act, 1986 (in short, the Act).
(b) None of the complainants paid in full the agreed amount in 8 instalments. In both these cases, only 5 instalments were actually paid by 1994 and that too after varying periods of delay.
(c) In his complaint, Jai Bhagwan made a bald allegation about the loss of all the poplar trees in the third/fourth year of their plantation, without adducing any evidence whatsoever. None of the complainants in any case disclosed the amount/s received from the sale of the allegedly under-grown poplar trees.
(d) Both the complaints were barred by limitation. If the allegation was that the ETPs were of poor quality and the plants started falling off in the third/fourth year, the cause of action would have arisen in both the cases sometime in 1992-1993 or latest 1993-1994. In other words, the complainants could have filed the complaints latest by early 1996 as against 21.04.1998 in the case of Jai Bhagwan and 22.09.1996 in the case of Dhara Singh and Sardara Singh.
(e) The amount of compensation sought in Jai Bhagwans complaint was without any basis whatsoever. The figures of loss due to the alleged inadequate inter-cropping were totally conjectural and without an iota of evidence about the actual yields or the selling rates of wheat and paddy referred to in the complaint. Moreover, according to clause 15 of the Agreement, a farmer was specifically barred from taking up any cultivation of paddy under inter-cropping. The clause also specifically provided that cultivation of crops would be secondary and subordinate to the poplar plants. Therefore, to project any loss on the basis of inability to raise paddy or wheat by way of inter-cropping with the poplar plants was ab initio impermissible under the Agreement. Further, even if the figures of loss on account of inter-cultivation/inter-cropping were accepted for the sake of argument, the amount of loss would not exceed Rs.3, 34,000/-, by the complainants own calculations. On the other hand, absolutely no details were furnished in the complaint about the loss due to alleged premature falling off of the poplar trees. The complainant had also not furnished copy/ies of any communication/document addressed to OP 1 or 2 that he had at all sought any technical guidance/advice in regard to cultivation of poplar plants at any point of time.
(f) As regards Dhara Singh and Sardara Singh, they had earlier filed a complaint before the District Consumer Disputes Redressal Forum, Sonepat. In this complaint (paragraph 6), they had specifically stated that they sold 2499 poplar trees (out of 2600 planted from the ETPs) in the month of September/October 1994 to a private contractor. They further stated that these plants were healthy and had girths of 95-110 cm. These complainants, however, withdrew this complaint filed before the District Forum, Sonepat to file another complaint before the Haryana State Commission (on the ground of lack of pecuniary jurisdiction of the District Forum in view of the amount of compensation sought). However, totally contrary to the above-mentioned statement in the complaint before the Sonepat District Forum, the same complainants alleged in the complaint before the Haryana State Commission, that the saplings supplied by OPs 1&2 were not of good quality and, as a result, about 1500-1600 plants died down during 1993-1994. Further, having thus alleged the loss of 1500-1600 plants out of 2600 planted, they claimed loss for 2600 poplar trees @ Rs.530/- per plant while seeking compensation.
(g) Mr. Chadha has cited several judgments of the Apex Court and this Commission in support of various limbs of his submissions, including points like whether the complainants could qualify to be consumer under the Act, limitation, etc.
(iv) On the other hand, the learned counsel for the complainants have supported the finding of the State Commission that OPs 1 and 2 failed to provide the requisite service envisaged under the Agreement, as a result of which the complainants could not grow their poplar plants to their full potential and receive payments as stipulated in the Agreement. They have also contended that the compensation awarded by the State Commission was inadequate and urged enhancement. However, they have not made any specific submission to counter the arguments of Mr. Chadha.
Discussion 6 (i) We have considered the submissions made by the learned counsel for the parties and gone through the documents brought on record.
(ii) (a) One of the principal (preliminary) grounds raised by Mr. Chadha is about the status of the complainants, i.e., whether they could be deemed to be consumer under the provisions of section 2(1)(d) of the Act. In this context, Mr. Chadha has drawn our attention to the judgment dated 30th January 2008 of this Commission in the case of WIMCO Limited v Ashok Sekhon and Ors [II (2008) CPJ 210 (NC)] However, we notice that this judgment deals only with entitlement of a person to be considered a consumer in the context of supply of defective goods, covered under the provisions of section 2(1)(d)(i) of the Act. On the other hand, in these two complaints, the allegations were not only that the ETPs (i.e., goods) supplied by OP 1/2 were not of good quality but also (and mainly) that there were deficiencies on their part in providing technical advice (i.e., service) in the plantation and post-plantation stages to help the complainants ensure that the ETPs grew up to their full potential. It is also seen that the State Commission has held the OPs 1 and 2 guilty of deficiency in service, and discussed at length as to how the Explanation under section 2(1)(d) of the Act was not applicable to a consumer of service at the time when the complaints were filed. There is no reason to differ from the view of the State Commission, at least on this point.
(b) However, the views expressed by this Commission in the above-mentioned Ashok Sekhon case with regard to the considerations that should weigh with a Consumer Forum in determining the status of a farmer as a consumer raise some interesting issues. A farmer even a marginal, dry-land farmer has to necessarily, in our respectful view, engage in commercial activities to survive. He has to sell, for profit howsoever small - the surplus produce of his farm to buy the daily essentials of living, viz., food articles other than what, if any, he might be growing, clothing, medicines, etc., etc. Hence, the argument that a farmer opting to grow poplar plants, under irrigated conditions on part of his holding engages in commercial activity is not by itself sufficient to disqualify him from being treated as a consumer under the relevant provisions of the Act. However, we defer a more detailed discussion of this issue to a better case because the appeals before us can be well decided without a determination of this issue.
(iii) The other preliminary objection raised by Mr. Chadha relates to both the complaints being barred by limitation prescribed under section 24A of the Act. The complaint filed by Jai Bhagwan was dated 21.04.1998 whereas, that filed by Dhara Singh and Sardara Singh was of 22.09.1996.
(a) There is a clear admission in their complaint before the District Forum, Sonepat by Dhara Singh and Sardara Singh (an admission on which Mr. Chadha has placed considerable reliance) that they sold 2499 poplar trees in the month of September/October 1994, impliedly at a price less than what they would have got under clause 9 of the Agreement dated 31.12.1988. If September/October 1994 were thus taken as the time of accrual of the cause of action in this case, the complaint filed in September 1996 would not be barred by the limitation of 2 years prescribed under section 24A of the Act.
(b) However, this cannot be said to be true of the complaint filed by Jai Bhagwan. It was alleged in that complaint that the poplar trees started falling off on their own in the 3rd/4th years of their plantation. The Agreement being dated 31.12.1987, the year of plantation would be 1988-89 and, therefore, the cause of action emanating from the poplar trees prematurely falling off on their own in the 3rd/4th years of plantation could not be of a period later than (late) 1992. Hence, the complaint filed in October 1998 was obviously time barred.
(c) In this context, Mr. Chadha has drawn our attention to the law on the subject, as amplified recently by the Apex Court in the case of State Bank of India v B. S. Agricultural Industries (I) [(2009) 5 SCC 121]. Section 24A of the Act was inserted by the Amending Act of 1993 with effect from 18.06.1993. In other words, this provision was very much in force at the time of filing of the two complaints. On the point of limitation under the Act, the Apex Court observed as under in the above-mentioned case [(2009) 5 SCC 121]:
11. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
24A. Limitation period. (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2)
Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires the Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in section 24A is sort of legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.
12. As a matter of law, the Consumer Forum must deal with the complainant on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
This view was relied upon/reiterated by the Apex Court itself in two more recent cases, viz., Kandimalla Raghavaiah & Co. v National Insurance Co. & Another [(2009) 7 SCC 768] and V. N. Shrikhande (Dr.) v Anita Sena Fernandes [(2011) 1 SCC 53]
(d) In dealing with the objection of the OPs that both the complaints were barred by limitation, the State Commission made identical observations in each case which are as under:
So far as the first preliminary objection raised about the complaint being time barred is concerned, we are of the view that since the OPs allowed the complaint to be adjudicated and participated in the adjudication of the complaint by leading evidence, it would be inferred that they waived the objection regarding the bar of limitation and to entertainment of the complaint beyond the prescribed period of limitation by the State Commission, Haryana. Thus, this preliminary objection is repelled.
(e) Though the facts regarding the delay in filing the two complaints were substantially different (as noticed in sub-paragraphs (a) and (b) above), the State Commission disposed of the OPs objection regarding limitation by making identical observations without any discussion of the specific features of each complaint: needless to add, this amounts to non-appreciation of the facts of each complaint. Moreover, there is no reference at all in the State Commissions observations if the complainants in each case were cognisant of the delay, if any, in filing their respective complaints and, if so, whether they filed any application for condonation of the delay, showing the cause(s) thereof. From the complaints as well as the discussion in the State Commissions order noticed above, it is easily seen that neither complaint was accompanied by an application for condonation of delay. In view of these facts as well as the interpretation of the law in respect of limitation under section 24A of the Act, any further consideration of the complaint of Jai Bhagwan, being severely barred by limitation, is precluded.
(iv) (a) We have already noticed the complete identity (barring the numbers of poplar plants and corresponding amounts) in the paragraphs of the State Commissions orders relating to award of compensation in each complaint. These paragraphs start with the State Commissions observation that the loss of poplar plants was not disputed: thus, that Jai Bhagwan suffered total loss of the poplar plants (grown out of the ETPs purchased @ Rs.52.50 per ETP) and Dhara Singh and Sardara Singh suffered loss of 1500-1600 poplar plants (grown from the 2600 ETPs purchased by them @ Rs.46/- per ETP).
(b) This observation is not at all founded on facts because, right from their written version, the OPs have vehemently contested that the complainants suffered any loss of poplar plants and contended that they sold their entire crop of poplar plants to some contractors at undisclosed prices.
(c) We have already noticed that Dhara Singh and Sardara Singh admitted in their complaint before the District Forum, Sonepat to having sold 2499 fully grown healthy poplar plants of girths exceeding 95 cms to some contractor. In the face of such an explicit and unequivocal admission, to claim in the subsequent complaint before the Haryana State Commission that they lost 1500-1600 out of the 2600 poplar plants could simply not have been allowed to pass. Moreover, in their later complaint, these two complainants also stated that they preferred a claim for loss of some poplar trees (number unspecified) to the insurance company and received some amount too in 1994. This admitted fact would further reduce the number of poplar plants for which they could claim compensation from the OPs. In any case, clause 8 of the Agreement, reproduced below, did not entitle the complainants to any compensation at all:
8.
Notwithstanding anything herein contained, the Company shall not be liable to pay any direct, consequential or indirect damages that the Farmer may suffer as a result of ETPs, supplied under this Agreement, being lost after 31st December 1990 or failing to grow into the harvestable trees.
Though the State Commission discussed each clause of the Agreement in the body of its orders, it did not think it necessary to examine the full import of the said clause on the complainants claims.
(d) As regards Jai Bhagwan, there is not an iota of evidence that he suffered any loss of poplar plants and yet the State Commission observed that the total loss of 1000 poplar plants by Jai Bhagwan was an undisputed fact. Nothing can be more glaring an example of lack of appreciation of facts and application of mind.
(e) In both the cases, the OPs stated that the complainants did not pay the full price of the ETPs. This was not rebutted by the complainants. Yet there is not even a whisper of this uncontested issue in the State Commissions order.
(f) The same lack of appreciation/application is evident in the convoluted logic of calculating the awarded compensation. Having concluded about the undisputed (?) total loss of 1000 poplar plants in the case of Jai Bhagwan and 1500-1600 poplar plants in the case of Dhara Singh and Sardara Singh, the State Commission first awarded compensation @ 10% of the cost of the ETPs in each case on the strength of clause 6 of the Agreement. Total inapplicability of clause 6 to the claims of the complainants is writ large. This clause of the Agreement reads as under:
6. The Company shall endeavour to organise insurance of ETPs/trees of poplar grown under this Agreement to cover against certain risks with appropriate exclusions and initial deductions incorporated in the insurance policies, provided all amounts due to the Company have been paid by the Farmer and as per Clauses 2 5 hereinabove maximum amount being determined by the Company to meet requirements of Nationalised banks who may be lending to the Farmer.
Perhaps a clue to the use of the 10% formula lies in the first part of clause 7 of the Agreement which provides:
If till 31-12-1990 any ETPs supplied under this Agreement are lost due to natural calamities like storm, earthquake, widespread fire, flood or any other act beyond the control of either party, the Company shall compensate the Farmer by free supply of fresh ETPs upto a maximum number of 10% of the ETPs sold under this Agreement. [Emphasis supplied].
How this clause can also not be invoked is of course far too obvious from its reading to warrant any further elaboration.
(g) Likewise, the reference to clause 8 of the Agreement in the order relating to the complaint of Jai Bhagwan was misplaced because this clause was identical with clause 6 in the Agreement with Dhara Singh and Sardara Singh.
(h) Having awarded this amount equal to 10% of the ETP costs by its own logic, the State Commission also went ahead to award an additional component in both the cases which was equal to 90% of the total cost of the ETPs supplied. This is without any basis or discussion whatsoever, except that in the reckoning of the State Commission, this amount represented the actual loss suffered by the complainants.
7. Suffice it to say that such display of non-appreciation of facts and complete lack of logic in the impugned orders is unbecoming.
8. In conclusion, the impugned orders of the State Commission can simply not be sustained and are set aside. The appeals filed by Wimco (no. 104 of 2004 and 91 of 2004) are consequently allowed and the cross appeals (no. 126 and 144 of 2004) filed by the original complainants are dismissed. In the circumstances of the cases, however, the parties are left to bear their own costs.
Sd/-
[R. C. Jain, J] sd/-
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[Anupam Dasgupta]