State Consumer Disputes Redressal Commission
Amarpal Singh vs M/S Complete Solutions Green House on 1 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1474 of 2009.
Date of Institution: 15.10.2009.
Date of Decision: 01.08.2013.
Amarpal Singh, aged 62 years, S/o Sh. Dan Singh, R/o Sidhwan Khurd,
Tehsil Jagraon, District Ludhiana through Sh. Rupinder Pal Singh, as
Special Power of Attorney.
.....Appellant.
Versus
1. M/s Complete Solutions Green House, H.O. SCO No.394, Ist
Floor, Sector-20, Panchkula (Haryana), through its
Prop./Partner/Officer Incharge.
2. M/s Complete Solutions Green House, Plot No.D-12, Focal Point,
Chanalon, Kurali, District Mohali, through its Prop./Partner/Officer
Incharge.
...Respondents.
First Appeal against the order dated
09.09.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. H.S. Parwana, Advocate, counsel for the appellant.
Sh. D.P. Sharma, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Amarpal Singh, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 09.09.2009 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").First Appeal No.1474 of 2009 2
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), making the averments that he owns a big chunk of land situated in village Sidhwan Khurd, Tehsil Jagraon, District Ludhiana and is well versed in various agricultural activities, duly assisted by his son and the said agricultural activities are the only source of his income.
3. The respondent and their representatives represented that the respondents deal in manufacturing and construction of green houses, using advance technologies in the world and they have continuous supply of high quality of material in house facility for manufacturing and assembling of parts and they are leading experts in building green houses in Northern India, and supplied Quotation No.ST- 02-P-102 dated 01.10.2007 to the appellant.
4. The appellant was taken in by their representations and agreed to get installed the poly/green house in his fields, situated in village Sidhwan Khurd. The said quotation was duly signed by Sh. Dara Singh, representative and the same was for Rs.6,50,037-34p. The respondents persuaded the appellant that National Horticulture Mission is giving subsidy to the extent of 50% and on this assurance, the appellant agreed to go for this venture. After going through the terms contained in the quotation, the appellant agreed to get the poly house/green house installed in his fields and the respondents assured to provide the best services and the poly house was installed in the covered area of approximately 1008 sq.mts. in the fields of the appellant, situated in village Sidhwan Khurd and the total cost incurred was Rs.8,07,072/-. The appellant paid Rs.6.50 lacs to the respondents for the installation of the said poly house, through three demand drafts. First Appeal No.1474 of 2009 3 The appellant made the said payment after availing subsidy from the Department of Horticulture, Ludhiana, to the tune of Rs.3.25 lacs.
5. It was also represented by the respondents that velocity of the high wind to the speed of 140 kmts. per hour is bearable by the poly house and will not cause any adverse affect on the super structure installed by the respondents, but the said representation proved fallacious. The said poly house was completed by December, 2007 and the quotation itself shows that the guarantee period for poly house was five years, but it crumbled down within span of months and that too when the velocity of the wind was not so high in May, 2008. The said velocity of the wind damaged the super structure of the roof to the extent of 66% and on notice, the respondents got repaired the same and after 20 days, when the velocity of the wind was very low, it damaged the roof of the super structure to the extent of 33%. Repair work was done after a long interval which caused immense damage to the red and yellow Capsicum (Shimla Mirch). The work done by the respondents was not in accordance with the quotations and the assurances as well as the terms and conditions.
6. On 05.09.2008, there was again wind blowing at the speed of 86 kmts. per hour and the entire super structure was damaged and it became useless. This fact was got verified by the appellant from the Air Force Station, Halwara. The respondents used sub-standard material and the experts of Punjab Agriculture University gave the report. The representations made by the respondents proved to be false and the appellant suffered a lot of mental tension, harassment and financial loss which is as under:-
i) Cost of Poly House = Rs.6,50,000/-
ii) Cost of Foundation = Rs.20,072/-
First Appeal No.1474 of 2009 4
iii) Drip System = Rs.79,000/-
iv) Generator Set = Rs.28,000/-
v) Submersible Pump = Rs.23,500/-
vi) Transportation Expenses = Rs.6,500/-
for repairs
vii) Crop damaged in May, 2008 = Rs.4,00,000/-
viii) Loss of seeds and costs of = Rs.3,00,000/-
labour occurred in Sept.,2008
and crop damaged at that time
7. A legal notice was also served upon the respondents, but of no use. A vague reply was sent and the claim was illegally repudiated.
8. It was prayed that the respondents may be directed to make the payment of Rs.15,58,072/- along with interest @ 18% p.a. from the date of installation of the poly house till its realization.
9. In the written version filed on behalf of the respondents, preliminary objections were raised that the appellant is not a consumer and the District Forum has no territorial jurisdiction to entertain the complaint. The respondents have neither their residence, nor place of business, nor any branch office, nor personally work for gain within the territorial jurisdiction of the District Forum. No cause of action has arisen, wholly or in part, to file the complaint within its local limits. The present complaint raises complex questions of facts which involved taking of evidence and the civil court is competent. There was no guarantee, but only the word 'warranty' was used which means repair, not replacement. There is no deficiency in service on the part of the respondents and whatever any damage was pointed out by the appellant, the same was repaired.
First Appeal No.1474 of 2009 5
10. On merits, it was not denied that the appellant is a progressive farmer and he owns a big chunk of land in village Sidhwan Khurd. It was submitted that the appellant is growing cash crops i.e. 'Shimla Mirch', not for personal consumption, but for trade and is doing the commercial activities, to make profit at a large scale which is not an agriculture activity. It was admitted that the respondents deal in manufacturing and construction of green houses, using advance technology and they have continuous supply of high quality raw material and in-house facility for manufacturing and assembly of parts and are leading experts. The quotation dated 01.10.2007 was given to the appellant. It was also admitted that National Horticulture Mission is giving subsidy to the extent of 50%. The respondents assured to provide the best services qua quality and installed poly house in the land of the appellant. The structure is manufactured of steel, covered with poly film as shown in the photographs. The warranty applies only when the poly house is under correct use and services and is properly handled. There should be a passage for the wind. It was admitted that the appellant paid Rs.6.50 lacs through drafts to the respondents and the same was paid after availing the subsidy from the Department of Horticulture, Ludhiana. The said subsidy is given by the Department after inspecting the quality and specification of the poly house and after being fully satisfied about it. The damage caused, if any, was repaired in May, 2008. The said report of the experts of Punjab Agriculture University, Ludhiana is not correct. The said report was given without visiting the spot. The detail of the loss given by the appellant was imaginary and the appellant is not a consumer. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
First Appeal No.1474 of 2009 6
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that it is proved through cogent evidence that the material of the poly house supplied by the respondents was of inferior quality, sub-standard quality which could not withstand the wind velocity upto 140 kmts. per hour and caused damage and loss to the appellant. There is deficiency in service and unfair trade practice. The cost of the poly house was Rs.6,50,037/- out of which, 50% subsidy was provided by the National Horticulture Mission. The appellant claimed that his Capsicum crop was damaged, but no proof qua it was produced as to what extent the crop was damaged. The appellant has also claimed by way of compensation, the cost of generator set, drip system, labour cost, transportation etc. but the super structure and components thereof including generator and drip system are still owned and possessed by the appellant. The compensation of Rs.2.00 lacs was considered to be just and proper and the same was awarded along with cost of litigation to the tune of Rs.3,000/-.
13. Not satisfied with the impugned order dated 09.09.2009, the appellant has come up in appeal, for enhancement of compensation.
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
15. The appeal has been filed on the grounds that the District Forum has not allowed the full amount claimed by the appellant and allowed only Rs.2,03,000/- as against the claim of Rs.15,58,072/-. The First Appeal No.1474 of 2009 7 appellant was at least entitled to Rs.6,50,037/- which was the cost of the poly house, paid to the respondents and also the price of generator set, drip system and transportation charges, cost of seed, nursing and protecting the crop. The appellant may have to refund the subsidy amount and the District Forum should have allowed the full cost of Rs.6,50,037/- and the prayer was made to award the compensation to the tune of Rs.15,58,072/-.
16. On the other hand, the counsel for the respondents has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.
17. We have considered the version of the appellant given in the appeal and the submissions advanced on behalf of the respondents as well as have thoroughly scanned the entire record and other material placed on the file.
18. The appellant filed his own affidavit Ex.CW-1/A, affidavit of his son Sh. Rupinder Pal Singh Ex.CW-4/A, affidavit of Sh. Abjit Singh Ex.CW-2/A and affidavit of Sh. Anand Saroop Ex.CW-3/A. Through these affidavits, the version of the appellant has been corroborated. Ex.C-3 is the receipt vide which the appellant paid Rs.3.25 lacs to the respondent-Complete Solutions Green Houses and vide receipt Ex.C-4, he paid Rs.1.75 lacs to the said respondent. Ex.C-2 is the quotation for Rs.6,50,037-34. The green houses were given standard quality of structure to withstand the wind gusts upto 140 kmts. per hour and it was to be rust free for a period of 10 years under correct use and service. Ex.C-6 is the report of Experts Committee constituted by the Director of Research, Punjab Agriculture University, Ludhiana and the following defects were observed:-
First Appeal No.1474 of 2009 8
a) The inside columns appear to be weak. b) Due to wind thrust, bending of beams have been taken place.
Thus, it is clear that the beams are weak and could not able to sustain the wind pressure.
c) Bracing at the roof and side walls have not been provided in the main structure.
d) Fixing of the sheet with the members using poly grip assembly was poor.
e) Poly-sheet is of poor quality. The company has also accepted this fact as apprised by the farmer.
19. Ex.C-7 to Ex.C-10 are the newspaper cuttings. To rebut this evidence, the respondents filed affidavit Ex.RW-1/A which is nothing but the attested copy of the written version and nothing else. As per the appellant, Department of Horticulture after inspection made a payment of Rs.3.25 lacs. As per the quotation Ex.C-2, the total cost of the green house was Rs.6,50,037-34 and the appellant received Rs.3.25 lacs i.e. 50% of this amount as subsidy and the remaining Rs.3.25 lacs he has spent from his pocket. The appellant installed the said green house in order to earn his livelihood by way of self employment. Although, the appellant has not brought on record any evidence to prove that he has suffered any loss because of Capsicum crop, yet the initial cost spent by him and the mental agony and physical harassment which later on he suffered due to the failure of the said green house, was not taken into consideration by the District Forum. The District Forum, by some guess work, allowed the compensation to the tune of Rs.2.00 lacs only and Rs.3,000/- was awarded as litigation expenses. Even the amount spent was not First Appeal No.1474 of 2009 9 considered. No interest has been awarded. In our opinion, the compensation is required to be enhanced, but there is no evidence that the appellant suffered the loss of Rs.15,58,072/-.
20. In view of above discussion, the appeal filed by the appellant is partly accepted and the impugned order under appeal dated 09.09.2009 passed by the District Forum is modified to the extent that the amount of compensation is enhanced to Rs.3.00 lacs in place of Rs.2.00 lacs and the litigation expenses are enhanced to Rs.10,000/- in place of Rs.3,000/-. Both these amounts shall be paid by the respondents to the appellant/complainant within 45 days from the receipt of copy of the order, failing which they shall be liable to pay interest @ 7.5% per annum on above amounts from the date of filing of the complaint till realization.
21. The arguments in this appeal were heard on 29.07.2013 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 01, 2013.
(Gurmeet S)