National Consumer Disputes Redressal
C.S. Vision Enterprises vs Ishwar Singh & Anr. on 27 February, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2091 OF 2015 (Against the Order dated 26/05/2015 in Appeal No. 302/2015 of the State Commission Haryana) 1. C.S. VISION ENTERPRISES THROUGH ITS PARTNER/PROPRIETOR, SH.CHETAN VERMA, 109, VILLAGE KHAPERWAS,P.O. DEVRALA, BLOCK-KAIRU TEHSIL-TOSHAM BHIWANI HARYANA ...........Petitioner(s) Versus 1. ISHWAR SINGH & ANR. S/O SH. POKHAR DAS R/O H.NO. 24M DAYANAND COLONY, MODEL TOWN, HISSAR HARYANA 2. DISTRICT HORTICULTURE OFFICER, NEW ANAJ MANDI HISHAR HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr Jaideep Malik, Advocate For the Respondent : For Respondent no.1 Mr Manu Mridul, Advocate with
Mr Sumit Mamgain, Advocate
For Respondent no.2 NEMO (Served)
Dated : 27 Feb 2020 ORDER
PER MR PREM NARAIN, PRESIDING MEMBER
The present revision petition has been filed by C S Vision Enterprises against the judgment dated 26.05.2015 of the Haryana State Consumer Disputes Redressal Commission, Panchkula ('the State Commission') in First Appeal no.302 of 2015.
2. The brief facts of the case are that Ishwar Singh - complainant (respondent no.1 herein) filed a complaint stating that he owned agriculture land measuring 24 Kanals comprising Khasra nos.49/16/2, 17, 18, 19/1 situated in village Balawas, Tehsil and District Hissar. The land was very fertile. With the intervention of District Horticulture Officer, Hissar, the work for installation of poly house over an area of 1600 square metres was allotted to C S Vision Enterprises - OP nos. 2 (appellant). A tri party agreement was also entered into. The complainant paid a sum of Rs.7,70,500/- to the appellant - OP no.2. The OPs did not complete the installation of poly house and left in between, thus causing loss to the complainant in the shape of not being able to cultivate the land, besides loss of interest on the amount paid to the OPs by raising loan. He filed complaint under section 12 of the Consumer Protection Act, 1986.
3. The opposite parties did not contest the complaint and were proceeded ex parte.
4. The District Consumer Disputes Redressal Forum, Hissar ('the District Forum') vide its order dated 20.02.2015 allowed the complaint directing the opposite parties as under:
"This complaint is hereby allowed, with a direction to the opposite parties to refund Rs.7,70,500/- to the complainant with interest @ 18% per annum from respective dates of different deposits, till payment. Complaint is also hereby awarded crop loss of Rs.2,50,000/- with interest @ 9% per annum from the date of filing the complaint, i.e., 11.11.2013 till payment. Complainant is hereby further allowed damages to Rs.50,000/- for his harassment, mental agony etc., and litigation expenses of Rs.2200/- against the opposite parties who shall be jointly and severally liable to comply the order.
Since, primary responsibility to comply the order shall be opposite party no.2 so in case compliance is made by opposite party no.1, then opposite party no.1 shall be at liberty to be duly indemnified by opposite party no.2 with interest @ 9@ per annum."
5. Aggrieved by the order of the District Forum, the petitioner herein preferred an appeal being FA no. 302 of 2015 before the State Commission. The State Commission vide its order dated 26.05.2015 dismissed the appeal.
6. Hence, the present revision petition.
7. Heard the learned counsel for the petitioner as well as the respondent no.1/ complainant. None appeared to argue on behalf respondent no.2, i.e., the District Horticulture Officer. Learned counsel for the petitioner argued that the State Commission as well as the District Forum, Hissar ought to have considered the fact that the complainant/ respondent no.1 had demanded only compensation for loss to his crop and mental harassment and agony, but the fora below have directed the petitioner to return the amount taken for construction of poly house which was not even asked for by the complainant/ respondent no.1.
8. The State Commission has committed a grave error by passing the order without appreciating the actual facts and law involved and has wrongly interpreted that the petitioner is liable to refund the amount taken by him from respondent no.1 as the inspection seems to have been carried out after a year of the installation and it was not the duty of the petitioner to maintain the poly house as the same was handed over to respondent no.1 after due inspection by the officers of the Horticulture department. It is the respondent no.1 who has not paid the complete amount of his share to the petitioner and thus the findings recorded by the District Forum are unjustified and incorrect and deserve to be interfered with.
9. The State Commission has committed error in passing the impugned order as it has also not considered the facts as ignored by the District Forum that there may be collusion between respondent and other officials who have given report about the damage caused to the poly house and have not looked into the facts that since there was damage it was actually built by the petitioner and had the petitioner not completed his work, he would not have received the subsidy from the Government, which was released from time to time after inspections by team of officials.
10. The State Commission as well as the District Forum has ignored the fact that the respondent no.1 does not fall within the definition of consumer and it is a purely commercial transaction. As per clause 10.7 and 10.08 the complainant had an option for redressal of dispute by way of arbitration neither there is any proof for the payment of Rs.7,70,000/- nor there is any reasoning to award the same in favour of respondent no.1 and there is no explanation in the orders of the Fora below as to how there was a deficiency in service.
11. It has also been argued by the learned counsel for the petitioner that the construction of poly house was completed as per the scheme and the relevant officials gave their reports on completion of the poly house then only the subsidy was released in the present case. Once the departmental officials have expressed their satisfaction on the completion of the poly house then it cannot be said that the petitioner did not complete the construction of the poly house.
12. On the other hand, the learned counsel for respondent no.1/ complainant has stated that both the fora below have given a concurrent finding of facts and therefore, scope under the revision petition is quite limited in such matters as the facts cannot be reassessed by this Commission against the concurrent findings. Both the fora below have clearly observed that there was total loss to the poly house apart from the loss to the crop and therefore, the complainant is entitled to refund of his amount that was paid to the petitioner.
13. It was further stated that the construction of the poly house was left without completing the poly house and thus the petitioner is totally responsible for the damage to the crop as well as damage to the poly house. The material used in the poly house was very bad. The District Forum has appointed an Executive Engineer of Chaudhary Charan Singh Haryana Agriculture University, Hissar as Local Commissioner to visit the spot and prepare the report about the status of the poly house. The report was given by Shri Abhay Ram, Executive Engineer (CI), the concluding para of which reads as under:
"Conclusion:
One structure of poly house was fully damaged and its structural elements were lying on the ground. Other poly houses were in SWAY position with poor quality polythene having frequent holes. Other structures may collapse at any time with low/high velocity wind and may cause loss to the lives. Mainly structure failure is due to use of lesser dia GI pipers in frames, improper joints, improper Angle Brackets and poor worksman ship. Damage of polythene sheet is due to its lesser thickness, poor quality and not being as per specifications".
14. From the above, it is amply clear that improper material was used and the construction was not properly carried out which lead to the total damage to poly house within a period of one year. Thus, the complainant has suffered loss and the petitioner is responsible for compensating that loss.
15. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. In the complaint, the complainant has alleged that an amount of Rs.7,70,500/- has been paid to the petitioner herein on different dates on the instruction of respondent no.2, i.e., District Horticulture Officer. The District Forum and the State Commission have found deficiency on the part of the petitioner herein and ordered refund of this amount to the complainant. The District Forum had appointed an expert to look into the construction of the poly house and the expert being an Executive Engineer of Chaudhary Charan Singh Haryana Agriculture University, Hissar working as Local Commissioner visited the spot and prepared the report about the status of the poly house. This report gives an unambiguous finding that the material used for construction of the poly house was not proper and the construction was very poor in quality and workmanship.
16. Learned counsel for the petitioner has stated that there was no relief sought by the complainant in respect of poly house rather the only relief sought was in respect of crop loss, but both the fora below have awarded the cost of poly house which was paid by the complainant to the petitioner. It has also been stated by the learned counsel for the petitioner that inspection of the poly house was done after a period of one year and it was not the duty of the petitioner to maintain the poly house, rather it was the responsibility of the complainant himself.
17. Regarding deficiency in service it is seen that the construction of the poly house was not complete and the inspection was done by an expert which revealed that the construction was not upto the mark. Thus, this is a clear case of deficiency in service covered under the Consumer Protection Act, 1986.
18. It has been argued by the learned counsel for the petitioner that the complainant is not a consumer as the whole transaction was for commercial purpose. No proof has been filed by the petitioner that transaction was commercial in nature. The complainant had obtained the services of the petitioner for construction of poly house. The complainant is not dealing in the trade or business of poly houses, therefore, no commercial purpose can be attributed in the service from the petitioner/ OP. Even if it was expected that the complainant would get some additional income from his agricultural field after the construction of the poly house, this will only come as part of earning his livelihood by means of self-employment. The complainant has not made any other averment in the complaint in this regard and therefore, the presumption would be that the service of the opposite party was obtained for earning livelihood by means of self-employment. In taking this view, I am supported by the decision of the Hon'ble Supreme Court in the case of Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) wherein the following has been observed:-
"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than "self-employment".
Therefore, the point to be considered is whether the appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion."
19. So far as objection of the learned counsel for the petitioner with regard to arbitration clause is concerned, this Commission in the case of Aftab Singh and Ors vs EMAAR MGF Land Ltd. and Ors., decided on 13th July 2017 has already decided that even if there is an arbitration clause in the agreement a consumer forum will have jurisdiction to decide the complaint. The Hon'ble Supreme Court has upheld this judgment of this Commission, therefore, I do not find any merit in the argument of the learned counsel for the petitioner.
20. Clearly this is a matter where poly house has been constructed under a Government scheme providing subsidy for the same. It is also clear that the poly house was constructed and approved for subsidy by the concerned officials of the Horticulture Department. It is a clear case where the subsidy has been usurped by constructing a poly house with low quality material and improper specifications as well as with bad workmanship. The farmer has not got the real benefit of this scheme though he has paid Rs.7,70,500/- for the construction of the poly house. Both the fora below have agreed that the amount paid by the complainant be refunded to the complainant by the petitioner. Hear, it is important to observe that the complainant has not asked for refund of the amount paid to the petitioner for construction of the poly house. He has only asked for compensating the loss suffered by him due to crop failure on account of bad quality of poly house. It seems that impliedly, the complainant wants to retain the poly house as he is also a beneficiary under the scheme where the Government subsidy is involved. Otherwise also, it is necessary that the poly house is rebuilt for the benefit of the farmer as per the provisions of the scheme. Refund of the amount paid by the complainant is not a solution in the present case, because, the complainant/ farmer has not got the benefit of the poly house/ scheme and even the Government subsidy has not served its purpose. Therefore, it is required that the poly house is rebuilt by the petitioner as per the specifications of the scheme with certification from the District Horticulture Officer within a specified time.
21. Based on the above discussion, it is ordered that the petitioner will rebuilt the poly house as per the specifications of the scheme from his own funds to the satisfaction of the complainant and the District Horticulture Officer within a period of four months from the date of receipt of this order. The District Horticulture officer/ respondent no.2 shall give a certificate of successful completion of the poly house as per the provisions of the scheme to the complainant as well as to the petitioner. However, if the petitioner fails to reconstruct the poly house as per this order, then after a period of four months from the date of receipt of this order, the petitioner will be liable to pay Rs.7,70,500/- along with 9% interest per annum from the date of respective deposits till actual refund to the complainant and in that case, the District Horticulture Officer shall recover the subsidy paid for this poly house. A copy of this order be sent to the District Magistrate/ District Collector Hissar, for recovering the subsidy in case need arises as per this order. As the interest @ 9% has been allowed on the amount of Rs.2,50,000/- as compensation for crop loss, separate compensation of Rs.50,000/- is not justified and the order of the District Forum in respect of compensation of Rs.50,000/- is set aside. The order of the District Forum stands modified accordingly and consequently the order of the State Commission. The order of District Forum in respect of crop loss compensation and the cost of litigation be complied with by the petitioner within a period of six weeks from the date of receipt of this order.
22. Accordingly, the revision petition no. 2091 of 2015 is disposed of in terms of the above order. However, it is to be listed for reporting compliance by the petitioner and District Horticulture Officer/ respondent no.2 on 29th July 2020.
...................... PREM NARAIN PRESIDING MEMBER