State Consumer Disputes Redressal Commission
Sh. Mahesh Sharma. vs Jain Irrigation System Ltd. & Anr. on 24 April, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.358/2014
Date of Presentation: 14.10.2014
Date of Decision: 24.04.2015
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Mahesh Sharma, son of late Shri Devi Chand,
Resident of Village Khoom, Post Office Beolia,
Tehsil & District Shimla, H.P.
.......... Appellant.
Versus
(1) Jain Irrigation System Limited,
R.O. Jalgaon, Maharashtra-425 001,
Through its D.M.
(2) Jain Irrigation System Limited,
B.O. 69, 2nd Floor, Phase-1, Sector-1,
New Shimla-171 009.
.......... Respondents.
..............................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Hon'ble Mr. Vijay Pal Khachi, Member
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Shashi Bhushan, Advocate
For the Respondents: Mr. Swaran Dev Sharma, Advocate.
...........................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) Appellant's grievance is against the order dated 21.07.2014, of learned District Consumer Disputes Redressal Forum, Shimla, whereby his complaint, under Section 12 of the 1 Whether Reporters of the local papers may be allowed to see the order? Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ Consumer Protection Act, 1986, which he filed against the respondents, has been dismissed, with the finding that the alleged damage to the polyhouse, in respect of which, complaint was filed against the respondents, had occurred due to hailing and not on account of material used being sub-standard or workmanship being poor or defective.
2. Appellant entered into an agreement on 16.09.2009, copy Annexure C-1, with the respondents for construction of a polyhouse. According to the appellant, time limit for construction of polyhouse was six months, but the respondents completed the construction in June, 2010 and thus, there was delay of three months. Also, it was alleged by the appellant that material used for the construction of polyhouse was sub- standard and workmanship was also not upto the mark, with the result that in the month of August, 2010, when there was hailing, holes appeared in the roof and the doors also got loosened. It was also alleged that steel frame work started getting rusted. Matter was brought to the notice of the Page 2 of 7 Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ respondents, as per allegation in the complaint, but no heed was paid by them. A legal notice was also served on 13.08.2010. It was sent, by registered post, but that fetched no response. Appellant alleged that he suffered huge loss of crops of peas and beans, due to damage to the polyhouse. With these allegations, he prayed for issuance of a direction to the respondents to refund the amount of `41,600/- paid by him and also to pay compensation to the tune of `3.00 lacs for the loss of crops.
3. Complaint was contested by the respondents. In their reply, it was stated that appellant was not a 'consumer'. It was denied that there was delay in construction of the polyhouse. Averment made in the complaint that there was three years' warranty period, was also denied. It was denied that material used was sub-standard. On the contrary, it was stated that material was certified to be of the requisite standard and specifications by the Nodal Agency, i.e. Department of Agriculture, which provided 80% subsidy on the cost of material, as also the Page 3 of 7 Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ cost of installation. Receipt of legal notice was not denied. It was also not denied that damage had been caused to the polyhouse, but it was denied that material used was of poor quality. It was stated that structure was damaged by the monkeys, or it might have been damaged because of extreme bad weather.
4. Learned District Forum has concluded that the appellant himself has stated that hailing had occurred in the month of August, 2010 and thereafter roof of the polyhouse developed holes and if the damage was caused by hailing, respondents cannot be blamed therefor.
5. We have heard learned counsel for the parties and gone through the record.
6. View taken by the learned District Forum that damage was caused by hailing and, therefore, respondents are not to be blamed for the same, is unsustainable. Polyhouses, particularly in hilly areas, are supposed to be hail proof. It is nobody's case that hailing was unprecedented or the size of hailstones was so big that poly roof, provided by the respondents, Page 4 of 7 Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ could not have escaped undamaged. Normal hailing should not be causing any damage to the polyhouse, particularly, its roof, which is supposed to be hail proof.
7. Learned District Forum has also observed that there is a report by the functionaries of the Nodal Agency, i.e. Agriculture Department that the material used was of good standard and prescribed specifications and the installation had also been done properly. May be that material used, was of the specified standard and quality, as alleged, by the respondents and verified by the functionaries of the Nodal Agency, as per observation by the learned District Forum, but it is admitted even by the respondents that polyhouse had been damaged, though they say that the damage was caused by the monkeys. Functionary of the respondents inspected the polyhouse, even after legal notice dated 13.08.2010, copy annexure C-3, was received by them. No justifiable explanation for not responding to the notice or inspecting the polyhouse, has been offered. When the polyhouse Page 5 of 7 Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ had not been inspected by the functionaries of the respondents, they cannot be heard to say that damage to the polyhouse was caused by monkeys and not on account of hailing and poor workmanship. As already noticed, respondents do not deny that the polyhouse had been damaged; rather they admit the damage, but blame it on monkeys.
8. In view of the above stated position, we accept the appeal, set aside the impugned order of the learned District Forum and allow the complaint. Respondents are directed to refund an amount of `41,600/-, received from the appellant, with interest at the rate of 9%, per annum, from the date of complaint, to the date of its payment and also to pay `10,000/-, as compensation and a sum of `5,000/-, as litigation expenses. We also direct the respondents to deposit with this commission, a sum of `1,65,000/-, which they received from the Agriculture Department, as subsidy towards 80% cost of polyhouse and this amount with interest at the rate of 9% per annum from the date of filing of the complaint, be Page 6 of 7 Mahesh Sharma Versus Jain Irrigation System Ltd. & Anr.
(F.A. No.358/2014) _______________________________________________________ deposited, within thirty days of the receipt of copy of this order. When the aforesaid amount of `1,65,000/-, is deposited by the respondents, with this Commission, the concerned Officer of Agriculture Department will be required to get the money released and to deposit the same in the Government Treasury, under appropriate head.
9. A copy of the order be sent to each of the parties, free of cost, as per Rules. One copy be sent to the concerned Officer of the Agriculture Department, so that in case the money is not deposited by the respondents within thirty days, he may recover it by executing this order.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member April 24, 2015.
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