KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD THIRUVANANTHAPURAM

APPEAL 597/09

JUDGMENT DATED:8.10.2010

PRESENT

JUSTICE SRI.K.R.UDAYABHANU                   : PRESIDENT

SRI.S.CHANDRAMOHAN NAIR              : MEMBER

Saraswathi Amma.P.,                               :APPELLANT

W/o K.N.Raveendranath,

Harisree(Keerikkad),

Chadayamangalam.P.O.,

Kollam. PIN 691534

(By Adv.K.N.Sreekumar)

      Vs.

A.C.Thomas,                                             : RESPONDENT

Ambukkunnil House,

Elavakode,

Chadayamangalam.P.O.,

Kollam PIN. 691 534.

(By Adv.C.S.Rajmohan)

JUDGMENT

JUSTICE SRI.K.R.UDAYABHANU                   : PRESIDENT

          The appellant is the complainant in CC.117/08 in the file of CDRF, Kollam.  The complaint stands dismissed.

          2. It is the case of the complainant that the opposite party is running a rubber nursery by name  Green Farm Rubber Nursery at Chadayamangalam and is also engaged in replantation of  rubber saplings  on contract basis.  The complainant executed  an agreement on 12.2.07 with opposite party agreeing that the opposite party will plant rubber saplings in the property of the complainant extending more than one acre by removing bushes and  digging pits.   It was agreed that in between the period of 10.5.07 to 10.5.08 ie. within one year he shall plant rubber saplings  of variety  of RR 414 by taking 385 pits of measurement of   2 ½ x 2 ½ x   1 feet.  It was also agreed that the opposite party shall plant the saplings applying manure and pesticides and maintain the plants and hand over the property on completion of one year.  The same would be handed over with the plants with a growth of 5 to 6 feet.  The complainant agreed to pay Rs.100/- per sapling.  It is alleged that the opposite party planted inferior quality of rubber saplings of RR 105 and only planted 320 as against 38532saplings and the work was started only on 2.8.07 belatedly.  It is alleged that most of the saplings perished and subsequently the opposite party planted 110 saplings of poor quality.  The opposite party has not planted rubber saplings in the place of the perished ones. No proper manure was done and the shrubs  bushes were not cleared.  The remaining plants are in a congested condition and surrounded by under growth and bushes and the surviving plants are of stunted growth.  The rubber Board authorities who inspected the property being dissatisfied with the poor and pitiable plight of the plants were not inclined to sanction financial assistance.  The opposite party received 35000/- in the first quarter itself.  The opposite party was contacted over telephone a number of times but did not respond.  Deficiency of service  is alleged.  On 13.12..07 a lawyer notice was issued which was returned unclaimed.  On 8.4.08 a complaint before the Sub Inspector of Police, Chadayamangalam was lodged but no action was taken by the police.  On 21.4.08 the complainant filed complaint before the Circle Inspector, Vanitha Cell, Kollam.  Again there was no action.  It is alleged that the complainant suffered  damages at the tune of Rs.1,50,000/-.  The complainant has sought for the above amount as compensation.

          3. The opposite parties has filed version admitting the agreement but it is contended that the extent of the property as alleged was not available.  It is also alleged that the most of the property was rocky.  It is also alleged that the property is not suitable for planting rubber.  It is also contended that there was no clause in the agreement that he shall plant 385 plants.    The only stipulation  was that the maximum number  of saplings shall be planted.  It was also provided that RR 414, RR 105 variety of plants in a mixed manner is to be planted.  He has contended that on 2.7.07 itself he had commenced work.  It is alleged that the complainant has failed to hand over the plot after slaughter of  the existing rubber trees.  There was a delay of 5 months and  by the time the labour charges and cost of saplings etc increased.  On account of the intervention of mediators it was agreed that the complainant shall pay more amounts than the agreed rate of Rs.100/- per sapling.  The complaint made by the complainant before the police authorities were disposed off in favour of the opposite party.  It is not possible  to plant 385 saplings in the property.  Opposite party had planted 320 plants on 2.8.07.  On 21.9.07 110 poly bag saplings were planted as replacement.  On 11.10.07 another 130 saplings were planted removing the plants of lesser growth.  It is also  stated that the property is not having any  fencing and the nearby residents used to make use of the property for passage. On 7.11.07 he had to plant another 40 plants as replacement.  It was in the above circumstances that he could not hand over the trees with the same growth and height.  He has applied chemical  fertilizers and cow dung at different occasions.  He had planted 600 saplings and he had incurred more than Rs.58,750/- and only  a sum of Rs.34420/- was paid by the complainant.  It is denied that a sum of Rs.35000/- was paid.  It is contended that only on 31.3.08 Rubber Board visited the property and the officials directed the complainant to remove shrubs, bushes and weeds of wild growth.

          The evidence adduced consisted of the testimony of PWs 1 and 2 and DW1; Exts. P1 to P5 and C1 to C3.

          The Forum has dismissed the complaint observing that the number of saplings agreed to be planted as 385 appeared to be  inserted subsequently.  It is also observed that it was not established that the extent of property is sufficient to plant 385 saplings.  It is pointed out that the extent is vaguely mentioned as more than one acre in the complaint.  The Forum has noted that the opposite party has replanted 385 saplings.  It is also pointed out that the writings in Ext.P5 report of the Rubber Board for subsidy cannot be relied as the entries are in two different handwritings using different pens.  Forum has noted that Ext.P5 strengthen the case of the opposite party that he has planted the agreed number of saplings and maintained them properly.  It is also pointed out that the complaint has been filed belatedly and the Commissioner visited the property more than 5 months after the period stipulated in the agreement.  Hence the allegation of deficiency of service was found against.

          We find that as per Ext.P1 agreement the opposite party has agreed to plant the trees and maintain them and handover the same on the date of expiry of one year and that at the time the plants should be of the height  of a human being and in single lines.   Starting of the commencement of the execution of agreement as mentioned approximately on 10.5.07 at the rate of clearing the areas by slaughtering of the existing trees. The extent is specifically mentioned as  1  acre 66 cents.  The size of the pits are specifically mentioned .  It is also specifically mentioned in the agreement that at the time of planting cow dung should be put in the pits and subsequently the required pesticides etc. should be used.  It is also mentioned that till the date of handing over of the plantation the opposite party would be completely in charge of the plot.  It is also specified that the rate is Rs.100/- per sapling.  The number of trees as 385 is mentioned at page 2 of the agreement.  In page 1 of the agreement it is only mentioned that the maximum number of saplings shall be planted.  In page 1 also 385 is seen mentioned in brackets.  We find that the observation that 385 appeared subsequently inserted, is not of much significance in view of the fact that the number of plants found in the property is much less as as per Ext.C1 report of the  Commissioner  the Advocate Commissioner has reported that there was only about    85 plants altogether and that out of the same about 65 numbers are of stunted growth and surrounded with wild plants.  The Commissioner has also produced Exts.C3 snapshots of the property with the rubber plants. A perusal of the photographs will show that the plants are not of the same growth or healthy and  situated at  odd places.  The photographs would show  a large rock also.  The Commissioner has also observed that many of the plants are of the stunted growth for want of proper nurturing.  The entire plantation was found in an abandoned and destroyed condition.  There are endorsements on the reverse of the 2 pages of Ext.P1 as to the payments made.  The opposite party has not denied the receipt of the amounts as such.  According to him he has not received Rs.35000/- as such.  According to him the amount received would not be a round figure as mentioned.  In the version he has admitted that he has received Rs.34420/-. The execution of agreement has not been denied. The terms of the agreement are that the saplings should be planted, maintained, fertilizers and pesticides applied and the trees of a uniform height ie the height of an individual has to be handed  over on the completion of one year.  Evidently the opposite party has abandoned the works as can be seen from Ext.P2 complaint to the police dated 8.4.08.  According to the opposite party he could commence the works only on 2.8.07 as is mentioned in the version as contended.  Even if he could plant only 320 trees in the property  is entitled  for only Rs. 32000/-.  Admittedly he has received Rs.34420-/-. The extent of the property is mentioned in Ext.A1 agreement as 1  acre 66 cents.    The opposite party has no case that in the property only 85 plants can be planted ( Commissioner has mentioned that about 85 plants as seen in the property).  There is no case for the opposite party that Ext.A1 agreement has been executed concealing any facts.  Hence the opposite party was aware of the extent of the property.  Evidently he is a person engaged in undertaking replantation contracts and hence he would certainly have an idea of the extent of the property on seeing the same.  He could have also measured the property if he had any doubt about the extent before executing the agreement.  Although it was contended that he had replanted at places where the planted  saplings perished and that he has incurred additional expenses etc., such eventualities he should have taken into consideration at the time of executing the agreement.  It is also to be noted that the complainant has also sustained considerable loss as he could have planted the rubber trees by himself or through somebody else. The conduct of the opposite party has resulted in considerable loss to him which is rather irreparable and the loss of one year cannot be regained.  In the circumstances we find the order of the Forum dismissing the complaint cannot be sustained.  Hence the order of the Forum is set aside.  In the circumstances we find that it would be reasonable to direct the opposite party/respondent to refund a sum of Rs.25000/- to the complainant and also to pay a sum of Rs.10000/- as compensation.  The complainant would be entitled for interest at 12% per annum on Rs.25000/- from the date of complaint ie 30.5.08.  The complainant will also be entitled for costs of Rs.6000/-.  The amounts are to be paid within 2 months from the date of receipt of this order failing which the complainant would be entitled for interest at 18% from today, the date of this order ie 8.10.10.

          The appeal is allowed as above.

          Office will forward the LCR along with the copy of this order to the Forum urgently.

          JUSTICE SRI.K.R.UDAYABHANU                   : PRESIDENT

          SRI.S.CHANDRAMOHAN NAIR              : MEMBER

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