BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> <br /> 2. A.P.MAHADEVAMMA, B.Sc., LLB., Member, <br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.43/2009<br /> Order dated this the 31st day of December 2009<br /> <br /> COMPLAINANT/S <br /> <br /> Sri.N.T.Puttaswamy S/o Thammegowda, Nelamane, Srirangapatna Taluk, Mandya District, Railway Station, Pandavapura Post.<br /> <br /> (INPERSON)<br /> <br /> -Vs-<br /> <br /> OPPOSITE PARTY/S<br /> 1. The Secretary, Agricultural Produce Co-operative Marketing Society, Srirangapatna Taluk, Srirangapatna, Mandya District.<br /> 2. The Secretary, Nelamane Vyavasaya Seva Sahakara Bank Ltd., Nelamane, Srirangapatna Taluk, Mandya District.<br /> 3. The Joint Director of Agriculture, Mandya District, Mandya.<br /> 4. The Director of Agriculture, Commissioner of Agriculture, Sheshadri Road, Bangalore-01.<br /> 5. State Marketing Manager, Indian Farmers Fertilizer Co-operative Ltd., State Marketing Office, 3rd Floor, 3rd Block, K.S.C.M.F. Building, No.8, Cunningham Road, Bangalore – 560 052.<br /> 6. The Manager, Karnataka State Co-operative Marketing Federation Ltd., Pandavapura Branch, Mysore, Nagamangala Road, Pandavapura, Mandya District. <br /> <br /> (By Sri.S.Shivashankar., Advocate for O.P.1 & 2,<br /> Sri.D.G.P., for O.P.3 & 4, Sri.T.Thammanna., Advocate for O.P.5 & Sri.H.B.Chandrashekar., Advocate for O.P.6)<br /> <br /> Date of complaint 24.04.2009<br /> Date of service of notice to<br /> Opposite parties 18.05.2009<br /> Date of order 31.12.2009<br /> Total Period 7 Months 13 Days<br /> Result The complaint is allowed, directing the 2nd Opposite party to refund Rs.245/- to the Complainant and 6th Opposite party through its Head Office at Bangalore shall pay compensation of Rs.10,000/- to the Complainant and 1st & 2nd Opposite parties are directed to sell the fertilizers at the rate fixed by the Government without charging anything and further, the Head Office of the Karnataka State Co-operative Marketing Federation shall through its branches at Mandya District shall supply the fertilizers to the Societies at the rate fixed by the Government with free of transport charges and share the distributary margin amount extended by the fertilizers companies to the Co-operative Societies. Opposite parties 1, 2 & 6 shall jointly pay cost of Rs.1,000/-. <br /> <br /> The copy of this order shall be sent to the Principal Secretary to the Government, Department of Agriculture, Government of Karnataka, Bangalore for taking suitable action.<br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties for a direction to the Opposite parties 1, 2 & 6 to refund the excess amount and also to award compensation of Rs.25,000/- alleging deficiency in service.<br /> 2. The case of the Complainant is that he is an agriculturist and use to purchase chemical fertilizer from Opposite parties 1, 2 & 6 for agricultural purpose. The 5th Opposite party supplies chemical manure to 6th Opposite party and 6th Opposite party supplies the chemical manure through 1st & 2nd Opposite parties to the farmers and while selling the chemical manures, they are charging transport charge illegally like in bill No.1746 dated 16.02.2009 Rs.83/-, bill no.1388 dated 22.01.2009 Rs.45/-, bill No.1752 dated 18.02.2009 Rs.79/- and bill No.2044 dated 29.10.2008 Rs.35/-. In this way, they are collecting 8 to 9 rupees per bag of chemical manure. One Vijayalakshmi Transport have collected Rs.1,590/- vide bill No.304 on 27.08.2008 and Rs.1,600/- under bill No.305 dated 27.08.2008 as transport charge illegally and so they have cheated the Co-operative Societies and farmers. But, the Central Government has announced that the Central Government would pay the transport charge to the chemical manure companies from manufacturing point up to sales block point. Though, he requested Opposite parties 3 to 6 writing letters they have not furnished details nor taken any action. Therefore, Opposite parties 1, 2 & 6 have caused deficiency in service to the farmers like Complainant and Co-operative Societies, on these grounds he has sought for compensation.<br /> 3. The 1st & 2nd Opposite parties have filed version admitting that the Complainant is an agriculturist and use to purchase chemical manure from 1st & 2nd Opposite parties and 1st & 2nd Opposite parties sell chemical manures to the farmers. Even, the collection of transport charge under bill number 1 to 3 mentioned in the complaint is admitted. To transport the chemical manure from the godown to its premises, they are paying Rs.143/- per ton and on that basis they have fixed the transport charge per 50 kg. The 2nd Opposite party purchases the chemical manure from 6th Opposite party Branch at Pandavapura or Mandya and for transport they pay the charges to transporter and in this connection for 13 tones IFFCO Company manure 10-26-26 from 6th Opposite party Mandya Branch on 11.12.2008 and in this regard, they have paid Rs.2,080/- to Vijayalakshmi Transporter and likewise on 31.01.2009 for transport of 15 tons Urea they have paid Rs.2,550/- as transport charge and 1st & 2nd Opposite parties have not charged excess transport charges to the farmers other than transport charge they have incurred. Opposite parties 3 to 5 have not issued any direction with regard to the transport charge. If transport charge is not borne out by the 1st & 2nd Opposite parties. 6th Opposite party Federation will not supply the chemical manure and it causes inconvenience to the farmers. Therefore, there is no question of selling the chemical manure to the farmers at higher rate by cheating the farmers. The allegations made against the 1st & 2nd Opposite parties are untenable and the complaint is liable to be dismissed.<br /> 4. The 3rd & 4th Opposite parties have not filed version. 5th Opposite party has filed version pleading that the Complainant is not a Consumer and Complainant has no cause of action against the 5th Opposite party. The Complainant has not averred either any defect in the quality and quantity of the products of 5th Opposite party. The 5th Opposite party is the manufacturers of fertilizers in the name and style of IFFCO and that they supply the fertilizer to the 1st Opposite party only and not to the 2nd Opposite party. The other averments made in the complaint are not within the knowledge of 5th Opposite party. The Complainant has not made any allegation against 5th Opposite party. Therefore, the complaint is not maintainable against the 5th Opposite party. They have supplied chemical fertilizers to 1st Opposite party directly giving concession with regard to transportation charges to the extent of Rs.50/- per ton to the 1st Opposite party, there is no deficiency in service by 5th Opposite party and complaint is liable to be dismissed with cost.<br /> 5. The 6th Opposite party has been impleaded later and has filed version. The Complainant has impleaded 6th Opposite party, but has not made any direct allegations against 6th Opposite party and has not produced any documents and has not explained for what purpose he is a necessary party. There is no relationship between the Complainant and the 6th Opposite party. The Head Office is responsible for the dealings by 6th Opposite party and the Head Office is situated at Bangalore, the Head Office should have been impleaded and not the 6th Opposite party and therefore, the Complainant is not entitled to get any relief against 6th Opposite party and hence, the complaint is not maintainable. No sale of chemical manure was made by 6th Opposite party to 2nd Opposite party and the supply is only from Mandya Branch. Therefore, the Mandya Branch should have been impleaded as a party. Therefore, the complaint is liable to be dismissed with exemplary cost of Rs.10,000/-.<br /> 6. During trial, the Complainant has filed affidavit and he has examined 6th Opposite party and got marked Ex.C.1 to C.49. The Opposite party 1, 2 & 5 are examined and got marked Ex.R.1 to R.7. <br /> 7. Complainant and 5th Opposite party have filed written arguments.<br /> 8. We have heard the arguments of 1st & 2nd & 6th Opposite parties.<br /> 9. We have perused the regards.<br /> 10. Now the points that arise for our considerations are:-<br /> 1. Whether the Complaint is not maintainable?<br /> 2. Whether the Complainant proves that the 1st & 2nd Opposite parties are selling chemical fertilizers at higher rate adding transport charge illegally?<br /> 3. Whether the 5th & 6th Opposite parties are responsible for sale of fertilizers by 1st and 2nd Opposite party at higher rate?<br /> 4. Whether the Opposite parties 1, 2, 5 & 6 have committed deficiency in service?<br /> 5. Whether the Complainant is entitled to the relief sought for?<br /> 6. What order?<br /> 11. Our findings and reasons are as here under:-<br /> 12. POINT NO.1:- It is an admitted fact that the Complainant is an agriculturist and is also member of the 1st & 2nd Opposite parties Co-operative Society and he used to purchase chemical fertilizers from 1st & 2nd Opposite parties. Now, he has made allegations against 1st & 2nd Opposite parties about selling chemical fertilizers at higher rate adding transport charges. The contention of 1st & 2nd Opposite parties is that dispute raised here with regard to the sale of fertilizers touching the business of the Co-operative Societies and hence, the dispute cannot be filed before the Forum, in view of the bar of Section 70 of the Karnataka Co-operative Societies Act and Section 125 of the Co-operative Societies Act and he has relied upon the decision reported in ILR 1990 Karnataka 151 and III(2000) CPJ page 75.<br /> 13. In ILR 1990 Karnataka page 151 in the case of Mahadevaiah –Vs- Sales Officer, the Hon’ble High Court has held that a suit cannot be filed against the Co-operative Societies without giving notice under Section 125. In the decision reported in III(2000) CPJ page 75 in the case of Subrata Roy –Vs- Tapan Kumar Bhattacharjee, West Bengal State Commission has held that the dispute between the member and the Co-operative Societies cannot be entertained by the Consumer Forum. Since, the Co-operative Societies Act is a special statute whereas the Consumer Protection Act is a general law. The decision of the Karnataka High Court referred above is not applicable to the facts of the case, since the Complaint before the Forum is not a suit to be filed before the Civil Court which requires a notice to the Society before filing the suit. With regard to the Section 70 of the Karnataka Co-operative Society Act, though the dispute touching the business of he Co-operative Societies shall be raised before the Registrar of Co-operative Societies Act, the dispute is explained in Section 70(2) of the Co-operative Societies Act that the dispute with regard to the sale of commodities by the Co-operative Society is not covered under the definition of the dispute. Therefore, the citations relied upon by the learned counsel for the 1st & 2nd Opposite parties are not applicable to the facts of the case. Further under Section 3 of the Consumer Protection Act, a Consumer can avail the remedy in addition to other relief provided under law and Consumer Protection Act, is a special statute made to protect the interest of the Consumers. The Complainant has come to this Forum as a Consumer of the 1st & 2nd Opposite parties and not as a member of the 1st & 2nd Opposite parties. Therefore, the complaint is maintainable and this Forum has jurisdiction to entertain the complaint.<br /> 14. POINTS NO.2 TO 5:- It is an admitted fact that 1st & 2nd Opposite party sell the chemical fertilizers to the farmers supplied by 5th Opposite party or 6th Opposite party and the branch of 6th Opposite party at Mandya. As per Ex.C.1 to C.8 1st & 2nd Opposite parties have collected transport charge apart from the fertilizers cost. The Complainant has complained that charging of transport charge is illegal and they should sell the chemical manure at Government rate (maximum retail price) and they are cheating the farmers. But the contention of 1st & 2nd Opposite party is that they purchase the chemical fertilizers from 5th or 6th Opposite party and from their godown the fertilizers have to be transported and 1st & 2nd Opposite parties are incurring transport charges and therefore, they are collecting transport charges from the farmers and it is not illegal and it is for the benefit of the farmers for supply of fertilizers.<br /> 15. To resolve the dispute, it is essential to appreciate the evidence of 5th & 6th Opposite parties. On behalf of the 5th Opposite party, the block Manager of IFFCO, Mandya has filed affidavit and in the cross-examination, he has admitted that as per Ex.C.11, the MRP rate are prescribed and as per that MRP rate the Co-operative Society shall sell the fertilizers and MRP rate includes the tax and transport charges. According to 5th Opposite party, they are paying the transport rebate charge of Rs.50/- per ton for transport and further distribution margin of Rs.275/- per ton. According to his evidence, from the destination of train transport, they transport chemical manure to the federation godown (federation means Karnataka State Co-operative Marketing Federation) and if the godown is in different place from Railway Station, they would not transport, but they pay transport rebate. As per Ex.C.7, the price list is with effect from 18.06.2008. According to him, ex-wherehouse defined in Ex.C.11 is the station of Federation or Taluk or Co-operative Society Centre. According to this witness, they sell fertilizers directly to the federation and also Co-operative Societies. According to him, the rebate of Rs.50/- per ton is not extended to the Mandya godowns, because they supply free of transport charges to godown, but for other centers of Mandya District they give rebate of transport charge of Rs.50/- per ton. He has further deposed that in case of supply of fertilizers by the federation to the Taluk Society or Co-operative Society in the Village, they have to give the subsidy of transport charges. He has further deposed that though the 6th Opposite party is not functioning at Pandavapura now, but in their bill they are transporting the chemical manure from the Mandya godown.<br /> 16. The witness of 6th Opposite party has deposed that the Government has fixed the price for the chemical fertilizers and the chemical fertilizers should not be sold at higher rate than prescribed by the Government. He has admitted that the IFFCO Company (5th Opposite party) supplies the fertilizers free to their godown. It is admitted by this witness that the IFFCO Company pays Rs.275/- per ton as distributory margin and Rs.50/- as transport subsidy. He has admitted that the block point is the distribution of fertilizers to the farmers at Co-operative Society. He has deposed that out of distributory margin of Rs.275/- they retain Rs.100/- per ton as distributory margin and they pay the remaining Rs.175/- to the Co-operative Societies. <br /> 17. But, if we peruse the Ex.C.11 price list issued by the 5th Opposite party IFFCO Company to the head of the 6th Opposite party with effect from 18.06.2008 for NPK10-26-26 including tax, the rate if Rs.7,198.88 paise per tonne. As per the Government rate produced by 2nd Opposite party along with Ex.R.3, the final MRP per ton for this chemical manure is Rs.7,484.88 paise. So, the IFFCO Company is supplying that brand of fertilizers at a lower rate of Rs.286/- per ton and they are also giving Rs.50/- as transport subsidy per ton. But, as per Ex.C.44 for this brand of fertilizers, 6th Opposite party has charged Rs.8,500/- per ton. On what basis they have charged is not revealed. As per Ex.R.7, the Central Government has issued direction to all the chemical fertilizer manufacturers stating that they pay transporting charges on road distance basis per ton per kilo meter. So, on that basis the fertilizers companies which supply fertilizers to the federation or directly to the Co-operative Societies are giving transport subsidy apart from distributory margin subsidy. According to 1st & 2nd Opposite parties, the federation i.e., the Karnataka State Co-operative Marketing Federation having branches through out the State including 6th Opposite party and also at Mandya, supplies the fertilizers as a distributory agent from their point to the Co-operative Societies. 6th Opposite party though is under the control of head office should have obtained the particulars from the Head Office to depose in what manner they have to supply the fertilizers to the Co-operative Societies, after taking delivery from the IFFCO Company or other company. It has come out in the evidence that some companies directly supply their products to the Societies and they also supply to the federation which in turn supply to the Co-operative Societies. When the federation receives distributory margin, they cannot sell the fertilizers to the Co-operative Societies at higher rate than fixed by the State Government as narrated above. Either it should supply free of transport to the Co-operative Societies at the Government rate so as to sell the same at Government rate to the farmers. Since, the Co-operative Societies are getting supply at their cost of transport from Mandya, though the federation branch receives the transport charges, transport subsidy and distributory margin, though the companies supply free of transport to the federation at Mandya, the Co-operative Societies are burdened with the transport charges and they are recovery in the same from the farmers by selling the fertilizers charging extra transport charges apart from the fertilizers cost fixed by the Government. It is an admitted fact that the selling of fertilizers at the rate more than MRP rate is against law and it is an offence as per Fertilizers Price Control Order. Merely because, the Head Office of the 6th Opposite party is not made a party or the Mandya Branch is not made a party, it cannot be said that 6th Opposite party is not responsible or not liable for any deficiency committed by it. The evidence proves that the Mandya Branch and even the 6th Opposite party Branch at Pandavapura supplies fertilizers in their name, though there is no godown at Pandavapura at present. The selling of fertilizers at the rate exceeding the MRP rate fixed by the Government is nothing, but cheating the farmers and it amounts to deficiency in service. For this deficiency in service, the Karnataka State Co-operative Marketing Federation and its branches are responsible mainly, because they are collecting distributory margin of more than Rs.275/- per ton apart from Rs.50/- as transport subsidy to other stations from Mandya. Ex.C.14, the Central Government Fertilizers Department has announced maximum price of the chemical manures and its Website is also given. Merely because, the Complainant has not produced the Website copy, it cannot be accepted that Ex.C.14 cannot be looked into. As per Ex.C.14, the Central Government would repay the transport charge from factory / port to the block point to the fertilizers companies. Ex.R.7 has specified the rate of transport charges to the companies fixed by the Central Government and so the factories are giving distribution margin of Rs.275/- per ton and also transport rebate of Rs.50/- per ton from Mandya to other points. But, 6th Opposite party and other Branches of the federation are not extending the rebate given and the distributory margin to the Co-operative Societies and they are pocketing the entire amount of benefits meant for farmers. The documents and evidence of 1st & 2nd Opposite parties clearly established that 6th Opposite party and other branches of the federation are supplying chemical fertilizers to the societies at higher rate than fixed by the Government without bearing the transport charges causing extra burden to the farmers through the societies of 1st & 2nd Opposite parties. The evidence also discloses that IFFCO Company i.e., 5th Opposite party and other companies are also directly supplying the chemical manure to the societies at free of transport in which case the societies will not charge the transport charges. Therefore, all the materials pointed out the deficiency in service against 6th Opposite party and other branches at Mandya which are controlled by the Head Office at Bangalore. Therefore, we hold that 6th Opposite party and its branch at Mandya are responsible for the sale of fertilizers at higher rate charging extra transport charge to the farmers and 5th Opposite party is not responsible for the same and the Government i.e., 3rd & 4th Opposite party should have taken against the federation and the societies for selling of fertilizers at higher rate than the MRP rate fixed by the Government. But, the administrative action of 3rd & 4th Opposite parties cannot be challenged before the Consumer Forum by a Consumer. Even, we cannot attribute any deficiency in service on the part of 5th Opposite party the IFFCO Company in view of the available materials. But, the evidence and other materials clearly established that 1st & 2nd Opposite parties and also 6th Opposite party have committed deficiency in service in selling the fertilizers at higher rate than the MRP rate fixed by the Government. <br /> 18. The decisions relied upon by the learned counsel for the 6th Opposite party in II(2009) CPJ 40 in the case of Ludhiana Improvement Trust –Vs- Shakti Co-operative House Building Society Ltd., II(2009) CPJ 269 and I (2009) CPJ 317 in the case of Dakshin Haryana Bijli Vitran Nigam Ltd., -Vs- Kuldeep Singh, are not applicable to the facts of the case and there are sufficient materials to prove the deficiency in service by 6th Opposite party also, the contention that without impleading the Head office of 6th Opposite party or Mandya Branch, complaint is not maintainable, cannot be accepted for the simple reason that 6th Opposite party represents the Karnataka State Co-operative Marketing Federation and it functions on behalf of the federation and not independently and it should have brought the complaint to the notice of Head Office and according to the evidence of 6th Opposite party, he is not giving evidence on the basis of the instructions given by the Head office, but on his own. But, he is not defending the case in individual capacity, but on behalf of the federation.<br /> 19. The Complainant has sought for refund of the amount collected in excess in the bills by 1st & 2nd Opposite parties and also compensation of Rs.25,000/- against Opposite parties 1, 2 & 6. It is admitted by 1st Opposite party that under Ex.C.1 transport charges of Rs.83/-, under Ex.C.2 transport charges of Rs.45/-, under Ex.C.3 transport charges of Rs.79/- and under Ex.C.10 transport charges of Rs.38/-, before filing the complaint, the 2nd Opposite party has collected transport charge other than the fertilizers cost which is contrary to law. Therefore, 2nd Opposite party is liable to refund the same.<br /> 20. The Complainant has sought for compensation of Rs.25,000/- towards mental agony, expenses for the attempts to question acts of Opposite parties 1, 2 & 6, which is revealed by the documents produced by the Complainant. Now, in the circumstances of the case as observed above 6th Opposite party and the Branch at Mandya are responsible for the sale of fertilizers at higher rate by 1st & 2nd Opposite party and therefore, the Karnataka State Co-operative Marketing Federation having branches at Pandavapura, Mandya should adhere to the direction of the Government and price control order of the Central Government and they should not cheat the farmers without extending the distributory margin amount and transport subsidy extended by the companies to the Co-operative Societies which in turn sells the fertilizers to the farmers. Therefore, they are responsible for all the misdeeds and deficiency in service and the federation is liable to pay the compensation of Rs.10,000/- to the Complainant for fighting out for the actions of 6th Opposite party Federation. <br /> 21. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is allowed, directing the 2nd Opposite party to refund Rs.245/- to the Complainant and 6th Opposite party through its Head Office at Bangalore shall pay compensation of Rs.10,000/- to the Complainant and 1st & 2nd Opposite parties are directed to sell the fertilizers at the rate fixed by the Government without charging anything and further, the Head Office of the Karnataka State Co-operative Marketing Federation shall through its branches at Mandya District shall supply the fertilizers to the Societies at the rate fixed by the Government with free of transport charges and share the distributary margin amount extended by the fertilizers companies to the Co-operative Societies. Opposite parties 1, 2 & 6 shall jointly pay cost of Rs.1,000/-.<br /> <br /> The copy of this order shall be sent to the Principal Secretary to the Government, Department of Agriculture, Government of Karnataka, Bangalore for taking suitable action. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 31st day of December 2009).<br /> <br /> (PRESIDENT) (MEMBER)