Complaint filed on: 31-07-2021

                                                      Disposed on: 20-04-2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

CC.No.62/2021

DATED THIS THE 20^th DAY OF APRIL, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

Complainant: -

M.P.Sreedhara

S/o Puttaswamaiah.M.N,

Aged about

R/o Hithesh Nilaya, 1^st Floor,

Moodlapanne Road,

Koratagere town,

Tumakuru District

(By Sri.P.G.Ramachandrappa, Advocate)

V/s

Opposite party:-       

B.T.Agro Technologies,

By its Proprietor,

APMC Yard, 2^nd gate,

M.G.Road,

Chikkaballapura-562101

                                                 (By Sri.Anand.H.T, Advocate)

ORDER

SMT.G.T.VIJAYALAKSHMI, PRESIDENT

This complaint was filed by the complainant under Section 35 of Consumer Protection Act, 2019 to direct the Opposite party (hereinafter called as OP) to pay entire loan amount of Rs.33,76,000-00 drawn on 15-1-2018 from the complainant’s bank along with upto date interest @9% p.a. till the date of realization, Rs.30,00,000-00 for loss of crop due to substandard construction of poly house for three years crop and Rs.20,00,000-00 towards mental agony and sufferings, totally the OP is liable to pay Rs.83,76,000-00 to the complainant.

2. It is the case of complainant that the complainant is the proprietor of poly house for cultivation of capsicum in Sy.No.71/2 and 71/2 situated at Koratagere village, Kasaba hobli, Koratagere taluk, Tumkur district. The OP is the approved licence holder and recognized from Horticulture department as per note dated 5-9-2017 for construction of poly house. The complainant approached the OP for construction of poly house to cultivate the colored capsicum for export and domestic market for his livelihood. The OP knew very well that for the cultivation of capsicum in poly house, it required high tech poly house and said poly house should be as per norms and conditions of the government for availing subsidy facility to the complainant. For that the OP agreed to construct the poly house as per required standards both in quality and quantity and submitted quotation on 5-10-2017 a sum of Rs.33,76,000-00 for cost of construction of poly house. The OP completed the work and the OP had to take work order from Horticulture department, but the OP had not taken the work order from the proper authority. The OP had given a plan and project report that as per the work, loan would be sanctioned and he can get subsidy of 50% under NHM scheme for the year 2017-18. The OP had assured that it is his responsible to get the subsidy amount. The complainant had applied for loan in Karnataka Bank, Koratagere branch and the said bank has sanctioned loan of Rs.30,00,000-00 on 11-12-2017 and the complainant paid Rs.10,00,000-00 towards promoter contribution. On 15-1-2018 the OP had taken total consideration amount of Rs.33,76,000-00 towards the cost of construction of poly house and work completed on 15-1-2018. The OP had issued Form no.5 stating that as per standard guidelines required, quality and quantity of material has been used and given three years warranty for the materials supplied. The complainant had approached the Horticulture department, Koratagere to get subsidy and also approached District Head of Horticulture and they have sent Area officer to inspect the work carried out by OP at the spot. The said officer found that the work carried out by the OP is not as per the standard guidelines and the said officer had reported the same and the department of horticulture had refused to give subsidy amount as per work done by the OP. The OP has also not obtained prior permission and plan approved by the concerned department. Thus there is deficiency of service on the part of OP. The complainant had lost subsidy amount of Rs.25,00,000-00 and the complainant had inspected the work done by the OP from private engineers and they found several gross errors in the work of OP. In spite of repeated request, the OP had not rectified the gross errors in the poly house. In this regard, on 20-9-2019 the complainant issued a legal notice to OP calling the OP to rectify or reconstruct the poly house as per standards and replace all sub-standard materials but the OP not replied to the said notice but orally promised the complainant to rectify all his mistakes and drag the matter for one or the other reason. Hence, this complaint.

3. After the service of notice, the OP has appeared through his learned counsel and filed written version admitting the averments made in the complaint para 2, 4, 5, 6, 7 are true and averments made in the complaint para 3, 8, 9, 10, 11, 14, 15 and 16 are denied as false. The OP submitted that, the warranty for materials used in the poly house is one year warranty. The materials concerned there were no written agreement/instructions between the complainant and the OP. The material used by the OP in the construction of poly house was in the presence of the complainant which was satisfactory. The question of deficiency of service by this OP does not arise at all and the inspection done by the private engineers is not concerned to the OP as the private engineers are not the technical experts and the private engineers are in collusion with the complainant. The OP further submits that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed. As per Section 69 (1) of the C.P.Act, 2019, there is a limitation of two years for complainant to file a complaint from the date on which the cause of action has arisen but this complaint is filed after lapse of three years six months hence, the complaint is not maintainable. The complaint does not come under the purview of the CP Act, 2019 as deficiency of service and the said disputes is complex in nature and not comes under the purview of this Commission/Forum and the same is civil in nature. The OP prays to dismiss the complaint with exemplary cost.

4. The complainant counsel filed affidavit in lieu of evidence and produced Exs.P1 to P21 documents. On behalf of OP one Sri.Balakrishna.D.M, Proprietor has filed his affidavit evidence.  

5. We have heard the arguments of the learned counsel for the complainant and OP and also pursued the materials on record as well as written arguments. The points that would arise for determination are as under:

1)      Whether the complainant proves that there is deficiency in service on the part of OP?

2)      Is complainant entitled to the reliefs sought for?  

6. Our findings aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: In the affirmative for the below      

Point Nos.1 and 2:

REASONS

7. The OP raised the objections regarding limitation period and maintainability of complaint. On perusal of the complaint and Exhibits, it is seen that, the cause of action arised when the complainant issued legal notice to OP on 20-9-2019 and the horticulture department has issued final endorsement on 30-12-2020 by stating based upon the report of Deputy Director of Horticulture (ZP), the unit was constructed without obtaining prior approval from Horticulture Department and not constructed poly house as per guidelines and subsidy could not be granted as per rules. Hence, the complainant is maintainable and not barred by limitation. 

8. The facts involved in this case, it would lead us to list the admitted facts and they are;

1) The complainant is the proprietor of “HI TECH POLY House for Cultivation of Capsicum” running the same in Farm at Sy.No.71/2, Koratagere village, Kasaba Hobli, Tumakuru District and approached the OP for construction of Poly House. 

2) The OP is an approved licence holder recognized from Horticulture, Government of Karnataka and accepted to construct the Poly House as per guidelines of the Horticulture department. Further the OP had submitted the quotation on 5-10-2017 for the cost of construction of poly house and agreed to construct the same for Rs.33,76,000-00 as service provider.

3) The OP had given a plan and assured the complainant that the work is as per standard guidelines, loan would be sanctioned and complainant can get subsidy of 50% under NMH schedule for the year 2017-18. Further the OP had assured that, it is his responsibility to get him the subsidy amount.

4) On the basis of assurance given by the OP, the complainant prepared the project work with the help of OP and submitted it to the bank. On the strength of project report the bank sanctioned the loan of Rs.30,00,000-00 with interest of 9% p.a. and the complainant paid Rs.10,00,000-00 towards promoter contribution. Totally the complainant paid Rs.33,76,000-00 towards the cost of construction of Poly house and the OP issued receipt dated 15-1-2018/Ex.P4. Rs.10,00,000-00 towards the promoter contribution.

9. The main disputes between the complainant and OP is that the OP constructed the Poly House by using sub-standard materials, there is a short comings in height, width and so on. As per procedure of Horticultural department, prior permission to construct the Poly House is mandatory and also the construction of Poly House must be as per guidelines of the Horticulture department.

10. Further the complainant approached the Horticulture department to get subsidy and also approached District Head Office of Horticulture. For inspection of work area officer visited the spot and reported to the department that the work carried out by the OP is not as per standard guidelines. Hence, the Horticulture department had refused to give subsidy amount as the work done by OP is below the standard guidelines

11. The Exhibit.P18 dated 30-12-2020 i.e. letter from the Horticulture Department clearly shows that the OP without obtaining the prior permission from the Horticulture department constructed the Poly House and the construction of Poly House is not as per guidelines of the Horticulture department. Hence, the complainant requisition for subsidy is rejected by the department of Horticulture. 

12. Being a licence holder of the Horticulture Department, it is bounded duty to obtain permission before started to poly house construction. For the fault of OP, the complainant suffered the loss and he cannot get subsidy amount from the government. It clearly shows the negligence act and it amounts to deficiency in service on the part of the OP. The complainant borrowed the money from the bank with interest of 9% p.a. for construction of poly house. Till date the OP is not come forwarded to rectify the defect as per guidelines of the Horticulture department in constructed poly house. Under these circumstances, it is just and proper to direct the OP to pay Rs.43,76,000-00 with 9% interest per annum to the complainant  

13. For crop losses, the complainant produced only two photographs dated 24^th, Feb.2018 and 28^th, March 2018. On perusal of photos, it is clear that, Capsicum crop grown in poly house. The complainant not produced any documentary evidence i.e. expenses incurred for crops yield, market price of the capsicum and so on. Hence, the complainant claim of Rs.30,00,000-00 for crop losses is rejected. In the absence of details regarding crop losses, it is just and proper to award Rs.3,00,000-00 as compensation for crop losses and Rs.10,000-00 as litigation expenses. Accordingly, we pass the following order;

ORDER

1. The complaint is allowed in part.

2.  The OP is directed to pay Rs.43,76,000-00 with interest @9% per annum to the complainant by taking back the materials used in the construction of the said poly house. . 

3. The OP further is directed to pay Rs.3,00,000-00 as compensation  and Rs.10,000-00 as litigation expenses  to the complainant.

4. The OP is further directed to comply the above order within 45 days from the date of receipt/knowledge of the order.

 Furnish the copy of order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 20^th day of April, 2022).

LADY MEMBER                  MEMBER                           PRESIDENT