Orissa

Kendujhar

47/1997

Kapileswar Mishra - Complainant(s)

Versus

Branch Manager, Odisha Agro Industries Corporation Ltd. - Opp.Party(s)

Sri P.K. Sahoo

20 Jan 1998

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KENDUJHAR

C.D. CASE NO.47/1997

Kapileswar Mishra, aged 57 years,

        S/o- Bhagabat Prasad Mishra,

        At/Post- Girigaon, P.S- Nandipada,

        Dist- Keonjhar                                                                             …     Complainant

                                -Versus-

         Branch Manager,

         Odisha Agro Industries Corporation Ltd.

         Anandpur Branch, At/P.O- Anandpur

         Dist- Keonjhar                                                                             …    Opp. Party

For the Complainant: Sri P.K. Sahoo (Advocate)

For the Opp. Party: Sri C. Hota, Sri M.R. Parhi & Sri B.K. Pati (Advocates)

  P R E S E N T:

            Sri B. Acharya (President)

            Miss P. Parija (Member)

                          And

            Dr. K.K. Dwibedi (Member)

_____________________________________________________________________________________________________

Date of Hearing: 24.09.97                                                                     Date of Order: 20.01.98

Sri B. Acharya, President:

1. The brief fact of the petition is that Sri Kapileswar Mishra the complainant a farmer having 7 acres of cultivable land desired to set up a K.K.K.S Tube-well under beneficiary scheme of the Govt. when he approached the O.P for the purpose he advised the petitioner to deposit the required amount for test of the place where the tube-well was to be set up. In compliance of his advice the petitioner had deposited the sum of Rs.1000/- on account of first testing vide receipt No. 117573 dt.1.10.96. Therefore, the spot was tested when it was assured that there would be sufficient water within 102 feet. Accordingly the tube well was bored by the people of the O.P up to 102 feet within a period of 10 days. On 16.10.96 the complainant deposited a sum of Rs.10,000/- under two receipt on account of a new K.K.K.S Tube-well. And after deposit of the same amount, materials were supplied and on the next day after fitting the materials the tube well was set up. Though the tube well was completed before 20^th October, 1996 the O.P failed to supply the pump as a result of which the complainant became unable to utilize the water to save his standing crops. Due to acute shortage of water, as a result of which his crops were damaged. So the complainant sustained a loss of Rs.20,000/- being the cost of the crops. Thereafter, the complainant had deposited a sum of Rs.8,922/- i.e. the 50% cost of the 5 HP diesel water pump accessories as per the direction of the O.P for the pump set. Due to non-supply of the pump in time the complainant suffered from the aforesaid loss. Subsequently in the month of January, 1997 the complainant cultivated paddy over 3 acres of his land with a hope that the utilization of the water from the tube well would help him in the cultivation. But unfortunately, the pump set was out of order after 4 to 5 days of its function during the guarantee period. The O.P did not take any initiation either to repair or replace in spite of request by the complainant. The complainant purchased the required parts and got the pump repaired for which he had to expend a sum of Rs.125/- only. After utilization of the water to irrigate his land for 3 to 4 days he could not get sufficient water from the tube well by the pump and when complained of the complainant was informed that the water level of the tube well was below 25 feet for which the pump was not working. Due to shortage of water the summer crops of the complainant was damaged. Where he had invested a sum of Rs.3,000/- and also sustained a loss of Rs.8,000/- having no fault of his own. Consequently though the complainant brought the fact to the notice of the Collector, Keonjhar as well as the O.P non could take any action for removal of his difficulties for which the petitioner became bound to file this case in this Forum for redressal with a prayer to pass orders in his favour for realization of Rs.43,325/- from the O.P in order to satisfy his needed relief.

2. After admission of this case the O.P had filed his version on 22.5.97 receiving notice from this Forum where after the case was taken up for consideration. During trial of the case the petitioner filed some documents related to his complaint which were exhibited and marked as Ext.1 to 18. In the meantime the District Manager, Agro Industries Corporation, Keonjhar suomotu appeared and filed a time petition to file some original documents though he was not arrayed as one of the Opp. Parties. He was not also authorized by the Ops to appear in this case during hearing. Hence, his appearance and averments if any being uncalled for his nothing but meaningless. The Branch Manager concerned has filed his show-cause in response to the notice issued by this Court who has filed some documents in his defense which have been exhibited and marked as Ext. A to G. His defense plea is that the proceeding is bad for non-joinder of necessary parties i.e. authorized Dealer M/s Mohapatra Enterprises, College Road, Keonjhar and the Manufacturing Company who was not been made a party for the proceeding for fair disposal of the case. The complainant had not compact area of 7 acres of land in one patch as averred in his petition and the pump set has a capacity to supply the water within the area covering A 2.50 decimals of land. The complainant after completion of boring was advised to deposit 50% of the cost of the pump-set as per the share who failed and after a long lapse of time deposited a sum of Rs.8,922/-  against the sum of Rs.10,000/-. Had the complainant not made any delay in depositing the above money, the O.P could not have made any delay in supplying the pump-set rather due to late deposit of the money the supply of pump-set became a little delayed. Since the supply of the pump-set is completely dependent upon the deposited amount, the O.P is not liable for late supply. Regarding the non-functioning of the pump-set and repairing at his own cost within the warranty period, no intimation was given to the O.P. The O.P has not received any intimation from the petitioner for which the question of knowledge does not arise. The complainant intimated the O.P on 7.3.97 with the pump set and after minor repair by the O.P, the present complainant utilized the motor with full satisfaction. And, thereafter, there was no question of non non-functioning and investment of Rs.125/- which was made by the complainant within the warranty period is completely fabricated. The complainant had approached O.A.I.C for a shallow tube-well and at the time of testing the water level was 14 feet and the depth was 102 feet. At the time of supply of pump-set the O.P was aware that 5 H.P Kirloskar Motor had a capacity for lifting the water within 25 feet. For a compressor pump the capacity for lifting water below 25 feet is required to deposit a sum of Rs.40,000/- as per the norms of O.A.I.C. Instead of that due to his bad financial condition, he choose to deposit a sum of Rs.8,000/- for 5 H.P Motor but the same had been deposited after a long lapse of time. Had he deposited the amount earlier, he could have saved the crops by utilizing the pump in time. Moreover, in the year 1996, there was a draught in Anandapur Sub-division as a result of which the water level had gone down below 25 feet. The contractor named Bharat Chandra Sankhua had taken the work order from the O.P for setting the Tube-well who reported vide letter dtd.12.03.97 that it was 5 H.P Motor of the complainant and his motor was engaged during the Kharif period of 1996 and Mechanic Ananta Charan Jena was also engaged for setting the motor inside 5 feet earth for discharging more water to save the crops to some extent at the time of draught. It was also reported by the said contractor with the signature of some villagers that no such loss of crops caused to the complainant and the said motor was in good running condition. Further, he has avexed that nobody has control over the natural calamity to get rid of the same if any and nobody can be held liable for any sort of damage if caused during any natural calamity. When Ext. A supports the lowering report, Ext. B supports the report of B.C. Sankhua along with signature of number of persons. Ext. D is the test layer report when Ext. E is the list of required materials on which the O.P had directed the store to issue the listed materials to Kapileswar Mishra the petitioner for completion of his shallow tube-well. Ext. G is the letter of the petitioner to the O.P the Branch Manager, O.A.I.C, Anandapur in which he has reported that his pump set was functioning well after it was repaired by the mechanic in the office of the O.P.

3. On scrutinisation of the evidence of the both the parties though the case was filed within the period of limitation and was within the territorial and pecuniary jurisdiction of this Forum this case is dismissed without costs as found no deficiency of service on part of the O.P which was neither intentional nor deliberate.  

     Orders pronounced in the open Forum today i.e. on 20^th day of January, 1998 under my hand and seal of this Forum.

              I agree                                                   I agree

     Dr. K.K.  Dwibedi                                      Miss P. Parija                           Sri B. Acharya 

            Member                                                 Member                                  President

 

                                                                                        Dictated and Corrected by me.

                                                                                                     Sri B. Acharya   

                                                                                                        President

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA: CUTTACK

C.D APPEAL NO. 149 OF 1998

(From an Order dated 20.01.1998 passed by the District Consumer Disputes Redressal Forum, Keonjhar in C.D. Case No. 47 of 1997)

        1.  Kapileswar Mishra, aged 57 years,

              S/o- Bhagabat Prasad Mishra,

             At/Post- Girigaon, P.S- Nandipada,

             Dist- Keonjhar                                                                             …     Appellant

                  -Versus-

        1. Branch Manager,

            Odisha Agro Industries Corporation Ltd.

            Anandpur Branch, At/P.O- Anandpur

            Dist- Keonjhar                                                                             …    Respondent

For the Appellant                                                : M/s. K.N. Jena & Associates

For the Respondent                                            : M/s. B. Baug & Associates

P R E S E N T:

THE HONORABLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT,

                                                   AND

                              SHRI SUBASH MAHTAB, MEMBER

O  R  D  E  R

Dated: 18^th August, 2009

Sri Subash Mahatab, Member

1. Challenging the order of dismissal of his complaint by the D.C.D.R.F, Keonjhar the complainant as appellant has preferred this appeal U/s. 15 of the C.P. Act.

2.  Very briefly the facts, as brought out in the complaint are that the complainant being a farmer with the intention to set-up a Krushak Kalyan Karyakarma Scheme Tube-well under the Govt. beneficiary scheme in his 7 acres of cultivable land had approached the O.P. The O.P advised him to deposit Rs.1000/- for test of the place where the Tube-well was to be set-up which the complainant complied on 01.10.1996. During testing, the complainant was assured that there would be sufficient water within 102 feet and accordingly the Tube-well was bored by the O.P up to 102 feet. On 16.10.1996, the complainant deposited Rs.10,000/- for a new Tube-well, after which some materials were supplied and Tube-well was set-up. Though the Tube-well was completed before 20.10.1996, the O.P failed to supply the Pump as a result of which the complainant was unable to utilize the water to save his standing crops. The complainant subsequently deposited Rs.8,922/- i.e. 50% cost of the 5 H.P Diesel Water-Pump as per the instruction of the O.P for the pump-set. But the O.P did not supply the Pump-set in time for which the complainant sustained a loss of Rs.20,000/-. In January, 1997 the complainant cultivated paddy over 3 acres of his land with hope that the utilization of the water from the Tube-well would help him in the cultivation. But the pump-set was out of order after 4 to 5 days of its functioning during the guarantee period. The O.P did not take any steps either to repair or replace in spite of requests by the complainant. So he had to purchase required parts and got the Pump repaired by spending Rs.125/- from his own pocket. But after utilization of the water to irrigate his land for 3 to 4 days, he could not get sufficient water from the Tube-well by the Pump and when complained, he was informed that the water level of the Tube-well was below 25 feet for which the Pump was not working. Due to shortage of water the summer crops of the complainant was damaged. Besides his investment of Rs.3000/-, he had also sustained a loss of Rs.8000/-. The complainant brought this fact to the notice of the Collector, Keonjhar as well as the O.P but none of them came forward to his rescue for which he was compelled to file the case before the Forum below and prayed for realization of Rs.43,325/- from the O.P.

3. The O.P appeared and filed his version before the Forum below in which he had taken the stand that the proceeding is bad for non-joinder of necessary parties as the authorized dealer M/s. Mohapatra Enterprises, College Road, Keonjhar and the manufacturing company have not been made parties in the proceeding for fair disposal of the case. The complainant had not compact area of 7 acres of land in one patch and the pump-set has a capacity to supply the water within the area covering A 2.500 decimals of land. The complainant after completion of boring was advised to deposit 50% of the cost of the pump-set as per the share who failed and after a long lapse of time deposited Rs.8,922/- only against the sum of Rs.10,000/-. Had the complainant not made any delay in depositing the above money, the O.P could not have made any delay in supplying the pump-set rather due to late deposit of the money the supply of pump-set became a little delayed. Since the supply of the pump-set is completely dependent upon the deposit of the amount, the O.P is not liable for late supply. Regarding the non-functioning of the pump-set and repairing at his own cost within the warranty period, no intimation was ever given to the O.P. The complainant intimated the O.P on 07/03/1997 that after minor repair by the O.P, he utilized the motor with full satisfaction. So, the alleged non-functioning of the pump and repair of the same by spending Rs.125/- by the complainant is completely fabricated. The complainant had approached O.A.I.C for a shallow tube-well and at the time of testing the water level was 14 feet and the depth was 102 feet. At the time of supply of pump-set the O.P was aware that 5 H.P Kirloskar Motor had a capacity for lifting the water within 25 feet. For a compressor pump the capacity for lifting water below 25 feet is required to deposit a sum of Rs.40,000/- as per the norms of O.A.I.C. Instead of that due to his bad financial condition, though the complainant deposited Rs.8000/- for 5 H.P Motor but the same was deposited after a long lapse of time. Had he deposited the amount earlier, he could have saved the crops by utilizing the pump in time. Moreover, in the year 1996, there was a severe draught in Anandapur Sub-division as a result of which the water level had gone down below 25 feet. The contractor named Bharat Chandra Sankhua had taken the work order from the O.P for setting the Tube-well who reported vide letter dtd.12.03.1997 that it was 5 H.P Motor of the complainant and his motor was engaged during the Kharif period of 1996 and mechanic Ananta Charan Jena was also engaged for setting the motor inside 5 feet earth for discharging more water to save the crops to some extent at the time of draught. It was also reported by the said contractor with the signature of some villagers that no such loss of crops caused to the complainant and the said motor was in good condition. Further, he had stated that nobody has control over the natural calamity as nobody can be held liable for any such damage during the natural calamity. Moreover, the complainant in his letter to the B.M, O.A.I.C, Anandapur had admitted that his pump set was functioning well after it was repaired by the mechanic in the office of the O.P.

4. After taking into account the rival contentions raised by the parties, the District Forum did not find any deficiency in service on the part of the O.P and hence dismissed the complaint petition. Being dissatisfied with the above order passed by the Forum below, the complainant has preferred this appeal.

5. During hearing of this appeal, we have only heard Mr. D.K. Mohapatra, the learned counsel for the appellant as none appeared for the respondent.

6. The appellant challenged the order of the District Forum mainly on the ground that the Forum below has committed error by holding that nobody is liable for natural calamity though it was a natural calamity but a clear case of negligence by the respondent. Further submissions advanced by the learned counsel of the appellant that the District Forum should not have relied on the report of B.C. Sankhua along with the signatures of number of persons as the said signatures were forged and by not calling those persons to the Forum, the District Forum has committed error. He had also argued that as the technical person of the O.P has not selected the actual spot to install the tube well even after receiving Rs.1000/- from the complainant for the spot selection, they have negligent in their duty for which they are liable to compensate complainant. The respondent had taken a false plea before the Forum below that due to draught, the water level gone down to 25 feet for which 5 H.P motor could not lift the water. The Forum below has overlooked the letter dtd.17.10.1996, 30.10.1996 and 18.11.1996 filed by the respondent in which he asked the complainant to deposit Rs.8,922/- towards the cost of 5 H.P. Motor.

7. After hearing the counsel of the appellant and having gone through the materials on record, we found that the District Forum had passed a well reasoned order after thoroughly examining all the materials on record. The grounds taken by the appellant in this appeal are not convincing at all. The appellant has not challenged the report and the documents submitted by the respondent before the Forum below. If the appellant has any objection on the report submitted by B.C. Sankhua and has any doubts about the genuineness of the signatures of the villagers, he should have taken appropriate steps for calling those persons as witnesses to the Forum to cross-examining them. We did not find any such petition from the lower court record. We also did not find any such letter dated 17.10.1996, 30.10.1996 and 18.11.1996 in which the respondent asked the appellant to deposit Rs.8922/- towards the cost of 5 H.P Motor. The District Forum has rightly observed that nobody can be held liable for any damage if caused during any natural calamity. Hence, the O.P could not be held guilty for deficiency in service. The appellant also could not deny tat vide his letter dated 2.3.1997 he had admitted that his pump set was functioning well after it was repaired by the mechanic in the office of the O.P.         

8. In the aforementioned circumstances, we find no ground to interfere with the well reasoned order passed by the District Forum, so while confirming the order passed by the District Forum, we dismiss the appeal as the same has got no merit at all. The parties shall bear their own cost.                

                                                           

                                                                                                                  Sd/-18/08/2009

                                                                                                                 (Subash Mahtab)

                                                                                                                         Member

                                                                                                                  Sd/-18/08/2009

                                                                                                          (Justice A.K. Samantaray)

                                                                                                                         President

    SCDRC, Cuttack

     Dated 18.8.2009