BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI. 

                                                                   Complaint No.: 25 of 2015.

                                                                   Date of Institution: 23.1.2015.

                                                                   Date of Decision: 21.02.2019.

Shamsher son of Shri Jatu Ram, resident of village Leghan Bhanan, Block Kairu, Tehsil and District Bhiwani. 

                                                                             ….Complainant.

                                      Versus

M/s C. S. Vision Enterprises, 109, Khaperwas, P. O. Devrala, Tosham, Bhiwani (Haryana).

…...Opposite Party.

                   COMPLAINT UNDER SECTIONS 12 AND 13 OF

                   THE CONSUMER PROTECTION ACT, 1986.

Before: -      Hon’ble Mr. Manjit Singh Naryal, President.

                   Hon’ble Mr. Parmod Kumar, Member.

                   Hon’ble Ms. Renu Chaudhary, Member.

Present:       Shri B. S. Saroha, Advocate for the complainant.

                   Shri Somveer Bhatia, Advocate for the OP.

ORDER:-

PER MANJIT SINGH NARYAL, PRESIDENT

                   The case of the complainant in brief, is that the complainant was allowed to run Poly House by the District Horticulture Officer-cum- Member Secretary, District Horticulture Mission, Implementation Unit, District Bhiwani (Haryana) vide letter No. 711 dated 25.6.2012 after verifying relevant formalities/conditions prescribed by the Horticulture Department Haryana, Panchkula.  It is further alleged that complainant had deposited his share of Rs.3,15,756/- only in cash with the OP vide receipt dated 23.7.2012, on the instruction of the Horticulture Department.  It is further alleged that the OP tendered a bill No.08 dated 23.10.2012 for Rs.9,02,160/- only as the remaining amount on account of subsidy was deposited/granted by the Horticulture Department in favour of complainant in respect of installation of Poly House by the OP and the same was verified by concerned authorities of the Horticulture Department.  It is further alleged that as per terms and conditions with reference to Empanelment of Firms for installation of Protected Cultivation Structures and Supply of Material, the OP was liable to provide at least three years sale/service as well as guarantee in case of structure and their material became defective/unworkable and in the event of supply of sub standard material and violation of terms and condition.  It is further alleged that if the OP is not fulfilling the terms and conditions of guarantee, the bank guarantee of Rs.3,00,000/- lying/ submitted with the department by the OP will be liable to forfeited and OP will also be liable to face legal proceeding as well as consequences thereof.  It is further alleged that as per the terms & conditions fixed by the department, the Protected Cultivation Structure could not complete its life of even three month after its installation and it became unservice-able in the month of January, 2013 and after a great pursuance of the complainant it was repaired in the month of March, 2013 at the cost of the OP.  It is further alleged that the P.C.S. has further torn out in the month of July, 2013 and again it was got repaired at the cost of the OP in the month of October, 2013.  It is further alleged that P.C.S. has again torn out and completely became unserviceable in the month of October, 2014, but the same has not been repaired by the OP intentionally despite several requests and visits by the complainant to OP as well as to the District Horticulture Department, Bhiwani.  It is further alleged that the concerned authorities of the Horticulture Department are also responsible to take against the OP for forfeiting the bank guarantee and to initiate legal proceeding, but they are also favouring the OP and avoiding themselves from their liabilities.  It is further alleged that due to non-functioning of P.C.S. because of supply of sub standard material by the OP, the complainant has suffered loss of agriculture income on each occasion of harvesting due to failure of Micro Irrigation System and also suffered financial loss on employment of labourer and also suffered a loss of Rs.3,15,756/- invested by him with the OP for installation of Poly House.  It is further alleged that the complainant has got server a legal notice dated 16.11.2014 upon the OP through his counsel, but the OP did not reply the same.  Thus, there is deficiency in service on the part of the OP.  Hence, the complainant has to file the present complaint. 

2.                On appearance, OP filed contested written statement and took preliminary objections qua cause of action; suppression of true facts; malafide; maintainability and non-joinder.  On merits, it is alleged that the contents of Para No. 6 of the complaint are absolutely wrong & denied, except the OP is responsible for using the sub standard material and violation of terms & condition as alleged and not fulfilling the terms & conditions of guarantee of Rs.3,00,000/-, the OP will be liable to be forfeited the said guarantee and will also be liable to face legal proceedings as alleged.  It is further alleged that the complainant himself accepted in Para No. 5 of the complaint, the authorities of Horticulture Department verified the poly house and released the subsidy amount.  It is further alleged that if the OP used the sub standard material in the installation of poly house, then how the authority of horticulture department passed the same and released the subsidy amount to the complainant.  It is further alleged  that as per terms & conditions “in case any dispute, the decision of Mission Director, Haryana State Horticulture Development Agency will be final”, as such the complaint of the complainant is liable to be dismissed on this very ground.  It is further alleged that as per the terms & conditions, if the poly house damaged in natural climate, then the OP is liable for providing only the labour for free of cost and the complainant is fully responsible for raw material of the same and the OP is always ready to provide the labour free of costs, but the complainant did not repaired the same.  It is further alleged that the OP sent a reply dated 13.11.2014 through email to the D.H.O. of their letter No.623 dated 29.10.2014.  It is further alleged that the Poly House was repaired in the month of March, 2013, the OP has provided only the labour free of cost and the raw material was provided by the complainant.  It is further alleged that the Poly House was repaired in the month of October, 2013 and the OP has provided only the labour free of cost.  It is further alleged that the OP is always ready to provide the labour free of costs and to repair the poly house, but the complainant did not ready to provide the raw material.  So, there is no deficiency in service on the part of OP.  Hence, the complaint of the complainant is liable to be dismissed with costs.

3.                Ld. Counsel for the complainant has placed on record the documents Annexure C1 to C6 in evidence and closed the evidence.

4.                Ld. Counsel for the OP has placed on record affidavit as annexure RW1/A & documents Annexure R1 to R3 & closed the evidence. 

5.                We have heard both the parties at length and have gone through the case file carefully.

6.       After hearing the learned counsel for both the parties and having gone through the material available on the records, we are of the considered view that complaint of the complainant deserves acceptance.  There are some facts which are admitted by both the parties.  It is admitted that fact that the OP has installed the Poly House.  It is also admitted fact that the authorities of Horticulture Department verified the poly house and released the subsidy amount.  It is also admitted fact that the Poly House was repaired by OP for two times at their cost.  It is also admitted fact that the OP has refused to repair the Poly House third time in the month of October, 2014 by saying that the OP is liable for providing only labour free of cost and raw material was to be provided by the complainant.  Now, the question arises Whether the OP is liable for the repair of the Poly House free of costs including all the expenditure?  The sought answer is “yes”, because from the perusal of the terms and conditions, point No.12 and 13, the firm has to provide at least 3 years after sales service as well as guarantee in case of structures and their material.  The condition No. 12 & 13 of the terms & conditions is re-produced as under: -     

          “12.   The firm has to provide at least 3 years after sales service as well as guarantee in case of structures and their material.  An undertaking will be submitted by firm within 15 days of empanelment in this regard.

          13.     In case of testing of material, the fee shall be borne by the firm.  In case of supply of sub-standard material and violation of terms and conditions, bank guarantee will be forfeited and legal proceedings will be initiated”.

7.                Therefore, from the bare perusal of terms & conditions, it is clear that the OP firm has to repair the Poly House of the complainant free of costs including all the expenses upto three years from the date of installation.  Moreover, from the pleadings of the complainant, it is clear that Poly House has been installed in the month of August/September, 2012 and in this way, the OP shall be liable to repair the same free of costs upto August/September, 2015.  Thus, refusal by the OP to repair the Poly House without the supply of raw material, in the month of October, 2014 amounts to clear cut deficiency in service and unfair trade practice and also against the terms & conditions of the empanelment of the Firms.  Now, the question arises whether the complainant is entitled to the claimed amount i.e. Rs.1,50,000/- on account of labour and the loss of agriculture goods plus Rs.3,15,756/- invested/deposited with the OP for installation of poly house.  In this regard the complainant has placed no cogent & convincing evidence on record i.e. photographs of the poly house or report of agriculture department to show that the Poly House is of no use.  In the absence of such evidence, it cannot be said that the poly house become un-functional.  Thus, the complainant has used the Poly House for the agriculture purposes and is not entitled to the refund of his total invested amount, as claimed by him.  But he is entitled to the losses suffered by him due to unfair trade practice and deficiency in service on the part of the OP Firm.        

8.                Therefore, in view of the above discussion, the complainant is entitled to be compensated.  Hence, in view of these circumstances, the complaint of the complainant is partly allowed with costs and the OP is directed to: -

i.        To Pay Rs.50,000/- as labour charges & loss of agricultural income.

ii.       To pay Rs.10,000/- as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service on the part of OP.

iii.      To pay Rs.2500/- as counsel fee as well as litigation charges.

          The compliance of the order shall be made within 30 days from the date of the order.  In case of default, the OP shall liable to pay interest @ 12% p.a. on total amount as directed above vide clause No. i to iii from the date of default i.e. after 30 days from the date of this order i.e. 21.02.2019.  Certified copies of the order be sent to parties free of costs.  File be consigned to the record room, after due compliance.

Announced in open Forum.

Dated: 21.02.2019.                 

(Renu Chaudhary)         (Parmod Kumar)        (Manjit Singh Naryal)

Member.                        Member.                         President,

                                                                   District Consumer Disputes

                                                                   Redressal Forum, Bhiwani.