O R D E R ; ( Per Shri B.R. Chandel, President).
The complainant Shri Nandu Ram on the assurance given by the opposite party No.2 offered to purchase 21000 flower plants from opposite party No.1 which was duly accepted by opposite party No.1. The opposite party No.1 agreed to supply the said number of plants in sum of Rupees 1,86,400/-. The complainant paid Rupees 75,000/- in advance vide receipt Annexure C-4 dated 25-05-2009. Thereafter, the complainant sent Rupees 1,11,400/- through demand draft Annexure C-2 along with bank note Annexure C-3. After receipt of the said amount the opposite party No.1 sent telegram Annexure R-1 to the complainant through postal receipt dated 17-07-2009 Annexure R-2 requesting the complainant to lift the plants as soon as possible because the plants were ready for delivery, since 5th July, 2009 and were of perishable nature. The opposite party No.1 sent the said plants through delivery challan dated 20-07-2009 Annexure C-6 and delivery note Annexure R-3 by duly insuring the plants through transit insurance Annexure R-4 with New India Insurance Company vide note Annexure R-4. The said plants were delivered to the complainant and the complainant received the said plants on 21-07-2009. The site was inspected by the technical expert of the opposite party No.1 on 29-08-2009 who prepared report Annexure R-7. Thereafter the complainant issued notice dated 03-10-2009 Annexure C-1 to the opposite party No.2 complaining therein that out of 21000 flower plants 9000 plants were found damaged and 400 plants of the value of Rupees 4000 were less in quantity, hence he requested the opposite party No.1 to supply the damaged number of plants as well as to supply the less number of plants. The opposite party No.1 supplied 3100 number of plants of Dinthus (charmant), Anthus (Bizet) and Dinthus (Malag) vide delivery note Annexure R-5 dated 25-09-2009.
2. In view of the above stated undisputed facts the complainant on the strength of this complaint has claimed that the opposite parties be directed to replace and supply the damaged plants numbering 9000 and the less plants on the ground that the opposite parties supplied 9000 plants in damaged condition out of 21000 and 400 plants in less quantity which amounts to deficiency in service due to which he has suffered loss of income of Rupees 1,50,000/- and suffered harassment and mental tension.
3. The opposite party No.1 has disputed the said claim and has set up the defence that the complainant has failed to make any claim that he received 9000 plants in damaged condition and 400 in less quantity within 8 days from the receipt of the plants as per the condition in the delivery note, hence the complaint is not maintainable. The opposite party No.1 has disputed that the complainant immediately informed regarding the defective plants or less quantity of plants received by him immediately on opening the boxes. The technician of the opposite party No.1 visited the site and reported that the complainant himself had not taken proper protection as required for the greenhouse due to which the morality of the product has diminished. The opposite party No.1 replied the notice of the complainant on 27-10-2009. The technician of the opposite party No.1 visited the spot found many loopholes in the system made in the greenhouse, fertilizers and administration of insecticide. Hence, the opposite parties have not committed any deficiency in service.
4. The opposite party No.2 has been proceeded against exparte.
5. As per delivery note it was conditioned that “ All claims , if any, put forward from the buyer’s side against the seller shall be deemed waived unless presented within 8 (eight) days from the date of receipt of the products/goods In case of non-arrival of goods at destination within reasonable time after the date of notification from seller towards the buyer, the latter shall notify the seller by Fax about the date in the arrival of the goods”
6. Although, the complainant has claimed that he immediately informed the opposite parties on receipt of boxes of the plants that 9000 plants had been received in damaged condition and 400 plants in less quantity, but the said fact has not been proved by the complainant by producing any evidence. It is not disputed by the complainant that the technical expert of the opposite party No.1 visited the spot on 29-08-2009 and prepared his report Annexure R-7. Vide report Annexure R-7 the technical expert has pointed out many shortcomings in the plantation, preservation and fertilization and administration of insecticides. The said report has been duly signed by Sita Ram Thakur. At the time of preparation of the report the complainant did not raise any objection. There is no evidence on record that prior to spot inspection by the technical expert on 29-08-2009 or thereafter till 03-10-2009 the complainant ever raised any claim or dispute with the opposite party No.1. However, as per delivery note Annexure C-5 dated 25-09-2009 the opposite party No.1 had supplied 3100 plants of the quality mentioned therein in favour of the complainant. The complainant has not disputed the authenticity and genuineness of the delivery note Annexure R-5. He has not disputed that the said number of plants were received by him. The complainant filed the complaint on 22-01-2010, but has suppressed and concealed the said fact of receipt of 3100 plants through delivery note Annexure R-5 by him from the opposite party No.1. Not to say only this, the opposite party No.1 has produced in evidence delivery note dated 07-12-2009 Annexure R-8 vide which it has supplied 10000 plants of different quality of flowers in favour of the complainant. Even thereafter the complainant filed the present complaint on 22-01-2010, but has failed to disclose that he had received 10000 plants from the opposite party No.1 through delivery note Annexure R-8 dated 07-12-2009. The complainant has not disputed the genuineness and authenticity of delivery note Annexure R-8 or that he had received 10000 plants mentioned therein. On the basis of delivery note Annexure R-5 and Annexure R-8 it stand proved that the opposite party No.1 had sent and delivered 13100 plants to the complainant, but the complainant has failed to disclose in the complaint that he did receive the said number of plants. As a result of which it has to be inferred that the complainant has suppressed and concealed such most material facts from disclosure from this Forum. He has not at all disputed the genuineness and authenticity of the said delivery notes, as a result of which the other stand of the complainant that the opposite party No.1 failed to replace the damaged plants and supply less number of plants stands falsified. After filing of the complaint, a notice of the complaint was sent to the opposite party No.1. The opposite party No.1 has sent letter Annexure R-9 disclosing therein that it had supplied additional 10000 rooted carnation cutting to the complainant and he had accepted that he had no issue regarding the quality and quantity of carnation plants supplied earlier. The opposite party No.1 has produced in evidence an affidavit Annexure R-10. Although, the affidavit Annexure R-10 has not been deposed by Nandu Ram, but the same has been deposed by Mr. Sita Ram. Sita Ram is none else but the grandson of Nandu Ram. The complainant has not challenged the authenticity and genuineness of the affidavit Annexure R-10. Sita Ram is the person who has signed inspection report Annexure R-7 and he is the same person who has deposed affidavit Annexure R-10. The said fact shows that greenhouse being run by him and he is the de-facto owner in possession of the greenhouse in question and Nandu Ram is a de-jure owner of the greenhouse. There is also no evidence concerned to conclude on record that 9000 plants were found damaged due to the negligence of the opposite parties or those stood spoiled due to delayed plantation.
7. In view of the evidence discussed and findings recorded above, this Forum is bound to conclude that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the opposite parties, hence the complaint is bound to fail.
RELIEF:
In view of the findings recorded above, the complaint is dismissed. No orders as to cost. Let certified copy of this order be sent to the parties free of cost, as per rules. The file, complete in all respects, be consigned to the Records.
ANNOUNCED & SIGNED IN THE OPEN FORUM;
Today this the 21st day of January, 2015.
( B.R. Chandel)
President
(Manorma Chauhan) (Pawan Kumar)
Member Member
