Karnataka

Bidar

CC/65/2012

Jayan Kumar S/o Narsing Rao - Complainant(s)

Versus

Manager Sales and Marketing John deer India ltd Bangalore - Opp.Party(s)

Padma M.

25 Mar 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 65/2012

 

                                                                                                  Date of filing : 21/07/2012

 

                                                                                             Date of disposal : 25/03/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:      Jayanth Kumar, s/o Narsing rao Bemalkhedkar,

                                       Age: 46 years, Occ: Agriculture,

                                       R/o Sharada complex Khadi Bhandar road,

                                       Opp: Govt. Laboratory,Bidar.

 

              

 

 

                                (By Smt. Padma M.,Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-     1. Manager, Sales and Marketing

                                       ( for state of Karnataka) John Deer India Pvt. Ltd.,   

                                    Mr. Sharanabasava Nandanna 108/4, first main,

                                       Wadia Layout, Vijayanagar,Bangalore.

 

                                    2. M/s Keshav Enterprises,
                                        Prop. Mr. Sai Kumr. BVB College, road,

                                     Bidar.

 

                                  3. John deer India pvt. Ltd.

                                         Unit John Deer Water, 7^th floor,

                                         ‘Onyx’ North, main road, Koregaon park,

                                       Pune-411001, India.

 

 

                                     4.  Rivullis Irrigation India Pvt.Ltd.,

                                          First Floor, Surya plaza 214, LBS road,

                                          Navi Peth, Pune-411030. 

  

               ( O.P.no.1 & 3 By Shri. Dhulappa Biradar, Adv., since retired)

                                  (O.P.no.2 & 4 By Shri.Balaji Kanjikar,Adv. )

 

             

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint filed by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.Ps. The sum total of his allegations are as follows:-

 

 

2.           The complainant is an agriculturist by profession and he owns agricultural lands to the extent of 7 acres.  In order to fully irrigate his lands bearing sy.no.222/2 to 223/5 situated at Gadgi village                          Tq. & Dist.Bidar by way of drip irrigation system, he had approached the O.P.no.2 local dealer of O.Ps 1 and 3 of John Deer company and accordingly, the O.P.no.2 gave quotation for implementation of the said project, based on which the complainant availed loan to the tune of Rs.5,00,000/-, out of which the complainant had paid Rs.4,00,000/- to O.P.no.2 and also paid another sum of Rs.2,11,567/- personally to the O.P.no.2 on 28/01/2012 for implementation of the said project of drip irrigation system of John Deer Company.  Thereafter the project was delayed and ultimately it was implemented on 20/03/2012.  Further, complainant avers that the O.Ps were required to use product of John Deer Company only for the said project.  But, subsequently it was found that, the products used by the O.Ps were not of the said company. The pipeline used by the O.Ps is of  Gray products.  As per the contract, the O.Ps had to execute sub surface drip irrigation, but the product  were used by the O.Ps on surface drip irrigation  because of which, the span of  life of the pipeline would be less and the complainant, who has made the irrigation for long term return, has sustained loss and further the drip irrigation pipeline laid down by the O.Ps is defective one for which, the complainant could not provide water to the entire extent of the land. Thereby he has suffered loss of Rs.4,00,000/-.  The complainant had approached O.P.no.1 to replace the said drip irrigation system and the O.P.no.2 though initially agreed to replace,  started delaying  implementation.  So, the complainant got issued a legal notice to the O.P.no.1, complaining against the act of O.P.no.2 on 02/05/2012, for which the O.P.no.1 sent on irresponsible reply.  Therefore the complainant is constrained to file this complaint against the O.Ps, seeking directions to replace the drip irrigation pipeline, which is defective and not laid in sub surface condition.  Pipelines  were not of John Deer Company which has to be replaced.  The complainant also  claims damages of Rs.4,00,000/- for the loss suffered by him.

 

3.              On service of Court’s  notice the O.Ps.no.1 to 4 have appeared through their counsel before this Forum.  O.P.no.4 has not filed written version and O.P.no. 1 to 3 have filed their detailed written version.  The O.P.no.2 in his written version has admitted that the complainant had approached for laying drip irrigation system in his land through John Deer Company, of which he is a dealer and also admitted about issuance of quotation in that regard to the complainant.  But, according to O.P.no.2, he has received only Rs.4,00,000/- for the project from the complainant and since the complainant was well known to the  O.P.no.2, at his request, he had issued quotation  for excess amount and he had also issued a receipt for having obtained Rs.2,11,567/- extra  in order to enable the complainant to get more loan from bank, though he has not received the said amount.  But, now the complainant by utilizing the said quotation  is trying to harass the O.P.no.2.  Further O.P.no.2 has denied the allegations that, the drip irrigation pipelines laid by the O.Ps. are defective  and that he has not used the John Deer Company products for the said system and that he has not laid the sub surface pipeline as agreed to and thereby complainant has suffered loss etc.  He claims complaint averments are  totally false and baseless.  According to the O.P.no2, he has laid the products for drip irrigation in the land of the complainant only of John Deer Company and the project implemented by the O.Ps is running smoothly and the complainant is using the same for his crops and there is no question of his sustaining any loss and just in order to escape from liability of payment of the bank loan, the complainant has filed this false complaint.  According to O.P.2, the said project was undertaken after showing all the materials, which were used, belonging to the John Deer Company   to the complainant and after his full satisfaction only, the complainant had allowed the O.Ps for implementation of the said project and therefore, there is no deficiency in service on the part of the O.P.no.2 and so he prays that, the complaint is liable to be dismissed.

 

4.            O.P. no.1 and 3 further avered that, the complainant’s allegation that the complainant delayed work is also baseless.  Similarly the complainant’s allegation that due to alleged delay the complainant incurred loss as alleged is false and baseless.  Assuming admitting that the complainant could not achieve the maximum yield as per his desire the stated that the complainant has no right to blame the O.P. for his failure to achieve the maximum yield of sugarcane.  The yield of sugarcane depends upon various factors, such as genetic factors of seeds/billets, agronomic practices, pathological entomological and climatic conditions.    In absence of any material to substantiate the complainant’s allegation of lesser amount of yield, etc.  the complainant cannot claim monetary compensation and/or file the present complaint agains the O.P. for recovery of his monetary claim.  The allegations made in para 3 & 4 of the complaint, false and denied.  The O.P.no.2 is the authorized Dealer of the John Deere and he used only John Deere pipi-line.  The quotation given to the complainant was of John Deere make Hydro drip which was accepted by the complainant and submitted to his Bank as well.  The product Hydro drip could be used for both i.e. surface water drip irrigation and sub-surface drip irrigation.  The entire installation was made and done in presence and in consultation with complainant.  He has accepted and in fact a demo was also given to him with full information.  However, now with the ulterior motives, the complainant is approaching this Forum to extract money form the O.P. and to cover lapses on his side.  The allegation made in   para no. 5 to 15 are denied.  There is no privity of contract between these O.P.no.1 and the complainant the relationship between these O.Ps and O.P.no.2 is  of principal to principal in nature and not that of principal and agent, so, the complaint as against these O.Ps is not maintainable. Therefore, the complaint filed by the complainant is liable to be dismissed with compensatory costs.

 

5.               Both the sides have filed their evidence affidavits and written arguments together with photographs and documents reiterating their respective contention.  The documents relied upon are described at the end of the order.

 

 

 

6.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

2. Is there any element of unethical trade practice?

 

3. What order ?

 

 

7.           Our answers to the points stated above are as follows:-             

 

1. Affirmative in part.
2. Negative in the part of O.P.No.2

               2.  As per the final order, for the following:

 

 

 

 

 

 

 

:: REASONS ::

8. Point No.1:-  This case is having an exceptionally, quizzical chequered past, which resulted in the delayed disposal of the case.  At the threshold taking into consideration the rival contentions of the feuding parties, this Court allowed on I.A. filed U/s. XXVI Rule 9 C.P.C. by the complainant on 16/03/2013 and appointed the Asst. Executive Engineer of Minor Irrigation department to be appointed as Court Commissioner to conduct a spot inspection and ascertain as to whether the O.Ps have installed the drip irrigation system of M/s John Deer added with pipe lines of the same entity.  The commissioner so appointed had filed his report on 06/04/2013, which discloses that, the apparatus of the drip irrigation system were of M/s John Deer, other controlling equipments were of M/s Raj and M/s Arech and the pipelines laid laterally were from M/s Finolex.  The report further disclosed that the lateral pipelines were laid on the surface.  Questionnaires were put to the Commissioner, who reiterated the above descriptions, but had lastly quoted that, the concerned department did not have expertise in drip irrigation system and it was suggested by him to avail assistance of the Agriculture or Horticulture Department.  The Commissioner’s report  came to rejected on 22/02/2014 and directions were issued to appoint a technically expert engineer of the Z.P. to be named by he C.E.O. as commissioner.

 

9.               On 05/04/2014, memo of instructions were filed for the second commissioner and fees being remitted on 16/04/2014, warrant was issued.  The 2nd Commissioner’s report was taken into record on 07/06/2014 and case was being adjourned from time to time for objections to the report and arguments thereafter.

 

10.         On 13/08/2015, the O.P.no.2 only filed objections to commissioners’ report.  On cursory glance it was found that the commissioner in column 9 of his report had expressed his lack of expertise in the instant matter, whereby the report was rejected vide orders dt. 01/09/2015 and the Advocate for the complainant submitted to take fresh steps for appointment of a commissioner from the relevant Government department.  Oblivious of his earlier commitment the complainant’s counsel moved an I.A. U/s.151CPC to review the order rejecting commissioner’s report.  The copy never having served on the O.P’s side, the I.A. could not be disposed off.

 

11.                   On 20/10/2015, the case once again took a new turn.  The learned counsel of O.P.no.1 and 3 filed memo withdrawing vakalath further revealing that, M/s John Deer has since merged with a new  entity.  The complainant’s counsel remaining absent, directions were given to find out the said new entity and take steps against the same.  The learned counsel continuously remained absent from the proceedings till 27/02/2015 and on that day fresh vakalath was filed by Smt. Padma Maharaj with N.O.C. for the complainant.  The zig-saw puzzle continued up to 17/06/2016 on which day the complainant’s counsel revealed the new entities name as M/s Rivullis Irrigation (I) Pvt. Ltd. and filed I.A. to implead the said company.  I.A.  filed to implead M/s Rivullis and the same being allowed, P/F was paid and notice was issued to the freshly impleaded O.P.no.4.  

 

12.        On 14/11/2016, the newly impleaded O.P.no.4 appeared through an Advocate and filed memo to adopt the versions of O.P.no.1 and 3 filed earlier.  The case was adjourned to 21/11/2016 and then to 29/11/2016 for final arguments, on which day the parties addressed the arguments not budging from their earlier stand points.                                                                                                                                                                                                                                                                                                                                                                                        

 

13.                It was a hobsons’s choice before the Court to adjudicate the matter without an appropriate technical appraisal for which suo motto order was passed appointing the Joint Director of Agriculture, Bidar to conduct spot inspection and report.  Said officer, filed his report on 21/01/2017 with photographs of the spot, state Govt’s prescription on the installation of drip irrigation equipments and other components to be used.  From the photos it was observed that, during the pendency of the case, fully aware of the impeding commissioner’s inspection the complainant has removed all the lateral pipes earlier laid and the same were kept in heaps on open ground.

 

14.               The corollary of events described herein, leads us to an inevitable inference that, while in one hand, the complainant has been clamouring for justice, alleging deficiency of service, on the other hand has been quixotically instrumental to destroy all material evidences form the spot, fully knowing that, an expert has been commissioned to conduct a spot survey.  We deplore such preposterous action of the complainant and decide that, he should be accountable for his whimsical actions.

 

15.                 Still, we don’t wish to wash off our hands off imparting the substantial justice.  While doing so, in view of the high technicality of the matter, we sit down to examine the evidences filed by the O.Ps first.  Ex.R.3 to R.12 are color photographs of the activity of installation of drip irrigation system on the spot.  A cursory glance into the photos reveal that, contrary to the basic agreement of the parties of installing the systems by laying irrigation pipes sub surface, the same has been implemented by the O.Ps in most half hazard and callous manner.  The  pipes laid are not entirely subsurface but are visible on the surface albeit partially to the naked eye, exposing them to scorching sunrays and other vagaries of nature limiting the life span. It is of course true, when polyurethene pipes laid underground, also gets exposed to minerals and chemicals mingled with the soil, corrosions ensue over a period of time but the effects of the second exposure would be far less than of the first.  We also read into the lines of Ex.R.2 ( Commercial terms and conditions) in which, the complainant in para 3 was required to carry out the trenching work interalia for laying the irrigation pipes.  Both sides are silent as to whether such trenching  was done by the complainant or not.  Hence it can be safely held that, both sides have been complacent abinitio to perform their part of assignments and the negligence has to be apportioned between them.  Thereby we hold point no.1 to be partially affirmative.

 

16.        In the complaint, it has been alleged that, the O.P.no.2        (dealer ) has received an extra amount of Rs.2,11,567/- against a validly executed receipt for implementation of the project.  The O.P.no.2 has taken a defence that, he had executed such receipt on the deliberations and coaxing of the complainant to facilitate a higher bank loan without receiving any such payment.  We find it difficult to believe such a hollow claim of the O.P.no.2  No ethical businessman is expected to grant such a receipt at mere coaxing of some one.  His act is bizzare  nature and he should be accounted for the same ordinarily.  We indulge to quote a judgement of Lord Dennings in the case of Lazarus       v/s Beasley, reported in All.E.R.1956-page-341 in which it has been held by his Lordship that,

            “  No action of a Minister, no order of a Judge would stand, if it has been obtained by fraud.  Fraud unravels everything”.

 

The above ratio in rem has been affirmed by all the Court of record in India and the Hon’ble Supreme Court in umpteen number of cases and more recently in the Vyyapan case and resultantly we hold that, the O.P.no.2 has resorted to extraneous extraction.  However, since the complainant has chosen not to seek any relief against the O.P.no.2.  We leave the matter as such without delving further.

 

17. Point No.3 :-  Weighing the pros and cons of the case, we come to a conclusion that, the complainant in one part and the O.Ps. no.1 & 3 and their alter ego opponent no.4 are responsible for the entire fiasco and the responsibilities are to be fixed in 50% apportionment and hence pass the following.

:: ORDER ::

                  The complaint allowed in part.

 

 

 

   

1.  Notwithstanding the quixotic action of the complainant in dismantling the laid pipelines for drip irrigation purpose, the O.Ps no.1,3 and 4 are severally and jointly directed to execute the project afresh, subject to payment by the complainant vide clause (b) of this order.

 

2. The complainant is required to deposit a sum of Rs.2,00,000/- in this Forum under intimation to O.Ps no.1,3 & 4 to be paid to them.  The O.Ps. 1,3 &4 would re-execute the drip irrigation system with John Deere mechanism and pipelines of “Supreme” make as prescribed by the state Government in irrigation department would have to be used laterally, subsurface.  The complainant would be required to dig the trenches at his cost.
3. Case against the O.P.no.2 stands dismissed.

 

4. Date of 31^st of May, 2017 is fixed for full implementation of this order by the O.Ps no.1,3 & 4 provided the complainant deposits the amount at para (b) within two weeks of this order under intimation to O.Ps 1, 3 & 4.

 

5. In the peculiar circumstances of the case.  There would be no order as to compensation or cost of litigation.

 

 

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 25^th day of  March-2017 )

 

 

 

 

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

Documents produced by the complainant

1. Ex.P.1- Copy of legal notice,dt.02/05/2012.
2. Ex.P.2-  Reply notice, dt.26/05/2012.
3. Ex.P.3- Statement of account.
4. Ex.P.4- John Deere water diagram map
5. Ex.P.5-John Deere water estimate for drip system  
6. Ex.P.6- Cash receipt, dt.27/01/2012.
7. ExP.7 to 26 Colour photographs.
8. Ex.P.27- Drip irrigation  video C.Ds   (2).

 

 Document produced by the Opponent/s

1. Ex.R.1- Estimate For Drip system.
2. Ex.R.2-Copy of letter addressed to complainant,dt.07/03/2012.
3. Ex.R.3 to R.12- 10 colour photographs which taken during the installation of drip irrigation system.

                 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                President.

mv.