KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.266/07
JUDGMENT DATED 22.09.2011
RESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. James Jacob,
Parakudiyil House,
Oonnukal P.O,
Kothamangalam.
2. Jose Jacob, -- APPELLANTS
Parakudiyil House,
Oonnukal P.O,
Kothamangalam.
(By Adv.Tom Joseph)
Vs.
1. M/s.Indian Potash Ltd.
No.727, Annasalai,
Chennai -6.
2. M/s.Indian Potash Ltd; -- RESPONDENTS
Kallanill, Pullepady Cross Road,
Ernakulam.
3. The Onnukal Service Co-operative
Bank Ltd; No.E.58,
Oonnukal O.O, Kothamangalam.
(R1 & R2 by Adv.Philip T.Varghese & Ors. and
R3 by Adv.P.V.Baby & Ors.)
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellants are the complainants and respondents are the opposite parties in CC.No.432/06 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in selling and distributing inferior quality muriate of potash. It was alleged that loss and inconvenience suffered by the complainants by use of the sub standard muriate of potash. The first complainant claimed compensation of Rs.60,000/- and the second complainant Rs.8,10,000/-.
2. The opposite parties 1 and 2 entered appearance and filed a joint written version denying the alleged deficiency in service. They contended that they are un-necessary parties to the complaint and they had no connection with the complainants in the sale and distribution of muriate of potash. They also contended that the third opposite party purchased muriate of potash from M/s.Southern Nitrogen Phosphate & Potash, Kolencherry and the said party is not a dealer of the opposite parties 1 & 2. The aforesaid dealer M/s. Southern Nitrogen Phosphate & Potash is an essential party to the complaint and the complainants have to proceed against the said dealer. Thus, the opposite parties prayed for dismissal of the complaint filed against them.
3. The third opposite party entered appearance and filed written version denying the alleged deficiency in service. They contended that the third opposite party purchased muriate of potash from M/s. Southern Nitrogen Phosphate & Potash, Kolencherry and also from M/s. Southern Organo Phosphate and Potash, Cherai, Kochi and that the said dealers produced Form “O” for carrying on business of selling fertilizers. The third opposite party purchased muriate of potash on the belief that the same is manufactured by the Indian Potash Ltd. The case of the complainants that the Banana and Pineapple cultivations were destroyed by the use of sub standard muriate of potash is not correct and that the cultivation could be destroyed due to pests infection, bad whether and other reasons. The third opposite party also denied the liability to pay compensation to the complainants. They also challenged the maintainability of the complaint on the ground of non joinder of necessary parties. Thus, the third opposite party prayed for dismissal of the complaint.
4. Before the Forum below, the first complainant was examined as PW1 and 2 witnesses were examined on the side of the complainants as PWs 2 and 3. The witness for opposite parties 1 and 2 was examined as DW1 and the Secretary of the third opposite party was examined as DW2. Exts.A1 to A3 and B1 to B12 documents were also marked.
5. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 18.5.07 dismissing the complaint in CC.432/06. Hence the present appeal.
6. We heard the learned counsel for the appellants/complainants and the respondents 1 and 2 (opposite parties 1 & 2). When this appeal was taken up for final hearing, there was no representation for the third respondent/third opposite party. The counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the complaint filed against the third opposite party Oonnukal Service Co-operative Bank Ltd; is maintainable and the forum below cannot be justified in dismissing the complaint by finding that the Forum below has no jurisdiction to entertain the complaint filed against the third opposite party/Service Co-operative Bank Ltd; It is further submitted that the opposite parties 1 and 2 M/s Indian Potash Ltd; being the sole importer of muriate of potash is to be made liable to compensate the complainants for the financial loss suffered by the complainants. It is also submitted that the Forum below failed to appreciate the evidence on record in its correct perspective. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below and to allow the complaint in CC.432/06. On the other hand, the counsel for the respondents 1 and 2 supported the impugned order passed by the Forum below. He argued for the position that the respondents 1 and 2 are un-necessary parties to the complaint in CC.432/06 and there was no deficiency in service on the part of the respondents 1 & 2. Thus, they prayed for dismissal of the present appeal.
7. The points that arise for consideration are:-
1. Whether the Forum below can be justified in holding that it has no jurisdiction to entertain the complaint in CC.432/06 filed against the third opposite party M/s. Oonnukal Service Co-operative Bank Ltd; Kothamangalam?
2. Whether there was any deficiency in service on the part of the opposite parties 1 & 2 in effecting sale of muriate of potash to the first complainant James Jacob?
3. Whether the complainants (appellants) have succeeded in establishing their case that their Banana and Pineapple cultivations were destroyed or damaged by the use of muriate of potash which was purchased from the third opposite party (third respondent) Oonnukal Service Co-operative Bank Ltd.
4. Is there any legally sustainable ground to interfere with the impugned order dated 18.5.07 passed by CDRF, Ernakulam in CC.No.432/06.
8. POINT NO.1
The Forum below has held that it has no jurisdiction to entertain the complaint in CC.432/06 filed against the third respondent/third opposite party M/s. Oonnukal Service Co-operative Bank Ltd. The Forum below relied on the decision rendered by the Hon.National Commission in Smt. Kalawati & Ors. Vs. United Vaish Co-operative Thrift & Credit Society Ltd I (2002) CPJ 71 (NC). It has held that by virtue of the provisions of Section 69 of the Co-operative Societies Act, the jurisdiction court and other authority is barred and the dispute between a member of the co-operative society and the co-operative society is to be entertained or adjudicated by the arbitration Court or the Registrar of Co-operative Societies. The Forum below has also distinguished the decision of the Hon. Supreme Court in Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. Lalita (dead) through L.Rs & Ors reported in (I (2004) CPJ I (SC) and held that the aforesaid decision (supra) has no application to the case on hand.
9. The learned counsel for the appellants/complainants argued for the position that the third opposite party had not raised any such contention regarding lack of jurisdiction and so the Forum below cannot be justified in holding that the Consumer District Forum has no jurisdiction to entertain a dispute between a co-operative society and its member or its members. It is to be noted that the Forum below was bound to consider its jurisdiction to entertain the dispute involved in a consumer complaint. Even if the other side did not rise such a contention regarding lack of jurisdiction, it is the bounden duty of the Consumer Forum to consider the issue regarding jurisdiction. So, the Forum below cannot be found fault with in considering the said issue regarding jurisdiction or lack of its jurisdiction.
10. Admittedly, the complainants are the members of the third opposite party Oonnukal Service Co-operative Bank Ltd. It is also not disputed that the third opposite party is a co-operative society coming under the purview of the Kerala Co-operative Societies Act, 1969. The first complainant who was examined as PW1 has categorically admitted the fact that he is a member of the third opposite party/society. It is also admitted by him that he purchased the manure (muriate of potash) from the third opposite party. The third opposite party in their written version and also in the affidavit filed by DW1 has also pleaded that th society sold muriate of potash to its members including the complainants. It is the case of the complainants that the muriate of potash purchased by them from the third opposite party/society was sub standard manure and by the use of the said sub standard manure their banana and pineapple cultivations were damaged and it resulted in financial loss to the complainants. On the other hand, the third opposite party denied the said case of the complainants that by the use of the manure banana and pineapple cultivations were damaged or destroyed. It can be seen that the said dispute is between a co-operative society coming under the provisions of the Kerala Co-operative Societies Act and its members. If that be the position, Section 69 of the Co-operative Societies Act would come into play.
11. Section 69 of the Co-operative Societies Act is as follows:-
69:- Disputes to be decided by Co-operative arbitration Court and Registrar - 1. Not withstanding anything contained in any law for the time being in force, if a dispute arises, -
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, a past members and deceased member and the society, its committee or any officer, agent or employee of the society; or
(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society affiliated to it; or
(f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or
(g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a society is or is not a member of the society; or
(h) between the society and a creditor of the society, such dispute, shall be referred to the Registrar for decision, and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute
Between the society and a creditor of the society; such dispute shall be referred to the co-operative arbitration court suit under Section 70 (A); in the case of known – non-monitory disputes and to the registrar; in the case of mandatory dispute and the arbitration court, or the registrar, as the case may be; shall decide such dispute and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
12. The aforesaid provisions contained in Section 69 of the Co-operative Societies Act bar the jurisdiction of courts and other authorities other than the Registrar of Co-operative Societies and the Co-operative Arbitration Court. Thus, by virtue of the aforesaid provisions contained in Section 69 of the Co-operative Societies Act, the jurisdiction of the District Forum is barred to entertain the dispute involved in CC.432/06. The Forum below has rightly relied on the decision in Smt. Kalawati & Ors. Vs. United Vaish Co-operative Thrift & Credit Society Ltd [ I (2002) CPJ 71 (NC)]. The Lower Forum can also be justified in not relying on the decision rendered by the Hon. Supreme Court in Secretary, Thirumurugan Co-operative Agricultural Credit Society reported in [I (2004) CPJ I (SC)] . There was no such provision in the Tamil Nadu Societies Act 1983 like the provision contained in Section 69 of the Kerala Co-operative Societies Act, 1969. When the jurisdiction of the District Forum is specifically barred under the provisions of an enactment; it is just and proper on the part of the District Forum in not entertaining the dispute involved in such a case. The materials available on record would establish the fact that the dispute involved in CC.432/06 is a dispute between a co-operative society constituted under the Kerala Co-operative Societies Act, 1969 and its member. So, the Forum below is perfectly justified in holding that it has no jurisdiction to entertain the dispute against the third opposite party/co-operative society. Hence this point is found against the appellants/complainants.
13. POINT NO:2
It is an admitted fact that the respondents 1 and 2 did not effect sale, supply or distribution of muriate of potash to the appellants/complainants. Ext.B2 to B11 documents would make it crystal clear that the third opposite party Co-operative society purchased muriate of potash from M/s Southern Nitrogen Phosphate & Potash, Kolencherry and M/s Southern Organo Phosphate and Potash. It is the definite case of the respondents 1 and 2 that the aforesaid dealers M/s Southern Nitrogen Phosphate & Potash, Kolencherry and M/s Southern Organo Phosphate and Potash are not their distributors and that the respondents 1 and 2 namely M/s Indian Potash Ltd, had no occasion to distribute muriate of potash to the aforesaid distributors. The first complainant who filed proof affidavit in this case has categorically averred in Paragraph 5 of the affidavit that the muriate of potash sold by the third opposite party Oonnukal Co-operative Bank Ltd was furiated and sub standard manure and the sale of sub standard muriate of potash by the third opposite party would amount to deficiency in service. The first complainant as PW1 has also admitted the correctness of the facts averred in Paragraph 5 of his affidavit. The third opposite party has also categorically contended that they were made to believe that the M/s. Southern Nitrogen Phosphate & Potash, Kolencherry and M/s Southern Organo Phosphate are the dealers of Indian potash. Thus, the facts, circumstances and evidence on record would support the contention of opposite parties 1 and 2 they are un-necessary parties to the complaint and that they had no role in effecting sale of muriate of potash to the complainants. So, the forum below is to be justified in dismissing the complaint filed against the opposite parties 1 and 2 namely M/s Indian Potash Ltd. Hence this point is found against the appellants.
14. POINT 3:-
The case of the appellants/complainants is that by the use of sub standard muriate of potash sold by the third respondent/third opposite party the complainants’ banana and pineapple cultivations were destroyed/damaged and as a result the first complainant suffered a loss of Rs.60,000/- and the second complainant Rs.8,10,000/-. But there is no evidence on record to show that th said cultivations were damaged or destroyed on account of the use of muriate of potash which was purchased by the first complainant from the third opposite party on 30.6.06. Ext.A1 cash bill dated 30.6.06 would show that the first complainant purchased 6 bags of muriate of potash from the third opposite party on a consideration of Rs.1,398/- and the said purchase was effected on 30.6.06. A2 series of certificates issued by the agricultural officers would only show that the banana and pineapple cultivations of the complainants were damaged. But there is no whisper in A2 series of certificates that the damage or destruction of the cultivations was due to use of the aforesaid muriate of potash which was purchased by the first complainant on 30.6.06. PWs 2 & 3 are the Agricultural Officers who issued A2 series of certificates. They have no case that banana and pineapple cultivations were damaged on account of the use of muriate of potash covered by A1 bill. On the other hand, PWs 2 & 3 have categorically deposed that they do not know the reason or cause for the damage to the banana and pineapple cultivations. Thus, the findings available on record would not show that the banana and pineapple cultivations of the complainants were damaged by the use of the muriate of potash which was sold by the third opposite party to the first complainant.
15. The first complainant in his proof affidavit has categorically deposed that he is in possession of one bag of muriate of potash which was purchased from the third opposite party “#B8UO [=TeUdTf )CW/Tda $\gTKW^ "[NL [[*EF^ %ta. But the complainants have not taken any steps to get the said muriate of potash tested by a competent authority or expert. Thus, in effect the complainants miserably failed in establishing their case that their banana and pineapple cultivations were damaged due to the use of muriate of potash which was sold by the third opposite party.
16. Appellants herein filed a verified petition dated 17.2.10 along with copies of 3 documents. One among the said documents is copy of the analysis report of fertilizer sample dated 9.11.07 issued by the Fertilizer quality control laboratory. The aforesaid analysis report of fertilizer sample would not give any indication that the damage to the crops was occurred due to use of the aforesaid muriate of potash. At the most the said report would only show that the fertilizer namely muriate of potash was sub standard. It is further to be noted that the aforesaid report cannot be accepted as such without any supporting evidence. The person who issued the said analysis report has not been examined in this case. No reason or ground is stated for non production of this report before the Forum below. It is also to be noted that the said report is dated 9.11.07 and the date of sampling was on 5.11.07. But the complaint herein was filed on 9.10.06 and the impugned order was passed on 18.5.07. As per the report of the Agricultural Officers they inspected the agricultural properties of the farmers during September and October 2006. There was nothing on record to show that they collected sample during November 2007. So, the aforesaid report cannot be taken into consideration while considering the deficiency in service on the part of the opposite parties. At any rate, it can very safely be concluded that the appellants/complainants could not establish their case that their banana and pineapple cultivations were destroyed or damaged on account of the use of the muriate of potash which they purchased from the third opposite party on 30.6.06. Thus, in all respects, the complainants claim for compensation on the ground of deficiency in service on the part of the opposite parties cannot be allowed. The Forum below has rightly dismissed the complaint in CC.432/06. The point is answered accordingly.
17. POINT NO 4;-
The forgoing discussions and the findings thereon would make it abundantly clear that there is no legally sustainable ground to interfere with the impugned order dated 18.5.07 passed by CDRF, Ernakulam in CC.No.432/06. The present appeal deserves dismissal. Hence we do so.
In the result appeal is dismissed. The impugned order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
