Haryana

Bhiwani

CC/114/2016

Harish Kumar - Complainant(s)

Versus

Ms.Jain - Opp.Party(s)

A.L hans

25 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.

 

                  Consumer Complaint No. : 114 of 2016

                  Date of Institution             : 01.06.2016

                                                           Date of Decision               : 25.01.2024

 

 

Harish Kumar son of Sh. Bihari Lal (deceased) through his son and legal heir:-

Sh. Akshit Kumar son of Harish Kumar R/o Krishna Colony, Bhiwani, Tehsil Bawani Khera, District Bhiwani. 

 

          ……Complainant.

 

Versus

 

1. M/s Jain Irrigation System Ltd. B-30, Shivalik Malviya Nagar, New Delhi-110017 through its Managing Director.

 

2. Mission Director, Haryana State Horticulture Development Agency, Udhyan Bhawan, Sector-21, Panchkula, Haryana.

 

….. Opposite Parties.

 

COMPLAINT U/S 12 OF CONSUMER PROECTION ACT, 1986.

 

BEFORE:     Mrs. Saroj Bala Bohra, Presiding Member.

Ms.  Shashi Kiran Panwar, Member.

 

Present:-      Sh. Jatin Hans, Advocate for complainant.

Sh. Devinder Singh Tanwar, Advocate for OP No.1.

Sh.Sanjeev, Clerk  on behalf of OP No.2.

 

ORDER

 

Saroj Bala  Bohra, Presiding Member.

 

1.                 Brief facts of the present complaint are that complainant is an agriculturist and he with the help of OP No.2, get installed a Poly house and a Net house from OP No.1 at his farms in the village Baliyali. In this regard, account code of complainant was 0000281542. Complainant has submitted that he worked as per the directions of OP No.1. Complainant has alleged that the Poly & Net houses were having many defects qua non-proper working of thermonet, its strings, choke of drip system etc. etc. So, complainant made complaint to OP No.1 but of no avail. Complainant has submitted in the month of June 2015, because of a storm, the Net & Poly house got huge loss. Complaint was made to OPs, followed by a written complaint dated 14.09.2015 to District Horticulture Officer, Bhiwani. Upon which, OPs/their representative came at the spot. OP No.2 vide letter dated 03.12.2015 directed the OP No.1 to remove the defects from the Net/Poly house within seven days but of no avail. So, complainant again made an application dated 28.12.2015 to D.H.O., Bhiwani but no action was taken by either of the OPs.  Complaint dated 13.01.2016 was also made on C.M. Window but no fruitful came out. Ultimately, complainant made a complaint dated 10.02.2016 to Chief Minister, Haryana, vide which, S.P. Bhiwani was directed to take action in the matter, upon which, a report qua loss to the poly/net house was prepared by the police whereby suggested to take action against OP No.1 and it was reported that maintenance contract of OP No.1 was for three years. As per complainant OPs did not pay any heed to his genuine requests rather by their connivance with each other, he has to suffer loss of Rs.17,00,000/- which includes loss of Poly & Net houses and crop. It has further stated submitted that  complainant had taken a loan from bank for installation of the Poly & Net  houses and due to such loss, he could not repay the amount of loan.  In the end, legal notice dated 01.04.2016 was issued to OPs but it was not replied. Hence, the present complaint has been preferred by complainant alleging deficiency in service on the part of OPs and to issue directions against the Ops to pay Rs.17.00 lac to the complainant alongwith interest @ 18% per annum, Rs.50,000/- for mental and physical harassment and Rs.11,500/- towards litigation expenses.

2.                 Upon notice, OPs appeared. OP No.1 appeared through counsel and tendered reply raising preliminary objections qua non-compliance of Section 13(1)(c) of C.P. Act, jurisdiction, maintainability, cause of action, locus standi, and the complaint being false and frivolous.  On merits, it is admitted that the answering OP installed the poly house and net house in his fields of complainant but the complainant did not adopt proper guidelines to maintain and lookafter the said house. It is denied that wrong material used in the house. It has submitted that after accepting estimates by complainant and then getting sanction from District Horticulture Officer (DHO) vide order dated 3707 dated 12.03.2013 answering OP deputed its manpower and resources for installation of the house in the field of complainant as well as his brothers on 4000 square meter area in the field of each and after installation of poly houses and net house, the complainant and his brothers were satisfied with the execution of work.  DHO also visited the spot thrice and found the work satisfactory. The complainant never made any grievance/representation to the company on this account and nor the concerned DHO except one time which was got rectified on the spot.   It is submitted that as per guidelines and instructions of Govt. of Haryana, 35% of total estimate cost of the work is paid by the farmer and remaining 65% cost by State Govt. subject to the condition that consent of that concerned farmer is given after his satisfaction of work.  In the present case, the guidelines was strictly complied and after giving the satisfaction report by complainant, he paid 35% of the total cost and 65% cost of estimate was released by the Govt. to the OP company.  Further, complainant as well as his brothers availed the facility of subsidy from the State Govt. to the tune of Rs.1,77,44,490/- in which the complainant has received 1/3^rd amount of subsidy.  Warranty of 3 years is involved after sales serve as well as in case of structure against manufacturing defect in cladding material used and lapse at the level of firm in case, any damage occurred in structure and/or cladding material due to non-removal of shortcoming by empanelled firm pointed out in inspection report, the empanelled firm will be held responsible. Complainant had made complaint in September 2015 for some normal damages due to natural calamity to poly house and net house, accordingly, the same were rectified. Moreover, despite rectification of defects in the said Poly house and Net house of complainant and his brothers, they committed a fraud and they claimed the insurance amount from the insurance company showing the same damages which were rectified by the answering OP company to the tune of Rs.12.00 lac in active connivance with his both brothers.  The OP has urged that it is legal bounden duty of the farmer concerned to get their structure and crop insured through insurance company. The complaint(s) made to CM Window etc. were found false. In the end, denied for any deficiency and prayed for dismissal of complaint with costs.

3.                 OP No.2 tendered reply raising preliminary objections qua locus standi, maintainability, non-joinder and mis-joinder of necessary parties and that  complaint is false and frivolous.  On merits, it is submitted that the answering OP given direction to OP No.1 to provide better facilities to the farmer and thus material supplied by the OP No.1 was of best quality. The damage caused to Poly house was due to heavy storm which is a natural calamity and the Ops are not responsible for the same. On receiving complaint, this OP written letter dated 19.01.2016 to OP No.1 to protect cultivation structure of the complainant but the OP No.1 did not take any positive steep in this regard. Hence, the answering OP has submitted that liability if any to be fulfilled by the OP No.1.  As such, there is no deficiency in service on its part and prayed for dismissal of complaint qua the answering OP.

4.                 In evidence of complainant documents Ex P-1 to Ex. P-23 were tendered on 05.06.2017 and closed the evidence. However, documents Annexure C-24 to Annexure C-27 were also tendered on 24.01.2019.

5.                In evidence of OP No.1 affidavit of Sh. D.K. Saraswat, Manager of OP No.1 firm as RW1 was filed on 24.01.2019.

6.                In evidence of OP No.2 affidavit of Sh. Heera Lal, DHO Ex. RW1/A alongwith documents Annexure R-2 to Annexure R-29 tendered and closed the evidence on 11.12.2018.

7.                 Documents Ex.R-30 & Ex. R-31 have also been filed in evidence of OPs on 31.01.2019.

8.                 We have heard learned counsel for the parties as well as representative of OP No.2 and perused the record minutely.

9.                 Learned counsel for complainant has submitted written arguments submitting some document alongwith it viz. details of loss and Model Bankable Project on Protected Cultivation in Haryana (Model Project for Cucumber under Naturally Ventilated Polyhouse (NVHP)/NABARD etc. Complainant has also annexed No Dues Certificate with regard to ‘close’ of loan account No.65166698467 pertaining to him.

10.               It is admitted version of the parties that the Poly house and Net house was installed by OP No.1 under the permission and supervision of OP No.2. It is not in dispute that the area of the Poly & Net House was 4000 square meter each i.e. total 8000 sq. meter which is also clear from Ex.P-14.  It is also admitted case of complainant that there were minor defects in the said houses in its early days after installation but the same were rectified by the OPs.  Complainant has submitted that the houses were under warranty /guarantee for three years from the date of its installation. As per condition 9.1 of Tri Party Agreement-TPA-Poly Houses & Net Houses (Annexure R-2) “ Empanelled Firm shall provide at least 3 years after sales service as well as guarantee in case of structure, against manufacturing defect in cladding material used and lapse at the level of firm.  In case, any damage occurred in structure and/or cladding material due to non-removal of shortcoming by empanelled firm pointed out in inspection report, the empanelled firm will be held responsible.”  

11.               The OP No.2 in its written statement has admitted that “………The damage caused to Poly house was due to heavy storm which is a natural calamity and the Ops are not responsible for the same.  On receiving complaint, this OP wrote letter No.7792 dated 19.01.2016 to OP No.1 (Ex.P11 on file) to protect cultivation structure of the complainant but the OP No.1 did not take any positive step in this regard. Hence, the answering OP has submitted that liability if any to be fulfilled by the OP No.1.” 

12.               Complainant has drawn our attention towards a letter dated 17.02.2016 wrote by District Horticulture Officer to Mission
Director, HSHDA, Panchkula (Ex.P-14) whereby several shortcomings have been pointed out in the Poly & Net houses and requested the Director Mission to take action in the matter. Photos of the spot were also sent with this letter.  The report of police of P.S.Bawani Khera, District Bhiwani (Ex. P-15) has also placed on record which speaks about huge loss to the complainant.  Complainant in order to prove his loss has placed on record a details of loss with the written arguments which brought into the notice of OP side. The details of loss suffered by complainant from 14.09.2015 to 13.09.2016 is hereby reproduced:-

                    Poly House                      :         In 4000 Sq. Meter

                    Crop                                 :         Cucumber

Estimate loss                    :         7,98,888/- as per (Model  

Bankable Project on Protected Cultivation in Haryana, referred above.

                   

                    Loss to infrastructure         :         Rs.2,50,000/- for Non-

functioning Fogger, Thermal Net, Drip, Wires etc.

 

                    Net House                        :         In 4000 Sq. Meter

                    Crop                                 :         Rose

Estimate loss                    :         5,48,016/- – 70,000/-(sale)=

Rs.4,78,016/-

                   

                    Loss to infrastructure         :         Rs.1,50,000/- for Non-

functioning Fogger, Thermal Net, Drip, Wires etc.

 

                    Litigation Expenses         :         Rs.35,000/-

         

                              Total Loss              :         Rs.17,11,904/-

 

13.               On the other side, learned counsel for OP No.1 has argued that as per condition no.10 ‘Other Terms’ of Tri Party Agreement (Annexure R-2), OP No.1 is not liable to compensate the complainant in any manner. Conditions thereunder further says that (10.2) ‘Empanelled firm is not responsible for any consequential damages/liabilities beyond the control of the Empanelled firm.’ (10.5) ‘Farmer should not lodge any false complaint/claim or to create any unpleasant situation and try to settle differences and disputes if any amicably and as far as possible at local level through concerned DHO and/or in-charge of empanelled firm.’  (10.7) ‘In case of any dispute amount DHMIU, farmer and Empaneled firms, Additional Director Horticulture, Haryana will act as arbitrator to settle the dispute.’ 10.8 ‘Director General Horticulture, Haryana will be appellant authority in case the dispute is not settled through arbitrator.’  The counsel has further argued that the complainant is also not entitled for any compensation from the OPs on the score that he alongwith his brothers have already received subsidy of Rs.1,71,74,490/- from the Govt. qua the present matter. The counsel has drawn our attention towards a document Annexure R-5 whereby work of OP No.1 firm has been shown as completely satisfactory from the period 30.01.2015 to 20.02.2015.  However, the counsel for OP No.1 has urged that in case of any liability to pay compensation to the complainant, it should be fulfilled by the insurance company engaged by the complainant, if any.  As such, the counsel for OP No.1 has vehemently argued that the complaint is having no iota of substance and it may be dismissed with exemplary costs.

14.               After hearing learned counsel for the parties and going through the entire record minutely, we are of the considered view that the OP No.1 company has not provided proper services to the complainant as well as has used the low quality product while installing the Poly House and Net House.  The arguments of learned counsel for OP No.1 that in terms of condition no.10 of Tri Party Agreement, it is not liable for any damages etc., is not tenable since  condition no.9 of this agreement provides three years warranty/guarantee against any manufacturing defect in cladding material etc. and empanelled firm has been held responsible for such shortcomings. Further the subsidy allegedly received by the complainant is not for the loss occurred by complainant(s) rather it was provided under the scheme for poly/net houses by the govt. whereas through the present complaint, complainant is seeking compensation on account of low quality material used by the OP No.1 firm and thereby caused loss to his farm production. During the course of arguments learned counsel for complainant has also placed on record some documents which contains 17 pages taken on record as Mark-CX.  We are hereby referring the representation made by complainant to C.M. Haryana, whereby he has apprised about act & conduct of OPs as well as loss caused to him in the poly/net houses as well as in production in farms about Rs.50.00 lacs to complainant and his brothers. Whereupon, the matter was referred to S.P. Bhiwani for investigation, who vide his letter no. 20929 dated 05.07.2016 reported the C.M. Haryana that the allegation levelled in the representation were true and correct. In totality of the facts and circumstances of this case, we assess that the complainant has suffered the alleged loss. It is pertinent to mention here that the OP No.1 company was working under the instructions of OP No.2 but this OP failed to get the work done from OP No.1 which definitely has caused monetary loss as well as mental and physical harassment to the complainant. Therefore, both the Ops are deficient & negligent in providing proper services to the complainant and has also adopted unfair trade practice. Hence, the complaint is allowed and both the OPs, jointly and severally are directed to comply with the following directions within 40 days from the date of order:-

1. To pay a sum of Rs.17,11,904/- (Seventeen lacs eleven thousand nine hundred four) to the complainant Akshit Kumar being L.R of deceased Harish Kumar alongwith simple interest @ 6% per annum from the date of institution of the complaint till its actual realization.
2. To pay Rs.30,000/- (Rs. Thirty thousand) on account of harassment suffered by complainant at the hands of OPs.
3. To pay Rs.10,000/- (Rs. Ten thousand) as litigation expenses.

                    In case of default, the OPs shall liable to pay simple interest @ 9% per annum on all the aforesaid awarded amounts for the period of default. Certified copies of the order be sent to parties concerned, free of costs, as per rules. File be consigned to the record room, after due compliance. 

Announced.           

Dated: 25.01.2024.

(Shashi Kiran Panwar)              (Saroj Bala Bohra)

.                                     Member                              Presiding Member

District Consumer

Disputes Redressal

Commission, Bhiwani.