Haryana

Sonipat

CC/264/2015

VISHAV DEV S/O SURAJMAL BAL - Complainant(s)

Versus

PHULAR AGROTECH - Opp.Party(s)

I.S. SEHRAWAT

03 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.264 of 2015

                                Instituted on:06.08.2015

                                Date of order:03.06.2016

 

1.Vishavdev son of SurajmalBal

2.Dayanand son of Sh. Suraj Mal

3.Smt. Malti Devi wife of Ram Chander, all residents of village Baghru, tehsil and distt. Sonepat.

                                                      ...Complainants.

 

                        Versus

 

 

1.Phuar Agrotech WZ-75, Todapur, near Inderpuri, New Delhi through its Managing Director.

2.District Horticulture Officer, Sonepat. 

                                                      ...Respondents.

 

COMPLAINT UNDER SECTION 12 OF       

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Sunil Sehrawat Adv. for complainant.

          Sh. Love Kumar, Adv. for respondent no.1.

           Sh.JS Kaushik, Adv. for respondent no.2.  

           Sh.Rajinder Singh for respondent no.2 in person as well.

 

 

BEFORE     NAGENDER SINGH, PRESIDENT.

          PRABHA WATI, MEMBER.

 

         

O R D E R

 

       Complainants have filed the present complaint against the

respondents alleging therein that in the year 2013, the complainants have constructed three poly houses at their agriculture farm situated within the area of village Baghru, tehsil and distt. Sonepat.  These poly houses were constructed through the subsidy scheme of respondent no.2 and were to be by respondent no.1 under tri party agreement.  The respondent no.1 has used very poor material in skirting sheets, roll up curtains, rolling pipes and covering plastic ropes while constructing the structure of the poly house which resulted into huge crop loss due to entry of insects/pests and temperature drop etc. in winter season as climate in the poly house could not be secured.   As per tri party agreement, the manufacturer company shall provide three years guarantee of material, structure and the authorized representative of MIS supplier shall carry out the repairs or the replacement of instrument/compotent within 7 working days of the receipt of the complaints in writing from the farmer or through DHMIU.  It is submitted that since June 2014 the complainants made several complaints to the manufacturer as well as respondent no.2 through e-mails and telephonically, but of no use and due to this, cucumber crop, tomato and capsicum in the said poly house has completely destroyed and the complainants have suffered a huge loss of Rs.19 lacs at the hands of the respondents. Thus, they have come to this Forum and has filed the present complaint.

2.        The respondent no.1 and 2 have appeared and they filed their written statement separately.

          The respondent no.1 in its written statement has submitted that  the complainant has constructed three poly houses on their agriculture farm under the subsidery scheme, horticulture department, Govt of Haryana. The firm Phuar Agrotech is on penal of horticulture department of Haryana and work on behalf of horticulture department of Haryana.  There is triparty agreement between the respondent and complainant.  The company used good quality of material in skirting sheets, rollup curtains rolling pipes and covering plastic ropes while constructing the structure of poly houses. After the construction of these ppoly houses, DHO Sonepat and Horticulture Deptt, Haryana, Panchkula inspected these poly houses and after this inspection, complainant has given his satisfactory letter to  the DHO Sonepat about the quality working construction of poly house.  After that DHO Sonepat has passed the construction amount of these poly houses i.e. 65% given by the Horticulture Department Haryana and 35% given by the complainant to the firm.  It is clear in the triparty agreement that the firm shall provide a guarantee of material from manufacturer and atleast 3 years after sales service as well as guarantee in case of structures, against manufacturing defect in cladding material used and lapse at the level of firm.  In case, any damage occurred in the structure and or cladding material due to non-removal of shortcomings by firm pointed out in inspection report, the firm will be held responsible.  The complainant has concealed the material facts from the Forum that MIS System is not install by Phuar agrotech, MIS work is main work in poly houses which deals with irrigation system.  In these poly houses, MIS work is install by Netafim company which is also on penal of Horticulture Department, Haryana.   On 5.7.2014, after the complaint of the complainant, the firm repair the broken structure, pipe and all plastic wire which were broken were changed by the company.  On the said repair, Rs.90,000/- was spent, but the complainant pay to firm only Rs.47000/- and Rs.43000/- are still balance towards the complainant.  The complainant has never submit the expert inspection report about the loss of Rs.19 lacs.  According to the triparty agreement, as per clause 7.5 that DHO and firm shall not be responsible for cropping plan, yield, crop damage etc. arising out of either delay in installation of structure or after handing over the structure to the complainant-farmer.  The complainant has filed the false complaint with malafide intention only to escape him form the loan and to avoid the payment of balance amount.  There is no deficiency in service on the part of the respondent no.1 and the complainant is not entitled for any relief and compensation and thus, prayed for the dismissal of the present complaint qua respondent no.1.

          The respondent no.2 in its written statement has submitted that as per triparty agreement, the firm shall provide guarantee of material from manufacturer and atleast three years after sales service as well as guarantee in case of structures, against manufacturing defect in cladding material used and lapse at the level of firm.  In case any damage occurred in the structure and/or cladding material due to non removal of short comings by firm pointed out in inspection report, the firm will be held responsible.  The authorized representatives of the firm shall carry out the repairs or the replacement of part/compotent within 7 working days of the receipt of the complaints in writing from the farmer.  It is also mentioned in the agreement that DHO and/or firm shall not be responsible for cropping plan, yield, crop damage etc. arising out of either delay in installation of structure or after handing over of structure to the farmer.  The complainant is not entitled for any relief and compensation and there is also no deficiency in service of any kind on the part of the respondent no.2 and  thus, prayed for the dismissal of the present complaint qua respondent no.2.

3.        We have heard the arguments advanced by the ld. Counsel for both the parties at length and we have also gone through the entire relevant material available on the case file carefully & minutely.

4.        In the present case, the complainants to prove the deficiency in service on the part of the respondents, have placed on record the documents i.e. photographs Ex.16(A) to Ex.20(A) and Ex.C21 to Ex.C28.

          To ascertain the genuineness of these photographs, vide order dated 10.03.2016, Shri Rajeev Chopra, Advocate was appointed as local commissioner in the present case with the direction to  visit the spot and to report whether Ex.16(A) to Ex.20(A) and Ex.C21 to Ex.C28 are the genuine photographs or not.  The local commissioner was also directed to take the photographs of the spot.

          The Local Commissioner has submitted his report before this Forum on 31.03.2016, wherein he has mentioned that he has visited the spot in question on  17.3.2016. As per the report of the local commissioner, he visited at the site alongwith counsel for the complainant and one photographer, counsel for the respondent no.1 and Sh. Ajit Singh on behalf of respondent no.2.  The local commissioner identify and confirm the site in dispute and took the photographs of the spot where the aprons, ropes and top vent curtains of the poly houses are degraded or torn or damaged.  Somewhere cover of the poly houses were repaired by the farmer manually as shown in the photographs.

          Objections to the report of local commissioner were filed on 31.3.2016 itself by the respondent no.1.  It is mentioned in the objections that the local commissioner was appointed only to inspect the photographs which are on the court that the same are genuine or not,. Further in his report, the local commissioner no where mentioned about the present position of these photographs.  On these three poly houses, crop is standing there, but the local commissioner has never mentioned about these crops.  In these poly houses, maximum damages are repaired by the firm, but the local commissioner has not mentioned about this fact.  The photographs Ex.LC-1 to Ex.LC-31 are other than these photographs which are on the court file.  Thus, prayed to ignore the local commissioner’s report and order to appoint any other local commissioner may be passed and the respondent no.1 is ready to pay the local commissioner’s fees.

          We find no force in the objections filed by the respondent no.1 against the report of the local commissioner.

          Now coming to the merits of the case.  The main question arises for consideration before this Forum is whether the complainants are entitled for any compensation or not, and if so, who is liable to compensate the complainants?

          We have perused the documents Ex.C6 to C11 i.e. Monitoring/Complaint report submitted by Horticulture Department, Haryana.  In document Ex.C6, Ex.C8 and Ex.C10 the name of the officer is mentioned as Ajit Singh and observation of the officer is “Poly House needs to be repaired”.

          Similarly, as per document Ex.C7, Ex.C9 and Ex.C11, Shri Uma Shankar has attended the complaint of Vishav Devi, Smt. Malti Devi and Dayanand.  In the column of Suggestions provided by the visiting officer, it is mentioned that “ matter settled amicably between the farmers and official of the company regarding repair of the poly house”.

          But it is very sorry state of affairs that despite this, the respondent no.1 has not taken any step regarding repair of the poly house of the complainants and remained reluctant and that amounts to a grave deficiency in service on the part of the respondent no.1.

          The perusal of the reply submitted by the respondent no.1 shows that there is admission on the part of the respondent no.1 that on 5.7.2014, after the complaint of the complainant, the firm repair the broken structure, pipe and all plastic wire which were broken were changed by the company.  In our view,  this plea of the respondent no.1 seems to be vague, because thereafter also, the respondent no.1 has failed to repair the deficiencies of the poly house of the complainant.

          Further the perusal of the case file shows that on 10.3.2016, Shri Love Kumar Adv. for respondent no.1 has made a statement that if the photographs 16(A) to Ex.20(A) and Ex.C21 to Ex.C28 are found genuine, then the company is ready to repair the same.

          The complainants have claimed Rs.19,50,000/- towards the loss of crops and under the head of harassment, mental agony etc.

          In our view, the above said claim of the complainants is on a very higher side, excessive and exorbitant.  However, in our view, Rs.70,000/- each (Rs.seventy thousand each) would be an adequate compensation to be granted to the complainants from the respondent no.1 firm.  Thus, we hereby direct the respondent no.1 to pay compensation to the complainants to the tune of Rs.70,000/- each (Rs.seventy thousand each) for causing loss to the crop of the complainants and for rendering deficient services, harassment and under the head of litigation expenses.  The respondent no.1 is also directed to do the work of repair and replacement in the poly house of the complainants without charging any amount.

          With these observations, findings and directions, the present complaint stands allowed qua respondent no.1 since we find no deficiency in service on the part of the respondent no.2.

          Certified copy of this order be provided to both the parties free of cost.

File be consigned to the record-room.

 

 

(Prabha Wati)                   (Nagender Singh-President)

Member DCDRF                        DCDRF, Sonepat.

 

Announced: 03.06.2016