C.F. CASE No. : CC/11/64
COMPLAINANT : Tapan Tarafdar,
S/o Late Gour Chandra Tarafdar,
Vill. Ghugia Kalitala,
P.O. & P.S. Chakdaha, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Proprietor, Debshakti Agro Industries, Balia Branch,
Vill. Balia, West side of Chakdaha Balia High School
P.O. Balia, P.S. Chakdaha, Dist. Nadia
2) General Manager,
Agro Industries,
Vill. 10/463 Station Road,
Mitra Compound, near Giriza Math
P.O. West Midnapore
Dist. West Midnapore
&
Managing Director, Basudeb Ghosh,
Debshakti Agro Industries
Vill. Giridhari Chalk, bypass of National High Road,
P.O. West Midnapore, Dist. West Midnapore,
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT JHUMKI SAHA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 20th April, 2012
: J U D G M E N T :
In brief, the case of the complainant is that on 03.07.09 he purchased 500 pieces of Australian teak saplings from the OP in order to plant those on his land situated at Palagachha Mouza at Chakdaha. As per advice of the OP those saplings were planted. The OP told that he would take the charge of nursing those saplings and use pesticides as and when required. Though the OP visited the place 4/5 times, but did nothing. Within one year most of the saplings expired which was duly intimated to the OP by telephone or sending letter, but no step was taken by him. Thereafter, he met the OP at his local office and head office also on several days on 08.10.10, 17.11.10, 18.12.10, 24.01.11, and 26.02.11 with a request to take step for re-plantation of those saplings. But nothing was done on his part. Thereafter, he moved before the Consumer Affairs Department who duly served notice upon the OP, but on receipt of the same notice, the OP did not turn up. So there is a gross deficiency in service on the part of the OP. Hence, having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
Written version is filed by the OP, inter alia, stating that the case is not maintainable in its present form and nature. There is no denial by him regarding purchase of the Australian teak saplings from him by the complainant. But it is his submission that it is not at all correct that he only visited the place of the complainant 4/5 times within 2 months without doing anything. He never told the complainant that within 10 years all the trees would be grown up and by selling those trees he would get Rs. 10 to 12 thousand for each tree. It is his specific contention that he supplied the Australian teak saplings in good condition to this complainant and at the time of sale he also supplied one owners’ manual which included purchase agreement duly counter signed by the complainant and in that manual everything was stated about development regarding plantation and nursing of the saplings. On 28.02.10 he supplied 120 fresh saplings to the complainant free of cost. In the owners’ manual it is categorically stated that the company would not be held liable for the death of the plants if proper care was not taken by the owner. Besides this, ‘Annexure – 7 & 8’ documents were not sent to him, rather the complainant kept those in his custody. So there is no latches or deficiency in service on his part. Besides this, the complainant being a business man purchased those saplings in order to earn profit by selling those. So he is not a consumer as per provision of CP Act. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant a consumer?
Point No.3: Has the Forum any jurisdiction to try this case?
Point No.4: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written version filed by the OPs along with the oral and documentary evidences laid by the parties and after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant purchased 500 Australian teak saplings from the OP No. 2 on 03.07.09 at a price of Rs. 24,500/- vide ‘Annexure – 11’. Complainant’s specific case is that within a short period after purchase most of the plants expired which he intimated to the OP, but he did neither replace the dying plants nor take any care for nursing the living plants though at the time of purchase it was the contract that the OP would take care of the saplings after plantation on his land. Now the question is how far the complainant has become able to prove his allegation against these OPs. ‘Annexure – 11’ is the most important document in this case. In this document, there is purchase agreement and general terms and conditions of sale which was signed by the complainant also on the date of his purchase, i.e., on 03.07.09. In this agreement, at Point No. 8 it is stated that replacement will be made only based on reasonable reasons within two months of sale date to a maximum of 10% of total saplings. Complainant’s case is that though he intimated the OP regarding the death of most of the saplings but those were not replaced by the OP. From the documents filed by the complainant, ‘Annexure – 13’ it is available that on 28.08.09 the OP replaced A/I 12.0 unit saplings which means 120 pieces of saplings were replaced by him as from ‘Annexure – 11’ it is available that the total number of the units purchased by the complainant was 50.0 unit = 500. So we find from ‘Annexure – 13’ that within 2 months the OP replaced 120 saplings to the complainant as per provision 8 of the purchase agreement executed by and between the parties. We do also find that allegation of the complainant has no basis regarding nonsupply of new saplings to him. The complainant has also alleged that at the time of purchase the OP told him that he would look after the plants and also make arrangements of pesticide for nursing of the plants. In the purchase agreement there is no such clause. Rather provision 11 of the purchase agreement (‘Annexure – 11) shows that growth of plants depends upon the quality of soil and good management practices in the plantation field.
On a careful perusal of the provision, we hold that this management will be done by the complainant himself and he is the competent person to say about the quality of the soil. There is no document on the side of the complainant that prior to purchase of the saplings his soil was tested by an expert. ‘Annexure – 14’ shows that on 28.02.10 this OP visited the land of the complainant. Thereafter, on 05.09.10 he sent a letter to the OP agitating that no service was given by the OP in his land due to which his saplings became dead. In the guideline (Annexure – 12) issued by the OP, it is categorically stated that, 1) Plantation should not be at water lodging land, 2) Plantation should not be done alakaline and sailine soil, 3) Growth and development of the plants depend upon the soil quality and management procedure of the customer, 4) Customer should take proper care of the plants. So from ‘Annexure – 12’ we find that this guidelines are to be implemented by the complainant as a customer and not it is to be implemented by the OP. Complainant has stated that he made several representation to the OP on several dates, but to that extent no document is filed excepting ‘Annexure – 1’ dtd. 05.09.10. Therefore, in view of the above discussions and considering the facts of this case we hold that this complainant has not become able to establish and prove deficiency in service on the part of the OPs.
Ld. lawyer for the OPs submits that the complainant is not a consumer as he purchased the saplings for business purpose. Admittedly, in the petition of complaint no where it is stated by the complainant that he planted those saplings on his land to lead his livelihood. Rather at para-3 it is stated that within 10 years the plants would became big trees and by selling those he would get Rs. 10 to 12 thousand for each tree. The OP has agitated this point in the written version also. It is the settled law that as the complainant planted the saplings on his land for commercial purpose and not for his livelihood, so he is not a consumer in the eye of law. Besides this ld. lawyer for the OPs has submitted that this case is barred by jurisdiction also, as the office of the OP is situated at Midnapore which is out of jurisdiction of this Forum. OP No. 1 is the branch office of the OP No. 2 which is situated at Chakdaha, Dist. Nadia. But all the documents issued by the OPs show that those were issued from the office of the OP No. 2 situated at Midnapore. No transaction took place between the complainant and the OP No. 1 which is a branch office of the OP No. 2. Besides this, in the agreement form (Annexure – 11) at clause 10 it is categorically stated that all matters are subject to Midnapore jurisdiction. So considering all the documents filed by the complainant, we hold that actually the cause of action arose in Midnapore and not within the jurisdiction of this Forum.
In view of the above discussions and after hearing the arguments on both sides our considered view is that the complainant has not become able to prove his case. So he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/11/64 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
