Telangana

Mahbubnagar

CC/12/178

Ram Reddy S/o Anantha Reddy - Complainant(s)

Versus

Shivashankthi Bio-Plantiec Limited, - Opp.Party(s)

S.Narsi Reddy

25 Apr 2014

ORDER

                                                                                                            O R D E R

 

 (Sri D. Shankara Rao, Member)

 

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay a sum of Rs.5,00,000/- to the complainant towards compensation besides costs of the complaint.

2. The brief facts of the complaint are that the complainant is owner and possessor of agricultural land in Sy.No.27/A situated at Chinna Rajamur village of Deverkadra Mandal in Mahabubnagar District and having intention for plantation of ‘Banana’ plants. The opposite party under name and style Shivashakthi Bio-Plantiec Ltd., is being in plantation business of Mango, teak and banana etc., has approached to the complainant and assured him that they will provide banana plants and guidelines for its plantation.  Accordingly the complainant has booked 1500 banana plants for Rs.17,500/- @ each plant at Rs.11-66Ps., with opposite party on   28-02-2011. Thereafter the said banana plants were planted on  26-03-2011 in the land of complainant in Sy.No.27/A at Chinna Rajamur village by investing an amount of Rs.1,50,000/-, towards ploughing land, pesticides, fertilizers, labour and other infrastructures. The crop shall come within 9 months as per version of opposite party, but there is no crop till today. In this regard the complainant has visited the office of opposite party on several time for enquiry, but they are not responded. The complainant has been suffering with mentally and financially since he invested huge amount in plantation of banana crop.  As per terms and conditions of golden plantation, the opposite party company will provide A.O. Services and replacements at once in every 45^th day. The company also will provide land marking soil testing, 3 years warranty, and 50% free fertilizers and pesticides, but they have not followed the same. The opposite party acted in most negligent manner while dealing with the complainant, as such he has suffered loss and injury for which he is entitled to get compensation of Rs.5,00,000/- from the opposite party.

    The complainant has made an application before the Horticulture Officer, Atmakur for inspection of banana plantation.  Accordingly the said banana plantation was inspected on 08-09-2012 and made observations.  The Assistant Director of Horticulture – I has issued letter by mentioning said observations. The complainant has issued legal notice on 21-07-2012 to opposite party demanding an amount of Rs.5,00,000/- towards compensation.  Hence this complaint.               

3. The opposite party filed counter and stated that they supply the plants of Teak, Mango and saplings of Banana by sale but not plantation.  As per the need of complainant, he approached the opposite party and ordered for supply of Banana saplings vide order No.3219 and invoice No.3251 dated 28-02-2011 and after satisfying and verifying all terms and conditions mentioned in the order form only, he signed on the order Form. As per order the opposite party has supplied Banana saplings and informed that the crop shall come within 9 months subject to quantity and suitable soil, water and cultivation practice. The Field Supervisors of opposite party visited the complainant and noticed that the complainant has not maintained the banana plantation in a proper manner and the Field Supervisor advised for soil test but the complainant has ignored.  All the conditions and terms are shown in the order Form itself, which the complainant has signed acknowledging admission of said terms, but not alleged terms of golden plantation scheme which is all total false.  The application before the Horticulture Officer at Atmakur and his inspection is not within the knowledge of opposite party. Even the report of the Horticulture Officer is considered, there is no deficiency in service or defect of the opposite party found by officer.  The Assistant Director, Horticulture Department, Mahabubnagar informed the farmers to approach Scientist, Kovvuru for detailed root cause of the defects in the banana plantation. But the farmers have not taken steps.  Thus in the absence of Scientist opinion, it cannot be said that the samples are defect one. The alleged observations of Horticulture Officer are not correct, hence denied.  The opposite party gave detailed reply on 28-11-2012 to the legal notice dated 21-07-2012.  The said reply notice was served on counsel for the complainant but the same is suppressed in the present complaint.  The complainant did not adhere to the correct practice of cultivation, manuring, watering and application of pesticides and failed to prove that there is deficiency in service on the part of opposite party, as the onus to prove the same lies with the complainant. This Hon’ble Court has no jurisdiction to entertain the case in view of assured terms mentioned in the agreement of sale signed by complainant. It is denied that the complainant having own land in his possession situated at Chinna Rajamur village of Deverkadra Mandal, Mahabubnagar District for want of knowledge. All other allegations are denied. The complainant has suppressed real and material facts and the complaint is liable to be dismissed.         

4. During enquiry, the complainant filed his affidavit as P.W.1 and got marked Exs.A-1 to A-11 documents and also filed the affidavit of one Sreenivasulu S/o Chennaiah as third party affidavit as P.W.2 and closed his evidence.  The opposite party filed the affidavit of one Ramakrishna S/o Subbarayudu, Dy. Manager Service at Hyderabad as R.W.1 and got marked Exs.B-1 to B-3 documents and closed their evidence.   

5.  Heard Arguments.

6.  The points for consideration are:-  

1. Whether this Forum have Jurisdiction to entertain the complaint?
2.  Whether there is any deficiency of service on the part of opposite

party in supplying of banana saplings?

    (iii)  To what relief?

7. Point No.1:- There is no dispute that the opposite party supplied banana saplings to the complainant. The said saplings were planted in the field of complainant also not in dispute.  It is the case of opposite party that this Forum have no Jurisdiction to entertain the complaint in view of agreed terms mentioned in the agreement of sale (original advance receipt) in Ex.A-4 signed by the complainant. We have gone through the contents of Ex.A-4. It is mentioned that the transactions relating to the institution be resolved only at Hyderabad Court Jurisdiction.  The enactment of Consumer Protection Act, 1986 prescribed the Jurisdiction under Section 11 for District Forum.  It is not mentioned that the Jurisdiction of District Forum can be fixed through an agreement by the parties. The prescribed Jurisdiction of Consumer Protection Act, 1986 cannot be bypassed or overtaken by fixing another Jurisdiction other than prescribed Jurisdiction. Further the banana saplings supplied to the complainant at his village is clearly showing in Ex.A-4 (original advance receipt) Sale Agreement. It is the version of opposite party that their Field Supervisors have visited the field of complainant where planted the banana plantation and noticed improper maintenance of plantation and advised for soil test. Ex.A-11 dated 29-1-2013 is crop loss estimation letter wherein it is mentioned that the Horticulture Officer, Atmakur has inspected the banana plantation of complainant in Sy.No.27/A field at Chinna Rajamur village of Deverkadra Mandal, Mahabubnagar District. Therefore we are in opinion that a part of cause of action arises in Mahabubnagar District and the District Forum at Mahabubnagar having Jurisdiction to entertain the complaint. We answered the point No.1 in favour of complainant.   

8. Point Nos.2 and 3:- It is the case of complainant that the adulterated banana saplings are supplied by opposite party and he sustained with total crop loss. Therefore there is deficiency of service on the part of opposite party and liable to be compensated to the complainant for total crop loss.

          The opposite party opposed the claim of complainant and stated that the complainant did not adhere to the correct practice of cultivation and failed to prove any defect in supplied banana saplings through a Scientist.

          The complainant has relied upon Exs.A-1 to A-11 documents besides his self testimony evidence affidavit and third party affidavit to prove his case. The opposite party also filed evidence affidavit and reply notice with postal receipt and acknowledgment in Exs.B-1 to B-3 supporting to its version and relied on cited Judgments as follows:

1. II (2012) CPJ 373 National Commission (Mahyco Seeds Ltd., Vs. Sharad Motirao Kankale and another).
2. 2011 SPTL (CL) 1164 NC = 111 (2011) CPJ 210 NC = 2011 (3) CPR 269 (NC) (Jain Irrigation Systems Ltd., Vs. M.B. Malipatil and another).
3. 2009 STPL (CL) 1073 (NC) (Maharashtra Hybrid Seeds Co. Ltd., Vs. Parchuri Narayana).

          We have heard counsel for the parties and gone through entire case record.  The terms in sale agreement (original advance receipt) in Ex.A-4 are quite different than the terms of golden plantation. Assuming but not admitting if any terms subsequently executed between complainant and opposite party how the seal of VRO appeared on such document. It remains as unexplained question. Hence we are of view that the role of OP is only supplied banana saplings to the complainant but not for plantation and undertaking in (original advance receipt) Ex.A-4 sale agreement that the opposite party will replace 10% death saplings after plantation on identification by service staff. 

          The counsel for opposite party vehemently argued that the case cannot be adjudicated without Technical report of Scientist.  The burden lies upon the complainant to prove the same.  The complainant has failed to discharge his burden.  He relied upon cited judgments as stated supra supporting to his contention.

          The counsel for the complainant also vehemently argued that the observations made by Horticulture Officer, Atmakur in Ex.A-8 are sufficient in proving the adulteration in plants.

          We have perused the observations in Ex.A-8.  It is mentioned that the farmers are represented that the plants are adulterate plants.  It is also mentioned that the farmers are informed to approach Scientist at Kovvuru for detailed root cause of defects in banana plantation. The complainant has kept quiet and filed the complaint on the basis of observations in Ex.A-8. No doubt we have in mind that some technical test report is required for finding out the defects/adulteration in banana plants. But who has to adduce the same in discharging the burden?  Is it not the burden against opposite party to place the record that the sold/supplied saplings are upto the mark of good variety and standard in all respects with due certification from concerned authorities. The opposite party being in plantation business of Mango, Teak and Banana etc., has failed to adduce the said certification reports for the saplings supplied to complainant. At least the report of field Supervisors who visited the field of complainant is not placed on record.  The opposite party could have tested the banana plantation through Scientist instead of advised.  Hence there is no stuff in the contention of opposite party that the complainant did not adhere to the correct practice of cultivation in view of un-rebutted to the evidence of observations made in Ex.A-8. Therefore we are of view that the onus passes on opposite party to prove the supplied banana saplings are free from defect/adulterated in view of Hon’ble Apex Court Judgment in Civil Appeal No.7543 of 2004 between  M/s National Seeds Corporation Ltd., Vs. M. Madhusudhan Reddy and Another.

          In view of aforesaid discussion and findings, the cited judgments as stated supra submitted by opposite party are not applicable to the present facts of the case. Therefore the opposite party failed to prove that the supplied banana saplings are free from defect/adulterated and there is deficiency of service on the part of opposite party and liable to compensate the crop loss.

          In order to assess the banana crop loss, the complainant has relied upon Ex.A-11 document issued by Assistant Director of Horticulture, Mahabubnagar.  It is estimated 20 Kg crop for each plant/bunch.  Death plants @ 10% are minused from 1500 supplied plants in plantation and shown 1350 as Net yield plants. Present market rate is shown as Rs.7/- per Kg. Hence shown that one crop loss will be Rs.1,89,000/-. The banana plantation will yield upto three crops also shown. The Net three crop loss will be Rs.5,67,000/- also shown when all conditions are good.

          We have also perused the Vyvasaya Panchangam published by   Sri N.G.Ranga Agriculture University at Rajendranagar, Hyderabad and also perused the banana standard market rates from all over India from website.  Accordingly the average yield is 10 to 15 Kg for bunch/plant and the average rate is for Rs.900/- to Rs.3300/- per quintal.  The highest rate is at Parvathipuram in Andhra Pradesh for ordinary big size and medium grade for Rs.5,710/- per quintal.

Hence we are in opinion and considered the average rate is for Rs.5/- per Kg. and the average yield is 10 Kg per bunch/plant assessing the same for crop loss for three crops would be reasonable and met the justice.

Therefore we assessed the Net total crop loss is for Rs.2,02,500/- (Rs.5/- x 10 x 1350 x 3 crops) which is quite reasonable and justification to meet the ends of justice.

  In the result, the complaint is allowed in part as under:-

1) The opposite party is directed to pay an amount of Rs.2,02,500/- to the complainant with 9% interest from the date of complainant i.e.,10-12-2012 till realization towards banana total crop loss compensation.

2) The opposite party also directed to pay an amount of Rs.1,000/- towards costs of the proceedings.

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 25^th day of April, 2014.                                                                                   

 

   -Sd-                                                                                                                                                                                       -Sd-

 MEMBER                                                                                                                                                                      PRESIDENT (FAC)