Date 05/10/2012
O R A L O R D E R
Per Mr.K.B.Gawali, Hon`ble Member.
1. This appeal is preferred by the Nirmal Seeds Company which was the original opponent No.1 challenging the judgment and order dated 08/12/2006 Passed by the Dist. Forum, Nandurbar in complaint bearing CC.No. 51/2006 by which the complainant is held liable for payment of compensation. The respondent No. 1 and 2 are the original complainants ( herein after termed as “complainants” ) whereas the respondent No. 3 is the original opponent No. 2, who is said tobe the employee of the appellant Seed Cmpany.
2. The facts leading to the present appeal are briefed as under :
That the complainants had jointly filed the complaint in the Dist. Forum against the seed company alleging to have committed unfair trade practice in their service as availed by them. It is the case of the complainants that they are the father and son and are farmers, jointly possessing agricultural land in G.No. 255 and 241 at village Vaijali Tq.Shahada Dist. Nandurbar. That, the appellant Seed Company is a renowned seed producing company. That therefore they had booked order for supply of seed of Jawar of the variety of “Nirmal 171” for 9 bags and “Nirmal 241” for 8 bags on 01/09/2005 through the respondent No. 3 and paid an advance of Rs 1700/- towards the cost of these seeds. That the respondent No. 3 had also issued receipt for the said amount on behalf of the appellant Seed Company. It was contended by the complainant that, after booking of the order of the seed they assured for getting those seed and that they would sow the said seed in their land and would receive good quantity of yield. However, inspite of repeated demand to the appellant Seed Company as well as respondent No. 3 who was acting as the representative of the Seed Company, the order was not fulfilled, stating that, the stock of seed was exhausted. It was further contended by the complainant that some of the farmers who had booked the order of the same seed after the date of their booking were supplied the seed neglecting their turn. That therefore they made the complaint with the District Agricultural Officer Zilla Parishad, Nandurbar, who in turn conducted enquiry in which it was revealed that, the farmers who had booked the order of the said seed at the later date, they were supplied the seed by keeping aside the turn of order of the complainant.
3. That, the complainant were not supplied the seeds by the appellant Seed Company and the respondent No. 3. The complainants therefore issued legal notice on 22/12/2005 claiming refund of advance of Rs 1700/- and the compensation of Rs 1,75,000/- as the amount of expected income, Rs 30,000/- towards mental harassment and Rs 10,000/- towards cost of the notice. However, as no action was taken by the appellant Seed Company as well as respondent No.3, the consumer complaint was filed by them before the Dist. Forum seeking direction to the appellant Seed Company to pay to them total compensation of Rs 2,16,700/- with interest.
4. The appellant Seed Company appeared before the Dist. Forum and totally denied the claim of the complainant. It was submitted that the appellant Seed Company is the producer of both the variety of Jawar i.e. Nirmal 171 and Nirmal 241. It had however denied to have accepted advance amount of Rs 1700/- towards the supply of the said seed to the complainant. It was therefore contended that, the complainants are not the consumer of the appellant. It was stated by the appellant that, they had no information of any enquiry made by the District Agricultural Officer and outcome of the said enquiry. It was further contended that the Seed Company’s representative i.e. respondent No. 3 used to accept the booking of the orders on printed receipt of the Seed Company. Therefore, so called receipt as alleged to have been issued by the representative on plain paper was denied. Thus it was contended by the Seed Company that, the complaint filed by the complainants was false and frivolous and be dismissed with cost of Rs 1,00,000/-.
5. The respondent No. 3 i.e. original opponent No. 2 namely Shri. Pankaj Patil did not remain present before the Dist. Forum inspite of notice published in the news paper.
6. The Dist. Forum after going through the papers and hearing the parties, allowed the complaint and directed both the appellant Seed Company and respondent No. 3 to pay compensation of Rs 2,16,700/- to the complainant before the date as 09/01/2007, else the said amount would carry interest @ 12 p.a. till its realization of the entire amount.
7. Discontented and displeased with the said judgment and order the present appeal is filed in this Commission which came tobe heard finally on 05/09/2012. Adv. Shri.Vinod Bhide was present for the appellant, whereas Adv. Smt.Smita Kulkarni was present for the respondent. We heard both the counsels at length and appeal was closed for judgment and order.
8. The learned counsel Adv. Vinod Bhide submitted that the complainant had not placed the order of the said seed and had also not paid the alleged cost of Rs 1700/-. He further contended that even if the complainant’s allegation regarding payment of the said amount of Rs 1700/- was accepted by the respondent No. 3 on behalf of the Seed Company the respondent No. 3 had already refunded the same to the complainant as deposed by him in his statement. Hence, there was no question of any unfair trade practice on the part of the Seed Company. The learned counsel has further pointed out that there can not be any loss of yield as alleged by the complainant because they had taken “wheat” and other crop in their land during the relevant period. He therefore contended that the Dist. Forum without considering the defense of the appellant Seed Company and that of respondent No. 3, has erroneously and unlawfully passed the impugned judgment and order which requires tobe dismissed.
9. On the other hand, the learned counsel Adv. Smt.Smita Kulkarni appearing for the respondent submitted that, as per enquiry made by the District Agricultural Officer Zilla Parishad, Nandurbar, it was clearly reveled that the respondent No. 3 had accepted the booking amount of Rs 1700/- on 01/09/2005 towards supply of the said seed on behalf of the appellant Seed Company and did not supply the said seed. It was further revealed that, the appellant company had supplied said seeds to those farmers who had booked the order on later date by-passing the order of the complainant. Hence the complainant had sustained the loss of expected produce of seed crop. She further contended that the respondent No. 3 being the representative of Seed Company, it is vicariously liable for the act of its agent. She therefore contended that the Dist. Forum has rightly held the appellant Seed Company and the respondent No. 3, as jointly liable for the payment of compensation as awarded by way of impugned judgment and order and the same be confirmed.
10. We have carefully gone through the record and have taken note of arguments as advanced by the learned counsels of both the parties. The questions which arise for our consideration and decision are (i) Whether the allegation of unfair trade practice and deficiency in service are proved against the appellant Seed Company and the respondent No. 3 and (ii) Whether the quantum of compensation as awarded by the Dist.Forum is proper and reasonable. ?
11. As regards the first question it is revealed from the enquiry report of the District Agricultural Officer which was made on the complaint of the complainant and submitted to the Director of Agricultural Pune vide letter dated 27/10/2005, that the respondent No. 3 namely Pankaj Patil in the capacity of the representative of the appellant Seed Company has received Rs 1700/- from the complainant towards booking of the said seed on 01/09/2005. It was further revealed from the said report that the complainants were not supplied the seeds as booked. Not only this but the other farmers were supplied the said seeds who had booked their orders on the later date at 01/09/2005, on which the complainant had booked their order for the said seed. It is also revealed that, the respondent No. 3 was working for the appellant Seed Company and had accepted the amount of Rs 1700/- towards supply of disputed seed.
12. The Contention of the appellant Seed Company that the booking amount of Rs 1700/- was refunded to the complainant, can not be accepted in absence of receipt or any other cogent evidence in token of the refund of the said amount. Thus it is very well proved that by accepting booking amount of Rs 1700/- neither seeds were supplied nor the amount was refunded to the complainant by the respondent No. 3 or the appellant Seed Company. Hence, this act of respondent No. 3 amounts to deficiency in service and unfair trade practice on the part of the appellant Seed Company under the provision of Consumer Protection Act, which is rightly held so by the Forum below.
13. Now the question is about the reasonability and the correctness of the compensation as awarded by the Dist. Forum. The amount of compensation of Rs 2,16,700/- as claimed by the complainants and awarded by the Dist. Forum consist of Rs 1,17,000/- towards expected loss of yield. We are not able to understand how this loss is caused to the complainant only due to non supply of the seed. As contended by the appellant Seed Company and as revealed from 7/12 extract that the complainant had taken the crops of wheat and other crops in place of the expected crop in the said land. There is no pleading of the complainant that if they had sown the disputed variety of seed, in place of wheat and other crop they would have received comparatively more income i.e. to the extent of Rs 1,17,000/- as claimed. It is observed that the expected loss towards the yield is based only on assumption and presumption and hence not acceptable. The compensation as claimed has also not been properly justified and hence it can not be accepted. We are therefore compelled to intervain the impugned judgment and order which is passed by the Dist. Forum.
14. We are of the view that since the complainants were not supplied the seed and also not refunded the said amount they are entitled to receive the amount of Rs 1700/- with interest and further, certain amount of compensation towards mental harassment and cost of the complaint. We are also of the view that since the respondent No. 3 has accepted an amount of Rs 1700/- on behalf of appellant Seed Company as its representative, which is not denied by the appellant, it is alone tobe held liable.
15. Considering the said facts and circumstances we therefore pass the following order by modifying the impugned judgment and order as passed by the Forum below.
O R D E R
1. Appeal is partly allowed.
2. The order of the Dist. Forum is modified as under
i. Appellant Seed Company is directed to refund the amount of Rs 1700/- with interest @ 9 % p.a. from 01/09/2005 till the date of payment.
ii. Appellant Seed Company is also directed to pay compensation of Rs 5000/- towards mental harassment and Rs 2000/- as cost of the complaint.
iii. All these amount are tobe paid within a period of 30 days from the date of receipt of this order, else the appellant Seed Company shall pay interest @ 10 % p.a. of the total amount till the realisation of the entire amount.
3. No order as to costs.
4. Copies of the judgment and order be sent to both the parties.