Presented by Sri B.K.Pati, Member .<br /> The present complaint pertains to deficiency of service as envisaged under the Consumer Protection Act and its brief history is as follows:-<br /> <br /> The Complainant, an educated unemployed, in order to get self employment, entered into an agreement on Dt. 30/05/2005 with the Opposite Parties to cultivate Safed Musli in his land, the produce to be bought back by the Opposite Parties with proper price. The Opposite Party No.1(one), through agreement, promised to give aid and advice to the Complainant during the sowing of the tubers and to buy-back the same after harvesting through the Opposite Party No.2(two). The Opposite Party No.2(two) is responsible to provide monetary assistance to the Complainant through the Opposite Party No.1(one) after taking back the herbal tubers from the Complainant. The Complainant under-went training as a herb cultivation farmer certified by the State Medicinal Plant Board of Orissa as a registered medicinal cultivator.<br /> <br /> Under the terms and condition of the agreement Dt.30/05/2005 with the Opposite Parties, the Opposite Parties are to provide financial assistance at the beginning of the cultivation and they will buy-back the entire Safed Musli after harvesting @ Rs.1,000/-(Rupees one thousand)only per kg from the Complainant. The Complainant cultivated Safed Musli A2.50 dec. of land belonging to his father where rice was being cultivated previously. Para 2(two) of Memorandum Of Understanding (MOU)/Agreement, the third party i.e. Opposite Party No.2(two) assures to buy-back the good quality Safed Musli produced by the first party i.e. the Complainant. Before undertaking the cultivation under the advice of the Opposite Party No.2(two), the soil of the Complainant's land was tested by the Opposite Party No.2(two) with its agency Opposite Party No.1(one) and found the same to be most suitable for such cultivation. The Opposite Party No.1(one) suggested the Branch Manager, State Bank of India, Barpali Branch, Barpali to provide a loan for the cultivation and said Opposite Party gave the medicinal tuber seeds of Rs.1,50,000/-(Rupees one lakh fifty thousand)only vide Bill No.2 Dt.10/08/2005 where the Opposite Party No.1(one) collected the money from the Complainant through the Opposite Party No.2(two) by providing Safed Musli seeds of the above said cost.<br /> <br /> The Complainant contend that 500(five hundred) Kg of Safed Musli tubers at a cost of Rs.1,50,000/-(Rupees one lakh fifty thousand)only was actually the seed for A2.50acres of land and not for 1(one) acre, so the Complainant sowed the seed in A2.50acres of land and got a production of 1,000(one thousand) Kg of dry Safed Musli. As per the term of the agreement the Opposite Parties agreed to buy back the dry Safed Musli at a cost of Rs.1,000/-(Rupees one thousand)only per Kg. The Opposite Parties did not keep their promise made in the MOU Dt.30/05/2005 to buy back the produce even after repeated request and written letter and legal notice. Consequently, the dry Safed Musli were damaged and the bank loan rose to Rs.3,00,000/-(Rupees three lakhs)only and the Complainant suffered financial loss, physical harassment and mental agony.<br /> <br /> The Complainant claims Rs.10,00,000(Rupees ten lakhs)only from the Opposite Parties as buy-back value of 1,000 (one thousand) Kg of Safed Musli @ Rs.1000/-(Rupees one thousand) only per Kg which was damaged due to non-buying by the Opposite Parties, as well as Rs.5,00,000/-(Rupees five lakhs)only, towards financial loss, damage and mental agony, totaling a claim of Rs.15,00,000/-(Rupees fifteen lakh)only from the Opposite Parties.<br /> <br /> The Opposite Party No.1(one), in her version, denies the Complainant to be a Consumer within the meaning of Section 2(d) of the Consumer Protection Act-1986, admits the agreement to have been signed between the Parties on Dt.30/05/2005 under which the Opposite Party No.2(two) is to buy-back the Safed Musli to be cultivated by the Complainant on an area of A 1.00 dec. only. She contends that by cultivating an area of A2.50dec. the Complainant has violated the terms and conditions of the agreement. She also says that, the Complainant has not yet paid her the cost of 500(five hundred) Kg of Safed Musli supplied by her vide bill No.02 Dt.10/08/2005 on credit basis. The Opposite Party No.1(one) contends that it is impossible to yield 1000 (one thousand) Kg of dry Musli after cultivating only the 500(five hundred) Kg of Safed Musli. She further says that the transaction in question is a commercial one, which is not within the purview of the Consumer Protection Act-1986. Besides, as per clause 17 of the MOU any dispute between the Parties is to be referred to Arbitration Tribunal, its decision being binding on the Parties. The dispute having all ready been referred to the Arbitration Tribunal and the Parties having been noticed, the present complaint is not maintainable. The Opposite Party No.1(one) prays for dismissal of the complaint with cost.<br /> <br /> The Opposite Party No.2(two) terms the transaction as well as the cultivation of Safed Musli as commercial ones and the Parties being “seller” and “buyer” it also does not involve the element of “service” as defined under the Consumer Protection Act-1986 and hence the Complainant can't claim the status of a consumer. It says that the Complainant violated the terms of the MOU by cultivating 500 (five hundred) Kg of Safed Musli in A2.50dec. of land. The Opposite Party No.2(two) categorically denies all allegations made against it by the Complainant and prays for dismissal of the complaint with cost.<br /> <br /> Perused the complaint and version of the OPs and copies of documents filed and find as follows:-<br /> The Opposite Parties launch a three-pronged attack on the maintainability of the case which need be gone into before embarking upon the factual aspect thereof. The Opposite Party No.1(one) takes a plea that the MOU in question was signed at Hyderabad and material was supplied from Sambalpur and so the Complaint does not come within the territorial jurisdiction of this Forum. Admittedly, the medicinal plant of Safed Musli was cultivated in the land of the Complainant which situates at Bandhpali within the jurisdiction of this Forum and the cause of action arose because as per the terms and condition of the MOU in question, the dry Safed Musli was not bought back by the Opposite Parties which amounts to a breach of the terms and conditions of the MOU. The Opposite Parties have also not proved in any manner that the MOU was signed at Hydrabad. Hence, there can't be any doubt as to the fact that the cause of action arose within the jurisdiction of this Forum. The Complainant claims an amount of Rs.15,00,000/-(Rupees fifteen lakh)only from the Opposite Parties and the same is well within the pecuniary jurisdiction of the Dist. Forum. <br /> <br /> The strongest point of attack by the Opposite Parties is on the maintainability of the Complaint under Section 2(d) of the Consumer Protection Act-1986, as they assert that the Complainant is not consumer as per the said provision and hence not entitled to take advantage thereof. The term the cultivation of Safed Musli being commercial one and the Parties being “seller” and “buyer”, there being no element of “service”, the Complainant is not a consumer and hence he can not take shelter of this Forum. It is the case of the Complainant that he is an educated unemployed and as an endeavour towards self employment for earning livelihood he has under-gone training as a herb cultivation farmer under State Medicinal Plant Board, Orissa. As per the explanation to Section 2(d) “commercial” purposes does not include use by person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. Hence, cultivation of commercial crop or selling or buying can't debar a person from seeking redressal in a Consumer Forum, if he does so towards self-employment for earning livelihood. In the present case, the Complainant is entitled to knock the door of a Consumer Law Agency for justice and the Complaint is maintainable.<br /> <br /> Now, the factual aspect of the complaint. The fact of the MOU/Agreement having been signed between the Complainant and the Opposite Parties, the Complainant under going training as a herbal medicinal cultivator, the land of the Complainant having been selected and soil thereof tested for cultivation of Safed Musli, the Opposite Party No.1(one) having recommended the State Bank of India, Barpali vide her letter No. 47 Dt.13/08/2005 to make payment to the Complainant to meet the cost of the 500 (five hundred) Kg of seed material at a cost of Rs.300/-(Rupees three hundred) per Kg, the Opposite Party No.2(two) having assured to buy back good quality dry Safed Musli are facts either admitted or proved through documents filed. <br /> <br /> The Complainant has, vide his letter Dt.12/06/2007, requested the Opposite Party No.1(one) to buy-back the Safed Musli before the coming of the rains to avoid damage to the material, but in vain. The Opposite Parties have not come forward to perform their part of the responsibility vested in them by the MOU. They avoided to do so taking shelter under some technicalities. They raise the question that the Complainant have cultivated Safed Musli in A2.50dec. of land instead of A1.00 dec as provided by the MOU. The Complainant submits that the mentioning of A2.50dec. was a typographical error and in fact, he has grown Safed Musli in A1.00dec. of land. The Opposite Parties have not disclosed as to what should be the quantity of yield from 500( five hundred) Kg of seed material which they are duty bound buy back under the terms of MOU. The seed material has been supplied by Opposite Party No. 1(one ) at cost of Rs.1,50,000/-(Rupees one lakh fifty thousand)only. Though this Opposite Party alleges that the Complainant has not yet paid the cost of the seed material but copies of documents falsify the Opposite Party No.1(one). The Marketing Manager, Opposite Party No.1(one) has received Rs.20,000/-(Rupees twenty thousand) only in cash from the Complainant on Dt.20/07/2005 towards advance of Safed Musli seed material and issued a receipt thereof vide receipt Dt.16/08/2005 Mr. Rabindra Kishora Padhi has received Rs.1,50,000/-(Rupees one lakh fifty thousand)only from the Complainant by Demand Darft No. 1110202962 Dt. 16/08/2005 issued from State Bank of India, Barpali towards value of 500 Kg seeds of Safed Musli supplied to the Complainant through Opposite Party No.1(one). The facts remains that the Opposite Party No.1(one) received Rs.20,000/-(Rupees twenty thousand)only more then the price fixed for 500(five hundred) Kg of Safed Musli seeds. <br /> <br /> The referring of the matter for Arbitration by the Opposite Party No.2(two) can't preclude the Complainant from bringing the matter before the Consumer Forum for redressal of his grievance and filing of this complaint in the present Forum is well within the provision of law. <br /> <br /> A churning out of the facts and circumstances, supported by copies of documents filed by the Parties, bring to light the painful reality that compelled the Complainant to file this complaint. As a corollary to the MOU signed with the Opposite Parties, the Complainant has under-gone training as a herbal medicinal cultivator, utilized his land for cultivation of Safed Musli instead of rice by incurring loan from the State Bank of India, Barpali, which has accumulated making his ancestral property vulnerable to be confiscated by the Bank as the Opposite Parties did not perform their part of the responsibility vested in the MOU on mere technicalities and false pretexts. This amounts to a gross deficiency of service on the part of the Opposite Parties towards the Complainant, an educated unemployed young man, striving to earn livelihood, falling prey to the false assurance given by the Opposite Parties in the MOU. No wonder, the Opposite Parties are found to have committed deficiency of service towards the Complainant and the award against the Opposite Parties need be in consonance with the principle of natural justice. <br /> <br /> In the result, the Opposite Parties are directed, jointly and severally, to pay to the Complainant, a compensation of Rs.10,00,000/-(Rupees ten lakh)only and a cost of Rs.10,000/-(Rupees ten thousand)only with 9% (nine percent) interest per annum chargeable from the date of filing of the Complaint i.e. Dt.27/10/2007, within 30(thirty days) hence, failing which both the amounts shall carry 12%(twelve percent) interest per annum till payment.<br /> <br /> Complaint allowed accordingly.<br />