IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday, the 31st day of August, 2017
Filed on .05.10.2005
Present
1) Smt. Elizabeth George (President)
2) Sri. Antony Xavier (Member)
3) Smt. Jasmine D (Member)
in
CC/No. 156/2005
Between
Complainant:- Opposite party:-
Sri. K. Sreenivasan Smt. Sherin Ashraf
Vazhathara Veedu Hafi, Owner
I.B.P.O., Ambalappuzha Taluk Orchids Bio Tech & Research Centre
Alappuzha – 688 011 NH 47, Opposite KSRTC Garage
(By Adv. K. Divakara Panicker) Thaikkattukara P.O., Aluva – 683 106
(By Adv. Vinod Varghese)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
This is a remanded matter. The case was once heard and the President of the then Forum passed an order on 29.11.2008 dismissing the complaint. Since there was no detailed order, Hon’ble State Commission suomoto taken up the matter and remanded the case for hearing for the purpose of passing a speaking order. After remanded, notices were issued to both parties for hearing the matter.
2. The case of the complainant is as follows:-
The complainant is a retired government employee. He is interested in the cultivation of Anthoorium plants. On 2.7.2004 complainant went to the office of the opposite party and booked 1400 tropical and 100 tinora tissue culture net pot plants, those completed hardening. The opposite party promised him to issue the plants in September itself but received the same only on 21.2.2005. When they informed that the plants were ready to deliver the complainant expressed his wish to have 2500 tropical plants. As per the complainant’s request, the opposite party delivered 2500 tropical and 100 tinora culture net pot plants through Mr. Varghese. The cost of 2600 plants were ie. Rs.39,000/- (Rs.2600 x 15 = 39000/-) received by Mr. Varghese and issued receipt. The complainant requested Mr. Varghese to keep the advance amount with the opposite party because he needs more tropical plants. But within one week about 350 plants were dried up. The matter was informed to Mr. Varghese and 300 plants were given without price from the firm of Hafi at Pookkattupady. The opposite party Smt. Sherin Ashraf was also there at that time. Unfortunately the other plants were also dried up. The 50 vago plants given as substitute only were remained alive. When the plants began to dry up the complainant informed the matter to Smt. Sherin Ashraf several times and she agreed to take necessary actions but she evaded from the promises saying more excuses. Being lost the belief in the opposite party the complainant received back the advance amount of Rs.2250/-. Again on 2.6.2005 the complainant called the opposite party over telephone for tissue culture plants but she refused to hear him and cut the phone. The complainant had started his flower cultivation for more than 10 years back and at that time he purchased 125 tissue cultured net pot plants of anthoorium from A.V.T. He had attended 4 days training at Vellayani Agricultural College to develop his flowery culture. He alleged that the net pot plants purchased from Hafi was not completed hardening and so they were totally dried up and caused for a huge financial loss. He demanded for a sum of Rs.1,27,500/- as compensation of the dried up plants, Rs.6,000/- for protecting the plants and Rs.800/- as telephone charge. The complainant also pray for a direction to cancel the license of the opposite party for cheating the customers by trading sub standard and not completed hardening tissue culture net pot plants.
2. The version of the opposite party is as follows:-
The complaint is not maintainable. The allegation that 350 plants were burnt is not correct. 300 plants were replaced due to the reason that it was informed by the complainant that they were destroyed due to heavy rain. Plants happened to be destroyed as they were not properly attended to the complainant is not having the knowledge to grow anthoorium plants. Only after completing the hardening process the plants were sold to the complainant. The complainant is not entitled to any relief claimed.
3. The complainant was examined as PW1. One witness was examined as PW2. The documents produced were marked as Exts.A1 to A7. The opposite party was examined as RW1. One witness was examined as RW2. Documents produced were marked as Exts.B1 to B4.
4. Points for consideration are :-
1) Whether the complaint is maintainable?
2) Whether there is any deficiency in service on the part of the opposite party?
3) If so the reliefs and costs.
5. Point No.1:- . The question of maintainability is considered by our predecessor and a separate order was passed by the then Forum finding the complaint is maintainable for the reason that cultivation and sale of anthoorium plant was done for his livelihood.
6. Points 2 and 3:- Complainant has booked 1400 Nos. of tropical type and 100 Nos. of Tinora type anthoorium plants at the rate of Rs.15/- per plant with the opposite party. He paid Rs.2250/- as advnace. Ext.A2 evidenced the same. It is an admitted fact that complainant purchased 2600 saplings of tropical tinora items of anthoorium plants and opposite party received Rs.39,000/- towards price of the saplings. It is also an admitted fact that those saplings were brought to the complainant’s house by one of the agent of the opposite party. According to the complainant out of the total saplings, 350 saplings were burnt and when he informed it to the opposite party, they replaced 300 saplings by giving 250 tropical items and 50 vago items and thereafter except the 50 vago items all other plants were burnt. The complainant alleged that the saplings burnt due to the reason that the hardening of the saplings were not properly completed. But the opposite party filed version stating that some of the plants were burnt as they were not properly protected by the complainant. The question remains to be answered is whether the saplings burnt due to the deficiency in service on the part of the opposite party.
7. The saplings were delivered to the complainant on 21.2.2005. According to the complainant within one week 350 plants were dried up. It is an admitted fact that opposite party repalced 300 plants. But according to the opposite party they replaced it because the complainant informed that the plants were destroyed due to heavy rain. According to the complainant the saplings supplied by the opposite party were not completed hardening. It is pertinent to see that 300 saplings were replaced without receiving its value. Had the saplings were destroyed due to the carelessness of the complainant the opposite party ought not to have replaced it without receiving any value. One of the contention of the opposite party is that the saplings supplied were not protected by the complainant. It is true that the complainant did not produce any inspection report to show that all his plants were burnt. But at the same time complainant sent notice dated 3.6.2005 to the opposite party stating that all his plants were burnt. The notice was accepted by the opposite party, but they did not sent any reply to it. Ext.A4 is the notice sent by the complainant and Ext.A5 is the acknowledgement. It is also to note that the opposite party had not produced any of the production result of anthoorium saplings of the same type which were supplied to other farmers. It is the bounden duty of the opposite party to prove that the saplings supplied to the complainant were completed hardening. In the absence of any such evidence, it is difficult to say that the saplings supplied to the complainant were completed hardening and it burnt due to the negligence of the complainant. Therefore on the basis of the fore going discussion, we are of the opinion that the saplings supplied were burnt only due to the non hardening of saplings which amounts to defect and deficiency in service on the part of the opposite party. Complainant is entitled to realize the value of 550 saplings supplied by the opposite party.
In the result, complaint is allowed. The opposite party is directed to refund Rs.38,250/- (Rupees thirty eight thousand two hundred and fifty only) with 8% interest per annum to the complainant from the date of complaint till realization. The opposite party is further directed to pay Rs.2,000/- (Rupees two thousand only) towards cost of this proceedings. Since the primary relief is allowed no amount as compensation. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistance transcribed by him corrected by me and pronounced in open Forum on this the 31st day of August, 2017.
Sd/-Smt. Elizabeth George (President) :
Sd/-Sri. Antony Xavier (Member) :
Sd/-Smt. Jasmine. D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Sreenivasan (Witness)
PW2 - Prasannakumar (Witness)
Ext.A1 - Certificate issued by Kerala Agriculture University
Ext.A2 - Cash/Credit bill dated 2.7.2004
Ext.A3 - Cash/Credit bill dated 21.2.2005
Ext.A4 - Copy of the registered letter dated 3.6.2005
Ext.A5 - Acknowledgement card
Ext.A6 series - Cash/Credit bills (2 Nos.)
Evidence of the opposite party:-
RW1 - Sherin Ashraf (Witness)
RW2 - Dr. V. Raghu Rajan (Witness)
Ext.B1 - Notice
Ext.B2 Series - Karshakasree Magaseene(2 Nos)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Br/-
Compared by:-
