Orissa

Debagarh

CC/46/2019

Smt. Mandakini Samal, aged about 63 years, W/O- Kishore Chandra Samal - Complainant(s)

Versus

State of Orissa represented through its Secretary, Department of Forest - Opp.Party(s)

29 Sep 2021

ORDER

BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, DEOGARH

C.C NO-46/2019

Present:-Sri Dipak Kumar Mahapatra, President & Smt Arati Das,Member

 

Mandakini Samal, aged about 63 years,

W/O- Kishore Chandra Samal,

At-Nuanbhiun,P.O- Taainsar,

Ps/Dist- Deogarh.                                                                           …. Complainant.

                                                                          -Versus-

1.     State of Odisha

Represented through it’s Secretary,

Department of Forest, Bhubaneswar.

2.     State of Odisha

Represented through it’s Secretary,

Department of Agriculture, Bhubaneswar.

3.    Director of Horticulture, Odisha, Bhubaneswar,

4.    Collector, Deogarh,

              At/PO/Dist-Deogarh.

5.     The Divisional Forest Officer,

Deogarh Forest Division,

              At/PO/Dist-Deogarh.

6.     The Assistant Director of Horticulture, Deogarh,

              At/PO/Dist-Deogarh.                                                                 …. O.Ps.

Counsels:-

              For the O.P-1 :-None.

For the O.P-2 :-Sri Kishore Kumar Mahaling(Authorised Person)

For the O.P-3 :- Sri Kishore Kumar Mahaling(Authorised Person)

For the O.P-4 :-Sri R.K Pradhan, Govt. Pleader.

For the O.P-5 :-Sri R.K Pradhan, Govt. Pleader.

For the O.P-6 :-Self(Sri Kishore Kumar Mahaling)

 

DATE OF HEARING : 06.08.2021, DATE OF ORDER : 29.09.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant being the recoded owner of M.S Khata No- 64/52 in mouja Nuanbhuin under R.I Circle and Tahasil Deogarh under the P.S and District of Deogarh measuring an area of Ac.09.50 dec had developed a fruit nursery in the name of Sri Ganesh Nursery standing over Ac.04.50 dec of lands out of the total landed properties. Initially  she had planted 550 mango and 130 litchi trees after availing Rs.5,00,000/- from State Bank  of India Tileibani Branch under Dist. of Deogarh. The said Orchard with growing fruit bearing trees has been completely destroyed by wild elephants on dtd. 30.06.2015 to dtd. 02.07.2015. The Complainant on dtd. 03.07.2019 made a written complaint   to the Forester(T) Tileibani(Tileibani Block, Jhadeswar DPF)  for taking necessary action and payment of compensation  for the damage caused by wild elephants. On dtd. 12.07.2017, a joint verification was carried out by the Forester, Forest Range Officer and Revenue Inspector Deogarh in presence of the Complainant and the crop damaged was assessed to Rs 25,000/-. But being dissatisfied with the lesser amount, on dtd. 01.02.2016 the Complainant made his grievances in the grievance cell of O.P-4 (Collector & District Magistrate Deogarh) for payment of Compensation of Rs.21,37,480/-for the said damages. A field inquiry was made by the Horticulture Officer and the O.P-5 and a report was submitted by the O.P-6 to the Assistant Collector, Deogarh in this regard. A compliance report from the O.P-6 was sought by the Assistant Collector, Deogarh relating to the damage and the O.P-6 reported that the entire orchard is completely demolished expecting a few Mango and Litchi plants out of 540 nos. of Mango which is caused by fire and wild elephant. Also the Revenue Inspector Deogarh has prepared and submitted a report with the Tahasildar, Deogarh who finally on dtd. 31.05.2017 has submitted the report to the O.P-4 for information and necessary action. The Complainant on dtd. 10.05.2018 receipt an another part of compensation of Rs.43,500/- from the O.P-5. The Complainant thereafter prepared the list of expenditure which she has incurred since 13-14 years as per the manual sponsored by “Odisha Rajya Krushak Bikash Samabaya Samiti Limited, Bhubaneswar” and it is estimated to Rs. 14,94,480/-(copy Attached). The Complainant claims that she has developed the orchard in the proper guidance of her husband Sri Kishore Chandra Samal who is a veteran horticulturist having a depth knowledge regarding plantation and maintenance of plants and has been awarded by different institutions of Deogarh district and also by the Govt. of Orissa, Gujarat. The Complainant claims that the Compensation paid to her is not adequate as compared to the loss or damaged due to wild elephants and she needs to be paid more by the Govt. The Complainant has made several letter communication and personal contact with the O.Ps but in vain and he has been harassed by the O.ps in various ways.

But according to the O.P-3 & 6, the department of Horticulture is working in the state for income generation of farmers and development of livelihood by expanding area under Fruits, vegetable and flower cultivation and this present matter is being dealt by other department of the state hence he is nothing to do with this.

According to the O.P-5 there is no cause of action filed against the O.P-5. On receiving information, he directed to the ACF, Deogarh to enquire and report on the damaged of mango orchard by wild elephant. There are 15 nos. of mango trees found partially damaged by wild elephants. There is no such joint verification was made by ranger, forester, revenue inspector Deogarh in presence of the complainant. He denied of receiving any letter from assistant collector Deogarh. After getting necessary field report the O.P-5 sanctioned Rs.43,500/-  for damage of mango trees  over 4.35 acre as per the guidelines of Govt. and so it is not possible to  pay any other compensation to the Complainant.

The O.P-4 supported the version made by the O.P-5 as the statement made are as per the guidelines prescribed by the Govt. and nothing can be done in addition to this.

The O.P-1, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-1as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

 

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as the Supreme Court in the matter of Canara Bank vs United Indian Insurance Corporation and Ors.  on February 06, 2020 held that the beneficiaries of the policies taken out by the insured are also 'consumers' under the Consumer Protection Act, even though they are not parties to the contract of insurance.  Hon'ble National Commission observed that the definition of 'consumer' under the Consumer Protection Act is very wide and not only includes a 'person who hires or avails of the services for consideration' but also includes 'the beneficiary of such services 'who may be a person other than the person who hires or avails of services. In the present case, even though the farmers were not directly involved in undertaking the services of the insurance company, they were certainly the beneficiary to the same. In the present case though the Complainant is not directly availing any services from the O.Ps but she has availed loan for Fruit Plantation which is directly in observance with the Forest and Horticulture Department. She has been regularly following the guidelines prescribed by the O.Ps time to time.  Further on receiving information about the damage caused by Elephants to her Orchard. On dtd. 12.07.2017 a joint verification was made by ranger, forester, Revenue Inspector Deogarh in presence of the complainant but the O.P-5 surprisingly denies the same. The Forest Dept. has paid compensation but which was not adequate. As per the guideline prescribed by the Horticulture Department regarding the payment of compensation value of fruit crops in the event of felling/removal for implementation of different government programme in Orissa vide letter no-Hort(M)17/08-1131-Agrill dtd.08.04.2008, it is seen that the compensation value fixed for Mango Plant having the age of 10-20 years is Rs. 5,650/- per plant. The Revenue Inspector Deogarh has reflected in his report vide letter no- 242, dtd. 29.05.2017,  “that there are 320 no of Mango plants has been completely damaged by wild Elephants.”  Basing on the above report from R.I Deogarh and after taking into consideration the valuation report, the total loss assessed for 320 plants is amounting to Rs. 18,08,000/-(Rs. 5,650 x 320)”. But the Complainant has received only Rs. 25,000.00 and Rs 43,500.00 from the Forest Department which is a negligible amount as compared to actual expenditure incurred by her i.e Rs.14,94,480/-. So the O.P-1 & 5 has committed Deficiency in Service and the Complainant deserves to be compensating as per the Notification issued by the Joint Director of Horticulture. Again the above damage is caused by Wild Elephant and not felled or removed for the purpose of any Govt. Programme, hence we order as under :-

ORDER

The Complaint petition is allowed. The O.P-1 & 5 are jointly and severally directed to make payment of Compensation of Rs.9,04,000/- to the Complainant, which is 50% of the specified compensation value fixed by the Horticulture Department, Govt. of Odisha.  The O.P-1 and 5 are jointly and severally further directed to pay Rs. 7,000/- (Rupees Seven Thousand) towards the cost of litigation. All the above orders are to be carried out within 45 (Fourty five) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.      

Order pronounced in the open court today i.e, on 29^th day of September-2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,

MEMBER.                                                                                          PRESIDENT.

                                                     Dictated and Corrected

                                                                   By me.

           

                                                               PRESIDENT.