CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO.1147 OF 2008 Date of filing : 21/08/2008

IN CONSUMER COMPLAINT NO.45/2008

DISTRICT CONSUMER FORUM, SOLAPUR

@ MISC.APPLICATION NO.1600/2008 Date of order : 19/03/2009



1. Plastro Plasson Industries (India) Ltd.

Regd.office Plot no.399, URSE,

Taluka Maval, Dist.Pune 410 506

Through its Asstt.Vice President

Shri Pushkar Khandekar

Plot no.399, URSE,

Taluka Maval, Dist.Pune 410 506

2. The Manager

Harit Agro Agencies

A proprietary concern, through its Proprietor

Shri D.M.Shah

Anna Smruti, Somatane-Phata

Shop no.4, Taluka Maval

District Pune 410 506 ………..Appellants/org.O.Ps

v/s.

Shri Sharadkumar Dipchand Wakharia

R/o.Somwar Peth, Barshi

District Solapur ………Respondent/org.complainant



Corum: Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

Smt.S.P.Lale, Hon’ble Member

Present : Mr.D.B.Lonkar-Advocate for the appellants.

Mr.P.P.Waghmare-Advocate for the respondent.

O R D E R



Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

1. This appeal arise out of order/award dated 30/6/2008 passed in consumer complaint no.45/2008, The Manager, Plastro Plasson Industries (India) Ltd. and another V/s. Shri Sharadkumar Dipchand Wakharia by District Consumer Forum, Solapur.

2. Undisputed facts are that appellant no.1 (original O.P.no.1) company manufactures tissue culture Banana saplings, while appellant no.2 (original O.P.no.2) is its one of the dealers and through which respondent (original complainant) had purchased 5500 Tissue Culture Banana saplings on 30/8/2007 for total consideration of Rs.71,500/-. O.P.no.2 dealer delivered those Banana saplings to the complainant on 20/9/2007 at Taluka Barshi as per Delivery challan no.88.

3. As per the complainant he had taken necessary precaution after receipt of Banana saplings, had kept them on coba floor and thereafter planted them on 01/10/2007. After the plantation, after about 2 months, growth of those plants was not proper. Therefore, complainant informed original O.Ps, particularly the dealer. Official of O.P.no.1 company, namely, Shri Joshi visited the site of plantation and thereafter, replaced 3000 Banana saplings. Complainant in all spent Rs.1,98,000/- @ Rs.36/- for plantation of 5500 Banana saplings and also spent Rs.2,235/- for transportation of replaced Banana saplings and thus in all he spent Rs.2,00,235/-. After the replacement of 3000 Banana saplings, out of remaining 2500 Banana saplings, 1500 Banana saplings were dried and therefore, complainant made complaint with Taluka Panchayat Samiti on 16/11/2007. They made preliminary enquiry and the Agricultural Officer opined that in respect of those 1500 plants, there was no proper hardening of the plants and opined to replace 1000 Banana saplings. In consumer complaint, complainant claimed Rs.1,98,000/-, which he spent for plantation of 5500 Banana sapling, Rs.2,235/- towards transportation expenses of 3000 replaced Banana saplings and Rs.25,000/- towards mental torture and economic loss. Thus he had claimed in all Rs.2,25,235/- with interest @ 18% p.a.

4. Forum below uphold the contentions of the complainant, awarded Rs.2,00,235/-, supra, Rs.1000/- as cost and further granted interest @ 9% p.a., if the awarded amounts are not paid within 30 days. Feeling aggrieved by such award, original O.Ps have preferred this appeal.

5. We heard Mr.D.B.Lonkar-Advocate for the appellants. Mr.P.P.Waghmare-Advocate for the respondent.

6. Perused the record. It is pertinent to note that both the parties did not file any affidavits in evidence including affidavit of Agricultural officer, who had inspected the site and submitted the report about the conditions of the plants and expressed his opinion about 1000 Banana saplings replacement.

7. Both the parties relied upon the correspondence and some inter office communication of O.Ps, notices exchanged and report of Agricultural officer; obviously before tendering them in evidence in a proper manner. There is also on record pamphlet, about the Tissue culture banana saplings manufactured by O.P. no.1 company.

8. Foremost contention raised by O.P. is about the territorial jurisdiction of District Consumer Forum, Solapur i.e. Forum below to entertain the complaint. This objection, though referred while rendering facts by Forum below, is not considered at all or answered by the Forum below. However, considering the fact that as per Delivery challan no.88 (appeal paper book page no.59), since the delivery is made at the place of complainant in District Solapur, supra, part of cause of action could be said to have been arisen in Solapur district and as such, Forum below has territorial jurisdiction to entertain this complaint within the meaning of section 11(2)(c ) of Consumer Protection Act, 1986 (herein after referred as ‘Act’ for brevity).

9. Coming to the main complaint, out of 5500 Banana saplings, 3000 were already replaced and that to promptly, on receiving their complaint by O.P.no.1 Company. Therefore, there is no deficiency in service as far as those 3000 saplings. According to O.P. they have replaced the same to maintain good business relations and as gesture of goodwill and not because they were liable to replace the same. In this background, it would be important to mention a note appearing on Delivery challan no.88 dated 20/9/2007 and it reads as under:-

“In case of any complaint, it should be communicated to our dealer and concerned company representative at the time of delivery of saplings. No complaint will be entertained ………We are not responsible for mortality and non-performance of saplings supplied.”

10. It clearly mentions that O.P.no.1 company is not responsible for mortality or non performance of saplings supplied.

11. Another important document on record is one inter office communication dated 17/10/2007 (page no.57 & 58). It refers to observations made by O.P.no.1 company’s representative Mr.Joshi after inspecting the site of plantation and it is also signed by the complainant. As per communication of the even date of the complainant (paper book page 56), when the Banana saplings were delivered to him, he had received them at his Cattle shed and kept there for about few days before they were actually planted. When those saplings were received on 21/9/2007, it was raining heavily for 2 days and the report of inspection of Mr.Joshi i.e. inter office communication dated 17/10/2007, supra, further mentions that plants in that heavy rainfall were kept in open climate in open place in heavy rains. As far as leaves of those Banana saplings/plants supplied are concerned, it is mentioned in the said report that 40% plants had 5 leaves and remaining 60% plants were of the two or 3-4 leaves. It is revealed from the record and statement made by the complainant that he was expecting 5 leaves plants and thus at least 40% of the supplied plants were as per his requirements. Said report refers to about 3000 plants (out of total 5500) were not in condition to survive. The opinion for mortality recorded three reasons, viz.,

1) Water logging in Ridges & Furrows.

2) 60-65 days less harden plant

3) Heavy rainfall on 21/9/2007 to 22/9/2007. So soil gets dumping and not ready for planting.

12. Thus, less hardening of plants is only one of the reasons and not the entire reason for damage of the plants and those 3000 plants, which suspected would not survive, were already replaced by O.P.no.1 Company. Complainant himself bear the expenses of transportation and those replaced Banana saplings as agreed by him and therefore, necessarily he cannot make any grievance about it for claiming compensation and to recover those transportation charges in the consumer complaint. Complainant by his communication dated 3/11/2007 (paper book page 40) addressed to O.P.no.1 Company made a grievance only about 1000 Banana saplings, besides 3000 replaced and made total claim for damages from it. There is no evidence as to how he could incur total expenditure of Rs.36/- per plant for plantation or actually that he had incurred the same. There is also no satisfactory evidence to show that remaining 1500 plants, that is the one which are not replaced, were Banana saplings of damaged category or not healthy plants, when supplied. If those plants were also not of proper standards, they ought to have been noticed in the initial inspection carried out on 17/10/2007 and could have been replaced at that time only. There is no evidence that no other reason including proper cultivation, etc. or natural causes, such as heavy rain, other climatic conditions, etc. are not responsible or affecting factors for damage of remaining 1500 Banana saplings, if at all they were found damaged or to those 1000 Banana saplings to which Agricultural officer had opined (not conclusively) for replacement.

13. Under the circumstances, complainant miserably failed to establish that there is deficiency in service on the part of O.Ps in respect of 1500 Banana saplings, which were not replaced. Further, complainant also failed to establish his case to claim compensation for his alleged entire cultivation cost or cost of plantation amounting to Rs.1,98,000/-. Learned Forum below, thus, arrived at a wrong conclusion while granting the relief. Impugned award cannot be supported in the eyes of law. Hence, we hold accordingly and pass the following order:-

ORDER

1. Appeal is allowed.

2. Impugned order/award dated 30/6/2008 is set aside and the complaint in turn stands dismissed.

3. Misc. application stands disposed of.

4. In the circumstances of this case, both the parties to bear their own costs.

5. Copies of the order be furnished to the parties.





(S.P.Lale) (S.R.Khanzode)

Member Presiding Judicial Member