1. This complaint is filed by Mr. Bansilal Chandak from Akot, District Akola against Mr. Ramesh R. Akotkar and two other sapling provider companies, alleging unfair trade practice and deficiency in supplying defective and inferior quality banana tissue culture plants resulting in failure of growth of Banana Saplings sold by Opposite parties to the complainant with consequential loss suffered by the Complainant, claiming compensation of Rs.58,39,750/- with interest @24% p.a. to be paid by the Opposite parties.
2. Brief facts of this Complaint are as follows.

Mr. Bansilal Chandak, a 70-year-old farmer from Akot purchased 11,500 Banana saplings from the Opposite Parties for his farm, measuring 6 hectares, 31 R at Mauza Bardi Tal. Akot, Dist. Akola Gat No.150, since the land of the complainant, is suitable for a Banana plantation. The complainant regularly used to opt for a banana plantation on his farm. In the year 2015, the complainant, after meeting with OP No.1 Mr. Ramesh Akotkar, decided to plant banana saplings as per the advice given by him. The complainant paid Rs.60, 000/- as advance to OP No.1 on 19/1/2015 towards 14,500 good-quality banana saplings. OP No.1 handed over the receipt of the same amount as given by OP No.2 Vasant Biotech, Pusad Dist. Yavatmal. Further, since the banana saplings were not available with OP No.2, Mr. Ramesh Akotkar arranged for 11500 banana saplings by purchasing the same from OP No.3 Mauli Hitech Nursery from Khed, Dist. Pune for the rate of Rs.14/- per sapling. The Complainant paid Rs.1,61,000/- towards the purchase of these banana saplings and received a cash memo given by OP No.3. The Complainant, further under the guidance of OP No.1 planted all these 11,500 saplings after the preparation of the land for its cultivation. After land preparation, fertilizers, drip irrigation, and all other activities necessary for the cultivation, the complainant incurred an expenditure of Rs.3, 60,999/- (Rs. Three Lakh Sixty Thousand Nine Hundred and Ninety Nine only) before planting. Additionally, the complainant had to spend Rs.1, 65,644/- on chemical fertilizers, and weedicides after the plantation of the saplings. Thus, the complainant spent a total of Rs. 5.2 Lakh towards the cultivation of 11,500 saplings. During the growth of the plants, the complainant noticed that the plants reached the flowering stage much earlier than the scheduled period, which is in vernacular called “Nisan”.The complainant requested OP No.1 to advise by visiting his farm but the OP No.1 never visited his farm. Further, in comparison to the vegetative growth of the saplings, there was much less fruit bearing. There were much less number of banana bunch and even the bunch had less number of banana fruits than the produce assured by the OPs.

3.          Since OP No.1 avoided visiting the farm of the complainant, the complainant filed a complaint with the District Collector, Akola, District Agricultural Officer, Sub Divisional Officer, Akot, and Taluka Agricultural Officer, Akot regarding the supply of faulty banana saplings by the OP Nos.1 to 3. Accordingly, the Agricultural Officer, Akot visited the farm of the Complainant on 23/2/2016 with due intimation to the Opposite Parties, however, despite notice, the Opposite parties did not turn up nor sent any representative for this visit. The Committee comprising of Agricultural Officers and Agricultural experts from Punjabrao Krishi University, Akola, and a representative of Mahabeej visited the complainant’s farm. After due inspection of the complainant’s farm, the Committee gave its report that the vegetative growth of the saplings is more than reproductive growth and hence the expected production of banana yield is less and this is due to faulty banana saplings supplied by the Opposite parties. Hence the Committee also opined that there will be a loss of around 70 % in the production of bananas and financial loss to the tune of Rs.12, 44,208/-. After receiving this report, the complainant sent a legal notice to the Opposite parties asking for reimbursement of the loss due to the supply of inferior quality banana saplings. Further, the complainant approached this Commission in the year 2017 seeking redressal in the form of compensation to the tune of Rs.  58, 39,750/- (Rs. Fifty-Eight Lakh Thirty-Nine Thousand Sven Hundred and Fifty only),  with interest @24% p.a.
4.         After receiving notices from this Commission, OP No.1 appeared before this Commission but failed to file a written statement. Hence “no written statement” order was passed against OP No.1. OP No.2 Vasant Biotech was duly represented by an advocate and filed a written statement and also evidence with written notes of arguments. OP No.3 Mauli Hitech did not appear before this Commission and hence “exparte” order was passed against OP No.3. In due course of time, the complaint was transferred to Circuit Bench, Nagpur and since it was ripe for final hearing, heard finally.
5. We heard the submissions and arguments advanced by learned advocates of both parties and perused the record.  Considering rival contentions  of advocates for both parties,  the record, and the scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

REASONS:

6. AS TO POINT NO. 1: “CONSUMER’

As per the submission of the learned advocate for the complainant, the opposite parties were paid for the price of saplings, receipts are on record, p.24, Receipt of Rs.60,000/- paid to Vasant Biotech and P.25, Receipt of Rs. 1, 61, 000/- paid to Mauli InfoTech. It is submitted by the learned advocate for the complainant that, non-applicant no.1 accepted advance money on behalf of the OP. no.2 and 3. Hence the complainant is a consumer of all three opposite parties. In view of receipts and documents on record, the complainant is a consumer of all three opposite parties. We answer point no.1 as Affirmative.

7. AS TO POINT NO.2: “DEFICIENCY

As per the submission of the learned advocate for the complainant, the complainant purchased banana tissue culture plants from non-applicant no. 1 to 3 for plantation of the same in his farm. Learned advocate for complainant invited our attention to the receipts of payment to the non-applicants filed on record and also the receipts of Expenditure for preparation of firm in order to cultivate the banana tissue culture plants. Reference page no.27 onwards of complaint compilation. As per the submission of the learned advocate for the complainant, the complainant depended on non-applicant no. 1 for the information on Banana tissue culture - G 9 type plants and also paid to him the total agreed-upon amount towards the purchase of 11500 banana saplings.

8. According to the learned advocate for the complainant, the expert Committee report that was filed on record was based on the visit by the sub-divisional agricultural officer and other experts on 23^rd February 2016, as per the fixed program of spot inspection. After verification of Banana tissue culture plants cultivated on the farm of the complainant, which was supplied by non-applicants no. 1 to 3, the committee had given the following findings, “The vegetative growth of banana plants was more as compared to reproductive growth. Less in number and smaller size Bananas were found in bunches of bananas. Ideally, the G9 tissue culture banana plant has to have more than 7 to 12 bunches of Bananas, along with at least 28- 32 bananas in every bunch. Based on this observation the banana farm has only 60% development of the expected banana saplings. Thus, in the first year, there will be around 70% reduction in the banana production and expected loss to the tune of Rs. 12, 44, 208/-."  It is to be noted here that, in spite of giving notice to the non-applicants about the date of visit by an expert committee, non-applicants failed to remain present.
9. In view of not filing the written statement by the non-applicant no.1, it is to be considered to be an admission of the allegations against him, learned advocate for the complainant added the submission. He referred to the citation, M/s Singla Builders & Promoters …vs. Aman Kumar Garg, FA no. 925 of 2017, as decided by Hon’ble National Consumer Disputes Redressal Commission on 16^th October 2017, para 8 mentions, “The non-filing of the written version to the complaint before the State omission, amounts to an admission of the allegations leveled against them in the consumer complaint”. In the instant complaint, non-applicant no.1, though duly served and remained present before this commission initially, did not file the written statement, hence it is an admission of the allegations against him.
10.   In a similar case, Western Agri Seeds Limited vs. Ramesh Shyamraoji Dhote and Anr. Revision Petition, decided by Hon’ble National Consumer Disputes Redressal Commission, on 19^th September 2016, while inviting our attention to not bringing any expert opinion by non-applicants on record, they depended on the complainant to prove his case. Hon’ble National Commission has observed as follows, “In the entire material on record and even during the arguments before this Commission, there has been no attempt on the part of the petitioner to discharge that onus, and even when specifically asked to do so, they simply stated that it was the duty of the complainant to prove that the seeds were defective. It is very clear, therefore, that the petitioners have not been able to explain that the seeds produced and supplied by them to the farmers were of sound technical quality. The petitioners could have very well produced their own technical experts to prove that there was nothing wrong with the quality of seeds produced by them. On their failure to do so, there is no alternative, but to rely upon the report presented by the agricultural experts of the District Committee and pass award in favour of the complainant.”
11.    Learned advocate for the complainant invited the attention of the bench to the presence of opposite Party no. 2 in the proceedings, who had earlier applied for discharge from the case complaint.  In view of the expert Committee report and the actual loss suffered by the complainant, the learned advocate for the complainant prayed for declaring the opposite parties as negligent and following unfair trade practice.  Further prayed that the opponent be directed to pay Rs.58,39,750/-, which is the actual loss suffered by the complainant.
12.     Learned advocate for the opposite Party no. 2, opposed the submissions and the contention of the learned advocate for the complainant. According to the learned advocate for the opposite Party no. 2, the complainant paid only to OP no.1 and 3 and that he has not received any amount towards the purchase of banana saplings. Further, the plants were supplied by the opposite party no. 3, so the entire transaction of the complainant was with OP no.1. When the opposite party no. 2 came to know that the op no 1 is accepting money and issuing receipts in the name of no. 2, he lodged a police complaint and also, published notice for the information of the public at large, in the newspaper that, the OP no. 1 is accepting money on behalf of OP no. 2, and declared that the OP no. 1 is not representing the open number 2, there is no relationship between them.  Advocate for the opposite party no.2 further informed that the police acted upon the complaint and seized a number of receipt books pertaining to OP no. 2 from OP no.1.  The relevant documents are on record. Reference page numbers 227 to 240 of the complaint compilation. In view of the above submissions, learned advocate for Opposite Party no. 2 prayed for dismissal of the complaint against him.
13.  In support of his contentions, learned advocate for O.P.No.2 filed followed citations,

1.  Niwas Spinning Mills Ltd & Ors…….V/s……Canbank Mutual Fund & Ors, reported in II(2002) CPJ 128 (NC).
2. Nepa Ltd…….V/s……Madhya Pradesh Electricity Board, 2003, reported in (1) CPR 261 (NC) (1) CPJ 138.
3. M/s.Lover Hotels Pvt.Ltd…….V/s…..Terrotory of Chandigarh and another, reported in CPR 219 (NC) 2007 (4) CPJ 305 (NC).
4. Western India Match Co.Ltd…….V/s……Fatch Singh and Ors, reported in 2003 (1) CPR 212 (NC).
5. Oriental Insurance Co.Ltd……V/s…..Munimahesh Patel, delivered on 12/09/2006, delivered by Hon’ble Supreme Court of India.
6. American Express Bank Ltd…..V/s…….Nivedita Sharma, reported in IV (2013) CPJ 265 (NC).
7. Oriental Insurance Co.Ltd……V/s……Western Nutrients Ltd., reported in II (2007) CPJ 295 (NC).

We have gone through the above citations.

14.    After hearing the submissions of Learned advocates representing both parties, we have gone through the record and our observations are as follows,

1.  The report of Taluka Complaints Redressal Committee along with panchnama dated 23^rd of February 2016, reference pages no. 58 to 62, the committee comprised of Taluka Krishi Adhikari, an agricultural scientist, representatives of Mahabeej, and the representative of the complainant was also present.  The Committee reported its findings as,” the vegetative growth of the banana saplings was more as compared to the reproductive growth.  Hence the number of banana bunches is less, consequently, there appears to be a 60% reduction in banana production, and the estimated loss to the tune of 70% is expected. The expected monetary loss is around Rs.12,44,208/-”. Since the committee belongs to the experts in the agricultural field, there is no reason why it cannot be accepted.  The opposite parties failed to remain present during the visit of the expert committee to the field of the complainant.
2.  Apparently, it is opposite Party no. 2 defended the complaint. We find that there were Applications by O.P. no. 1 as well as 3 requesting the commission to take written statements/replies on record.  Surprisingly the replies of both of them are on record, we also find that even evidence affidavit has been filed, but not in time. The opposite party no.1, has admitted in his reply that he guided the complainant as he has experience in banana cultivation. Further, we have gone through the receipts filed by the complainant, regarding the expenditure which was necessary to prepare the fields for Banana cultivation.  There is no reason for not accepting the sincere efforts taken by the complainant for banana cultivation.
3.  We observe that the opposite Party no. 2, Vasant biotech was represented by Mr. Ramesh Akotkar and that the receipt initially issued was signed by Mr. Akotkar, the opposite party no.1.  Based on the documents filed on record by the opposite Party no. 2, it can be inferred that Vasant Biotech was not involved in supplying the banana saplings as well as did not receive any consideration.  Hence we are of the opinion that no case can be made out against Vasant Biotech, OP no. 2. And hence OP no. 2 is not liable for the loss which was suffered by the complainant.
4. We are inclined to accept, the Expert Committee report and that the loss estimated by the committee.  Further the opposite parties no. 1 and 3 are responsible and liable for the loss suffered by the complainant. In view of this discussion, it is the opinion of this commission, that OP no. 1 and 3 should compensate the complainant, as per the loss estimated by the expert committee.  In view of the discussion above we hold that the opposite Parties no. 1 and 3 are guilty of deficiency in service and unfair trade practice. We answer POINT no.2 as AFFIRMATIVE.

15.     AS TO POINT NO. 3: RELIEFS

We are of the opinion, that the complainant late Mr. Bansilal Chandak now his legal heir Mr.Manish Chandak is entitled to receive compensation for the loss which was estimated by the expert committee. The complainant is entitled for        Rs.12,44, 208/-, which was the estimated loss and, Rs. 9 Lakh for the expenditure incurred by the complainant for the preparation of his field for the cultivation of banana saplings as per the advice of the OP no.1. Hence, we answer, POINT no.3 as AFFIRMATIVE.

16.      AS TO POINT NO. 4: What Order?

In view of this discussion, we pass the following order

ORDER

1. Consumer Complaint is partly allowed against opposite parties no. 1 and 3 , with a cost quantified to Rs. 50,000/- to be paid by the opposite parties no.1 and 3 jointly and severally to the complainant.
2. It is declared that opposite parties no. 1 and 3 have indulged in deficiency in service and unfair trade practices.
3. The opposite parties no.1 and 3, are hereby directed to pay jointly and severally, towards the loss contemplated, Rs. 12, 44, 208/- (Rs. Twelve Lakh, Forty-Four Thousand Two Hundred and Eight only) along with a 9 % rate of interest per annum, from the date of filing of the complaint.
4. The opposite parties no. 1 and 3, are directed to pay Rs. 9 Lakh, jointly and severally towards expenditure on the cultivation of Banana Saplings and Rs.1 Lakh towards physical and mental harassment.
5. There is no order against OP no.2, Vasant Biotech and complaint against O.P.No.2 is dismissed.
6.  The above payments are to be made by opposite parties No.1 and 3, jointly and severally within 2 months from the date of receipt of the copy of the order. On failure of payment, within the stipulated time, the amount will carry interest @ 12 % per annum till realization.
7. Copy of this order is to be given to all the parties free of cost.