PER MRS. M. SHREESHA,  MEMBER

          Aggrieved by the order in Consumer Complaints No. 19, 20 & 22 of 2014 and 22 of 2015, passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short “the State Commission”), both the Complainants and the Opposite Parties  have filed First Appeals   No. 1277, 1278, 1296 & 1297 of 2016 and 1251, 1252, 1253 & 1254 of 2016 respectively, under Section 19 of the Consumer Protection Act,1986 (in short “the Act”).

2.       By the impugned common order, the State Commission has partly allowed the Complaints, directing the Opposite Parties to pay to each of the Complainants, the following amounts:

 Shri. Sopan Ramchandra Jagtap:

i) Cost of balance pipes (267) - ₹4,60,000/-  ii) cost of excavation of trenches ₹4,62,500/-  iii) cost of laying down of pipeline- ₹1,21,548/- i.e. Total ₹10,44,048/-. Out of this amount the complainant has already received ₹3,00,000/- and hence by deducting this amount he is entitled to receive towards cost of pipeline only ₹7,44,048/-. In addition he is entitled of loss of agricultural income for two years i.e. ₹4,20,000/- (14 acres x ₹30,000/-). The total compensation for which he is entitled comes to ₹11,64,048 say ₹11,64,000/-. (7,44,048 + 4,20,000).

Shri Sampat Namdeo Kul:

i) Cost of  pipe (132) - ₹2,39,779/-  ii) cost of excavation of trenches ₹4,06,500/-  iii) cost of laying down of pipeline- ₹1,21,548/- (though claimed ₹3,31,548/- it is considered on par with Sopan Jagtap) i.e. Total ₹7,67,827/-. By deducting ₹3,00,000/- received  by him he is now entitled for  ₹4,67,827/-. The  loss of agricultural income is worked out as ₹4,89,000/- (16.3 acre x ₹30,000/-). Thus he is entitled for total compensation ₹9,56,827/- say ₹9,56,000/-. (4,67,827 + 4,89,000).

Shri Bhjimraw Vithoba Tamhne:

 i) Cost of balance pipes (300) - ₹5,16,928/-  ii) Cost of excavation of trenches ₹4,62,500/-  iii) Cost of laying down of pipeline- ₹1,16,013/- i.e. Total ₹10,95,441/-. The  loss of agricultural income for two years i.e. ₹7,65,000/-. The  total compensation for which he is entitled to  ₹18,60,441/- (10,65,441 + 7,65,000) say ₹18,60,000/-.

Shri. Deepak Ramachandra Suryavanshi:

i) Cost of balance pipes (300) - ₹5,16,928/-  ii) Cost of excavation of trenches including cost of fellow farmers -₹4,18,350/-  i.e. total ₹9,35,278/- the complainant has not claimed separate cost of laying out of pipeline. The  loss of agricultural income for two years i.e. ₹7,47,000/- (24.09 acres x ₹30,000). The total compensation for which he is entitled to  ₹16,82,278/- say  ₹19,82,000/- (9,35,278 + 7,47,000).

3.       Since both the parties have preferred Cross Appeals, for the sake of convenience, the Appellants in First Appeal Nos. 1277, 1278, 1296 & 1297 of 2016 are hereinafter referred as the ‘Complainants’ and the Appellants in First Appeal Nos. 1251, 1252, 1253 & 1254 of 2016 are hereinafter referred as the ‘Opposite Parties’.  Consumer Complaint No. 19 of 2014 is being taken as the lead case.

4.       Succinctly put, the facts material to the case, are that the Complainant, an agriculturist, owning  agricultural land at Mauje Kolgaon, Dolas, district Pune, purchased PVC pipes manufactured by the first Opposite Party, namely Jain Irrigation System Ltd., for irrigating his agricultural land. The Complainant, had raised a loan of ₹ 20,00,000/- from Axis Bank, and purchased  50  pipes of 8kg,  250 pipes of 6kg and 742  pipes of 4kg worth ₹ 18,89,550/-. The Complainant averred that the laying of the pipeline of 21,000 feet was completed on 18.08.2013. An electric motor was installed and as soon as it was commissioned, on the very first day itself, the said pipeline burst. Though it was repaired, the problem of rupturing repeated several times, severely disrupting the irrigation of his land.

5.       A Surveyor, appointed by the Opposite Parties, inspected the pipeline and reported that the pipes were of inferior quality. The same was communicated by the Complainant to the Opposite Parties and they entered into a compromise on 29.10.2013, according to which terms, the Opposite Parties  agreed to pay ₹3,00,000/-  and also replace the pipes and supply the solvent cement to each of the Complainants in Complaint Nos. 19 and 20 of 2014. In case of the other Complaints, bearing Nos. 22 of 2014 and 22 of 2015, though such a compromise was not entered into, the Opposite Parties replaced a specified number of pipes and orally assured them that some amount of compensation would be paid.

6.       It was pleaded by the Complainant that 650 pipes of 4kg were delivered at the site and the balance 267 pipes of 4kg weight were yet to be provided. The solvent cement which was agreed to be supplied for joining of the said pipes, was also not made available. The Complainant, vide letters dated 27.09.2013, 08.10.2013 and 16.12.2013 requested the Opposite Parties to compensate him for the loss suffered because of the defective pipeline. It was stated that the Complainant cultivated 14 acres of land with sugarcane, expecting 60 tons of yield per acre, totalling  840 Tons. It was averred that the average price of sugarcane was ₹ 2,500/- per ton and therefore the Complainant suffered a total loss of ₹ 21,00,000/- on account of low yield of sugarcane crop. It was pleaded that  issued a letter to the Complainant detailing the rate. It was only on account of the defective pipes that the Complainant suffered financial loss and could not repay the loan amount to the bank. In Complaint No. 22 of 2014, it was averred that the Complainant had already planted pomegranate trees, out of which 2450 trees had dried up due to insufficient irrigation on account of defective pipeline. Accordingly, he claimed compensation for the financial loss suffered.

7.       The Complaint wise details with the specified areas and the amounts claimed are extracted hereunder:

8.         Opposite Parties No. 1 to 3 resisted the claim of the Complainant and denied that the pipes were of inferior quality. It was pleaded that leakages in the pipeline could be on account of unsuitable bedding of soft soil; improper capacity of Air Valves; irregular ground level; over exposure of pipes to sunlight etc. It was averred that on 29.10.2013, a compromise was arrived at to replace the pipes and pay to each Complainant an amount of ₹ 3,00,000/- in Consumer Complaints No. 19 and 20 of 2014 towards compensation together with trenching costs. It was pleaded that no other amount was agreed to be paid and it was only by way of a goodwill gesture that the company had decided to  cooperate with the Complainants and replaced the pipes.

9.       In support of their case, the Opposite Parties submitted various documents, such as the list of laboratories approved by Bureau of Indian Standards; test report by Central Institute of Plastic Engineering & Technology (CIPET); opinion received from Mr. Yashodhan Kanade; photographs regarding testing method used by College of Engineering etc. The State Commission while allowing the Complaints observed as follows:

“ 10. Undisputedly, the pipes were manufactured by the opponent manufacturing company were purchased by the complainants through its authorized dealer, who are opponent no. 4 & 6 respectively. It is also admitted by opponent no. 4 & 6 that, they had given guarantee about the good quality of pipes on behalf of the opponent company. Accordingly all the four pipeline can be treated as admission of the opponent company regarding defect in the pipes etc. It is worth to be noted that, the opponent company had entered into compromise with the complainants and moreover it has also drew the terms and conditions of the compromise in respect of two complainants namely Shri. Sopan Jagtap and Shri. Sampat Kul as on 29.10.2013.  As per the said compromise the opponent company had admitted to replace all the pipes and pay Rs.6,00,000/- towards excavation of trenches and cooperate agricultural compensation. However Opponent Company did not stick up to its words and replaced only part of the pipes avoiding to comply other assurances given in the said compromise. Therefore without referring to the laboratory test report the very act of compromise by the opponent company with the complainants clearly shows that, they have admitted the fact of inferior quality of pipes. Therefore it can be concluded that, the opponent company has committed deficiency in service in providing the inferior quality of pipes and further failing to stickup to the terms of the compromise. As regards opponent no. 4 & 6 we find that, they have sold those pipes which were manufactured by the opponent company and hence they cannot be held liable for that substandard quality of pipes. Hence, we hold only the opponents- 1 to 3 including opponent No. 4 & 5 in C.C. No. 22/15 i.e. Opponent Company as liable for deficiency in service, and accordingly reply to this issue is given in affirmative.

11.  The complainants have claimed different amount of compensation, the details of which are given in the aforesaid statement. As given in the said statement the complainants have claimed the cost of all the pipes purchased by them. In addition, they have also claimed the cost of allied thing i.e. electric motors etc. All these claims cannot be considered. As regards the cost of the pipes, the balance pipes which were remained to be replaced and which have been specifically mentioned in the complaint for giving compensation can only be considered. The cost of allied things such as, electric motor etc. is not considered. Because, these items were not supplied by the opponent company and secondly, there is no need to replace the allied material. As regards the claim of compensation to fellow-farmers from whose land pipeline is laid out, there is no material on record to show that, they have paid the amount claimed to the farmers. In fact, the amount of compensation is required to be paid only when the crops of the farmers are affected while laying out the pipeline. It is not the case of complainants that the pipes are to laid when there are crops standing in the fields when the pipeline is laid out through vacant land no need to pay compensation, because pipeline is laid out at the particular depth and the land use for laying out the pipeline can be used by the farmers. Hence, we have not considered this claim. Accordingly we have considered the cost of balance pipes, cost of excavation of trenches, & labour charges of laying down of pipeline

   As regards the loss of agriculture income the three complainants namely Sopan Jagtap, Sampat Kul and Shri Deepak Suryavanshi, who have claimed loss of sugarcane crop and accordingly they have considered 60 ton of per acre yield and rate Rs. 2500/- per ton. In this regard we are of the view that, these farmers have already had their sugarcane crop from other source of irrigation and with the help of the said pipeline they had expected certain additional income. As they have not clarified this thing in their complaint, we have considered the loss of agriculture income to the extent of 25% of their expected income i.e. 15 tons per acre for one acre of land and considering the cos t of cultivation the net rate of sugarcane is taken at Rs1000/- per ton as against the gross rate of Rs.2500/- per tons. Thus we have calculated per acre income from sugarcane crop at Rs.15,000/-. The complainants have claimed two year agricultural income and therefore we have considered Rs.30,000/- per acre income of two years and accordingly calculated the total loss of income of these three complainants.

   As regards the complaint of Shri. Bhimrao Tamhne his contention is that, on account of failure of pipeline there was no sufficient water supply due to which 2450 pomegranate trees out of total 5600 were dried up. He has also placed on record panchnama dated 16.05.2014 carried out by concern Talathi who was present. Therefore for calculating the loss of agricultural income we have considered only these 2450 trees. The complainants total land under 5600 pomegranate trees were planted in 17.50 acres (7.06 H.) It means there were 320 trees per acre. Considering the damage trees of 2450 we have worked out the land under it which comes to 7.65 acres (2450-:- 320). The complainant has claimed income Rs.20,00,000/- for first year, and second year at Rs.40,00,000/-. There is no reason for the expected double income. Hence we have considered expected income for two years @ per year  Rs.20,00,000/- from 17.50 acres by which per acre per year income is worked out to Rs.1,14,285/- This is a gross income. Hence considering per acre expenditure towards cultivation we have considered net per year income at Rs.50,000/-  per acre i.e. Rs.1,00,000/- for two years. Accordingly we have calculated loss of income for 7.65 acres of land which was covered by damage trees of 2450. The state Commission partly allowed the Complainants to the extent indicated above.

10.     Learned Counsel appearing for the Opposite Parties vehemently, argued that the pipes burst on account of improper bedding of the soil; ineffective Air Valve Capacity; unevenness of the ground level; over exposure of pipes to sunlight and not because of any defect in the quality of pipes supplied to the farmers. He contended that the Complainants had  colluded with the Dealer who stated in his Affidavit that the quality of pipes was inferior. He further submitted that there was no evidence filed by the Complainants with regard to the expected yield per acre and also the rate at which the crop could be sold and therefore the compensation awarded by the State Commission was without any basis. It was asserted that the terms of compromise arrived at on 29.10.2013 were adhered to and therefore, there was no deficiency of service on their behalf.

11.     It is pertinent to note that the Dealer, arrayed as the fourth Opposite Party, filed his affidavit by way of evidence, admitting that the pipeline had repeatedly burst and that it could not be repaired. In the light of this admission by their own Dealer, the contention of the Opposite Parties that the pipes were not defective cannot be accepted. Additionally, the Opposite Parties having also entered into  compromise on 29.10.2013 to pay compensation towards cost of digging; to replace pipes, and to supply solvent cement, at their own volition, fortifies the stand of the Complainants that the quality of pipes supplied was inferior, resulting in heavy financial loss to the Complainants. Hence, the Appeals filed by the Opposite Parties, viz. First Appeals No. 1251, 1252, 1253 & 1254 of 2016 fail and are dismissed, accordingly.

12. Now, we address ourselves to the Appeals preferred by the Complainants, seeking enhancement of the compensation awarded by the State Commission.

13. Learned Counsel for the Complainants submitted that the farmers suffered huge financial losses on account of the defective pipes and the State Commission has not taken into consideration the actual yield of the sugarcane and the letter of Raosahebdada Pawar Ghodganga Sahakari Sakhar Karkhana Maryadit, which confirmed that in the crushing season of 2012-13, the rate of the sugarcane  received in the factory from members and non-members was ₹2,341/- per metric Ton and in the crushing season of 2013-14, the rate was  ₹2,000/- per metric Ton. He argued that the average yield of sugarcane crop was 60 tons per acre, whereas, the State Commission has taken into account only 25% of the expected yield and has arrived at a yield of 15 tons per acre. It is stressed that despite the letter by Raosahebdada Pawar Ghodganga Sahakari Sakhar Karkhana Maryadit, quoting the rates, the State Commission, without any substantial basis, has calculated the net rate of sugarcane at ₹1,000/- per ton.  He further submitted that the balance pipes, though agreed to be replaced, were neither replaced nor was the amount refunded. He vehemently argued that as against the purchase of 50 pipes of  8 kg weight,  250 pipes of 6kg weight and 742 pipes of  4 kg weight, Opposite Parties had  only replaced only 650 pipes of  4 kg weight. It was urged that because of failure of the Opposite Parties to  supply the balance pipes, the remaining installed pipeline was completely defunct and useless.

14.     The compromise deed entered into on 29.10.2013 reads as follows:

“1. Jain Irrigation would disburse the cost of digging to the tune of ₹6.00 lakh.

2. Till today 160 x 4 kg - 650 Nos. of pipes have been delivered to site for replacement. Out of 417 pipes 10x 6 kg – 150 nos. and out of remaining 267 No. 160 x 4 kg would be given.

3. Out of remaining 282 pipes of Shri Sampat Kul, 160 X 6 kg -150 Nos. and remaining 132 Nos 160 x 4 kg would be given.

4. The Solvent Cement required for joining of the said pipeline would be sent.

5. In respect of the farmer compensation Jain Irrigation would render all the co-operation.”

15.     We find force in the submission of the learned counsel of the Complainants that failure of the Opposite Parties to supply the balance pipes, which was agreed to be supplied/ replaced, rendered the entire pipeline useless. It is also pertinent to note that the Complainants were unable to install the water pipes as the Opposite Parties did not supply the solvent cement which was necessary for joining of the PVC pipes. Having regard to the fact that as per the settlement agreement dated 29.10.2013, the Opposite Parties had agreed to supply the solvent cement but failed to do so, coupled with the fact that all the balance pipes were yet to be supplied, we are of the considered view that each of the Complainants is entitled to an additional compensation of ₹1,50,000/- for the inconvenience and the financial loss suffered by them on account of  non-installation/ replacement of water pipes in their fields.

16.     However, we are not convinced with the submissions on behalf of the Complainants that the State Commission has not taken into consideration the rate given in the letter issued by Raosahebdada Pawar Ghodganga Sahakari Sakhar Karkhana Maryadit. Nothing has been placed on record to prove the authenticity and the evidentiary value of the said letter. There is no material on record to establish that the expected yield per acre of sugarcane is 60 tons per acre. In our view, the yield at 25% of the expected yeild and the price @ ₹1,000/- per ton for a period of two years, arrived at by the State Commission is reasonable and does not warrant interference.

17.     Having regard to the fact that the Complainants in Consumer Complaint No. 22 of 2014 have also not filed any cogent documentary evidence to establish either the yield or the rate of pomegranate, we find that the State Commission has rightly taken into consideration the loss of income at ₹50,000/- per year, totalling ₹1,00,000/- for 7.65 acre and awarded ₹7,65,000/- for damages of 2450 pomegranate trees.

18.      Consequently, the Appeals preferred by the Complainants viz. First Appeals No.  1277, 1278, 1296 & 1297 of 2016 are partly allowed, modifying the order of the State Commission only to the extent of awarding an additional compensation of  ₹1,50,000/- to each of the Complainants within four weeks from the date of receipt of this order. We also award costs of ₹35,000/- in each of the Complainant’s Appeals. The Appeals preferred by the Opposite Parties, viz. First Appeals No. 1251, 1252, 1253 & 1254 of 2016 are dismissed.

19.     In compliance of our order dated 10.11.2016, the Opposite Parties have deposited some amounts towards cost of the pipes. The Complainants are at liberty to withdraw the said amounts so deposited in this Commission, together with interest accrued, if any and needless to add, the amounts so withdrawn shall be adjusted in the total decretal amounts to be paid to the Complainants. The Statutory Amounts of ₹35,000/- deposited by the Opposite Parties while filing the Appeals, shall be refunded to the Complainants towards costs awarded by us. If the amounts are not paid within four weeks from the date of receipt of the order, the amounts shall attract interest @ 9% p.a. from the date of filing of the Complaints till the date of realisation.