K.B. Gawali, Member:
1. This appeal is filed by the original opponent Nos. 1 and 2 against the judgment and order dated 03/01/2008 passed by the Dist. Forum, Jalgaon in consumer complaint No. 240/2007 whereby the complaint of the complainant is partly allowed holding the appellant as liable for the payment of compensation . The respondent is the original complainant. For better understanding the appellants who are running the sugar factory are herein after jointly termed as 'opponent sugar factory', whereas, the respondent is termed as the ' Complainant'.
2. Brief facts giving rise to the appeal are as under:
That, the complainant is a farmer having land admeasuring 1 Hector. 10 R from G. No. 134/2 at village Nachankheda Tq. Pachora Dist. Jalgaon. That, he had entered into an agreement dated 25/11/2005 with the opponent sugar factory as per which the opponent sugar factory was to supply 'sugar cane setts' to the complainant and in tern the entry of the charge of Rs 20,000/- towards the price of those sugar cane setts was required to be taken on 7/12 record and after the sugarcane is matured, the same was to be given to the opponent sugar factory. @ Rs 1200/- per tons etc. Accordingly, complainant was supplied sugar cane setts of the variety of 671 of 3 tons 865 kg on 29/11/2005 and 4 tonns 745 kg on 30/11/2005. That, the entire sugar cane setts were planted by him in his said land admeasuring 0.75 Hector from the said G.No. That, he took proper care for the growth of the sugar cane by proper watering, applying required fertilizers etc. and the sugarcane was matured for cutting in the month of Dec. 2006. The complainant had therefore approached to the opponent sugar factory for cutting of the sugarcane and taking the same for crushing. However, inspite of his continous pursuance his sugarcane was not cut by the opponent sugar factory and therefore it was being dried up. He had therefore vide his application dated 03/04/2007 requested the opponent sugar factory to arrange for cutting of the sugarcane and taking for crushing so as to avoid his probable loss of the income from the said sugarcane. However, no steps were taken by the opponent sugar factory therefore again by his application dated 13/04/2007 he sent reminder to the sugar factory and also sent copies of the same application to the Agricultural Officer , Pachora, Asstt. Registrar Co-operative Society and the Regional Director of Sugar Factory. Accordingly the Regional Director vide its letter dated 20/04/2007 had instructed to the opponents sugar factory to take his sugar cane for crushing but the opponent sugar factory neglected and did not take any action. Therefore, by his another application dated 17/05/2007 he requested the concerned Talathi for visiting his sugarcane crop and to draw panchanama.
3. It was contended by the complainant that as per the agreement the opponent sugar factory was to take his sugarcane @ Rs 1200/- per tons. That, he had expected yield of about 120 tons of sugar cane from his 0.75 Hector of land as per the average of that region. Therefore, he contended that he had to bear the loss of income of Rs 1,44,000/- ( 120 x 1200 ), in addition, he also contended that as the sugarcane was standing after its maturity, he could not took any further crops from his land and therefore he had to sustain the loss of Rs 50,000/-. He also contended that he had spent Rs 23,455/- on fertilizers, insecticide etc. for the developments of the sugarcane. Thus for the total loss he claimed compensation of Rs 1,94,000/-. Accordingly, he filed complaint before the Dist. Forum seeking direction to the opponents sugar factory to pay him Rs 1,94,000/- with interest @ 18 % p.a. as the compensation towards the loss of income from sugarcane crop and further Rs 50,000/- towards the loss of alternative crop and Rs 15,000/- as cost of the complaint. He also sought to delete the entry of Rs 20,000/- which was taken on 7/12 towards the price of sugarcane crop.
4. The opponent sugar factory appeared before the Forum and filed written version whereby it contested the claim of the complainant. It was contended by the sugar factory that the complainant himself had approached to the sugar factory for supply of sugarcane setts on credit and that the opponent sugar factory had not signed any agreement. It was further contended that his sugarcane was not matured till Dec. 2006 as he did not take the proper care of the sugarcane and there was also no sufficient arrangement of irrigation due to which the same was dried up. That, he made false complaint to the agricultural officer and Managing Director of sugar factory and other authorities. It was further contended that the opponent sugar factory had published a notice in the daily 'Lokmat' newspaper For the sugarcane grower informing them that, if their sugarcane was not cut they should contact the representative of the opponent sugar factory and arrange to bring their sugarcane for crushing to the sugar factory. However, the complainant failed to bring his sugarcane. Secondly the Government had also declared the subsidy for the year 2006-07 to the sugar cane grower whose sugar cane crop was damaged and was standing in their field. Thus, on all these ground it was contended by opponent sugar factory that the complainant was not entitled for any compensation from the opponent sugar factory as there was no deficiency in service on their part.
5. The Dist. Forum after going through the papers and hearing the parties has partly allowed the complaint and directed the opponent Nos. 1 and 2 jointly and severally i.e. opponent sugar factory to pay to the complainant a compensation of Rs 70,000/- along with interest @ 6 % p.a. by deducting there from the amount of subsidy if any granted by the Government towards the loss of his sugarcane crop. In addition it was also directed to the opponent sugar factory to pay to the complainant Rs 3000/- towards mental harassment. It was also directed to pay all these amounts within a period of 30 days, else the opponent sugar factory should pay interest on the entire amount @ 8 % p.a. till the realization of the entire amount.
6. It is observed by the Dist. Forum that as the complainant has taken the entry of the charge of Rs 20,000/- on the 7/12 record towards cost of sugar cane setts which were supplied by the opponent sugar factory to the complainant, the complainant was a consumer of the opponent sugar factory. It is further held that as per the agreement, the entire sugarcane crop was tobe taken by the opponent sugar factory for crushing. However, although the same was matured and the complainant by his application dated 03/04/2007 and 13/04/2007 had requested to the opponent sugar factory for cutting of sugarcane crop for crushing, the opponent sugar factory has failed to arrange the cutting of his sugarcane crop and took the same for crushing, which has resulted into drying up of the sugarcane in the standing position in his field. Therefore he had to sustain the loss for which opponent sugar factory was responsible. Thus, in keeping with these observations the Dist. Forum partly allowed the complaint and passed the impugned judgment and order awarding the compensation to the complainant.
7. Aggrieved, by the said judgment and order the present appeal is filed in this Commission by the opponent sugar factory. This appeal was finally heard on 02/12/2013. Adv.Shri.R.B.Patil was present for the appellant, whereas Adv. Shri. S.A.Pradhan was present for the respondent . We heard both the counsel finally and adjourned the appeal for judgment. The Ld. Counsel Shri. Patil for the appellant submitted that the transaction between the complainant and opponent sugar factory was of the nature of resale of sugarcane i.e. for commercial purpose and therefore the complainant was not a consumer of the opponent sugar factory. It was further submitted that the complainant had not taken proper care for which his sugarcane was not matured in the month of Dec. 2006 and it was not fit for crushing. That, the said sugarcane was dried up due to want of irrigation and hence it was not useful for crushing. Therefore it was contended that the opponent sugar factory can not be held liable for the mistake of the complainant . However, the Dist. Forum without considering these facts has passed the impugned judgment and order, which needs to be quashed and set aside. In support of his above said contention he relied on following citations :
a. The judgment and order passed by Hon’ble Appex Court in the case of Rajeev Metal Works & Os. –V/s- The Mineral & Metal Trading Corporation of India Ltd 1996 NCJ 67 (NC).
b. The judgment and order passed by State Consumer Disputes Redressal Commission, Karnataka, Bangalore in the case of C.P.Balliappa – V/s- M/s.Indo American Hybrid Seeds 2000 (3) CPR 477.
c. The judgment and order passed by Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in the case of Special Officer Cheyyar Co. Operative Sugar Mills Ltd –V/s- A.Kanagasabai IV (2003) CPJ 115.
d. The judgment and order passed by Hon’ble Appex Court in the case of Wimco Limited –V/s- Ashok Sekhon & Ors. II (2008) CPJ 210 (NC).
8. On the other hand, Ld. Counsel Shri.S.A.Pradhan appearing for the respondent submitted that the opponent sugar factory had agreed to supply the sugarcane setts on the condition that it would purchase the sugarcane cultivated by the complainant. That, a lumsum charge of Rs 20,000/- was also made by the opponent sugar factory on the land of the complainant on the 7/12 record of G. NO. 132 towards cost of the sugarcane setts. It was further submitted that opponent sugar factory has failed to take complainant’s sugarcane although it was matured and ready for cutting and persuaded constantly by the complainant. Therefore the complainant had to bear the loss of excepted income from the said sugarcane crop. As per declaration made between the opponent sugar factory and complainant dated 25/11/2005, it was obligatory on the part of the opponent sugar factory to lift the sugarcane of the complainant for crushing, but the opponent sugar factory has made the breach of terms of the said agreement and therefore it was liable to pay the compensation towards the loss of the said sugarcane crop as sustained by the complainant. He therefore, contended that the Dist. Forum has rightly appreciated the facts and evidence on record and rightly passed the impugned judgment and order which requires to be confirmed by dismissing the appeal.
9. The Ld. Counsel Shri. S.A.Pradhan in support of his aforesaid argument relied on the following citations :
a. II (2007) CPJ 276 (NC) in case of Malaprabha Co-op. Sugar Factory – V/s- Sri. Manik & Ors.
b. II (2007) CPJ 369 in case of Dharani Sugas – V/s- Chemicals Limited.
10. We have perused the evidence on record as placed by both the parties and also the written notes of arguments as submitted by the Ld. Counsel appearing for both side. The major points which arises for our consideration are (i) Whether, the complainant has proved deficiency in service on the part of the opponent sugar factory and (ii) Whether, the impugned judgment and order passed by the Dist. Forum needs our intervention ?
10.(i) As far as point No. 1 is concerned, it appears that, the allegations of the complainant regarding deficiency in service on the part of the opponent sugar factory is based only on the ground that opponent sugar factory failed to take his sugarcane for crushing as the same was ready for cutting and crushing. As pointed out by the Ld. Counsel Shri.Pradhan for the appellant that there was a declaration signed in between the complainant and opponent sugar factory which is dated 25/11/2005. As per the terms and condition of the said declaration the opponent sugar factory was to supply sugarcane setts required to be planted in the land admeasuring 0.75 Hector, belonging to the complainant for which a charge of Rs 20,000/- was created on 7/12 record pertaining to the said land of the complainant . Further, after the sugarcane is matured the opponent sugar factory was to arrange for cutting for the sugarcane and carry the same for crushing. However, it manifests that although the sugarcane crop was matured in the month of Dec. 2006 the cutting of the same was not done by the opponent sugar factory. It is also tobe noted that the complainant by his letters dated 03/04/2007, 13/04/2007 and 20/04/2007 which were sent by RPAD to the opponent sugar factory requested for cutting the sugarcane as the same was being dried up on account of its over maturity. That, these letters appears to have been acknowledged by the opponent sugar factory. However, it has failed to take the sugarcane for crushing by causing financial loss of income from the sugarcane crop. Hence, the complainant has very well proved that the opponent sugar factory has given deficient service to the complainant.
10.(b) The citations as relied on by the Ld. Counsel Shri.Patil for the appellant are not applicable to the present case. The citations at Sr. Nos. 1 to 3 in which it is held that as complainant was growing irrigated crop of sugarcane for commercial purpose he was not a consumer. However, all these judgments and orders are prior to the amendment made to the Sec. 2 of the Consumer Protection Act. That, as per amended Act, the explanation to the Sec. 2(1) 2(d) of Consumer Protection Act which came to the effect from 15/03/2003 If the goods supplied are used for earning his own livelihood through self employment the said purchaser of goods is a 'Consumer' . The last two judgments as cited by the Ld counsel for the appellant are also not applicable to the present case, as the fact and circumstances pertaining to these cases are different from the one which exist in the present case. In the present case the complainant had grown sugarcane crop only in the land admeasuring 0.75 Hector, and hence it can not be said as a commercial purpose. On the other hand the judgment and order referred by the Ld. Counsel Shri.Pradhan appearing for the respondent quite applicable to the present c
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ase. In the case of Shri. Malaprabha Coperative Sugar Factory Ltd – V/s- Sri.Manik & Ors. (Supra ) the Hon’ble National Commission has held that the original complainant being the sugarcane producer who had entered in to agreement with the revision petition sugar factory it was obligatory on the part of the sugar factory to arrange for taking the sugar cane to the factory for crushing. In the present case also the complainant and the opponent sugar factory had entered into an agreement which is called as declaration. That, as per the terms of the said declaration the opponent sugar factory was to supply sugarcane setts to the complainant and after the sugarcane crop is matured, it was binding on the opponent sugar factory to make arrangement for its cutting and taking the same to the factory for crushing. However, it manifests that the opponent sugar factory has made breach of the said contract agreed by it and therefore it is liable to pay the compensation towards loss sustained by the complainant . 11. In view of the aforesaid facts and observations we find no material in the appeal filed by the opponent sugar factory. The Dist. Forum has considered all the above said facts and observations and rightly passed the impugned judgment and order holding that opponent sugar factory as provided deficient service and hence liable to pay the compensation. Therefore we proceed to pass the following order. ORDER 1. The appeal is dismissed. 2. No order as to cost. 3. Copies of the judgment be issued to both the parties.