CHANTAM REDDY MANJUNATH REDDY vs PALM GROVE NURSERY

AGGRIEVED by the order in C. D. No. 125 of 2002 on the file of District Forum, Kadapa, the complainant preferred this appeal.

THE brief facts as set out in the complaint are that the complainant''s family possesses lands to an extent of Ac 6. 34 in Sy. No. 690/3 and 690/4 of Kothapalli Village. The complainant gave an order for 7500 banana plants to the agent of opposite party No. 1 company and went to the opposite party''s office on 4. 10. 2000 and paid Rs. 25,000 as an advance for supply of 5000 banana plants of Robesta category and 2,500 plants of Semocolon America category. Opposite party issued a receipt dated 4. 10. 2000 in favour of the complainant for Rs. 25,000 and the complainant further paid an amount of Rs. 35,000 on 20. 3. 2001 towards final payment to the opposite party. Vide invoice No. 152 dated 2. 3. 2001 the opposite party supplied the said plants of 7500 on two dates i. e. , 30. 3. 2001 and 2. 4. 2001 and the complainant planted the same to the extent of Ac. 6. 34. Out of these plants, 2120 plants died and in spite of repeated requests opposite party did not respond to the complainant''s problem and thereafter the complainant got issued a legal notice dated 3. 1. 2002 calling upon the opposite party to replace the plants or to compensate for the defective plants supplied. The complainant submits that he invested huge amount of Rs. 3,66,785 for planting of tissue culture banana plants and spent on manures, pesticides and also arranged drip irrigation system to earn a good yield. In spite of all the precautions taken by the complainant and adopting of scientific methods the plants did not grow properly and the fruits were of very small size. The complainant even took the Local Agriculture Officer for inspection of his fields and the said officer opined that the reason for poor yield and small size fruits is because of defective quality of the seedling. Once again the complainant got issued a legal notice dated 6. 4. 2002 to the opposite party but did not receive any reply. Hence the complaint seeking directions to opposite party to pay compensation of Rs. 4,98,785 with interest @ 12% per annum from the date of filing of the complaint till the date of realisation together with costs. Opposite party filed counter denying that its representative ever approached the complainant for selling of tissue culture banana plants. Opposite party submits that the complainant himself approached their company at Bangalore and only after verifying the plants and satisfying himserlf as to its quality purchased the same out of his free will. They deny for want to knowledge about the expenses incurred by the complainant and admit that they received notice on 6. 4. 2002 and that the complainant personally approached them even after issuing of notice. Opposite party submits that the growth of the banana plants depends upon the climatic condition, quality of soil, atmospheric temperature, availability of water and manure and denies that the plants supplied are defective or of inferior quality and contends that the complaint is not maintainable as the transaction is for commercial purpose and the complainant does not fall within the meaning of Section 2 (1) (d) of the Consumer Protection Act.

Based on the evidence adduced i. e. , Exs. A1 to A8 and the pleadings put forward the District Forum dismissed the complaint alleging him to approach Civil Court or any other appropriate forum.

AGGRIEVED by the said order the complainant preferred this appeal. The learned Counsel for the appellant/complainant submitted that the District Forum has erred in concluding that it is a commercial transaction and that the documentary evidence produced before the Forum clearly establish deficeincy on behalf of opposite party in providing defective banana plants and, therefore, this complaint falls well within the purview of the Consumer Protection Act. He further submitted that the crop raised by the appellant is for eking of his livelihood and, therefore, it does not fall within the definition of commercial transaction.

THE learned Counsel for the respondent/opposite party submitted that the banana plants were purchased only after the complainant was fully satisfied with its quality and that the growth depdends upon climatic conditions and that the District Forum has rightly observed that the complaint is not maintainable since the subject matter is of commercial transaction. We have perused the material on record. It is not in dispute that the opposite party sold 7500 plants to the complainant, vide invoice No. 152 dated 20. 3. 2001 which is Ex. A4 in the record. Exs. A2 and A3 are the receipts for Rs. 25,000 and Rs. 35,000 respectively. The brief point for consideration in this appeal is whether the compliant is maintainable under the Consumer Protection Act and whether the banana plants supplied by opposite party are defective.

IT is held by the National Commission in Laxmi Agriculture Seed Store v. Dhoop Singh and Ors. , reported in I (1995) CPJ 45 (NC), that: from the aforesaid conspectus of the relevant precedent, the language of the statute and upon larger principle, it would emerge that Parliament has clearly employed the phrase ''commercial purpose'' in its generic sense. It would appear that ''agriculture'' is a genus distinct from ''commerce'' and consequently ''commercial purpose'' and ''agricultural'' purpose and genitically different. The core issue is whether a plainly agricultural purpose can be labeled as a ''commercial'' one? In our view, it cannot be so. " it was further remarked in that case. "perhaps in the need of one may with consideration poetic licence borrow the analogy of Kipling''s famous couplet, to conclude, that agriculture is agricuture, and commerce is commerce, the twain shall never meet. In the light of the aforesaid somewhat exhaustive discussion, the answer to the question posed at the outset has necessarily to be rendered in the affirmative. It is held that "commercial purpose" is a thing apart and distinct from a "agricultural purpose" under the Act. "

KEEPING in view the aforementioned judgment we are of the considered opinion that the complainant who has purchased the banana plants is involved in agricultural transaction which does not fall within the definition of commercial transaction and, therefore, falls within the purview of Section 2 (1) (d) of Consumer Protection Act. Now we address ourselves to the issue of deficiency of service of the opposite party. The purchase of 7500 tissue culture banana plants are not in dispute and the amounts paid are also not in dispute. We rely on the report of the Assistant Director of Horticulture who was appointed as Commissioner in I. A. No. 76 of 2002 to inspect the fields of the complainant and assess the loss. The Commissioner inspected the field in the presence of the parties and filed his report on 14. 8. 2002 and stated that on the date of inspection there were only dried up plants and bunches and production of bunches are unsized and not of marketable size. He further stated that the complainant had used all crop management practices and applied fertilizers properly and that banana is a traditional crop in that area and the farmers are well aware of all the practices to the adopted. The farmers invested Rs. 10,000 towards the cost of tissue culture plants instead of Rs. 1,200 towards the traditional plant material and, therefore, the farmers would take all precautionary measures to get higher income. He observed that there is no defect in the drip irrigation system and that the crop failure is only due to defective plants supplied by opposite party. We rely on the judgment of National Commisison reported in I (2004) CPJ 122 (NC) in which it was held that when provision of Section 13 (1) (c) becomes unimplementable then one had to resolve to alternative methods, which in this case is the Commisisoner''s Report who is the Assistant Director of Horticulture Kothapalli. Keeping in view this report we are of the considered opinion that there is deficiency of service on behalf of opposite party in supplying defective banana plants and we award an amount of Rs. 2,700 per to which is the average sale price as recommended by the Assistant Director of Horticulture. In his report he stated that the average sale price is between Rs. 2,500 and Rs. 3,000 per ton and that the average yield is 20 tons per acre. The Commissioner further submitted in his report that the tissue culture banana plants would yield more income than the traditional banana plants. We take into consideration the expenses incurred by the complainant and also the loss of income per acre and direct the opposite party to pay an amount of Rs. 2,700 x 20 tons x 6 acres = 3,24,000 + 60% of Rs. 54,000 i. e. , Rs. 32,400 = Rs. 3,56,400 with interest @ 9% per annum from the date of filing of the complaint till the date of realisation together with costs of Rs. 2,000.

In the result, order of the District Forum is set aside and this appeal is allowed directing the opposite party to pay an amount of Rs. 3,56,400 with interest @ 9% per annum from the date of filing of the complaint till the date of realisation together with costs of Rs. 2,000. Time for compliance six weeks. Appeal allowed.