State Consumer Disputes Redressal Commission
M/S Vinod Kumar Aggarwal vs Rajan Deep Singh on 25 April, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1275 of 2012
Date of Institution: 27.09.2012
Date of Decision : 25.04.2016
M/s Vinod Kumar Aggarwal & Co., 7-8, Chowk Chitra Talkies Road,
Amritsar through Vinod Kumar, Proprietor, son of Shri Mohan Lal.
.....Appellant/opposite party
Versus
Rajan Deep Singh S/o Sh. Baj Singh, R/o Rakh Othian, Tehsil
Ajnala, District Amritsar.
.....Respondent/complainant
First appeal against order dated
17.08.2012 passed by the District
Consumer Disputes Redressal
Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. Suvir Sehgal, Advocate For the respondents : Sh. Updip Singh, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal has directed this appeal against respondent of this appeal, assailing order dated 17.08.2012 of the District Consumer Disputes Redressal Forum, Amritsar (in short the "District Forum"), vide which, the complaint of the complainant was accepted by directing OP to pay Rs.10,00,000/-, failing which to pay interest @9% per annum on Rs.10 lakhs from the date of filing he complaint till payment, besides Rs.2000/- as costs of litigation. The appellant is opposite party in the complaint and respondent is the complainant in the complaint and they be referred as such hereinafter for the sake of convenience. First Appeal No.1275 of 2012 2
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he is an agriculturist and doing it for his livelihood by means of self-employment. The complainant purchased 15 KG of zinc sulphate from the OP, vide bill no.960 dated 13.10.2010 for the purpose for spray on his agriculture produce, as recommended by the Horticulture Department. The complainant planted the plants of kinnow fruits under the guidelines of Horticulture Department. The Horticulture Development Officer of Horticulture Department advised the complainant to spray the zinc sulphate on the produce of kinnow for the good growth of the fruits and their safeguard from the disease. The complainant sprayed the spray of medicine on the fruits provided by the OP and found that the fruits started falling and black spots developed on the fruits within days therefrom. The produce became waste and useless on account of spray of the medicine purchased from OP. Total fruits produce become unsafe for human consumption. The complainant contacted OP and also made representation in this regard. The complainant also made representation to the Agriculture and Horticulture Department, Punjab and they appointed the team to examine the matter. The team of experts investigated the matter and took the samples of spray medicine and damaged fruits. They arrived at conclusion that the damage to the fruits was due to substandard spray medicine provided by the OP. The above medicine was still left with complainant and the sample of the same could be sent for First Appeal No.1275 of 2012 3 analysis to appropriate laboratory through the Forum. The complainant alleged deficiency in service or unfair trade practice on the part of OP and prayed that OP be directed to refund of Rs.510/- charged for the spray medicine, ii) to pay compensation of Rs.18,00,000/- and iii) to pay adequate costs of litigation.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is malafide and is bad for non-joinder of necessary parties because manufacturer M/s Shri Ram Fertilizer and Chemical Limited has not been arrayed as party in the complaint. The OP is not liable for the alleged loss at all. The complainant is son of Baj Singh, Horticulture Officer posted at Amritsar and false report has been procured by him. On merits, it was denied that complainant is an agriculturist. It was admitted that complainant purchased 15 KG zink sulphase from it and the way of its use or its recommendation as alleged by the complainant have been denied by the OP. It was denied for want of knowledge that Officer of Horticulture Department advised the complainant to spray zinc sulphate on the produce of kinnow plants for good yield. It was admitted that 15KG zinc sulphate was supplied by OP to complainant. It was denied that fruits started falling and developed black spots due to spray thereon. It is further averred that the sale of the pack sold by the OP cannot lead to this presumption that alleged spray medicine left with complainant is out of the same pack and as such no analysis can be done from the recognized laboratory. The First Appeal No.1275 of 2012 4 complainant was given zinc sulphate, as demanded by him by the OP. It was further averred that zinc sulphate was manufactured by reputed manufacturer M/s Shri Ram Fertilizer and Chem. Limited, which was supplied to complainant, vide bill no.960 dated 13.10.2010. It was further averred that possibility is not ruled out that said zinc sulphate purchased by the complainant might not have been used or have been used with other mixtures. There is no report of inspection of the garden before prescription as to what was the condition of the fruits at that time. The OP prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavits and documents Ex.C-1 to C-9 and closed the evidence. In rebuttal, the OP tendered in evidence affidavit and documents Ex.R-1 to R-6 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant. Dissatisfied with the order of District Forum, the OP now appellant has directed this appeal against the same.
5. We have heard the submissions of counsel for the parties and have also examined the record of the case. The complainant swore his affidavit Ex.C-1 on the record to the effect that he purchased zinc sulphate from OP against price for spraying the same on plants of kinnow, as recommended by the Officer of Horticulture Department. He categorically stated that he earns his livelihood exclusively by means by above horticulture work and is consumer of OP. The OP supplied wrong and sub-standard First Appeal No.1275 of 2012 5 medicine to him for spray and caused loss to his fruits. He further stated that he is still in possession of residue thereof, which can be sent for analysis to recommended laboratory by the Forum. Ex.C-2 is the copy of bill no.960 dated 13.10.2010 for Rs.510/- for the purchase of above spray medicine on the record. Ex.C-3 is the copy of report of expert team of Horticulture Department regarding loss of fruits with the use of above spray medicine to the complainant. Ex.C- 4 is the copy of written advice of use of zinc sulphate by officer of Horticulture Department. Ex.C-6 is the copy of notice to OP from Chief Agricultural Officer, Amritsar. Ex.C-7 is the copy of reply to the notice by OP. Ex.C-8 is the copy of stock register. Affidavit of Jagtar Singh, Horticulture Development Officer Amritsar is Ex.C-8/1 on the record to the effect that Rajandeep Singh complainant approached him for technical advice for the betterment of the kinnows and he advised for the spray of zinc sulphat, 2.4.D with Biovistin and this witness proved his prescription slip Ex.C-4 on the record. Ex.C-9 is the affidavit of Ranjit Singh, Horticulture Development Officer Amritsar. He stated in his affidavit that he alongwith Jagtar Singh was deputed by the Deputy Director Horticulture Amritsar to investigate the damage caused to crops of kinnows of complainant and they visited the garden of the complainant on 21.10.2010 and found damage to the extent of 75% to the fruits due to spray medicine and report is Ex.C-3 on the record, proving loss of 75% to the crop of kinnow fruits due to use of above spray in the garden of the complainant. The complainant stated that he asked OP to give First Appeal No.1275 of 2012 6 him zinc sulphate, as advised by the Horticulture Officer for spray purposes. The OP also pleaded in the written reply that complainant purchased zinc sulphate from it. Ex.C-7 is the copy of reply to the notice sent to it by the Chief Agriculture Officer. It was admitted that complainant purchased Micronutrient Mixture instead of zinc. It is further stated in it that three bags of Micronutrient were given to complainant after checking them. Notice issued to OP, vide Ex.C-6 is on the record i.e. why the action be not taken against OP for supplying of spurious spray. Copy of stock register is Ex.C-8 on the record. The complainant also relied upon photographs on the record to prove the loss to the fruits crops. OP relied upon Ex.RX proving that relative of complainant is in the Department of Horticulture at Amritsar. Ex.RX-1 may be referred to in this regard. Ex.R-1 is the affidavit of Vinod Kumar Proprietor of OP. It is admitted in this affidavit that complainant was supplied 15 KG zinc sulphate. In reply filed to Chief Agriculture Officer, vide Ex.C-7, OP stated that it supplied Micronutrient Mixture instead of zinc to complainant. The affidavit of Vinod Kumar Proprietor and reply to notice Ex.C-7 of the OP appeared to be contradictory. OP stated in affidavit that it supplied zinc sulphate to the complainant and in reply Ex.C-7, he stated that Micronutrient Mixture was supplied to the complainant instead of zinc. Ex.R-2 is the affidavit of Vinod Kumar Prop. of OP denying any supply of spurious and substandard spray. He further stated that complainant has not opted for laboratory test of the spray in this case. Ex.R-3 has been relied upon by OP. It is letter from First Appeal No.1275 of 2012 7 Chief Agriculture Officer Amritsar to Director Agriculture Punjab Chandigarh to the effect that dealer has not violated the provision Fertilizer Control Order 1985. Ex.R-5 is the copy of bill for purchase of above spray medicine for Rs.510/- issued by OP. Ex.R-6 is the copy of news paper cutting. It is only hearsay evidence on which any reliance whatsoever cannot be placed. The argument of counsel for the appellant is that complainant is not proved to be consumer because the complainant has not been proved to be agriculturist. There is categorical affidavit of complainant that he earns his livelihood by means of self-employment exclusively by the gardening. This affidavit of complainant remained un-rebutted on the record by OP. We, thus, hold that complainant is proved to be consumer of OP as he purchased the spray medicine for the purpose of earning more fruits crops for earning his livelihood by means of self employment. There is no evidence on the record to rebut it by the OP. The forceful submission of counsel for appellant is that complainant has not applied to District Forum for sending the sample of the spray medicine for laboratory test and hence an adverse inference should be drawn against the complainant. The Apex Court has held in "National Seeds Corporation Limited Vs. M.Madhusudhan Reddy andanother" 2012(2)CLT-382/383 that reports of Agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. The reports were held to be sufficient, even in the absence of testing of sample in the appropriate laboratory. The First Appeal No.1275 of 2012 8 procedure adopted by the District Forum was held to be in no way contrary to Section 13(1)(c) of Consumers Protection Act, 1986. On the basis of law laid down by the Apex Court in this authority, even if complainant has not sent the sample through the District Forum for analysis to the laboratory, we cannot discard the claim of the complainant, which is otherwise proved by the expert reports on the record regarding damage caused to the fruits of the complainant due to use of spray medicine provided by OP to complainant in this case. In the presence of law laid down by the Apex Court in the above referred authority, we are of this view that the law relied upon by the appellant in case "Jaswinder Singh Vs. Punjab Pesticides and Seeds and other" 2014(1)CPJ-618 by the National Commission and in case "Banta Ram Vs. Jai Bharat Beej Company & another" 2013(2)CPJ-617 by the National Commission is distinguishable. In the presence of law laid down by the Apex Court in "National Seeds Corporation Limited Vs. M.Madhusudhan Reddy andanother" (Supra), the appellant cannot take benefit from above authorities. The law laid down by the Apex Court would prevail over law laid down by the National Commission in above referred authorities.
6. Even otherwise, we do not find any force in the submission of appellant that complainant has not produced any revenue record to prove his ownership over the land. Why complainant would have purchased the spray medicine, if he had not needed it for the fruits crop is not explained by counsel for the First Appeal No.1275 of 2012 9 appellant in this case. We affirm the order of the District Forum holding that the complainant suffered loss regarding damage of his fruits crops due to above spray medicine supplied by the OP.
7. On the point of quantum of compensation, the District Forum relied upon report Ex.C-3 dated 21.10.2010 by Deputy Director Horticulture that 75% of fruits crop has been effected thereby. We are unable to determine as to on what basis the loss of Rs.10 lakhs has been assessed by the District Forum in this case. The District Forum awarded loss to the extent of 75%, which amounts to Rs.13,61,000/- of total kinnow crops on the basis of report Ex.C-3. The report Ex.C-3 is only photostat copy and we find that loss has not been assessed in appropriate terms by appreciating the evidence on the record. Consequently, the order of the District Forum regarding holding the OP deficient in supplying sub-standard and wrong quantity of spray is affirmed. On the point of quantum of compensation, the case is remanded to District Forum Amritsar for giving one opportunity to complainant to lead evidence to prove the exact loss suffered by him and one opportunity in rebuttal to OP to lead contrary evidence to this effect. Thereafter on the basis of evidence, so collected as well as the existing evidence on the file, the District Forum shall again determine the amount of compensation for the loss suffered by the complainant.
8. As a result of our above discussion, we partly accept the appeal of the appellant and set aside the order of District awarding amount of compensation of Rs.10 lakhs and order to this extent is First Appeal No.1275 of 2012 10 set aside, whereas the deficiency of OP, now appellant is affirmed in this appeal. The case is remanded to District Forum Amritsar for fresh adjudication on the point of quantum of compensation, which is awardable from OP to complainant. Parties shall appear before District Forum on 29.07.2016. Record be sent to District Forum Amritsar immediately so as to reach there well before date fixed.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.4,76,000/- in compliance with order of this Commission. These amounts with interest, which accrued thereupon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
10. Arguments in this appeal were heard on 22.04.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(H.S.GURAM)
April 25, 2016 MEMBER
(MM)