State Consumer Disputes Redressal Commission
Faqir Chand Son Of Shri Khera Ram vs M/S Sugan Chand Sunil Kumar on 1 December, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1036 of 2005
Date of institution : 11.8.2005
Date of decision : 01.12.2010
Faqir Chand son of Shri Khera Ram, resident of village Sayyladwala, Tehsil
Abohar, District Ferozepur.
.......Appellant
Versus
1. M/s Sugan Chand Sunil Kumar, Dealer in Pesticides and Fertilizer, Mandi
No.1, Abohar through its proprietor Rattan Lal son of Gopi Ram.
2. Multiplex Agri-Care Private Limited Anttrasanahalli, Tomkur Karnataka
through its Managing Director.
......Respondents
First Appeal against the order dated 31.1.2005 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri S.P.S. Tinna, Advocate. For the respondents : Shri N.K. Manchanda, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The appellant was an agriculturist. He had taken the land measuring 7 acres (56K-15M) situated in village Daulatpura, Tehsil Abohar on contract/lease basis from Balbir Singh son of Kundha Singh.
2. It was further pleaded that the appellant had sown narma (cotton) crop in this land in accordance with the guidelines given by the Agriculture Department. In order to save the cotton crop from insects/diseases, the appellant had purchased the pesticides from the respondents to have maximum yield of cotton crop. Respondent No.1 lured the appellant for purchasing the pesticide of particular quality from his shop. Accordingly the appellant purchased the pesticide from the shop of respondent No.1 vide bill No.169 dated 24.7.2004 and bill No.355 dated 10.8.2004. He also purchased insecticide/pesticide which consisted of Nagethian First Appeal No.1036 of 2005. 2 (Ethian 50% E.C.) Nagmethrin (Alpfamathrin) and Samras vide bill No.602 dated 26.8.2004. The appellant had sprayed these insecticides on his cotton crop on 28.8.2004 as per the specifications, instructions and guidelines given by the respondents.
3. It was further pleaded that the appellant was shocked to find on the next day that the growing fruit on the cotton crop was facing damage after the pesticide was sprayed on these plants. The appellant brought it to the notice of respondent No.1 who assured that he would inspect the cotton crop himself but he did not visit. The appellant again contacted respondent No.1 on which the appellant was advised to spray another pesticide. The appellant purchased the same vide bill No.725 dated 2.9.2004 and vide slip dated 8.9.2004. These pesticides were also sprayed by the appellant on the cotton crop as per the instructions/guidelines given by respondent No.1 to save the cotton crop from damage. However the fruits and leaves got dried up and died down.
4. The appellant again requested respondent No.1 but he was not heard by respondent No.1. The appellant filed an application before the SDM, Abohar on which Bhupinder Kumar, Agriculture Development Officer, Khuian Sarwar along with Dr. Sarwan Singh, Agriculture Development Officer visited the land. They submitted their report dated 10.9.2004 and reported that the cotton crop had suffered the damage because of the pesticide.
5. It was further pleaded that the appellant again requested respondent No.1 to compensate the appellant but respondent No.1 failed to respond. The appellant convened a panchayat. They appointed the arbitrator to settle the dispute. The arbitrator assessed the loss and the amount of compensation. However respondent No.1 still failed to pay compensation to the appellant. Then the appellant sent the legal notice dated 25.9.2004 which was replied by respondent No.1 on 9.10.2004. This amounted to unfair trade practice. Hence the complaint for recovery of the loss suffered by the appellant to the tune of Rs.1,76,000/-. Compensation, interest and costs were also prayed.
First Appeal No.1036 of 2005. 3
6. Respondent No.1 filed the written statement. It was denied if the appellant was an agriculturist or if he had taken the land on lease from Balbir Singh son of Kundha Singh. It was also denied if the appellant had sown good quality seed of cotton crop. It was however admitted that respondent No.1 was a dealer in pesticides and fertilizers.
7. It was pleaded that the appellant was dealing with respondent No.1 for the last many years. The appellant used to come to the shop of respondent No.1 for the purchase of pesticides etc. on credit basis. Respondent No.1 being a commission agent used to give advance money to the appellant to meet his needs. As a result a sum of Rs.50,384/- was outstanding against the appellant. Respondent No.1 had requested the appellant to make the payment but he failed to do so. Rather he filed a false case against respondent No.1.
8. It was further pleaded that respondent No.1 had also filed a civil suit against the appellant for the recovery of an amount of Rs.50,384/- in the court of Civil Judge which was pending for 5.1.2005.
9. It was admitted that the appellant had purchased the pesticide/insecticide from the shop of respondent No.1 on 24.7.2004, 10.8.2004 and on 26.8.2004. He had also purchased the pesticide on 2.9.2004. The appellant had also taken the cash amount of Rs.175/- from respondent No.1 on 26.8.2004 while purchasing the pesticide on that date. The appellant had purchased the pesticide for an amount of Rs.750/- on 2.9.2004. He had also taken the cash amount of Rs.1540/- from respondent No.1 on 8.9.2004 for his domestic use. The appellant had again come to the shop to respondent No.1 on 10.9.2004 and had taken the pesticide of Rs.2,700/- and the cash amount of Rs.500/-.
10. It was denied if on 28.8.2004 when the appellant found that his crop was facing the damage he brought it to the notice of respondent No.1. He had purchased another pesticide from the shop of respondent No.1 on 2.9.2004, 8.9.2004 and 10.9.2004. It was denied if the appellant had consulted respondent No.1 at any time regarding spray of insecticide/pesticide on the cotton crop. First Appeal No.1036 of 2005. 4
11. It was pleaded that the present complaint was filed by the appellant to harass respondent No.1 as he had purchased the pesticide on credit basis. The Agriculture Development Officer in his report dated 16.9.2004 had also reported that less quantity of water was used in pesticide when it was sprayed. The destruction of the crop took place because of the bad effect of paraquate dichloride which was a salt manufactured by Syngenta (ghass sarne wali dwai). It was purchased by the appellant on 26.9.2003.
12. It was further pleaded that sample of the same batch of the insecticide was taken from the premises of respondent No.1. It was sent to the testing laboratory and it was found to be as per the specifications of the ISI. Therefore insecticides/pesticides sold by respondent No.1 were not misbranded. Rather these were of good quality. The appellant had failed to follow the instructions of the Agriculture Department before the spray. Respondent No.1 is running the shop of insecticides since long.
13. It was further pleaded that respondent No.1 had purchased the insecticide from respondent No.2 who was a leading manufacturer. All the products of respondent No.2 were of good quality. Agriculture Development Officer had visited the field of the appellant on 10.9.2004 without the knowledge of respondent No.1. Agriculture Development Officer had not given the khasra number of the land visited by him. It was denied if there was any deficiency in service on the part of respondent No.1. Dismissal of the complaint was prayed.
14. Respondent No.2 also filed the written statement. Almost similar pleadings were made by respondent No.2. Dismissal of the complaint was prayed.
15. Faqir Chand appellant filed his affidavit dated 6.12.2004. He also placed on the file certain documents.
16. On the other hand, Prakash Shetty, authorized signatory of respondent No.2 filed his affidavit dated 17.1.2005. Rattan Lal proprietor of Respondent No.1 also filed his affidavit dated 17.1.2005. He also proved certain documents on the file. First Appeal No.1036 of 2005. 5
17. Learned District Forum considered the pleadings of the parties and dismissed the complaint vide impugned order dated 31.1.2005.
18. Hence the appeal.
19. The submission of the learned counsel for the appellant was that the appeal be accepted, the impugned judgment dated 31.1.2005 be set aside and the respondents be directed to pay adequate compensation with interest and costs to the appellant.
20. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
21. Record has been perused. Submissions have been considered.
22. The appellant has placed on the file jamabandi and khasra girdawari relating to the land of Balbir Singh. Balbir Singh has been shown to be in self- cultivating possession of the land.
23. The appellant has also placed on the file the bill dated 24.7.2004 for Rs.250/-, bill dated 10.8.2004 for Rs.1,875/-, bill dated 26.8.2004 for Rs.2,210/- and the bill dated 2.9.2004 for Rs.750/-. One slip dated 8.9.2004 for Rs.1,540/- was also placed on the file. It is, therefore, clearly proved that the appellant had purchased some insecticide/pesticide from the shop of respondent No.1.
24. The appellant had filed an application on which agriculture land cultivated by the appellant was visited by Bhupinder Kumar, Agriculture Development Officer on 10.9.2004 and he submitted his report dated 10.9.2004. It is stated in this report that on 10.9.2004 he himself and Dr. Sarwan Singh, Agriculture Development Officer had visited the fields of the appellant who had taken the land on lease from a person who was resident of village Daulatpura. The appellant had told him that he had purchased the insecticide from the shop of respondent No.1 and he had sprayed the insecticide consisting of 100 ml. Ethian 50% E.C., 40 ml. Alpfamathrin and 10% E.C. and 80 ml. Samras salt on 28.8.2004. As a result the leaf and tinda (fruit) of the plants of cotton crop had started drying up and he had First Appeal No.1036 of 2005. 6 suffered the damage. The crop was damaged because of the bad effect of the poisonous insecticide. The effect was as bad as the effect of the insecticide for burning the grass.
25. It was also reported that the condition of the cotton crop in 2.1/2 acres of land was very bad and one of the reasons also was that because of inadequate irrigation and also because of the effect of the poisonous insecticide. The loss was assessed to the tune of 90% to 95%. The cotton crop of other portion of land measuring 3 acres had suffered the loss from 75% to 80% and cotton crop of the third portion of land measuring 1.1/2 acres had suffered the damage to the tune of 35% to 40%.
26. The appellant also placed on the file a copy of the Panchayat resolution which reveals that there was a dispute between the appellant and respondent No.1 regarding the loss to the crop because of the spray of insecticide. This resolution was signed by the appellant as also by Rattan Lal of respondent No.1 and it was attested by the notary on 5.10.2004. As per this resolution the matter was to be decided by the arbitrator.
27. The respondents have also proved on the file a copy of the report of the insecticide analyst according to which the contents of the sample taken from the shop of respondent No.1 and conformed to the relevant specifications in the test conducted. Respondent No.1 also placed on the file a copy of the credit bill dated 26.9.2003 according to which respondent No.1 sold the insecticide to the appellant on 26.9.2003 for burning the grass. Respondent No.1 also placed on the file a copy of the plaint of the civil suit which was filed by respondent No.1 against the appellant for recovery of Rs.54,900/- and some copies of entries from his own account book were placed on the file to show that the amount was outstanding against the appellant.
28. So far as the loss of the crop in 2.5 acres of land is concerned, the agriculture authorities in their report dated 10.9.2004 have stated that one of the reasons for the damage to the crop was that it was not irrigated adequately as also First Appeal No.1036 of 2005. 7 because of the spray of insecticide. The loss was assessed as 90% to 95%. Although it is not mentioned in the report as to how much loss was because of spray of insecticide and how much loss was because of inadequate water but it is assessed by us that out of 95% loss, 50% loss was because of insecticides.
29. The appellant has taken the plea that the normal produce of cotton crop in 7 acres of land would have been 88 quintals (para 11(a) in the prayer clause). This appears to be highly exaggerated. Normally cotton crop yield per acre is 8 quintals and the produce of cotton crop in 7 acres of land would have been 56 quintals. The prevalent rate of cotton crop per quintal was Rs.2,000/- (prayer clause of the complaint) and the total product would have for an amount of 56X Rs.2,000/-= Rs.1,12,000/-. However the appellant had suffered the loss to the extent of 50% in 2.5 acres of land, 75% to 80% in 3 acres of land and 35 to 40% loss in 1.5 acres of land. The net loss comes as under:-
Sr. No. Normal Yield per acre Loss assessed per total
acre
1. 8 quintals 50% in 2.5 acres 10 quintals
2. 8 quintals 75% to 80% in 3 18 quintals
acres
3. 8 quintals 35% to 40% in 1.5 5 quintals
acres
Net Loss: 33 quintals
30. The total value of 33 quintals @ Rs.2,000/- per quintal comes to Rs.66,000/-.
31. The submission of the learned counsel for respondent No.1 was that since the amount was recoverable from the appellant and since respondent No.1 had filed a civil suit for recovery against the appellant on 2.11.2004 in the court of Civil Judge (Junior Division), Abohar, therefore, the present complaint was a counter-blast.
32. This submission has been considered.
First Appeal No.1036 of 2005. 8
33. The appellant had already lodged a complaint to the SDM, Abohar regarding the loss of crop suffered by him because of the defective insecticide/pesticide sold by respondent No.1 to the appellant and since the appellant had already served the legal notice on respondent No.1 on 25.9.2004 and since respondent No.1 and the appellant had reached the compromise before the village Panchayat on 5.10.2004, it could also be said that the suit filed by respondent No.1 against the appellant was a counter-blast.
34. However the civil suit will be decided by the court on its own merits while this complaint for deficiency in service is being decided on its own merits.
35. The submission of the learned counsel for respondent No.1 was that the appellant has not got tested the insecticide from the laboratory. Therefore it cannot be held that the insecticide/pesticide purchased by him from the shop of respondent No.1 and sprayed by him on his cotton crop was defective.
36. This submission has been considered.
37. It has been held by the Hon'ble National Commission in a number of judgments that the farmer is not expected to keep apart a part of the seed/insecticide/pesticide in his possession anticipating that it would be required to be tested in the laboratory.
37. Reference can be made to the latest judgment of the Hon'ble National Commission reported as "INDIA SEED HOUSE v. RAMJILAL SHARMA & ANR." III(2008) CPJ 96 (NC) in which it was held as under:-
"Secondly, it is not expected from every buyer of the seeds to set apart some quantity of seeds for testing on the presumption that seeds would be defective and he would be called upon to prove the same through laboratory testing. On the other hand, a senior officer of the Government had visited the field and inspected the crop and given report under his hand and seal, clearly certifying that the seeds were defective." First Appeal No.1036 of 2005. 9
36. In the present case, therefore, respondent No.1 is a farmer. He purchased the seed and sown the same and developed nursery from the seed. Thereafter he transplanted the nursery in his fields. He had no part of the seed in his possession to get it tested from the laboratory to know the variety of the seed. He got the standing crops inspected from the Agricultural Development Officer who after inspection gave a detailed report Ex.C13 and reported that the seed was of mixed and inferior quality."
38. The ratio of law which is applicable to inferior quality of seed would also apply to inferior quality of insecticides.
39. Moreover the appellant in the present case has produced the report of agriculture expert who has proved in his report dated 10.9.2004 that the cotton crop of the appellant has suffered the damage because of the defective insecticide/pesticide. This report is sufficient to prove that the quality of insecticide/pesticide sold by respondent No.1 to the appellant was defective.
40. Learned counsel for respondent No.1 submitted that respondent No.1 had also sent the sample of same batch of insecticide to the chemical laboratory and as per the report dated 27.9.2004 the sample of ethian 50% E.C. was found to be conforming to the relevant specifications. Similarly the sample of alpfamathrin 10% E.C. was taken. It was also found to be conforming to the specifications.
41. So far as these reports are concerned, these samples were not taken from the same insecticide/pesticide which was sold by respondent No.1 to the appellant. Therefore these reports cannot be taken to be of the same insecticide/pesticide which was sold by respondent No.1 to the appellant and are not sufficient to defeat the case of the appellant.
First Appeal No.1036 of 2005. 10
42. It was also submitted that the appellant had sprayed the insecticide of burning the crop known as 'Ghas Sarane Wali Dwai' which was purchased by the appellant from the shop of respondent No.1 on 26.9.2003.
43. This version cannot be believed as this insecticide was purchased on 26.9.2003 while the insecticide/pesticide, the spray of which, had damaged the crop of the appellant was purchased by him on 26.8.2004 and it was sprayed by the appellant on his cotton crop on 28.8.2004. Therefore, this story set-up by respondent No.1 is unworthy of belief. The pesticide purchased on 26.9.2003 about a year earlier cannot be presumed to be available with the appellant.
44. It was further submitted by the learned counsel for respondent No.1 that he had purchased the insecticide/pesticide from respondent No.2 in a sealed condition and he had sold the same in the sealed condition to the appellant and, therefore, respondent No.1 is not liable if the insecticide/pesticide manufactured by respondent No.2 is found to be defective.
45. This submission has been considered.
46. Since respondent No.2 was the manufacturer of that insecticide/pesticide, therefore, he is also liable jointly and severally with respondent No.1.
47. In view of the discussion held above, the appeal of the appellant is partly accepted, impugned judgment dated 31.1.2005 is set aside and the appellant is awarded compensation amount of Rs.66,000/- (33 x Rs.2,000/-).
48. The appellant is also awarded costs of Rs.5,000/-.
49. The respondents are directed to make the payment of Rs.71,000/- to the appellant within a period of two months after the receipt of a copy of this order failing which the amount would be payable by them along with interest at the rate of 7.5% per annum from today till the date of payment.
50. However respondent No.1 would be entitled to recover this amount from respondent No.2.
51. The arguments in this case were heard on 19.11.2010 and the order was reserved. Now, the order be communicated to the parties. First Appeal No.1036 of 2005. 11
52. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
December 01 , 2010 (BALDEV SINGH SEKHON)
Bansal MEMBER