State Consumer Disputes Redressal Commission
Shri Surinder Dengta vs State Of Himachal Pradesh And Others on 29 July, 2010
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA-9.
FIRST APPEAL No.315/2009.
DECIDED ON 29.07.2010.
In
the matter of:
Shri Surinder Dengta son of Shri Bhagat Ram, R/o Village
Koti, Post Office Kiari, Tehsil Kotkhai, District Shimla, Himachal Pradesh.
Appellant.
Versus
1. State of Himachal Pradesh, through Secretary Horticulture,
H.P. Secretariat, Shimla.
2. Director,
Department of Horticulture, Navbhar, Shimla.
3. General
Manager, P.O. Industries Limited (A Division of Pesticides India), Plot No.237, GIDC Ankleshwas,
Panoli, District Bharuch, Gujarat, PIN-394 116.
Respondents.
.
Hon'ble Mr. Justice Arun Kumar Goel
(Retd.), President.
Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekhar Sharma, Member.
....
Whether approved for reporting? Yes.
For the Appellant: Mr. D.N. Ronta, Advocate.
For the Respondents No.1 & 2: Mr. Anoop Sharma, A.D.A. For the respondent No.3: Mr. Tara Singh Chauhan, Advocate.
....
O R D E R:
This appeal is directed against the order of District Forum, Shimla passed in Consumer Complaint No.310/2005, dated 04.08.2009, whereby while dismissing the complaint of the appellant, he has been directed to approach Civil Court for redressal of his grievances, if so desired.
2. Facts of the case as they emerge from the record are, that the appellant had planted an apple orchard to earn his livelihood in Mohal Koti, Tehsil Kotkhai over the land detailed in para-1 of the complaint. Respondent No.3 is manufacturer of pesticide known as Carina, having Profenofos 50 EC. This was duly approved and recommended by respondents No.1 and 2. Further averments in the complaint were, that the appellant after having discovered symptoms of mite in his orchard, consulted the Horticulture Officer posted at Kotkhai. He advised the appellant to spray Carina pesticide in his orchard for the control of mite.
Thereafter as per advice of Horticulture Officer, the appellant purchased 6 bottles of 250 grams Profenofos 50 EC, Carina manufactured by the respondent No.3, from the retail outlet of respondents No.1 and 2 at Kotkhai and entry thereof was made in Horticulture Card of the appellant on 20.05.2005.
3. Appellant then sprayed Carina pesticide in the Orchards in the last week of May, 2005. And as a result of spray of Carina, he observed that in the month of July, 2005 apple fruits of his orchard started cracking due to spray of the pesticide.
This unusual incident was brought to the notice of respondents No.1 and 2, they deputed two scientists from Dr. Y.S. Parmar, University of Horticulture and Forestry, Nauni to inspect the cause of cracking of apples in the Orchards. Further averments made in the complaint were that as per reports submitted by the scientists, cracking was induced due to spray of Carina. As a result of which 1000 boxes of apples were damaged. Then the appellant served a notice upon the respondents to make good the loss suffered by him. But without any consequence. In this background, complaint under Section 12 of consumer Protection Act, 1986 was filed alleging deficiency of service, and he claimed Rs.6,00,000/- as a compensation from the respondents due to the loss suffered, as a result of cracking of apple fruits being the result of spray of Carina. He also claimed a sum of Rs.50,000/- for harassment, torture and mental agony suffered by him, alongwith cost of Rs.5,000/-.
4. Respondents No.1 and 2 contested and resisted the complaint and filed their version to the complaint. Per them the complaint was not maintainable, appellant having no cause of action. It was also alleged that there was no deficiency of service of any kind on the part of these respondents. However it was admitted in reply that 6 bottles of Carina were supplied to the appellant on 50% subsidy at the rate of Rs.228.56 per litre.
At the same time further plea was raised that cracking of apple fruits in the orchard of the appellant was not due to spray of Carina, but was the result of moisture caused to prolonged and higher temperature experienced in the month of June, as per report submitted by scientists of Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni, Solan. Further stand in their reply was, that Carina was also supplied to 121 orchardists of the area for controlling mite, but no complaint of cracking due to spray of apples was received, only complaint made was by the appellant.
5. Respondent No.3 filed separate written version to the complaint. It also contended that cracking of apples may be due to various factors like climatic conditions, type of soil, water and irrigation facilities, quality of fertilizer, high salt concentration moisture contents, long dry spell and other factors. It was also contended, that as per the report of experts, cracking was due to drought and lack of proper irrigation facilities. Pesticide which was supplied to the appellant is approved by Dr. Y.S. Parmar University after testing the same on plants. This insecticide was also analyzed by International Testing Centre, an approved testing house. As such question of supplying defective pesticide resulting in cracking of apple fruits as alleged by the appellant does not arise at all. Thus as per respondent No.3, there might be some other reasons for cracking of apples and allegations to the contrary made in the complaint were emphatically denied and as such it was claimed that there was no deficiency of service on its part, nor there is any unfair trade practice.
6. Brief resume of evidence produced by the appellant in nutshell is, that he filed his own affidavit and also placed reliance on documents, Annexures C-1 to C-3 copies of Jamabandi, Annexure C-4 copy of Horticulture Card, photographs showing cracking of apple fruits Annexures C-5 to C-8, Annexure C-9 copy of certificate dated 12.08.2005 issued by Dr. Gian Thakur, Associate Director, Dr. Yashwant Singh Parmar University of Horticulture and Forestry Directorate of Extension Education Nauni, Solan, H.P. Annexure C-10 is the copy of legal notice dated 05.10.2005 served by the appellant upon respondent No.3, Annexure C-1 copy of reply dated 31.10.2005 to legal notice served by the appellant. Appellant also relied on other documents, Exhibit E/1 to E/20. These have been referred in detail in his affidavit while supporting his complaint.
In addition to this, he had also filed affidavits of S/Shri Ravinder Chauhan, Ravinder Mehta, Dr. Gian Thakur, Mangat Ram, Ganga Ram, Sunil Beakta Proprietor of Agro Sale Centre Kotkhai Annexures E-9 to E-14.
7. Respondents No.1 and 2 placed reliance upon documents, Annexures O-1 to O-7 besides affidavits of S/Shri Ram Lal Sharma, Dr. C.R. Sharma, Rama Nand, Laiq Ram, Ashok Justa, Hari Dutt and Hardyal and the reports of the experts.
8. Likewise respondent No.3 in support of its case filed affidavit of Shri Suresh Kumar Sharma, and relied upon copies of technical experts, Annexures R-2 and R-4. Respondent No.3 also placed reliance upon appreciation letters of some other farmers which have been collectively attached as Annexure R-3 with the reply, besides other documents Annexures R-5 to R-20, i.e. reports of experts.
Statement of Dr. A.K. Verma was recorded on commission by Local Commissioner Shri Dhiraj Bansal, Advocate, which is at pages-121 to 137 of the complaint file.
9. We have heard the learned counsel for the parties at length and also gone through the record of case file minutely.
10. Mr. D.N. Ronta, learned counsel for the appellant argued that in the present case in view of affidavits of Shri Surender Dengta and of other orchardists, S/Shri Rajinder Chauhan, Mangat Ram, Ganga Ram, and Shri Ravinder Mehta, Shri Sunil Beakta Proprietors of Agro Sale Centres Kotkhai, Dr. Gian Thakur, one fact is very clear, that due to spray of Carina cracks had developed in the apple fruits in three orchards of the appellant. Dr. Gian Thakur, Associate Director of Dr. Y.S. Parmar University of Horticulture and Forestry, vide his report dated 12.08.2005 had clearly attributed the cause of cracking of apple fruits in the orchards of the appellant due to spray of Carina. This fact had also come on record that approximately 250 apple trees in three effected orchards of the appellant which were at bearing stage were damaged due to cracking of apples, mostly from middle portion. He also argued that the Carina is only meant for spray on tomatoes and cotton crops.
11. He also placed reliance upon affidavit of Shri Hardyal, who had deposed in his affidavit to the effect that net average sale of apples including red golden apples which is of low variety, was Rs.560/- per box as per sale memo/bill No.349, dated 18.08.2005. Thus he argued, that there was deficiency of service on the part of respondents, as a result thereof, apple fruits in his orchards had developed cracks, as a result thereof his client had suffered loss to the tune of Rs.6,00,000/-, and he is also entitled for the damages for mental agony and harassment suffered by him besides cost.
12. Mr. Anoop Sharma, learned A.D.A. for the respondents No.1 and 2 challenged the report of Dr. Gian Thakur Annexure C-15, as it does not bear signatures of other scientist, who had accompanied Dr. Thakur, and per him reports Annexure O-4 and E-15 are contradictory to each other.
In report Annexure E-15, Dr. Gian Thakur had mentioned that cracking was induced by Carina spray application, whereas in Annexure O-4 the main cause of splitting of fruit was mentioned as moisture stress caused to prolonged and higher temperature experienced in the month of June, 2005. He also relied upon affidavit of Dr. C.R. Sharma, Director of Horticulture, Himachal Pradesh, who had deposed in it that Carina miticide/insecticide was duly certified by the International Testing Centre at Panchkula, which is a Government Approved Testing House and Industrial Research Institute, and best quality of miticide and insecticide was also supplied to 121 orchardists of Kotkhai area for the control of mite from-whom no complaint of fruit cracking due to spray of Carina was registered with the Horticulture Department. Thus per him cracking of apple fruits in the orchards of the appellant was not due to spray of Carina miticide/insecticide, but main cause for splitting of fruits was due to moisture stress caused due to prolonged and higher temperature experienced in the month of June, 2005.
13. His further submissions were that spray schedule was not followed as per document Annexure O-3 and he placed reliance upon final report of Prof. and Head of Department of Entomology and Apiculture, University of Horticulture and Forestry, Nauni which is at page-413. In this report it is clearly mentioned, that no case of fruit cracking symptom has come across upon application on Carina, and as per this report, if at all in phytotoxicity had taken place after application of chemical at walnut stage, the symptom should not have appeared such late after setting in of the monsoon, as such these symptom do not appear to be phytotoxicity symptoms.
14. Mr. Chauhan, learned counsel for the respondent No.3 argued that since disputed and complicated questions of facts are involved in this appeal, which require detailed evidence and cross-examination of witnesses, as such proper remedy in such case is to relegate the parties to Civil Court. He also placed reliance upon affidavits of other orchardists namely, S/Shri Ram Lal Sharma, Rama Nand, Laiq Ram, Ashok Justa, Hari Dutt, as well as on the appreciation letters of farmers Annexure R-3. It had been mentioned by all of them, that Carina spray had proved to be a boon to them as its result was very useful. He further referred to the statement of Dr. A.K. Verma who in cross-examination has clearly stated that as per his vast experience and knowledge phtotoxicity cannot occur due to spray of Carina, if used in right concentration and at the right time. As such he prayed for dismissal of complaint as there is no deficiency of service/unfair trade practice on the part of his client.
15. After hearing the learned counsel for the parties and after having gone through the record of case file, we are convinced that there is no infirmity in the order of District Forum below. As it while dismissing the complaint has relegated the parties to Civil Court. We are of the view that on serious disputed questions of fact are involved which are clear from the materials on record, and respective contentions of learned counsel for the parties as stated hereinabove in detail. These cannot be gone into summary proceeding under Consumer Protection Act, 1986. For taking this view we are supported by the decision of Honble Apex Court in case of Oriental Insurance Company Limited versus Munimahesh Patel, IV (2006) CPJ I (SC) and New India Assurance Company versus Hira Lal Ramesh, AIR (2008) SCC 2620.
16. No other point was urged.
17. In view of above discussion, there is no merit in the present appeal, which is dismissed, while upholding the order of District Forum, Shimla in Consumer Complaint No.310/2005, dated 04.08.2009.
18. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
SHIMLA 29.07.2010 ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
(Chander Shekhar Sharma) Member.
*dinesh*