State Consumer Disputes Redressal Commission
Bhola Singh vs M/S Shri Ram Fartilizers on 19 May, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 79 of 2015
Date of institution: 22.1.2015
Date of Decision: 19.5.2015
Bhola Singh S/o Nazar Singh, R/o Sangha, Luhar Kheda Dhani, District
Mansa.
Appellant/Complainant
Versus
1. M/s Shri Ram Fertilizers, Pesticides & Fertilizers Dealer, Guru
Nanak Market, Sangha Road, Sirsa, District Sirsa.
2. Nagarjuna Agrichem Ltd. Plot No. 12-A, Block C, Lakshmi Towers,
Nagarjuna Hills, Punjagutta, Hyderabad 500 082.
3. Safex Chemicals (India) Ltd., 807, Crown Heights, Plot No. 3, B-1,
Twin District Centre, Sector 10, Rohini, New Delhi 110085
4. United Phosphorus Ltd., M/s Shanti Fertilizers & Chemicals, 4th
Milestonre, Hissar 125 001.
Respondents/Opposite Parties
First Appeal against the order dated
18.11.2014 passed by the District Consumer
Disputes Redressal Forum, Mansa.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Mrs. Riti Aggarwal, Advocate
2
FIRST APPEAL NO. 79 OF 2015
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 18.11.2014 passed by the District Consumer Disputes Redressal Forum, Mansa(hereinafter referred as the District Forum) in consumer complaint No.64 dated 22.4.2014 vide which the complaint filed by the appellant/complainant(hereinafter referred as the complainant) was partly allowed against Op No. 1 directing OP No. 1 to pay Rs. 2,000/- to the complainant as compensation for unfair trade practice within one month otherwise it will carry interest @ 9% p.a. from the date of order till payment.
Misc. Application No. 139 of 2015
2. An application has been filed under Section 5 of the Limitation Act to condone the delay of 20 days in filing the appeal. It was stated that the complaint was decided on 18.11.2014 and order was received on 3.12.2014 and thereafter the appellant engaged the counsel on 20.12.2014 for filing the appeal, who drafted the case but there was some mistakes in it, which were corrected and thereafter it was filed but in that process delay of 20 days occurred, which is neither intentional nor deliberate. In view of the reasons as stated in the application and that the delay is just 20 days, therefore, the same is hereby condoned and application is hereby disposed off. MAIN CASE
3. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the 3 FIRST APPEAL NO. 79 OF 2015 respondents/opposite parties(hereinafter referred as the OPs) on the averments that he had taken 24 acres 4 Kanal land on lease from various persons and had sown cotton crop in 18 acres of land. He had purchased pesticides from Op No. 1 vide bill Nos. 2351 dated 12.9.2013, 2087 dated 28.8.2013, 2369 dated 14.9.2013 and 2144 dated 31.8.2013. It was manufactured by different companies and Op No. 1 directed the complainant to use it as per the instructions. However, after sometime of spraying these pesticides, the cotton crop started damaging. He made a complaint to the Agricultural Department, who vide its report No. 960 dated 11.3.2014 told the complainant that the cotton crop had been damaged due to spray of wrong pesticides by making wrong combination, therefore, his produce was less by 863 Kg. per hectare, accordingly, loss to the complainant to the tune of Rs. 3 lacs. Complaint was filed claiming compensation of Rs. 3 lacs and cost of litigation as Rs. 30,000/-.
4. OP No. 1 filed the reply taking legal objection that the pesticides were sold to the complainant in original sealed condition, which was checked by Agriculture Department and samples were found to be of standard quality. The complaint was false and misleading, therefore, liable to be dismissed with special costs. On merits, it was denied that the complainant had taken 24 acres 4 Kanal land on lease out of which cotton crop was sown on 18 acres of land. No assurance/guarantee was given by this Op as he has sold the pesticides duly contained in the containers received from manufactures, therefore, the report dated 11.3.2014 is false, baseless 4 FIRST APPEAL NO. 79 OF 2015 and procured one. No deficiency in services on the part of this OP, therefore, it be dismissed.
5. OP No. 3 in its reply took the legal objections that the District Forum did not have jurisdiction to entertain this complaint. Before supplying any pesticide in the market, these pesticides go for various tests in their home laboratory where qualified staff was employed. The less produce depends upon the various factors like water quality used for irrigation, physical condition of the soil, spraying of pesticides, fertilizers, fertility of land, proper raising of nursery, timely transplantation, temperature, irrigation facilities, timely pest control measures. There is no document on the file that proper procedure for cultivation was adopted by the complainant as per the instructions mentioned over the packing of products manufactured by Op No. 3; complicated questions of law and facts were involved, which cannot be adjudicated in the summary procedure, therefore, the matter was required to be referred to the Civil Court. As per report of the Chief Agricultural Officer, Mansa, the plants had faded and dropped their leaves after last spray and it has not been mentioned, which pesticide and insecticide was sprayed in the last. It was further mentioned in the report that it was the combination of various pesticides and insecticides, which had caused damage to the plants for which this Op was not liable. The inspection of Chief Agricultural Officer is not based upon scientific testing rather based upon oral statements. The germination defect in the seeds cannot be ascertained through visual inspections; there was no cause of action for the complainant to file this complaint, there was no expert report 5 FIRST APPEAL NO. 79 OF 2015 and that no document on record that he had taken the land on lease basis. On facts, the averments taken in the legal objections were reiterated. It was further submitted that there was no deficiency in services or unfair trade practice on the part of this OP. Complaint was without merit and it be dismissed.
6. Op No. 4 in its reply took the preliminary objections i.e. with regard to the jurisdiction of the Forum; the complainant did not have any cause of action to file the complaint. All the pesticides before supplying in the market were tested in their laboratory by qualified staff; the complainant had not mentioned the brand name and other particulars i.e. lot number etc. of the pesticides/insecticides used. The production of the yield depends upon various factors; complicated questions of law and facts were involved, which cannot be decided in summary procedure and that the report of the Chief Agricultural Officer, Mansa was not on the standard lines and on the basis of statement of the witnesses, therefore, it cannot be relied upon. Accordingly, there was no cause of action for the complainant to file this complaint. On facts, the averments stated in the legal objections were reiterated and stated that the complaint was without merit and it be dismissed.
7. Op No. 2 had proceeded ex-parte, however, he was allowed to lead their evidence.
8. The parties were allowed by the learned District Forum to lead their evidence.
9. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, bills Exs. C-2 to 5, 6 FIRST APPEAL NO. 79 OF 2015 application Ex. C-6, letter Ex. C-7, lease writing Ex. C-8, Jamabandi Ex. C-9. OP No. 1 had tendered into evidence affidavit of Sanjiv Kumar Ex. Op-1/1, Pamphlet Ex. Op-1/2, statement of Harpreet Singh Ex. Op-1/3, Statement of Avneet Singh Ex. Op-1/4, chemical report Exs. Op-1/5 to 8, Brochures Exs. Op-1/9 & 10, purchase invoices Exs. Op-1/11 to 18, brochure valdex Ex. Op-1/19, brochure Rhyzo Ex. Op-1/20, ledger Ex. Op-1/21, affidavit of Khusbas Kapil Ex. Op-2/1, Authorization letter Ex. Op-2/2, affidavit of Joginder Singh Ex. Op-3/1, authority letter Ex. Op-4/1, certificate of analysis Ex. Op- 4/2 & 3, Form XVII Ex. Op-4/4 & 5.
10. After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the learned District Forum partly allowed the complaint as referred above.
11. In the appeal, it has been contended by the counsel for the appellant that the learned District Forum has ignored the facts of the case and does not properly appreciated the evidence and documents on the record. The report of the Chief Agricultural Officer, Mansa has not been taken into consideration.
12. The OP has taken the plea that the pesticide was to be used as per instructions given in the brochure but the complainant was illiterate village man and did not follow the instructions given by OP No. 1. In case we go through the report of the Chief Agricultural Officer, it has been placed on the appeal file. This report reveals that five sprays were conducted by the complainant and damage to the crop was with the 5th spray. As alleged by the complainant, he had 7 FIRST APPEAL NO. 79 OF 2015 mixed pesticides as directed by Op No. 1 and damage was due to the mixing of the pesticides, whereas the plea of OP No. 1 is that the pesticide has to be used as per the instructions given in each case on the container. The complaint is silent about the combination of which pesticide was taken by the complainant. There is no evidence on the record that OP No. 1 had suggested for combination of those pesticides. In case any farmer for want of ignorance has made the combination of various pesticides and sprayed it on crop, it can cause damages because the combination of any pesticide may not match with other pesticide unless it is recommended by the Manufacturing Unit or by the Agricultural Expert. The containers or the Literature of those pesticides has not been placed on the record by the counsel for the appellant how the combination of the pesticide was to be made. Even the complaint is silent how the combination of pesticide was prepared, which had caused damage to the crop of the complainant, as a result of which his average yield was less by 7.66 Kg. per hectare as per the report of the Chief Agricultural Officer, but again it is not only the pesticide, which is responsible for the less yield. Various factors are responsible i.e. water quality used for irrigation, physical condition of the soil, spraying of pesticides, fertilizers, fertility of land, proper raising of nursery, timely transplantation, temperature, irrigation facilities, timely pest control measures. All these facts were duly considered by the learned District Forum and then it came to the conclusion that the complainant was unable to prove on record how the combination of pesticide was prepared and on whose instance it was prepared. In case of its own, he has prepared the combination 8 FIRST APPEAL NO. 79 OF 2015 and sprayed it, which caused damage to the crop then neither Dealer nor Manufacturer are liable to pay any damages, therefore, we are of the opinion that the learned District Forum had rightly appreciated the facts of the case and come to the conclusion that the complainant has failed to prove that pesticide used by him on crop were of sub-standard (mal-branded) and not conforming to the given standard, therefore, the complaint was rightly dismissed.
13. We are unable that the counsel for the appellant was unable to make out any point for admission of the appeal, therefore, we dismiss this appeal in limine.
14. The arguments in this appeal were heard on 14.5.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 19, 2015. (Surinder Pal Kaur)
as Member