State Consumer Disputes Redressal Commission
D.J. Damani & Sons, vs Mr. Naganath Jagannath Deshmukh, on 6 March, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
(1) First Appeal No.360 of
1999
In Complaint
No.151/1998 Date of order: 06/03/2010
District Forum: Solapur.
D.J. Damani & Sons,
Through N.D. Damani,
Shivajinagar, Pune 5.
..Appellant
(Org. Opposite Party
No.1)
V/s.
1.
2.
Mr. Naganath Jagannath
Deshmukh,
R/at Patwardhan, Kuroli,
Taluka-Pandharpur,
Dist. Solapur.
D.J. Damani & Sons,
Seeds Products &
Seller,
Shivajinagar, In front
of Bus Stand,
Through N.D. Damani,
Pune.
..Respondent
(Org. Complainant)
..Respondent
(Org. Opposite Party
No.2)
(2) First Appeal No.394 of
1999
In Complaint
No.151/1998 Date of order: 06/03/2010
District Forum: Solapur.
Virupakasha Dhondiappa
Gulave,
R/o: Akluj, Tal.
Malshiras,
Dist. Solapur.
..Appellant
(Org. Opposite Party
No.1)
V/s.
1.
2.
Mr. Naganath Jagannath
Deshmukh,
R/at Patwardhan, Kuroli,
Taluka-Pandharpur,
Dist. Solapur.
Dr. M. M. Sarnaik,
Near Savitribai Phule
Hospital,
Kolhapur.
..Respondent
(Org. Complainant)
..Respondent
(Org. Opposite Party
No.1
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Mr. V.G. Kulkarni, Adv. for D.J. Damani & Sons, Original Op.No.2 Mr. Rupesh Bobade, Adv. for Mr. Gulve, Original Op. No.1.
Mr. Prabhakar Jadhav, Adc. for Original Complainant.
-: O R D E R :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:(1)
By this common judgement we are disposing of Appeal No 360/1999 filed by manufacturer of seeds and Appeal No.394/1999 filed by the seller of the seeds.(2)
By the judgement and award passed by District Forum Solapur in Consumer Complaint No.151/1998 on 29.01.1999 the forum below was pleased to pass an award against Opposite Party No.1- the seller of the seeds and Opposite Party No.2 - the manufacturer of the seeds and directed them jointly to pay a sum of Rs.50,000/- by way of damages and Rs.1,000/- as costs. As such seller as well as manufacturer of the seeds have filed these respective appeals against the same award.(3)
Facts to the extent material may be stated as under:
Shri Nagnath Jagannath Deshmukh, had filed consumer complaint against Shri Virupakasha Ddondiappa Gulave, Opposite Party No.1, who is retailer of seeds manufactured by D.G. Damani & Sons Opposite Party No.2 of Shivaji Nagar, Pune. According to Complainant he had purchased from Opposite Party No.1 of Akluj, seeds manufactured by D.J. Damani & Sons Opposite Party No.2 styled as CP-81 and he purchased 9 bags of seeds worth Rs.150/- each. Out of 9 bags, he sowed seeds from 8 bags. After they became small plants at the nursery he then planted them in 2 acre 30 R land and spent Rs.25,000/-. But, after some time he found that Papaya plants were not bearing fruits. He found that all those plants were male plants. There were no female plants. According to Complainant, Opposite Party No.1 had given him male plants seeds in place of female plants seeds, thereby he had been deceived. He therefore, sent notice and requested to visit his field for inspection and also demanded Rs.95,000/- per acre as damages. Opposite Party sent evasive replies. Opposite Party No.2 made inspection of only one garden and expressed regrets and assured to give new seeds, but, denied to give any compensation and therefore, Complainant filed consumer complaint and asked for compensation of Rs.95,000/- per acre and he wanted compensation for 2 acre 30R land. He also appended with his complaint his own affidavit and inspection report prepared by Agricultural Officer, Pandharpur. He also filed affidavits of Mr. Ramdas Kolse and Shri Thite.(3)
Opposite Party No.1 denied allegations by filing consumer complaint. Opposite Party No.1 pleaded that he was simply seller of seeds manufactured by Opposite Party No.2 seeds company. He is not manufacturer of the seeds, therefore, he is not liable to pay any compensation and he further pleaded that Complainant had purchased CP-81 seed packet from him, but, Complainant had not adduced any evidence into which garden he had sowed the said seeds. According to him exclusive female seeds are not available. The seeds of male and female categories are always sold together in the seeds bags. No separate female and male seeds of papaya are sold as alleged by the Complainant. He also pleaded that seeds purchased by the Complainant was required to be sowed only in one acre field, but, he used the said seeds for 2 acre 30 R land. He had not taken proper care and caution while sowing the seeds. Dr. Kalgaonkar expert of Opposite Party No.2 had inspected the Complainants field and it was found by him that Complainant had not followed instructions properly. He had not done proper cultivation of the field and therefore, he sustained loss. Opposite Party No.1 pleaded that he being seller he is not liable to pay anything to the Complainant for the loss he sustained and therefore, he pleaded that complaint should be dismissed with compensatory costs.(4)
Opposite Party No.2 denied the allegations made by the Complainant by filing written statement. According to Opposite Party No.2 D. J Damani & Sons - Seeds Company, the Complainant was not having any knowledge of taking papaya crop and still he was trying to take crop of papaya. He should have followed the instructions printed on the seeds packet. After raising the plants in the nursery while replanting he should have replanted male plants as well as female plants in one garden. 10% male plants and 90% female plants should have been planted together. Then only within 5-6 months the plants get flowered. Initially the male plants get flowering followed by female plants. It was found by the expert of Opposite Party No.2 that even before Complainant could know which plants are male plants and which plants are female he had uprooted plants in highhanded manner and this fact was admitted by him while talking with expert. According to Opposite Party No.2 CP-81 seed was not hermaphrodite (having male & female flowers on the same plant). But it is simple and improved traditional diocious variety (in which male and female flowers are borne on separate plants) and that quantity of one bag was sufficient for one acre land, but, he has used it for 2 acres 30R land. So, Company pleaded that Complainant had not taken care of planting and replanting as per instructions given and therefore, he suffered loss. The Company also pleaded that they had given to Complainant New Super Disco and Z-86 seeds of papaya for demonstration and therefore, they are not guilty of deficiency in service and they pleaded that complaint should be dismissed with costs. Along with written statement they had also filed affidavits of Dr. Kalgaonkar, the expert and had also filed on record one seed packet showing that they had printed the instructions.(5)
On the basis of affidavits and documents placed on record, forum below held that opposite Parties were guilty of deficiency in service. They had not given instructions properly on their seeds packets. The fact that M/s. D.G. Damani & Co. had given another seed packet itself suggested that their earlier seeds were defective and therefore, forum below held that Opposite Parties were guilty of deficiency in service. They had not given instructions properly to the cultivator and therefore, forum below partly allowed the complaint and directed both Opposite Parties to pay Rs.55,000/- as compensation to the Complainant with costs of Rs.1,000/-. Aggrieved thereby Seed Company M/s. D.G. Damani & Sons Opposite Party No.2 has filed Appeal No.360/1999 and retail seller Mr. Virupakasha Dhondiappa Gulave - Opposite Party No.1 has filed Appeal No.394/1999.(6)
We heard submissions of Advocate Shri V.G. Kulkarni, for D.G. Damani & Sons, Mr. Rupesh Bobade, Advocate, for V.D. Gulave and Mr. Prabhakar Jadhav, Advocate for Mr. Nagnath Jagannath Deshmukh, the Original Complainant.(7)
We are finding that it was the contention of the Respondent No.1 (Original Complainant) that the seeds supplied by Opposite Party No.1 and Manufactured by M/s. D.G. Damani & Sons were substandard or defective. But, no evidence has been adduced to prove that the said seeds were defective or substandard in nature. Under Seeds Act, the testing laboratory has been established by the Government. One such testing laboratory is at Parbhani and another is at Nagpur and said testing laboratories are attached to all the four agricultural universities established in Maharashtra. The seeds were not at all sent to seed testing laboratory by the Complainant before filing the complaint against both the Appellants. What is pertinent to note is the fact that, admittedly Respondent purchased 9 packets from Shri Gulave of Akluj, District Solapur and he alleged in the complaint that he exhausted 8 packets of seeds, prepared plants, replanted those plants in his field covering 2 acres 30R land. He has specifically asked for seeds of female variety, but, he was given seeds of male variety and thereby he was cheated. If he had asked for CP-81 variety then it was the variety of male as well as female. So, basically his complaint was devoid of any substance. Moreover, it was rightly argued by the Counsel for the Appellants that the seeds were sufficient to raise plants only in one acre land, because he had purchased 9 packets of seeds from the Appellant in Appeal No.394/1999. Whereas, he had sowed in 2 acre 30 R land, so seeds used by him were insufficient for land 2 acre and 30R. So inherently he had used inadequate seeds to cover his 2 acre 30R. Moreover, he himself mentioned in his complaint that out of 9 seeds packets he had sowed 8 seeds packet, it means he had retained one seed packet. Thus, it is clear that he had not sent the said packet retained by him for testing to the approved seeds testing laboratory at Pune or Nagpur or Parbhani or any other agricultural laboratory in Maharashtra. No explanation is available from the side of the Respondent. The very fact that he had not volunteered to give 9th packet, he retained for sending it to testing laboratory would disprove his claim that they were deficient or defective. The forum below appears to have relied upon the report of Agricultural Officer. The said report is signed only by an Administrative Officer, Panchayat Samiti, Pandharpur, it is dated 16.05.1998. As per Government of Maharashtra Notification, if there is allegation of defective seed then committee consisting of Agricultural Government officer, Zilla Parishad, Taluka Agricultural Officer, Representative of Mahabeej, District Seed Certification Officer, Representative of Agricultural University, Representative of Zilla Parishad, Mohim Adhikari from the office of the Agriculture Development Officer (ZP) and representative of Seed Company and Seller of Company should go for inspection. They should inspect the field and then they should submit the report, copy of the same should be submitted to Directorate of Agriculture. We are finding that, in the instant case only Agriculture Officer of Pandharpur (Taluka level agricultural office) had made inspection and none else was present and he had simply given report that the plants of male variety were found 60-70% and plants of female variety were found 20-30% and therefore, the agriculturist suffered 70% loss in the production. However, the report of Agriculture Oficer, Pandharpur, is not sufficient as per Government Notifications issued in this behalf, which are dated 27.03.1992 and 26.10.998. As against this, M/s. D.G. Damani & Sons, had placed on record report of their Officer, who found that because of mistake committed by Agriculturist lesser crop was received than expected. Opposite Party No.2 Appellant in Appeal No.360/1999 filed affidavit of Smt. Marunal Murgud, who stated that she had sowed in Field Gat No./Survey No.101/6 Papai CP-81 variety. She had purchased it from M/s. D.G. Damani & Sons having Lot No.138 and she could get satisfactory amount of crop by using said seeds and the seeds purchased from Damani Company was good seeds. Mr. Narendra Devkisan Damani, has also filed affidavit on behalf of M/s. D.G. Damani & Co. Affidavit of Dr. Balasaheb Kalgaonkar, who is in service of D.G. Damani & Sons as expert and who has taken doctorate from Pune University reveals that after receipt of complaint from Shri Gulave, who forwarded Shri Nagnath Deshmukhs complaint in respect of Papai CP-81 on 22.04.1998, immediately on 28.04.1998 he went to the field of Shri Deshmukh. Shri Deshmukh was not having any idea as to how crop of Papaya to be taken. He is not having any technical knowledge of there being male and female varieties. He had purchased 9 packets of seeds each of 25 gram and he had sowed the same covering 2 acre 30 gunthas land. According to him for one acre 250 gram seed was required. So, Shri Deshmukh had not used adequate amount of seeds covering 2 acre 30 Gunthas land and therefore, he must have used some other seeds and not of Damani Company and therefore, he even could not identify which were male plants and which were female plants and for proper cultivation in one acre normally 10% male plants and 90% female plants are clubbed together and rest of the male plants are to be uprooted. In scientific manner or in systematic manner he had not taken cultivation of this crop and therefore, he had suffered damages. He stated therefore that the seed company was not responsible for the inadequate crop got by Complainant. One Shri Vishwanath Mahadu Gadage, had also filed Affidavit to state that he purchased papaya CP-81 having Lot No.138 seed manufactured by M/s. Damani Seeds Co. It was proper and good seed. It was of high quality and he could take proper crop because of the cooperation given by said Seed Company.(8)
In the light of these Affidavits, we are of the view that the forum below erred in law in allowing the complaint on the basis of material brought on record by the Respondent. In the case of Sonnekaran Gladioli Growers V/s. Baburam, [reported in II (2005) CPJ 94 (NC)], the Honble National Commission held that in the absence of clear finding regarding quality of seeds supplied no inference can be drawn against the Company. In the absence of any such proof regarding substandard quality of seeds, the complaint should have been dismissed by the consumer forum. No proper evidence was produced by Mr. Nagnath Deshmukh to support his contention that seeds were defective or substandard in nature. The appropriate committee was not constituted to visit the field of Complainant. Only one Agricultural Officer of Panchayat Samiti, Pandharpur visited the field and gave report. This was contrary to the Government of Maharashtra Notification issued in this behalf. Moreover, Affidavit of expert and two other Affidavits have been filed on record by M/s. Damani & Co., the Appellant in Appeal NO.360/1999 to prove that their Papaya CP-81 seeds were of good quality and they were giving good results to the farmers. Two such affidavits were filed in support of M/s. Damani & Co. Taking into consideration all these facts, we find, even in the absence of proof of substandard seeds the forum below had passed award in favour of Respondent No.1 Mr. Nagnath Deshmukh and against both the appellants herein. It is also pertinent to note that forum below in its last paragraph had observed that Complainant had asked for compensation of R.95,000/- per acre and asserted that he had spent an amount of Rs.25,000/- for cultivation, but, Complainant had not produced any account to show that how much crop he would have got by taking normal crop per acre. He had nowhere mentioned how much monies he would have earned by selling crop per acre. Therefore, forum below held that they have no idea about the amount of profit he would have earned. There was no evidence to show that how much loss Complainant suffered. Despite this fact the forum below directed that Opposite Parties should pay to the Complainant Rs.20,000/- per acre and cost of Rs.1,000/- to the Complainant. This order per se is bad in law. Even Complainant had not led any evidence as to what amount of loss he suffered. The forum below should not have directed by allowing the complaint to both the Appellants to pay jointly and severally Rs.55,000/- plus cost of Rs.1,000/-. We are of the view that the forum below erroneously passed order in favour of the Respondent though Respondent had failed to establish that seeds in questions manufactured by M/s. D.G. Damani & Sons and sold by Shri Gulave of the Akluj, were substandard in nature. In the circumstances, we are of the view that the order under challenge cannot be allowed to sustain in law. In the result, we pass the following order:
O R D E R
(i) Appeal No.360/1999 filed by the manufacturer of the seeds M/s. D.G. Damani & Sons and Appeal No.394/1999 preferred by Shri V.D. Gulave, are allowed.
(ii) The judgement and award passed by the District Forum, Solapur in Consumer Complaint No.151/1998 is quashed and set aside
(iii) The complaint stands dismissed.
(iv) Parties are left to bear their own costs.
(v) Inform the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member ep