State Consumer Disputes Redressal Commission
Choudhary Amar Kumar vs M/S Hardari Lal Raj Kumar on 30 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1457 of 2009.
Date of Institution: 14.10.2009.
Date of Decision: 30.08.2013.
Choudhary Amar Kumar, aged 70 years, S/o Late Sh. Surja Ram, R/o
Chaudharian Wali Gali, Malout, Tehsil Malout, District Muktsar.
.....Appellant.
Versus
1. M/s Hardari Lal Raj Kumar, Tur Bazar, Malout, Tehsil Malout,
District Muktsar.
2. Nagarjune Pesticides, through its Managing Director,
Responsible Person, NACL-Ludhiana Godown, Shop no.42-43,
Ground Floor, Gill Road, Behind Arora Palace, Ludhiana-141003.
...Respondents.
First Appeal against the order dated
17.08.2009 of the District Consumer
Disputes Redressal Forum, Muktsar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. S.M. Wadehra Advocate, counsel for the appellant.
None for respondent no.1.
Sh. N.K. Manchanda, Advocate, counsel for respondent no.2.
----------------------------------------
INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Choudhary Amar Kumar, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 17.08.2009 First Appeal No.1457 of 2009 2 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), on the grounds that in the 'Kharif' season i.e. Sauni- 2007, he has sown American Cotton (Narma Crop) in 54 acres of land after taking the same on lease from the original owners. The appellant in addition to that, sowed some crop in land measuring 10 acres owned by him. Respondent no.1 is dealer of pesticides and insecticides and respondent no.2 is the manufacturer of the pesticides.
3. After ploughing the land by spending Rs.3,000/- per acre, the appellant sowed the cotton seed by spending Rs.1,350/- per acre. Crop was sown with drill machine and was mixed with one bag of DAP fertilizer per acre. Two and a half bags per acre Urea fertilizer were used. The cultivation treatment was given by spending Rs.2,500/- per acre and more than Rs.2,500/- per acre was spent for watering the crop and for pesticides for further growing the crop. The condition of the crop was very good and it flowered and it turned into cotton bolls.
4. Thereafter, due to attack of some insect i.e. Milli Bugh, the appellant contacted respondent no.1 and told about the condition of the crop. Respondent no.1 recommended 'Profex' (Prophenophoss) pesticides manufactured by respondent no.2 and assured that it will give good results. On the recommendation of respondent no.1, the appellant purchased 30 liters of 'Profex' (Prophenophoss) from respondent no.1 vide bill no.726 dated 31.07.2007. The said pesticide was sprayed in 54 acres of crop, strictly according to the recommendations made by respondent no.1.
First Appeal No.1457 of 2009 3
5. After 4-5 days of the spray, the appellant noticed that the fruit of the crop i.e. cotton bolls started burning and in few days, 70-80% of the fruit was burnt. The appellant immediately brought this fact to the notice of respondent no.1, but respondent no. 1 delayed the action and told that respondent no.2 will be informed to compensate the appellant, but nothing was done.
6. The appellant moved an application to the officers of the Agriculture Department and on 07.09.2007, Sh. Parminder Singh, Agriculture Development Officer, Malout inspected the fields of the appellant situated at village Ghumiara, Chappianwali, Danewala and Malout and made a detailed report dated 11.09.2007 and confirmed the burning of the crop. The crop of the appellant was damaged due to defective and spurious pesticide sold by respondent no.1 and manufactured by respondent no.2 and the appellant suffered huge loss and the respondents are liable to pay the compensation jointly and severally. In Malout Tehsil, the average yield of the cotton crop was 7.50 to 8.00 quintals per acre, but the appellant suffered the huge loss. The act and conduct of the respondents caused lot of mental tension and harassment and they are liable to pay the compensation.
7. It was prayed that the respondents may be directed to pay Rs.19.99 lacs on account of loss suffered by the appellant, including the expenses incurred on the crop jointly and severally, along with litigation expenses.
8. In the written version filed on behalf of respondent no.1, preliminary objections were taken that the complaint is not maintainable in the present form. The answering respondent is the authorized dealer of respondent no.2 and purchased the insecticides from respondent no.2 in duly packed and sealed condition and in a packet. The First Appeal No.1457 of 2009 4 insecticide in question was sold to the appellant vide bill dated 25.07.2007 in the same condition and the complaint is liable to be dismissed.
9. The answering respondent is only the retail shopkeeper and is having a valid licence for selling the insecticide, from the competent authority. The appellant specifically demanded the insecticide and the terms and conditions for using the insecticides were explained to the appellant, but the appellant has not used the insecticides as per the specifications and guidelines issued by respondent no.2. The appellant has not attached any proof with the complaint to prove the inferior quality of insecticides. The production of crop depends on various factors. The appellant has not complied with the provisions of Section-13 (1) of the Act. The report issued by the Agriculture Development Officer is not as per the actual position of the spot and is false and frivolous. The appellant has no locus standi and the complaint is barred by limitation.
10. The appellant is not owner of the land in which the said insecticides were used. The present complaint has been filed, to extort money.
11. Respondent no.2 is leading manufacturer of insecticides and is having well equipped laboratories and all the products are checked in the laboratory before they are sold to the customers. The appellant is not a consumer.
12. On merits, the allegations were denied and similar pleas as taken in preliminary objections were repeated and it was prayed that the complaint may be dismissed with costs.
13. In the written version filed on behalf of respondent no.2, similar preliminary objections were taken. It was further submitted that First Appeal No.1457 of 2009 5 the Certificate of Analysis was issued by Assistant Manager/Quality Controller Lab. Hyderabad of Nagarjuna Agrichem Limited, specifically regarding the Profenofos 50% E.C. of Batch No.E0305.
14. On merits, it was submitted that the insecticides were not sprayed as per the guidelines. It is not proved that the insecticides which were purchased by the appellant were used on the land which was inspected by the Agriculture Development Officer. The appellant has intentionally concealed the fact that he has also purchased the insecticides of same produce from respondent no.1 vide bill no.311 dated 25.07.2007. Other allegations were denied and dismissal of the complaint with costs was prayed.
15. Parties led evidence in support of their respective contentions by way of affidavits and documents.
16. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the report of Insecticide Quality Control Laboratory, Bathinda is Ex.R-3. As per this report, sample confirms to its specifications with respect to percentage active in gradient content. Another report is Ex.R-4 dated 25.11.2008. This is Certificate of Analysis and as per report of Assistant Manager Quality Control, the material confirms to the specifications. The appellant has not produced the record on the file to prove the total quantity of the produce of Narma crop with the help of Commission Agent or Marketing Committee record or J Forms. Without record, it cannot be said that there was a loss of production of Narma crop. The pesticides supplied by the respondents were of good quality and the respondents are not deficient and the complaint was dismissed.
First Appeal No.1457 of 2009 6
17. Aggrieved by the impugned order dated 17.08.2009, the appellant has come up in appeal.
18. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant as well as perused the written arguments submitted on behalf of respondent no.2.
19. Neither the counsel for respondent no.1 nor anybody else appeared at the time of arguments.
20. The appeal was filed on the grounds that the District Forum has failed to consider the report of the Agriculture Development Officer in which it was mentioned that damage/burning of the crop after the spray of 'Profex' pesticide was just like the affect of 2-4-D pesticide spray, which is used to burnt/destroy the grass in the crop and the report also stated that the crop was damaged to the extent of 60% to 70%. The appellant has led evidence to that effect and he has filed his affidavit, but he was not cross-examined. The pesticides in question were sprayed strictly in accordance with the directions and recommendations of respondent no.1 and affidavit to that effect was filed. The order passed by the District Forum is not sustainable and the same may be set aside and the appeal may be allowed.
21. In the written arguments submitted on behalf of the respondents, it was submitted that it was not actually possible that the A.D.O. can inspect the crop of the appellant in 54 acres of land, situated on different villages in Tehsil Malout. No notice was issued to the respondents nor they were called at the spot and it was so admitted by Sh. Parminder Singh A.D.O. in his cross-examination. No respectable person of the village was joined and the inspection is doubtful. The appellant has used some defective pesticides. The First Appeal No.1457 of 2009 7 appellant intentionally concealed the fact that he purchased the pesticides of same produce vide bill no.311 dated 25.07.2007 Ex.OP-2. The sample was taken of some another batch and as per the report Ex.R-3, the sample confirms to its specifications. Report Ex.R-5 of Nagarjuna Agrichem Ltd. of the same batch i.e. EO303 also confirms to the specifications. The order passed by the District Forum is legal and valid and the appeal may be dismissed. Reliance has been placed on "Hindustan Insecticides Ltd. Vs Kopolu Sambasiva Rao & Ors.", 2006 (1) CLT-223 (NC).
22. We have considered the respective version/submissions of the parties and have thoroughly monitored the entire record and other material placed on the file.
23. The appellant has purchased 30 liters of 'Profex' (Prophenphoss) vide bill Ex.C-4 along with Desktop one and a half kgs. As per the version of the appellant, he sprayed the said pesticide in 54 acres of his crop as per the recommendations of respondent no.1, but after 4-5 days of the spray, the cotton bolls started burning and within a few days, 70%-80% of the fruit was burnt. The appellant has relied upon the report of A.D.O. Amar Kumar, who was also examined by the District Forum and has deposed that on the application Ex.C-1 of the appellant, he was directed by the Assistant Agriculture Officer, Malout, to visit the spot and give the report. He made the report dated 11.09.2007. He has stated that the appellant purchased the medicine of Batch No.305 but the stock of said medicine was found Nil with the firm, but sample from some other batch of the same company of medicine 'Profex' (Prophenphoss) was taken and sent. 60% to 70% fruit was burnt and it can be due to the affect of the said medicine. In his cross- examination, he admitted that he has not issued any notice to the firm First Appeal No.1457 of 2009 8 nor any respectable was called and he assessed the loss on physical inspection. There were signs of 2-4-D.
24. To rebut this evidence, the respondents placed on file, copy of delivery challan Ex.OP-4 as per which the 'Profex' (Prophenphoss) pesticide bearing Batch Nos.EO302, EO303, EO306 was purchased by respondent no.1. Copy of another delivery challan is Ex.OP-6 as per which 'Profex' (Prophenphoss) bearing batch Nos.EO304 and EO303 was purchased by respondent no.1 from Nagarjuna Agrichem Limited. Ex.R-3 is the report of Senior Analyst, Insecticide Quality Control Lab. as per which, the sample sent confirmed to its specifications. Ex.R-4 is the Certificate of Analysis of Batch No.EO305 and as per Ex.C-4, 'Profex' pesticide Batch No.EO305 was purchased and in Ex.R-4 under the head "Remarks", it was mentioned as follows:-
"Material confirms to the specifications".
25. Certificate of Analysis Ex.R-5 is regarding Batch No.EO303. Ex.R-6 is the Principal Certificate which was given to the Nagarjuna Agrichem Limited which is manufacturer of the said pesticide. Ex.R-7 is the licence issued to said Nagarjuna Agrichem Limited which was valid upto 31.12.2010.
26. The appellant in Para-4 of the complaint, pleaded as follows:-
"So on the recommendation of the opposite party no.1 the complainant purchased 30 Liters of 'Profex' (Prophenophss) from the opposite party no.1 vide bill no.716 dated 31.07.2007."
27. In reply to this Para, respondent no.1 pleaded as follows:- First Appeal No.1457 of 2009 9
"It is pertinent to mention here that the pesticide purchased by the complainant vide bill no.726 dated 31.07.2007 were on credit basis and till today, the amount is due towards the complainant in the account books of the answering O.P."
28. From the above, it is clear that the appellant has purchased 30 liters of 'Profex' from respondent no.1 vide bill no.726 dated 31.07.2007. Respondent no.1 in the preliminary objections has pleaded that respondent no.1 sold the insecticide in question to the appellant vide bill no.311 dated 25.07.2007 in the same condition i.e. in a sealed and packed condition and in a packet.
29. Respondent no.1 has taken a contradictory stand in the preliminary objections as well as in the pleadings on merits. In pleadings on merits, respondent no.1 has admitted that 30 liters of pesticides was purchased by the appellant vide bill no.726 dated 31.07.2007, but stated that the appellant has not made the payment, but for that he has not taken any action. Ex.C-4 is the copy of bill no.726 dated 31.07.2007 and as per this, 'Profex' of Batch No.305 was purchased by the appellant. Respondent no.1 has placed on file copy of bill no.311 dated 25.07.2007 as per which five liters 'Profex' were sold of Batch No.303. This bill has been fabricated by respondent no.1 because the appellant has never stated, pleaded or admitted that he purchased any pesticide on 25.07.2007 vide bill no.311. This bill has been fabricated by respondent no.1, just to escape the liability. Respondent no.1 purchased the 'Profex' vide Invoice/Delivery Challan Ex.OP-4 through respondent no.2, having Batch Nos.Eo 303, EO 303, EO 306. Another lot was purchased vide Invoice/Delivery Challan Ex.OP-6 of 'Profex', having Batch Nos.EO 304, EO 303. First Appeal No.1457 of 2009 10
30. Thus from the above, it is clear that respondent no.1 himself did not purchase any 'Profex', having Batch No.EO 305, but he sold the same to the appellant. The A.D.O. also did not find any 'Profex' pesticide of Batch No.EO 305 and he took the sample of Batch No.EO 320 and that was sent for the test to insecticide Quality Control Laboratory, Bathinda and the said laboratory gave report Ex.R-3. Certificate of Analysis Ex.R-4 is regarding Batch No.EO 305 and Certificate of Analysis Ex.R-5 is regarding Batch No.EO 303. Thus, Batch No.EO 305 'Profex' pesticide was neither purchased by respondent no.1 from respondent no.2 or the manufacturer and how could he sell the same to the appellant vide invoice Ex.C-4 on 31.07.2007 vide bill no.726. For that reason, the A.D.O. also could not find any 'Profex' Batch No.EO 305, for taking sample. The pesticide sold by respondent no.1 was not purchased by respondent no.1, as such, some adulterated pesticide was sold and that caused the loss to the fields of the appellant.
31. As per the report of the A.D.O. Ex.C-2, the loss of the crop was 60% to 70%. The said pesticide was so much poisonous that as per the observations of the A.D.O. in Ex.C-2, the damage was caused to the crop, like 2-4-D medicine.
32. The District Forum has also not taken into consideration all these facts and was swayed with the Analysis Reports, but the real fact is that the insecticide Batch No.EO 305 was never purchased by respondent no.1, then how it could sell the same to the appellant and the District Forum also skipped the same. The authority relied upon by the learned counsel for the respondents is not applicable to the facts and circumstances of the present case. The order passed by the District Forum is not sustainable and is liable to be set aside. First Appeal No.1457 of 2009 11
33. Except the report of the A.D.O., there is no other evidence to prove the loss or damage to the crop. Nothing about the produce which was not affected or was sold in the market is on record. In our opinion, a lumpsum compensation of Rs.2,00,000/- will serve the interest of justice.
34. Accordingly, the appeal is accepted and the impugned order under appeal dated17.08.2009 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/ complainant is allowed against respondent no.1 and respondent no.1 is directed to pay a lumpsum compensation of Rs.2,00,000/- to the appellant/complainant within 45 days of the receipt of copy of the order, failing which this amount shall earn interest @ 9% p.a. from the date of filing of the complaint till payment. Complaint against respondent no.2 is dismissed.
35. The arguments in this appeal were heard on 26.08.2013 and the order was reserved. Now the order be communicated to the parties.
29. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 30, 2013.
(Gurmeet S)