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State Consumer Disputes Redressal Commission

Sainath Agrovet India Pvt.Ltd vs Rajpal Govindrao Shinde on 13 March, 2014

                                     Page 1 of 10
                                     FA/No.66/2008

MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
                                               Date of filing : 24/01/2008
                                               Date of order : 13/03/2014

FIRST APPEAL No : 66 of 2008
IN COMPLAINT CASE NO : 202 OF 2006
DISTRICT CONSUMER FORUM: LATURE.



Managing Director
Sainath Agrovet India Pvt.Ltd
Power of Attorney holder Dnyaneshwar
Shankarrao Dhoble R/o.1787 Ashirwad building,
Bhaji Market Kopargaon Tq.Kopargaon,
Dist.Ahmednagar.                           APPELLANT

             VERSUS

1.     Rajpal Govindrao Shinde
       R/o.Malegaon (Kalyani),
       Tq.Nelanga Dist.Latur.

2      Chairman
       Latur Zilha Grape Utpadak Sahkari Sangh
       Maryadit Latur,
       Kava road, Latur 413 512.              RESPONDENTS

 Coram       : Mr.S.M.Shembole, Hon'ble Presiding Member.

Mr.K.B.Gawali, Hon'ble Member.

Present : Adv.Shri.M.M.Patil for the appellant.

None for the respondent No. 1 is present.

None for the respondent No. 2 is present.

JUDJGMENT ( Delivered on 13th March, 2014 ) Per. Mr.K.B.Gawali, Hon'ble Member.

1. This appeal is filed by the original opponent No1 against the impugned judgment and order dtd. 29/12/2007 passed by the Dist. Consumer Forum, Latur in CC.No.202/2006 whereby complaint is partly allowed holding the appellant as liable for deficiency in service. For the sake of brevity the appellant who is a fertilizer manufacturing company, is herein after termed as the "Opponent manufacturing company" whereas the respondent No. 1, who is original complainant is hereinafter termed as the "Complainant" and the respondent No. 2 who is the opponent No. 2 and the dealer of the fertilizers is herein after termed as the "Opponent dealer"

2. Brief facts leading to the present appeal are as under :-

That, the complainant is a farmer. That, he is holding land bearing G.No. 122 admeasuring 3 H. 34 R from village Malegaon which is in the name of complainant's father. There were 175 mango trees which were planted in the year 1991-92 . That, the age of the mango trees was of about 15 years and the complainant was getting annual income of Rs 2 lakh per year from those trees. That, for getting more product of the mangoes he had purchased six bags of fertilizers by name "Agrofert micronutrient fertilizer, grade -I bearing batch No. 572on 31/03/2006 from the opponent dealer. That, when he used four bags of fertilizers for his mangoe trees he got suspicious about the quality of fertilizers. Therefore, he submitted application dated 24/04/2006 to the Dist.

Superintendent of Agricultural, Latur and requested the testing of the quality of the said fertilizer. Accordingly the Agricultural Superintendent deputed his quality control inspector namely Shri. B.D.Biradar for getting the samples. That, the quality control inspector Shri. Biradar inturn visited the complainant on 26/04/2006 and collected samples from the remaining two bags and sent those samples to the Government Fertilizers Testing Laboratory, Pune, That, the testing report dated 16/05/2006 was submitted to the Agricultural Officer by the said laboratory. That, as per the said report the fertilizers purchased by the complainant from the dealer, as manufactured by the opponent manufacturing company were found as not according to the specifications.

3. The complainant therefore contended that by the use of said fertilizer from the 4 bags he had noticed that the flowering of mango trees was damaged due to which he had to sustain the 50 % loss in the total yield of mango fruit i.e he could receive only income of Rs 1,00,000/-. He had therefore issued legal notice to the opponent/appellant manufacturing company as well as to the dealer of the same fertilizer and claimed compensation of Rs 1,00,000/- towards the loss of the yield of mango fruit. However, there was no reply from both the opponents and hence he filed complaint before the Dist. Consumer Forum seeking direction to the opponents to pay him the compensation of Rs 1,00,000/- towards the loss of income, Rs 10,000/- towards mental harassment along Page 4 of 10 FA/No.66/2008 with interest @ 12 % p.a. from the date of purchase i.e. 31/03/2006.

4. The opponent manufacturing company as well as the dealer had appeared before the Dist. Consumer Forum and resisted the complaint by filing joint written version. It was contended that, the complainant had purchased the fertilizers for mango trees which is a commercial activity and therefore he was not the consumer. Hence, the complaint is not maintainable. It was further contended that, the quality control inspector Shri. Biradar has not followed the procedure for collecting the samples as led down in the fertilizer control order 1985. That, as per the said order it is mandatory duty of Agricultural Authority to call from the seller as well as the manufacturing company the explanation by bringing to their notice the complaint of the complainant. It was also contended that, it was obligatory on the part of the quality control inspector to intimate his date of visit in advance to the manufacturer and the dealer. That, even after receiving the laboratory report it was the duty of the inspector to communicate the same to the opponent however, no such action was taken by the said quality control inspector and hence the lab testing report was not binding on the opponents. It was also contended that the complainant was not having proper knowledge about the use of fertilizer. That, as per the information leaflets the quantity of half kg of fertilizer was recommended for each of the mango plants, prior to the flowering stage. However, the complainant had used four bags each Page 5 of 10 FA/No.66/2008 containing 10 kg i.e. 40 k.g. of fertilizer for all 175 plants. It was totally against the guidelines. It was also contended that, the complainant has not followed the procedure as led down U/Sec. 13 (1)© of the Consumer Protection Act for sending the samples to the laboratory for testing. It was further averred that, the reasons for dropping of the flowerage of the mango trees can not be only the fertilizers but there are other environmental factors such as the atmosphere, the untimely rains, fungal disease, improper care and other disease etc. It was also contended that the complainant has not at all proved the loss of income of Rs 1,00,000/- and hence he was not entitled for any compensation and therefore it was submitted to dismiss the complaint.

5. The Dist. Consumer Forum after going through the record and hearing the parties has partly allowed the complaint and by holding the appellant / opponent manufacturing company as soley liable for the deficiency in service directed to it to pay to the complainant a compensation of Rs 10,000/- along with interest @ 9 % p.a. from 31/03/2006 onwards within a period of 30 days. In addition it was also directed to opponent manufacturing company to pay to the complainant a compensation of Rs 2000/- for mental harassment and Rs 1500/- as cost of litigation. The Dist. Consumer Forum has held that as per the lab testing report it was proved that the fertilizer as purchased by the complainant from the dealer which was manufactured by the opponent manufacturing company , was lacking required proportion of copper, iron and brown (b) . The Page 6 of 10 FA/No.66/2008 Dist. Consumer Forum however, has further held that the complainant could not prove that due to the said fertilizer there was a loss of 50 % in the expected yield of the mango trees and therefore as the fertilizer in question was found not as per specification it had held the opponent manufacturing company to have committed deficiency in service and unfair trade practice. Thus in keeping with this observations without considering the expected loss of income as claimed by the complainant, the Dist. Consumer Forum has granted a compensation of Rs 10,000/- towards deficiency in service etc. by way of its impugned judgment and order

6. Feeling aggrieved by the impugned judgment and order the present appeal is filed in this Commission by the opponent manufacturing company. This appeal came to be finally heard on 14/02/2014. Adv.Shri. M.M.Patil for the appellant was present. None was present for the respondent No. 1 although his Adv.Rajpal Shinde as well as Shri. Tikle had appeared on earlier dates. None was also present for the respondent No. 2 although his counsel Shri. Bharaswadkar had appeared on earlier dates. The counsel Shri. Patil for the appellant has filed written notes of arguments and the same were adopted by the counsel appearing for opponent dealer. The counsel appearing for complainant has not filed written notes of arguments although they were given sufficient time. We heard Adv.Patil for the appellant finally and the appeal was adjourned for judgment and order.

7. Adv.Patil by way of his written notes of arguments has made almost the same averments as made by the appellant/ opponent manufacturing company in its written version which was filed before the Dist. Consumer Forum. However, it is specifically contended by the Ld. Counsel Shri. Patil that when the Dist. Consumer Forum has drawn the conclusion regarding failure of the complainant to prove the alleged loss due to defective fertilizers, the Dist. Consumer Forum ought to have dismissed the complaint. He further contended that as the Government laboratory report was not obtained by the concern quality control inspector by following due procedure, the same should not have been used as evidence in the present case. It is further averred by the Ld. Counsel that the Dist. Consumer Forum did not consider the affidavits submitted by the present appellant/ opponent manufacturing company and thus on all these grounds he contended that the Dist. Consumer Forum has wrongly held the opponent manufacturing company as liable for deficiency in service and has wrongly passed the impugned judgment and order which requires to be quashed and set aside.

8. We have perused the record containing copies of the complaint, written version filed by the opponent manufacturing company as well as the opponent dealer, the Lab testing report of the Government laboratory, Pune, impugned judgment and order, appeal memo and written version as filed by the Ld. Counsel Shri. Patil for the appellant. The only question which arises for our consideration is whether the deficiency in service or unfair trade Page 8 of 10 FA/No.66/2008 practice is proved against opponent manufacturing company as held by the Dist. Consumer Forum. The only ground on the basis of which the Dist. Consumer Forum has held the opponent manufacturing company to have committed deficiency in service or unfair trade practice is the lab testing report dated 16/05/2006 as submitted by the Fertilizer Testing Laboratory, Pune. As per the said report the remarks are given as " The sample is not according to specification" failed in Fe and B. It is the contention of the opponent manufacturing company that Shri. Biradar, the quality control inspector has not followed the procedure for the sampling of the said fertilizers as led down under fertilizer control order 1985. It is submitted by the opponent manufacturing company as per the said order it is the mandatory duty of the said agricultural authority to call for the explanation of the seller/dealer as well as of the manufacturer by bringing to their notice the complaint. It is further contended that it was also mandatory to the said inspector to intimate in advance the date of his visit to the complainants field for collecting the sample of fertilizers etc. It is however, observed that the opponent manufacturing company has not produced on record the relevant portion of the said fertilizer control order 1985 so as to support his aforesaid contention. On the other hand the complainant has produced the copies of the letters dated 29/06/2006 & 30/06/2006 issued by the quality control inspector to the opponent manufacturing company as well as to the dealer. From these letters it is revealed that he is appointed under clause 27 of the Fertilizer Control order 1985 and as per clause 28 Page 9 of 10 FA/No.66/2008 (1) (b) of the said order he has powers to draw the samples of any fertilizers as led down in schedule 2 of the said order. It is further revealed that on the basis of the complaint the said inspector had taken the samples on 26/06/2006 and sent the same for testing its quality to the government laboratory. We therefore find that the opponent manufacturing company has failed to prove that the proper procedure was not followed by the concern quality control inspector in collecting the samples and sending the same for testing to the concern laboratory etc.

9. It is also pertinent to note that the said testing of the fertilizers has been conducted by the government officer and even if there was any procedural lacuna in collecting the samples etc. the complainant can not be held responsible for the same hence we have to consider the laboratory report dated. 16/05/2006 as per which it is evident that the fertilizers purchased by the complainant from the dealer which is a manufacturing company by the appellant / opponent manufacturing company was found to be not as per specification which it self amounts to deficiency in service and unfair trade practice on the part of the opponent manufacturing company has rightly held by the Dist. Consumer Forum. The Dist. Consumer Forum has also rightly disregarded the claim of the complainant regarding loss of income from the mango trees on various grounds to which we also agree.

10. In view of the aforesaid facts and observations it can be concluded that the deficiency in service and unfair trade practice is proved against the opponent manufacturing company. Hence, compensation as awarded by the Dist. Consumer Forum towards the deficiency in service and unfair trade practice on the part of the opponent manufacturing company, appears to be just and proper . We do not therefore find any reason to interfere with the impugned judgment and order passed by the Dist. Consumer Forum. The result is appeal fails and hence we pass the following order.

ORDER

1. The appeal is dismissed.

2. No order as to cost.

3. Copies of the judgment and order be sent to both the parties.

             K.B.Gawali                                 S.M.Shembole
               Member                              Presiding Judicial Member


A.H.Patil
Steno H.G.