State Consumer Disputes Redressal Commission
Khatauli Manure Mills vs Shashi Bhushan Singh on 22 July, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/886/2015 ( Date of Filing : 12 May 2015 ) (Arisen out of Order Dated 21/03/2015 in Case No. C/46/2005 of District Kushinagar) 1. Khatauli Manure mills Meerut ...........Appellant(s) Versus 1. shashi Bhushan singh Kushinagar ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 22 Jul 2022 Final Order / Judgement RESERVED State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal no. 886 of 2015 1- Khatauli Manure Mills Pvt Ltd through Deepak Gupta, Managing Director Maharaj Singh R/O 183, Konark Colony, Dorli Roorki Road, Meerut. 2- Khatauli Manure Mills Pvt. Ltd., Begrajpur Industrial Area, GT Road, Muzaffarnagar, UP. ....Appellants. Shashi Bhushan Singh s/o Shri Hari Narayan Singh, Proprietor Narayan Poultry Farms , Belwajungal Katanwar Road , Padrauna , District Kushinagar. .... Respondent. Present:- 1- Hon'ble Mr. Rajendra Singh, Presiding President. 2- Hon'ble Mr. Vikas Saxena, Member. Sri Arun Tandon , Advocate for appellant Sri B K Upadhyaya Advocate for the respondent Date : 31.08.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This Appeal has been filed by the Appellant under section 15 of the Consumer Protection Act, 1986 , against the judgement and order dtd 21.03.2015 passed by Learned District Consumer Disputes Redressal Forum , Kushinagar , in Complaint case no 46 of 2005 , Shashi Bhushan Singh Vs Khatauli Manure Mills Pvt Ltd &Anr .
The brief facts of the appeal are that, that the appeal is being filed against the judgement and order dtd 21.03.15 passed by the Learned District Consumer Forum , Kushinagar by which the learned Forum allowed the complaint of the complainant and ordered the appellants to pay ₹ 1,058,308/- to the respondent within a period of 30 days from 13 January 2015 along with interest at a rate of 6% on the ground that the product is applied by the appellants was defective due to which the complainant - respondent suffered a huge loss.
The appellants are renowned Private Limited Company of all India fame and is a producer of asterilisedMeat Meal and the complainant filed the present case by wrongly alleging that he is the owner of poultry farm and feed mill and from so many years he himself was purchasing thesterilisedmeat meal from the appellants Khatauli Mill on regular basis but the true fact is that all the purchases are made from so many years in the name of m/s Narayanan Farms from the appellants and it is pertinent to note that the material was purchased after taking loan from the bank and due to inability to repay the loan taken from UPFC as mentioned in complaint case, the complainant filed the case before the learned District Forum alleging that the product supplied by the appellant was defective due to which the complainant - respondent suffered huge loss and the business of the complainant was finished and due to substandard material supplied by the appellants 10,204 chickens were died.
The learned Forum previously proceeded ex parte against the appellants and allow the complaint case and passed the same order against which previously the appellant filed the appeal number 656/2006 before this Hon'ble State Commission and this Hon'ble state commission allowed the appeal of the appellants and set aside the judgement of learned District Forum by majority order and remanded the matter through minority order dated 10.07.2008 against which the complainant filed the revision petition no 4058/8 before the Hon'ble National Commission, New Delhi. Before the Hon'ble National Commission the complainant withdrew his revision petition and prays for remand by creating confusion that the majority order is of remand nature whereas the appeal was allowed and the previous order of the learned Forum was set aside by the State Commission. The appellant properly contested the case before the learned Forum and filed the written statement, affidavit and written arguments. The learned Forum has not appreciated any of the denials of the appellants and again decreed the case and passed the same order as passed previously. Feeling aggrieved with the said impugned judgement and order the appellant has now come before this state commission assailing the said impugned judgement and order.
The learned Forum has erred in law and in fact as per their own observations made in the body of the impugned order in deciding the case in the manner in which it has been done. Hence the order of the learned Forum is improper and unjust and is liable to be quashed. The learned District Forum has erred in law and in fact in not appreciating this fact though it was agitated by the appellants that the true fact is that all the purchases are made from so many years in the name of M/S Narayanan Farms from the appellants and not in the name of complainant hence the complainant has no locus standi to file this present case against the appellant because the complainant knows very well that the complainant cannot filed the case in the name of M/S Narayanan Farms and so the cases filed in the name of complainant himself hence the case should have been dismissed but the learned Forum but the learned Forum did not consider this aspect of the matter and passed the impugned order hence a grave injustice has been done by the learned Forum.
The learned District Forum has in law and in fact in not appreciating this fact though it was agitated by the appellants that this is the commercial transaction and the material was purchased by the complainant for resale of developed chicken and for earning profit by implying so many persons because he has a manufacturing unit hence the present case is not come within the ambit of The Consumer Protection Act because he himself has not consumed the full material 9.015 tons whereas it is the 10,204 chickens who consumed the sterilised meat meal of the appellants and as such it is a non-consumer dispute between the complainant and the appellants as far as medical consumed by the complainant is concerned and it is pertinent to note that the complainant has specifically mentioned that " प्रार्थीकेव्यवसायकोप्रभावितकियाजिससेउसकेमुर्गेवमुर्गियोंकाविकासअवरुद्धहोगया" meaning thereby that the business of the complainant was adversely effected and so the complainant has not purchased the goods for earning his livelihood as he has himself not consumed the goods and purchased the material for commercial purposes and so it is not a consumer dispute and so that the case should have been dismissed but the Learned Forum has not considered this aspect of the matter and passed the impugned order as passed previously. The learned Forum had no territorial division and the complainant had no cause of action. The learned Forum did not consider the fact that the sterilised meal requires some precautions which a person is bound to observe on his part and it is noteworthy to mention that there are so many reasons for not proper growing of chickens and in the food of broiler chicken so many other materials are mixed up before giving them to eat like Makka , Sunflowekhali , Mustered khali, DCP, Rice bran etc and no testing were made for these above-mentioned other materials and so the conclusion and apprehension drawn by the learned Forum that the material sent by the appellants was only responsible factor for death of broiler chicken is wrong and incorrect observation. The case should have been dismissed. The learned District Forum has erred in law and in fact in not appreciating this fact though it was agitated by the appellants that still there is a due of ₹ 12,841/- against M/S Narayanan Farms which amount when demanded by the appellants on 11.02.05 and on 04.04.05 , this case was filed by the complainant.
The learned Forum has erred in not appreciating the fact that it was not an expert in the line and the death of chicken and it involves some expert report for the proper adjudication of the case which now is not possible. The reason for death of chicken now cannot be ascertained. The complainant made post-mortem of only one chicken and so the post-mortem report of one chicken is not applicable for all chickens but the learned Forum accepted it . The learned Forum did not consider the fact that in every letter of the appellants regarding analysis ,it is a specifically mentioned that the sample should be sent to SGS India (P) Ltd or M/S Italab P Ltd for testing and the important thing is that , that the sample report of M/S Italab P Ltd shows the protein as it is basis 41.67% though the commitment made by the appellants was only 41%. So the material is not substandard and was of good quality. It is pertinent to note that the sample which was sent by the complainant to Perfect Testing Laboratory, Gorakhpur for testing as MBM and not Meat Meal which shows that firstly wrong sample was sent for testing by the complainant and the report cannot be taken into consideration and secondly this sample was sent and received in the year 2004 and the complainant filed the original complaint case in the year 2005 and this was ex parte report which was obtained by the complainant only to mislead the court.
The learned Forum has erred in not appreciating this fact that in one letter dtd 01.09.2004 of the appellants due to typing error, measurement was given as 45% and 41% respectively whereas in all subsequent letters dtd 11.02.2005 and 04.04.2005 correct measurement was always mentioned by the appellants hence the benefit of typing error cannot be given to the complainant are. The goods supplied was not substandard hence there is no deficiency in services. The learned Forum did not consider so many factors responsible for death of broiler chicken as bird flu and other diseases spread in the area on that year which fact is very important in deciding the issue of deficiency in services. The complainant has not denied any of the contents of the written statement filed by the appellants. The complaint is a bundle of lies and is based on wrong, false and and fabricated facts and the present complaint Case has been filed by the complainant in order to take undue advantage of the present consumer air, because the complaint case of the complainant is frivolous and vexatious. The impugned judgement is illegal, arbitrary and against the law laid down by the Hon'ble National Commission. The impugned order is not speaking order. The facts of the complaint case was a complicated one which involved in documentary and oral evidence is to be proved which could not be settled in the summary proceedings before the learned Forum. So it is respectfully prayed that the Hon'ble State Commission may graciously be pleased to allow the appeal and set aside the impugned judgement and order of the learned District Forum.
The respondent has filed his objection stating that the impugned judgement has been passed after hearing both the parties by the learned Forum. The appellant has accepted that disputed sterilised meat meal brown quality has been supplied to M/S Narayana Farms ,Kushinagar and its consideration has been received at Kushinagar . National edition of poultry guide, respondent trusted on the advertisement published therein and used to take the sterilised meat meal brown quality ISI Specification from them. The respondent thought that by this good quality of meat meal, the chickens will grow healthy and he will earn a good amount for the livelihood of his family. The IS: 5065 INDIAN STANDARD SPECIFICATION for Meat Meal as livestock feed ingredient (first revision) O forward , it is expected that this standard would also assist the consumer to procure meat meal of known quality. He got the 12 page meat meal specifications issued by ISI in which it has been emphasised that the consumer will get good quality of meat meal. The appellant has advertised the quality as : the sterilised meat meal brown quality, dispatched by us in our ultra modern plant and in accordance with specifications of Indian Standards Institute (ISI). The material is completely sterilised and guaranteed free from the spores of Bacillus anthracis , clostridium group of species, Salmonella . In the ISI specification it has also been written "freedom from pathogens - meat meal shall be free from spores of Bacillus anthracis , clostridium sp and Salmonella .... Meat meal shall also confirmed to the requirement prescribed in table -1 ...(ii) crude protein ( N x 6.25), percent by mass , MIN...70.0". Therefore the supplied meat meal by the appellant must contain at least 70% protein but there is shortcoming in so many field . The appellant has supplied the meat meal of sub standardquality to the respondent. The appellant has not supplied the ISI quality meat meal to the respondent. The appellant has misguided the respondent by its wrong advertisement as a result of which the chickens of the respondent fell ill and died. The learned District Forum has given current finding in awarding compensation to the respondent.
The representative / Pairokar of the appellant Mr YK Trivedi has received ₹ 2583/in cash on 14.02.2004 from the poultry farm of the respondent and on 24.04.2004 received ₹ 2000 regarding supply of sterilised meat meal brown quality saying as meat meal fish meal and on the very next day again received ₹ 2000 and supplied the same meat meal. The respondent requested many times to Mr YK Trivedi for taking sample of the supplied fish meal and for doing a lab test but he did not come to collect the sample. And now after 10 years they are accusing the respondent . The respondent took his chickens to Gurgaon after 17 hours of motorcycle journey and get them tested in the TipmahLab . Again the complainant, when no representative of the appellant came to the respondent for getting the said meat meal tested by any lab, sent the sample to Italab Pvt Ltd , Mumbai on 07.10.2004. The complainant requested the lab to examine the sample regarding protein percent of available on dry matter basis , Moisture and Sand silica-max . The lab did not specifically mentioned regarding the quantity of protein on as it basis or on dry matter basis. Thereafter the complainant enquired from the lab and convinced that the quantity of protein is on dry matter basis. The appellant on 04.04.2005 vide ref no 2005/1335 pressed that this report is on as it basis. The Ita Lab wrote a letter to the appellant on 13.03.2006 and stated "results analysed on your sample is reported on as it is basis and not on dry matter basis. Ifthe results are asked for on dry basis we mentioned in the report that the results are on dry matter basis" the appellant has presented this report for the Hon'ble State Commission. Now the question is that on what basis just before a year the appellant stated the report dtd 16.10.04 is as it is basis. This act of the appellant is unfair trade practice.
The complainant again wrote a letter to the lab on 20 January 2007 but did not get any answer and he again wrote a letter on 6 February 2007. Thereafter the lab accepted his mistake and replied on 22nd February 2007. The appellant suo motu declared his supplied meal as ISI quality. The appellant has stated "it is pertinent to note that the sample which was sent by the complainant to perfect testing laboratory, Gorakhpur, for testing as MBM and not Meat Meal which shows that firstly wrong sample was sent for testing by the complainant and the report cannot be taken into consideration." The complainant has sent the sample to perfect testing laboratory, Gorakhpur mentioning all the facts in the covering letter on which they on as it is basis analysed and stated that protein available is 37.65% (30 October 2004). It is proved by the perfect testing lab report that the appellant has supplied the meal having protein less than their own specification. The learned Forum has considered all these facts and then passed the impugned judgement which is perfect. The wordsterilisedwas used when glass injection syringes over while in water before using but later on the steem is used to sterilised and the latent heat of the scheme is more than the temperature of the boiling water hence all the bacteria died through steam sterilisation.
The complainant on 04.11.2004 sent a sample of supplied meat meal to Indovaxpvt ltd for total bacterial count, who in his report found 4,03,000.00 bacteria in 1 gram and it is against the declared quality as per appellant. The appellant are trying to escape his liability by taking the lame excuse of mis typing or typing error. It is not true that the complainant has filed the complaint for not giving ₹ 12,841.00 to the appellant. The complainant also send its sample of Soya& Maize for lab testing which were found fit for the chickens. During 2004 - 2005 not a single chicken suffered by bird flu in UP. Without post-mortem report the appellant can't say that the chickens were died due to bird flu. In the Commercial Chicken Production Manual by Mack O North , III Edn , it has been said that if there is deficiency of protein in feed, the development of the chickens will adversely be affected. Further it has been said that to compensate 1% protein, 45% per kg metabolism energy shall be increased in the feed. Due to deficiency of protein, there may be depression in growth, weight loss, immunosuppression, increased susceptibility to diseases to the chickens. The supply of meat meal against the quality affected the chickens and it has decreased their immunity power. Version of ISI rules is illegal. Hence it is most respectfully prayed to the commission that the present appeal be dismissed.
We have heard the learned counsel for the appellantMr Arun Tandonand learned counsel for the respondentMr BK Upadhyaya.
we have perused the pleadings, evidences and documents on record.
As per certificate issued by General Manager District industries Centre ,Kushinagar , this chicken farm was for self-employment. As per the specifications for meat meal as livestock feed ingredient (ISI) the meat meal shall be free from spores of Bacillus anthracis , clostridium spandSalmonella when tested according to the method prescribed therein. Meat meal shall also conform to the requirements prescribed in table 1. According to this table the moisture, percent by mass , Max 8.0 , Crude Protein (N2x6.25) - 70 , acid insoluble ash, percent by mass Max -1.0 . So this is the specification as per bureau of Indian Standards Institute.
We have seen the impugned judgement dated 21 March 2015 of the learned District Forum. The sterilisedmeal brown quality was sent to the complainant having quality specification 45% protein on as it is basis or 41% protein on moisture free basis has been written. The Ita Lab report says moisture 8.10%, protein 41.67%, sand silica 7.62% . The perfect testing laboratory found the protein 37.65%. There is also a post-mortem report dated 27 December 2004 done by veterinary surgeon in which it is said that death was caused due to malnutrition and Salmonella infection .So this report supports the complainant's case. The theory of bird flu could not be proved by the appellant. The appellant could not prove that the other ingredients are defective or infected. It has been very well established that the protein was not according to specification. There is no ground to disbelieve the examination report of the laboratory. The expert opinion is admissible in evidence. The appellant has sent a letter stating that if there is any deficiency in quality, it may be sent for examination to Mumbai or Gurgaon . The opposite parties also stated that they have mentioned the protein level as 45% or 41%, it was due to typing error but it cannot be believed at this stage. The complainant did not indulge in the reselling of the meat meal supplied by the appellant. From the documents on record it is well established that the supplied meat meal was deficient and was not in accordance with ISI specification. So the appellant/opposite party was liable for the loss suffered by the complainant.
The learned District Forum has discussed very well all the aspects of the case and reach the conclusion that there was deficiency in service on the part of the opposite party/appellant. We also agree with the judgement of the learned Forum and there is no occasion to interfere. Hence the appellant appeal is liable to be dismissed.
ORDER The appeal is dismissed with cost. The judgement and order dated 21.03.15 passed in the complaint cae no 46/2005, Shashibhushan Singh V Khatauli Manure Mills Pvt Ltd &Anr is confirmed.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh ) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated August 31, 2022 JafRi, PA II C 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER