National Consumer Disputes Redressal
D.J. Damani & Sons vs Mr. Deepak Madanlal Agarwal on 5 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2147 OF 2011 alongwith M.A. No.01 of 2011 (Application for Stay) (From the order dated 30.4.2011 in First Appeal No.1043/2006 of the State Commission, Maharashtra, Circuit Bench Aurangabad) D.J. Damani & Sons Office at : Shivajinagar, Near Bus Stand, Shivaji Nagar, Pune-411 005 (Maharashtra) Through its Manager, Mr. Narendra Devkishan Damani Petitioner Vs. 1. Mr. Deepak Madanlal Agarwal At Kapadane, Taluka District Dhule, Maharashtra 2. M/s. Rajaram G. Patil, Sahakar Bhavan, Shivaji Road, Nasik, Maharashtra ...Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioners : Mr. Vinayak G. Kulkarni, Advocate Pronounced on: 5th February, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Aggrieved by order dated 30.4.2011, passed by State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (for short State Commission) petitioner has filed this revision petition.
2. Brief facts are that respondent no.1/complainant is an agriculturist having land. On 13.08.2002, he approached respondent no.2/O.P. No.2, the authorized dealer of Z-86 papai seeds produced by Petitioner/O.P. No.1.
On respondents no.1 enquiry about Taiwan papai seeds, respondent no.2 recommended variety of Z-86 seeds of Papai stating that plant germinated by the said seeds gives about 100 fruits to each papai tree and each fruit is about 1 & half to 2 kg. The germination percentage of the said seed is at 70%. Thus, respondent no.1 was induced to purchase Z-86 variety and he purchased five packets of the said seed, each packet containing 10 gms. from Lot No.176. As per the guidelines given by respondent no.2, he planted those seeds for preparing saplings in 2700 polythene bags on 20.08.2002. As per information brochure, germination of seeds and for required growth of the sapling, period of about 25 days are required. Accordingly, respondent no.1 waited for about one month but there was germination in only 270 polythene bags. On about 22nd of October,2002 Petitioners representative visited his land and inspected the status of germination. On inspection, germination of seeds was found only in 270 bags. Hence, representative of Petitioner Company supplied free of cost three packets of the said variety of seeds, each containing 10 gms and one packet of the variety of Minza Papai seeds containing one gram. After that two packets containing 20 gms of Minza seeds of Papai were made available to respondent no.1. Thus, total 51 gms of Papai seeds were again planted at the end of October,2002 in 2700 bags. However, again only two out of 2700 polythene bags had germination of seeds.
3. Respondent no.1 again approached Petitioner and respondent no.2, but they avoided to visit his field. Hence, on 03.10.2003 he made a complaint to the Agricultural Development Officer, Dhule, the Chairman of Dist. Seed Committee. In response to his application, Agricultural Development Officer, Dhule, fixed the date of 15.01.2003 for inspection and intimated him. On 15.01.2003, Agricultural Development Officer along with the members of the Dist. Seed Committee visited his field. The Taluka Agricultural Officer, representative of Petitioner, respondent no.2 and complainant himself were present. During their joint inspection it was revealed that the germination of the said seeds was very poor.
4. The Agricultural Development Officer, vide his letter dated 30.01.2003, sent Seed Committees report in which it was clearly mentioned that the seeds provided by respondent no.2 and as produced by petitioner are defective and having hard shell are not capable of germination. Respondent no.1 has thus alleged that petitioner and respondent no.2 have committed deficiency in service. Respondent no.1 therefore claimed Rs.17,10,000/- as compensation, Rs.14,500/- for mental agony and Rs.500/- towards cost of notice with interest @ 18 % p.a.
5. Petitioner and respondent no.2 filed separate written statements. They have admitted that respondent no.1 has purchased Z-86 variety of papai seeds of 5 packets each containing 10 gms on 13.08.2002 but denied other allegations.
It is alleged that when respondent no.1 had made the complaint regarding poor germination of the seeds, petitioner had sent its representative for spot inspection on 29.10.2002. After having inspected the spot, the said representative submitted that there was germination of 1400 plants of papai. However for satisfying respondent no.1, the said representative supplied him 3 packets of Z-86 papai seeds weighing 30 gams and 1 packet of Minza variety of papai seeds. In addition, two packets containing total 20 gms of said seeds were supplied to the complainant free of cost.
6. It is further alleged that Seed Committees report is false and illegal, therefore it cannot be accepted. It is also further alleged that the concerned Agricultural Officer who is Chairman of the Seed committee, was given one sealed packet containing 5 gms of the same variety of the seeds of the same lot, vide letter dated 28.03.2003 and was requested to send the same to the laboratory for testing. However, he failed to do that. It is also alleged that representative of the petitioner company. Shri. Prakash Pandhari Surse who was present at a time of spot inspection of the seed company on 15.01.2003 had requested Chairman of the Seeds Committee to arrange for the soil testing from the polythene bags. Since no steps were taken by the Chairman of the Committee, petitioner itself sent the soil for testing to the soil testing officer at Pune, which gave its report on 03.03.2003. As per the report, the soil which was used by the respondent no.1 in polythene bags for preparation of the sapling was found to be harmful for germination of the seeds. Thus, there is no deficiency in service on their part and the complaint is false and baseless.
7. District Consumer Redressal Forum, Dhule (for short, District Forum), vide order dated 22.3.2006 partly allowed the complaint and passed the following directions;
2) The opponent no.1 is hereby directed to pay amount of Rs.2,28,000/- (Rupees Two lakhs Twenty Eight Thousand only) to the complainant, within one month from the receipt of this order.
3) The opponent no.1 is hereby directed to pay amount of Rs.2,000/- (Rupees Two Thousand ) to the complainant within one month from the receipt of this order.
4) The complaint against the Opponent no.2 is hereby rejected.
5) If the opponent no.1 fails to pay the aforesaid amounts within the stipulated period he will be liable to pay interest at the rate of 7% per annum to the complainant.
8 Petitioner being aggrieved by the order of District Forum, filed an appeal before the State Commission for dismissal of the complaint whereas respondent no.1 filed appeal for enhancement of the award amount.
9. State Commission, vide its impugned order dismissed both appeals.
10. In this revision, petitioner alone has challenged the impugned order.
11. I have heard the Learned counsel for petitioner and gone through the record.
12. It is contended by learned counsel that there is no authenticated lab test report relating to the low germination of the seeds to prove defect in the seeds, as per section 13(1)( c) of the Consumer Protection Act, 1986 (for short, Act). Further, petitioner has sent soil sample of the field of respondent No.1 to Government Soil Testing Lab and its report shows that land of respondent no.1 is not suitable for papaya crop.
13. Lastly, as a matter of fact, the seed packet shown by respondent no.1 revealed, that the date of testing of the seed is 14/08/2002 whereas the date of packing of the seed is 19/08/2002, then it is impossible that respondent no.2 had sold the seed packet on 13/08/2002 vide bill No.32708 & 32711 which was tested on 14/08/2002 as represented by respondent No.1 to the committee. In support of its contention learned counsel relied upon judgments;
i) Suresh Kumar Vs. Indian Farmers Fertilizers Co-op. Ltd. & Another II (2012)CPJ 170 (NC) and
ii) National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy and another I (2012)CPJ 1 (SC)
14. District Forum while allowing the complaint in its order held;
The complainant has purchased seeds from the opponents which is of fruit category and he has purchased it for gardening. Basically the seeds which were purchased and subsequently given by the company were not risen or flourished.
First 5400 seeds out of which only 270 seeds were flourished. And hence the company has given 51 grams seeds to the complainant. In this context the opinion given by Seeds Committee for observing the place of cultivation is very expressive. As the seeds are having tough shell and were not capable of creating bud. And hence those seeds were not flourished as those were faulty.
While considering the demand of compensation as the seeds were faulty the complainant did not get income. The opponents have taken defence by giving support of other crops mentioned in 7/12 extract that complainant has not sustained any loss. They have taken objection that the complainant has made cultivation of papaya seeds with a view to earn profits.
However, agriculture is the source of livelihood for the complainant. Therefore, it is necessary for him to earn money from this source. There objection taken by the opponent in this context cannot be accepted as per opinion of this Forum.
While cultivating seeds definitely the complainant has to incur some expenses. And if plants are not flourished all efforts and hard work becomes futile and he sustains mental agony. From the complaint it is clear that as the seeds were faulty, the complainant did not get fruits and he did not get income. Papaya is a crop which comes in fruits category. Those are sold as per weight. Therefore in a pamphlet the weight of fruit is mentioned. After considering then market rates, it is reasonable to consider demand of complainant for compensation. Even though demand is made for compensation of Rs.17,60,000/- the important point is the very purpose of complainant of cultivating papaya is not fulfilled and he did not receive income. The seeds are cultivated twice. For the first season if average of minimum 40 fruits is assumed the compensation for the first year would be 40 x 1 kg = 40 kg. and if fruits of the whole year are assumed as 1900, then 1900 x 40 = Rs.76,000/-. And if then market rate would be assumed as Rs.3/- per kg. then the complainant has sustained loss of Rs.76,000/- kg x Rs.3/- = Rs.2,28,000/-.
We are of the opinion that it will be proper to give said compensation to the complainant.
As the compensation for loss of income is given to the complainant, it includes amount of hard work, efforts and mental agony. Hence, it will not be reasonable to give separate amount to the complainant.
15. While concurring with the findings of the District Forum, State Commission in its impugned order observed;
7. It is an admitted fact that the complainant purchased 5 packets of papai seeds of Z-86 variety weighing 50 gms from the org. opponent no.2 which is produced by org. opponent no.1 i.e. Seed Company. It is also admitted fact that on the complaint of the complainant regarding poor germination of the said seeds the appellant seed company supplied to the complainant 3 packets of Z-86 variety of papai seeds weighing 30 gms and of Minza variety of 21 gms free of cost. It reveals that the complainant had to prepare twice 2700 polythene bags each containing two seeds for the sapling. According to the complainant in the first instance there was a germination of only 270 bags and second time he got only two saplings. Thus there was almost no germination of the said seeds.
8. The District Seed Committee headed by the District Agricultural officer named Shri. Shivaji Shrirang Jagtap has at the instance of the complainant visited the field and made the spot inspection regarding germination of the seeds, on 15.01.2003. The Seed Committee accordingly submitted its report on 30.01.2011. The committee in its report has reported that due to the hardness of the outer shell of seed they were found incapable for germination. The District Agricultural Officer has also filed affidavit in support of committees report and the same is on record. Thus, from the report of seed committee it is amply established that the said papai seeds were defective.
9. It is also revealed from the panchanama dated 15.01.2003 conducted by the District Seed Committee and from the extract of brochure supplied by the dealer that the seeds under reference were tested by the seed company on 14.08.2002. However, the date of the purchase of the said seeds by the complainant is 13.08.2002 which proves that seeds under reference were sold without testing. It is the contention of the seed company that the seeds are first tested and then brought in the market for sale. However, in the instant case, the seeds are sold without testing. Hence, the contention of the seed company that the seeds were not defective is not acceptable.
10. The appellant seed companys contention is that, the soil seed by the complainant in polythene bags in which seeds were sown have got tested by them from the Soil Testing Laboratory, Pune, and as per the testing report dated 03.03.2003 the soil was found harmful for the germination. However, procedure for getting the soil tested does not appear to be proper. In fact the appellant seed company should have made representation before District Forum for getting the soil tested but it was not done so. Therefore, soil which was got tested cannot go on record as an evidence. It is also the contention of the appellant seed company that he had requested the District Agricultural Officer for testing the seeds from the laboratory and accordingly one packet containing 5 gms of seeds handed over to him but no action was taken, hence in absence of the laboratory report the seeds cannot be said as defective. This contention is also not acceptable. In fact the right course for the Seed Company should have been to request the District Forum for the testing of the seeds from laboratory as the burden to prove that the seeds were not defective shifted on the company. However, the company did not produce the seeds for testing to the Dist. Forum. Therefore, in absence of the laboratory report the opinion given by the Dist. Seed Committee regarding defectiveness of the seeds prevails.
11. The further contention of the company that there was no loss of income to the complainant as the plants were not planted and no expenditure was incurred. It is further contended that it is not the case of the complainant that he had to keep land vacant for these papaya plantation, and that the 7/12 extract for relevant period it reveals that the complainant had taken alternate crop from the said land. This stand was also taken before the Forum however, Forum did not consider it and awarded huge amount of compensation. This contention of the appellant seed company does not also appear to be proper. In fact the complainant had planned to plant papaya trees and get certain income. However, due to the defective seeds his said plan was set at naught. His efforts, time and money which he put in for preparing the saplings has gone waste and he was left helpless due to the defective seeds. Considering all these aspects the Forum below has rightly awarded compensation which appears to be reasonable. While assessing the compensation the Forum has considered a minimum of 40 fruits to each tree and each fruit of 1 kg. of weight. In a year having one harvesting season for 1900 papai trees it was expected to have the production of 76000 kg and considering price per kilo gram @ Rs.3/- the expected loss of income is calculated as Rs.2,28,000/- which appears to be acceptable.