State Consumer Disputes Redressal Commission
Baljeet Singh vs M/S Aryan Seeds on 29 May, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-
37-A, CHANDIGARH.
First Appeal No.909 of 2012
Date of institution: 09.07.2012.
Date of Decision: 11.05.2015.
Balwinder Singh S/o Prem Chand R/o 25, Dashmesh Avenue,
Jalandhar.
.....Appellant/Complainant.
Versus
1. Tata Motors Limited, 1/9-B, Jindal House, Asaf Ali Road,
New Delhi - 110 002.
2. Cargo Motors Pvt. Ltd., Cargo House, G.T.Road, Near
BSF Chowk, Jalandhar.
.....Respondents/Opposite parties.
First Appeal against order dated
30.05.2012 of District Consumer
Disputes Redressal Forum,
Jalandhar.
Jalandhar.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member.
Shri Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Munish Goel, Advocate For respondent No.1 : Sh.P.K.Kukreja, Advocate For respondent No.2 : Sh.Avtar Manmohan Jit Singh, Advocate First Appeal No.909 of 2012 2 VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellant (the complainant in the complaint) against the respondents of this appeal (opposite parties in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 30.05.2012 of the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called the 'District Forum') in Consumer Complaint No.108 of 16.02.2011, accepting the complaint of the complainant and opposite parties were directed either to repair the turbo of the engine and in case it could not be repaired satisfactorily, then to replace it free of costs, besides Rs.1000/- was also awarded towards litigation expenses and compensation.
2. The brief facts of the case of the complainant are that Sh.Balwinder Singh complainant filed the complaint under the Act against the OPs on the averments that on 09.01.2009, the complainant purchased a passenger car of Model Indica Vista from the opposite party No.2 (Cargo Motor Pvt. Ltd., Jalandhar) by making the necessary payment and the same was manufactured by OP No.1(Tata Motor Ltd., New Delhi). The said car carried a warranty of one year given by OP No.1. Besides that, the OP No.2 entered into an agreement with the complainant under which the said warranty was extended for another two years as per the warranty terms and conditions. First Appeal No.909 of 2012 3 The OP No.2 charged a sum of Rs.3625/- from him to provide the said extended warranty. It was alleged that the complainant came to know on 12.01.2009 that the model of the said car was of 2008, whereas the OP No.2 had specifically stated at the time of sale, that the model of the car was 2009. When confronted with the said bungling, the OPs told the complainant to pay a sum of Rs.2500/- and model of the car would be shown to be of 2009 in the registration certificate. The complainant paid an additional amount of Rs.2500/- to the OPs on 12.01.2009 for showing 2009 model of the car. The said car was registered bearing registration number PB-08-BJ-0178 with the Registering Authority, DTO, Jalandhar. The said car was got insured with the New India Insurance Company Ltd. The said insurance was cashless policy which entitled the complainant to get necessary repairs of the said car from OP No.1 without paying anything for such repairs. It was further pleaded that while driving, the said vehicle met with an accident, which caused minor damage to the car. The complainant took his damaged car to OP No.2 for necessary repairs. After repairing the same, the car was handed over to the complainant on 18.01.2010 in late hours. It was alleged that despite having the cashless insurance policy, the OP No.2 charged Rs.4200/- from the complainant. On 20.01.2010 when the complainant started driving his car, First Appeal No.909 of 2012 4 he found that the engine of the car was not picking up properly. Moreover, there was a problem while shifting of gears of the car. The complainant immediately took his car to the OP No.2, who carried inspection of the said car and made a job sheet. OP No.2 told the complainant that the turbo engine of the car developed a fault due to the accident and in case, the complainant was ready to pay a sum of Rs.17,000/-, only then the car would be repaired. The complainant got annoyed therewith and told OP No.2 that how can the engine of the car got damaged in the earlier accident, when there was no damage either to the radiator or to the fan assembly. The engine unit of the car was located behind the radiator and in case of accident, the radiator gets damage firstly and only after that, the engine receives any damage. He further added that his car was under warranty. It was alleged that the OP No.2 was adamant on its stand that the necessary repairs would be carried out only after the complainant deposited Rs.17,000/- with the OP No.2. Earlier also, the complainant faced unprofessional and deficient behaviour of OP No.2 on two occasions, when he took his car to OP No.2 for free service on 23.03.2009, when horn of the car was out of order. OP No.2 did not provide a new horn to the complainant since it was not in its stock. On 04.11.2009, the fog lights of the car went out of order and the car was taken to OP No.2, but the First Appeal No.909 of 2012 5 same were not changed because the fog lights were not available. It was further pleaded that he purchased the new spare parts from the market by making the necessary payment out of his own pocket, whereas, as per the warranty extended by OP No.2, the OPs were bound to provide those spare parts free of cost to the complainant. He spent Rs.1150/- on horn and Rs.1900/- for the fog lights from his own pocket despite warranty. The refusal of OP No.2 to put the engine and gear box assembly in the car in a proper working mode despite the warranty period amounted to deficiency in service on the part of OPs. Hence, he filed the complaint seeking direction to the OPs to refund the amount of Rs.3,050/- being the price of new spare parts purchased on 23.3.2009 and 04.11.2009; to rectify the defects of the car as detected and mentioned in the job sheet dated 20.01.2010 without charging any amount, since those defects occurred within the warranty period; to pay Rs.50,000/- towards compensation for mental tension and harassment; to pay Rs.6,500/- as litigation expenses.
3. The complaint was contested by OP No.1, who filed the written reply before the District Forum. It was pleaded that OP No.1 being a manufacturer of the vehicle gives warranty for a specified period on the stipulated terms and conditions to the consumer and the consumer accepts such warranty. Such warranty was pure and simply a non-statutory contract and First Appeal No.909 of 2012 6 both the parties to thereto were bound by the terms and conditions laid down in the warranty policy document. There are many parts in a vehicle and it is not possible for the opposite party to manufacture all of them. Therefore, some parts/components are procured from other sources in accordance with technical requirements and were fitted in the vehicle manufactured by OP, e.g. tyres batteries, etc. It was pleaded that some of the parts/components were out-sourced in such a situation, since the OP was not manufacturer of those items, obviously, the OP cannot give warranty for those parts to the consumers. In such cases, the manufacturer of such parts/components agrees that the buyer is entitled to exercise the rights of opposite party No.1 under the terms of warranty of those parties for such parts/components from the said manufacturer. It was pleaded that the complaint was not maintainable for the simple reason that he had given an undertaking to OP No.2 on 30.08.2010, whereby the complainant has written own satisfaction note that 'as the turbo has been replaced now he undertakes to withdraw his complaint from the Consumer Court'. It was further pleaded that as per the opinion, the vehicle in question was reported at the workshop of OP No.2 at 37451 kms in a badly damaged condition from front side. The complainant had concealed the circumstances and manner in which the vehicle had met with First Appeal No.909 of 2012 7 accident and when the accident took place and these facts can only be in the knowledge of the complainant alone and the vehicle was also in his possession and not in the possession of OPs. As the vehicle in question was brought at the workshop of OP No.2 for accidental repair, under these circumstances the warranty could not be claimed as a matter of right. It was further pleaded that the vehicle in question had covered a distance of 42000 kms, within a period of 1/4 years. The vehicle in question was being used for commercial purposes as such the complainant was not a consumer. The complainant had not filed any documentary proof to show that vehicle had any manufacturing defect. The relationship between both the OPs were on principal to principal basis and it could not be held liable for any independent act of omission committed by other party i.e. opposite party No.2. The complainant took the vehicle on 18.01.2010 and brought back the same to the workshop of OP No.2 on 20.01.2010. It was submitted that from the late hours of 18.01.2010, when the complainant took delivery of the vehicle till 20.01.2010 when he brought back the vehicle, the vehicle had covered a distance of 439 kms. Before taking the vehicle after accidental repairs, the complainant took the trial and found the vehicle in good condition. He brought the vehicle in question on 20.01.2010 with the complaint of poor pick-up and gear First Appeal No.909 of 2012 8 disengagement difficulty. The complainant was asked to replace the turbo but the complainant refused to replace the same. It was further pleaded that the complainant had tried to side track the whole issue by mis-representing that the turbo got damaged in the earlier accident. If there had been any damaged to the turbo at the time of accident, it would have been rectified at the time of accidental repairs. Turbo of the vehicle is not covered under the warranty. It was alleged that the same got defective due to the negligence and misuse on the part of the complainant, which is not covered under warranty as per Clause 5 of Terms and Conditions of Warranty. It was further pleaded that horn and fog lights were consumable articles and can go out of order due to misuse and mishandling and the same are not covered under the warranty. Dismissal of the complaint was prayed for by the OP No.1.
4. OP No.2 filed separate written reply and raised preliminary objections that the complaint of the complainant is not maintainable; the complainant does not fall under the definition of 'Consumer' under the Consumer Protection Act, 1986. The complainant was estopped by his own act and conduct to file the present complaint. The complaint was filed with ulterior motive to harass the opposite party. It was evident from the invoice placed on the file by the complainant First Appeal No.909 of 2012 9 that the vehicle stood hypothecated with Corporation Bank who was the real owner of the vehicle. On merits, it was replied that the complainant was made aware of the model of the year i.e. 2008 and he has given in writing to this effect and requested that the vehicle be delivered to him on 09.01.2009. The vehicle was brought to the workshop in accidental condition at 37541 kms. The repair was done on 15.1.2010 and the complainant took the vehicle in good condition after the trial. It was pleaded that the accident is not covered under warranty. It was pleaded that the trouble with the turbo allegedly took place after the vehicle was collected by the complainant after the accident and the same was not covered under the warranty. So, the replacement, if allowed, was chargeable. The history sheet i.e. service history falsifies the allegations of the complainant. The vehicle was taken to the workshop on 20/21.1.2010 at 37780 kms while it was taken to M/s Kosmo Vehicle Pvt. Ltd., on 20.03.2010 at 37333 km (the meter tampered and was reversed by 349 km). It was again taken to M/s Kosmo Vehicle Pvt. Ltd. on 16.4.2010 at 42377 km (within one month the vehicle had covered 5044 km). On both the occasions, there was no reference to any turbo trouble in the service history, which ipso-facto implies the hollowness of the allegations. Other allegations were denied. Dismissal of the complaint was prayed for by the OP No.2. First Appeal No.909 of 2012 10
5. The complainant tendered in evidence affidavits as Ex.C-1 and Ex.C21 alongwith copies of documents Ex.C-2 to Ex.C-20 and closed the evidence. The OPs No.1&2 tendered in evidence the affidavits Ex.OP1 to Ex.OP4 along with copies of documents Ex.O5 to Ex.O15 and closed their evidence. On conclusion of evidence and arguments, the District Forum Jalandhar, accepted the complaint of the complainant. Dissatisfied with the order of District Forum Jalandhar, the instant appeal has been preferred against the same by the complainant now appellant.
6. We have heard learned counsel for the parties and have gone though the record of the case as well.
6. It is an admitted fact that the complainant purchased a passenger car Indica Vista on 09.01.2009 from OP No.2, vide Invoice dated 09.01.2009 for Rs.4,47,989/- Ex.C-4. The said car was got insured with New India Insurance Company Limited vide Cover Note No.742405 after paying the premium of Rs.11,718/- for the period 09.01.2009 to 08.01.2010, which is also proved on record by Ex.C-5. The said car carried a warranty of one year given by OP No.1. After that the OP No.2 extended the warranty after taking Rs.3625/- vide Ex.C-2, in which, it was mentioned that the warranty will expire on completion of three years or 1,50,000/- kms. from the date of purchase, whichever is earlier. As per First Appeal No.909 of 2012 11 the affidavit Ex.C-1 of the complainant, Sh.Balwinder Singh, wherein he deposed that during the first year of purchase of the car, the complainant was driving the said car, it met with an accident which caused minor damage to the car on 06.01.2010 i.e. within the warranty period given by the OP No.1. The complainant took his damaged car to OP No.2 who is authorized dealer of Tata for necessary repairs. The OP No.2 got the car belonging to the complainant that it for about 12 days for necessary repairs and same was handed over to the complainant on 18.1.2010 in late hours. On 20.01.2010, when the complainant started driving his car, he found that the engine of the car was not picking up properly. Moreover, there was a problem while changing gears of the car. The complainant has placed on record Tax Invoice Ex.C-9, in which it was mentioned that the standard checks (Horn New spare not available in store). As per the Tax Invoice Ex.C-10, in which it was mentioned that the standard checks (Fog lights not available in store). As per Ex.C-11 dated 15.01.2010, the car was repaired by the OP No.2. We have perused the service history Ex.O-6, which reveals as under :-
Service Date Servicing Kms. Service Type
Dealer
24.01.2009 Cargo Motor 1499 1st Free
Pvt. Ltd. service
08.02.2009 Cargo Motor 5382 2nd Free
Pvt. Ltd. service
21.03.2009 Cargo Motor 9814 3rd Free
Pvt. Ltd. service
First Appeal No.909 of 2012 12
08.06.2009 Cargo Motor 17723 Warranty
Pvt. Ltd.
05.08.2009 Cargo Motor 20490 Free service
Pvt. Ltd.
04.11.2009 Cargo Motor 27371 Paid service
Pvt. Ltd.
15.01.2010 Cargo Motor 37451 Accidental
Pvt. Ltd.
21.01.2010 Cargo Motor 37880 Running
Pvt. Ltd. repair
20.03.2010 Cargo Motor 37333 Paid service
Pvt. Ltd.
16.04.2010 Cargo Motor 42377 Running
Pvt. Ltd. repair
30.08.2010 Cargo Motor 46962 Running
Pvt. Ltd. repair
7. We have also perused the terms and conditions of the warranty Ex.O-15, in which Clause 5 reads as under :-
"5. This warranty shall not apply if the car or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure or by any person other than from our sales or service establishments, our authorized dealers, service centres or service points in any way so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the car is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us, or such services as prescribed in our Owner's Manual and Service Book are not carried out by the buyer through our sales or service establishments, our authorized dealers, service centres or service points.
6. This warranty shall not cover normal wear and tear or any inherent normal deterioration of the car or any of its parts arising from the actual use of the car or any damage due to negligent or improper operation or storage of the car. This warranty shall not apply to normal maintenance services lik oils & fluid changes, head lamps focusing, fastener retightening, wheel balancing and alignment, tyre rotation, adjustment of valve clearance, fuel timing, First Appeal No.909 of 2012 13 ignition timing and consumables like bulbs, fuel filters and oil filters, etc. This warranty shall not apply to any damage or deterioration caused by environmental pollution or bird droppings. This warranty shall not apply to V-belts, hoses and gas leaks in case of air conditioned cars. Slight irregularities not recognized as affecting the function or quality of the vehicle or parts, such as slight noise or vibration, defects appearing only under particular or irregular operations are items considered characteristics of the vehicle.
8. The version of the OPs is that the turbo of the car was replaced and the complainant has given satisfaction note dated 30.08.2010 Ex.C-19 wherein, it has been mentioned the vehicle has been serviced/repaired from M/s Cargo Motor Pvt. Ltd. to the entire satisfaction of the complainant and the complainant has taken the test drive of his vehicle, which is trouble free. On the other hand, the contention of the complainant is that infact the turbo was not replaced by the OP No.2 and this fact was found during service on 25.12.2010 from M/s Cosmo Vehicle Pvt. Ltd., who issued the job card dated 25.12.2010, Ex.C-20. In this case, only dispute remains between the parties regarding turbo of the engine. As per the version of the OP2, the turbo was replaced on 30.08.2010 which clearly proves that the same was defective. There is no evidence on record to prove that the turbo was damaged in accident. Ex.C-11 is the job card regarding accidental repair. In case turbo is damaged in the accident, it would have been repaired at the time of accidental repair. In case the turbo has First Appeal No.909 of 2012 14 damaged in any accident. The OP No.2 has not replaced the same free of cost. We have perused the satisfaction note dated 30.08.2010 Ex.C-19, which reveals that "the OP has replaced the turbo and complainant undertook to withdraw the complaint from the consumer court", which clearly shows that the OPs have entered these lines after taking the signature of the complainant on the satisfaction note Ex.C-19. We have also perused the job card dated 25.12.2010 (Ex.C-20), in which it was mentioned that oil leakage from Turbo CHR break refused by CUST. The District Forum has rightly observed and directed the OPs to either repair the turbo of the engine and in case, it could not be satisfactorily repaired and then, it be replaced free of cost. As per the terms and conditions of the warranty, the accidental repair is not covered but the OP has not repaired the turbo of the car properly. So, only the complainant is entitled to only Rs.17,210/- for the cost of turbo compressor and Rs.3000/- as labour charges i.e. total Rs.20,210/-, which was paid by the complainant to the OP No.2. Dealer and the manufacturer cannot escape from their liability during warranty period.
9. In the light of above discussion, the appeal filed by the appellant/complainant is partly accepted with regard to enhancement of compensation and the order of the District Forum is modified to the extent that the OPs shall now pay First Appeal No.909 of 2012 15 Rs.20,310/- to the complainant within 45 days from the date of receipt of the order and the other part of the order of the District Forum with regard to either repair the turbo of the engine and in case it cannot be satisfactorily repaired, then to replace it with free of cost is affirmed in this appeal.
10. The arguments in this appeal were heard on 06.05.2015 and the order was reserved. Now the order be communicated to the parties.
10. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(J.S.Klar)
Presiding Judicial Member
(V.K. Gupta)
Member
May 11, 2015 (H.S.Guram)
Lb/- Member
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.1 No.1262 of 2012 2012 Date of institution: 26.09.2012.
Date of Decision: 09.06.2015.
1. Baba Farid Vidyak Society, through Gurmeet Singh Dhaliwal, Chairman, Baba Farid Group of Institutions, Village Deon, Tehsil and District Bathinda.
2. Baba Farid Group of Institutions, Village Deon, Tehsil and District Bathinda, through its Chairman Gurmeet Singh Dhaliwal.
3. Baba Farid College of Higher Studies, Village Deon, Tehsil and District Bathinda, through through its Principal Munish Bansal .....Appellant/Opposite parties.
Versus Nirmal Singh son of Harbans Singh, resident of Village Deon, Tehsil and District Bathinda.
........Respondent/Complainant.
First Appeal against order dated
23.07.2012 of District Consumer
Disputes Redressal Forum,
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Kumar Gupta, Member Shri H.S.Guram, Member.
Member.
Present:-
For the appellants : Sh.Rajan Bansal, Advocate For respondent : Sh.Shekhar Kumar, Advocate AND First Appeal No.1262 of 2012 2 Misc. Application No.15 of 2013 In/and First Appeal No.11 of 2013 Date of institution: 04.01.2013.
Date of decision : 09.06.2015.
Nirmal Singh son of Harbans Singh, resident of Village Deon, Tehsil and District Bathinda.
.....Appellant/Complainant.
Versus
1. Baba Farid Vidyak Society through Gurmeet Singh Dhaliwal, Chairman, Baba Farid Group of Institutions, Village Deon, Tehsil and District Bathinda.
2. Baba Farid Group of Institutions, Village Deon, Tehsil and District Bathinda, through its Chairman Gurmeet Singh Dhaliwal.
3. Baba Farid College of Higher Studies, Village Deon, Tehsil and District Bathinda, through its Principal Munish Bansal.
........Respondent/Opposite parties.
First Appeal against order dated
23.07.2012 of District Consumer
Disputes Redressal Forum,
Bathinda.
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Shekhar Kumar, Advocate For respondents : Sh.Rajan Bansal, Advocate VINOD KUMAR GUPTA, MEMBER By this common judgment, we intend to dispose of the above referred two First Appeals together, as they can be disposed off together conveniently, because they have arisen out of the First Appeal No.1262 of 2012 3 same order dated 23.07.2012 of District Forum Bathinda. The order shall be pronounced in main First Appeal No.1262 of 2012 as referred above. The District Forum Bathinda, accepted the complaint of Nirmal Singh complainant awarding Rs.20,000/- as compensation and Rs.2,000/- as cost of litigation against OPs. The compensation amount would be paid by the opposite parties jointly and severally and the cost would be paid by the OP No.3 to the complainant. First Appeal No.1262 of 2012 has been preferred by OPs (Baba Farid Vidyak Society) against the same, whereas the second First Appeal No.11 of 2013 has been preferred by the complainant Nirmal Singh against the same order. The facts are taken from First Appeal No.1262 of 2012. The status of the parties will be referred as per First Appeal No.1262 of 2012.
2. The brief facts of the case of complainant are that complainant Nirmal Singh has filed the complaint under Section 12 of The Consumer Protection Act 1986, (in short 'Act') against the OPs on the averments that during the academic sessions 2011-
2012, the opposite party No.1 (Baba Farid Vidyak Society) advertised by inviting students for admission to various colleges situated at Village Deon and one of the colleges i.e. Baba Farid College of Higher Studies was of OP No.3. It was further pleaded in the complaint that at the commencement of the session, the opposite parties distributed pamphlets in village by offering various courses despite the availability of staff, infrastructure, recognition of courses from appropriate authorities in accordance with the law First Appeal No.1262 of 2012 4 and University Grant Commission and also of other competent authorities. The complainant did his BA Part III from Punjabi University in April 2010 by securing 50% marks. The opposite parties offered a Masters degree in Airline, Tourism and Hospitality. The Principal of the institute informed the complainant and his parents that this course was in great demand in foreign countries and this masters degree course was of two years. At the assurance of the OP No.3, the complainant accepted the offer and went through the prospectus and filled up the form alongwith necessary educational and other requisite formalities and was registered in course of M.Sc. (Airline, Tourism and Hospitality Management), vide registration No.112299004 and also batch and semester No.2011/1st Semester after depositing the requisite fees of Rs.23,580/- in the 1st Semester, vide receipt No.004104 on 15.07.2011. The said course was to commence from last week of August, 2011. It was further alleged in the complaint that when the complainant entered the college, neither any syllabus was issued for the course nor any teacher/professor was available for teaching. The complainant inquired from the Principal of the institute about the time table and class timing, but no satisfactory reply was given to the complainant. The complainant, his parents and other students/batch mates were fed up with the arrogant behaviour of the Principal and on 5.9.2011, the Principal informed them that this course of M.Sc. Airline, Tourism and Hospitality Management has been closed down by it, as sufficient number of students were not available for the course and consequently, it First Appeal No.1262 of 2012 5 could not appoint staff professors for taking classes for the course and complainant and his parents were shocked to find that such a course was not even recognized by the competent authority and on 5.9.2011, the Principal of the institute asked the complainant to take refund of Rs.23,580/-. It was further alleged that in the brochure, nothing was mentioned that in case sufficient number of students were not available, it would close down the course and would refund the fees received by them. Due to above said act of the OPs, the complainant had to suffer the loss of one precious year of his educational career, which otherwise was smooth. Hence, the complainant has filed the present complaint for seeking the directions of the Forum to the opposite parties to refund the amount of Rs.23,580/- alongwith cost and compensation.
3. The complaint was contested by OPs by filing joint written reply before the District Forum. The OPs raised the legal objections that the complainant has no local standi and cause of action to file the complaint. The complainant is estopped by his own negligent act and conduct from filing the complaint. It was admitted in the reply by the OPs that the complainant and his parents made due enquiries about the course in question before taking admission, but OPs denied that the principal had informed them that this course was in great demand in foreign countries. Rather it was duly informed by the Principal of the institute to the complainant and his parents that this course was subject to the Rules and Regulations of Punjabi University, Patiala about running First Appeal No.1262 of 2012 6 the course, only if the institute has minimum five numbers of admissions. The opposite party No.3 never persuaded the complainant and his parents to take admission in the course in question. There was no question of not providing time table and timing of classes, as the college authorities have displayed a notice regarding the closure of the course in question on the notice board of the institute on 21.7.2011 itself and it was informed in the said notice that the institute was compelled to close the said course as per the Rules and Regulations of Punjabi University, Patiala. It was also affiliated to it and the opposite parties are bound by the rules and regulations of Punjabi University, Patiala, which stated that a course could be taught only if No. of admissions were minimum five. However, in this course, the institute was having only three Nos. of admissions instead of minimum requirement of five numbers. The Principal of the institute informed the closure of the course to the students well within time i.e. 21.7.2011 through a notice duly displayed on the notice board of the college and the same was also intimated orally to the students on 21.7.2011, as the session was to start from 21.7.2011. The opposite parties admitted that the Principal of the institute offered the complainant to take refund of Rs.23,580/- and the same has been mentioned in the notice dated 21.7.2011, as the session was to be started on 21.07.2011. It was admitted that the principal offered the complainant to take refund of Rs.23,580/- and the same has been mentioned in the notice dated 21.07.2011. The rules and regulations of the Punjabi University mentioned in the information First Appeal No.1262 of 2012 7 brochure of the university regarding its rule of closing down the course as well. The opposite parties are ready to refund the amount of Rs.23,580/- deposited by the complainant with the institute, but the complainant himself has not accepted the refund. Other allegations of the complaint were denied by OPs and they prayed for the dismissal of the complaint.
4. The complainant tendered in evidence his affidavit and documents Ex.C-1 to C-19 and closed the evidence. On the other hand, OPs tendered in evidence the affidavit & documents Ex.R-1 to R-58 and closed the evidence. On conclusion of evidence and arguments, the District Forum Bathinda accepted the complaint of the complainant awarding Rs.20,000/- as compensation and Rs.2,000/- as cost of litigation, as detailed in the order. The compensation amount would be paid by the opposite parties jointly and severally and the cost of litigation would be paid by the opposite party No.3. Dissatisfied with the above order of the District Forum Bathinda, two separate appeals have been preferred against the same by the above referred-parties now the appellants.
5. We have heard learned counsel for the parties in the above appeals and have also gone through the record of the case.
6. The short controversy, which is involved in this case is that matter in dispute pertains to the admission and fee of complainant in the institute of OPs. The matter has been settled by Apex Court in "P.T Koshy & Anr. Vs. Ellen Charitable Trust & Ors." 2012(3) CPC 615 (SC) by holding that education is not a commodity, so as to be covered under the Consumer Protection First Appeal No.1262 of 2012 8 Act. The Consumer Forum has no jurisdiction to deal with the matter of educational institutions like admission, fee and there is no relationship of the consumer and the service provider because education is not a commodity as authoritatively held by Apex Court." The Apex Court has also held in Maharshi Dayanand University Vs. Surjeet Kaur reported in 2010 (II) SCC 159 the Apex Court that educational institutions cannot be dealt with by the Consumer Forum under the Consumer Protection Act 1986. The educational institutions imparting education are not providing service and they are not service provider, to be covered under the Consumer Protection Act.
7. On the basis of law peremptorily laid down by Apex Court in the above-referred authorities, there is no relationship of consumer and service provider, between complainant and OP in this case, because the matter in dispute pertains to admission and fees. The order of the District Forum is against the spirit of law enunciated by the Apex Court in the above-referred authorities. Consequently, the order under challenge of the District Forum is unsustainable in the eyes of law in the appeal. Resultantly, the order of the District Forum cannot be sustained in this appeal.
8. As a result of above discussions, the order of the District Forum Bathinda dated 23.07.2012 is not sustainable and same is ordered to be set aside in this appeal. The First Appeal No.1262 of 2012 filed by Baba Farid Vidyak Society & ors appellants is accepted by setting aside the order of the District First Appeal No.1262 of 2012 9 Forum Bathinda dated 23.07.2012. The second appeal No.11 of 2013 filed by Nirmal Singh appellant is dismissed as the order of District Forum under challenge stands set-aside.
9. The appellants/OPs have deposited an amount of Rs.11,000/- with this Commission at the time of filing the appeal. The amount of Rs.11,000/- with interest accrued, if any thereon, be remitted by Registry to the OPs/appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
12. The arguments in this appeal were heard on 03.06.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
13. Copy of this order be placed in First Appeal No.11 of 2013.
(J.S.Klar) Presiding Judicial Member (Vinod Kumar Gupta) Member Member June 9, 9, 2015 (H.S.Guram) H.S.Guram) Lb/- Member First Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.13 No.1346 1346 of 2013 2013 Date of institution: 09.12.2013.
Date of decision : 11.06.2015.
1. Jagdish Chander s/o Shri Bal Kishan Dass.
2. Suman Rani w/o Jagdish Chander
3. Amit Arora aged s/o Jagdish Chander
4. Sumit Arora s/o Jagdish Chander All residents of 292, Model Town, Phase-I, Bathinda.
.....Appellants/Complainants.
Versus India Bulls Housing Finance Ltd., Deep Complex, near Hanuman Chowk, Building of Apollo Hospital, Guru Kanshi Marg, Goniana Road, Bathinda, through its Branch Manager/Loan Manager/Location Manager.
........Respondent/Opposite party.
First Appeal
Appeal against order dated
17.10.2013 of District Consumer
Disputes Redressal Forum,
Bathinda.
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Sandeep Kumar, Advocate For respondents : Sh.P.M.Goyal, Advocate First Appeal No.1388 of 2013 2 VINOD KUMAR GUPTA, MEMBER For orders, see First Appeal No.1388 of 2013 (India Bulls Housing Finance Limited Vs. Jagdish Chander).
(J.S.Klar) Presiding Judicial Member (Vinod Kumar Kumar Gupta) Member June 11, 11, 2015 (H.S.Guram) H.S.Guram) Lb/- Member First Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.1388 No.1388 of 2013 2013 Date of institution: 16.12.2013.
Date of Decision: 11.06.2015.
India Bulls Housing Finance Ltd., Deep Complex, Near Hanuman Chowk, Building of Apollo Hospital, Guru Kanshi Marg, Goniana Road, Bathinda through its Branch Manager/Loan Manager/Location Manager.
.....Appellant/Opposite party.
Versus
1. Jagdish Chander aged about 66 years s/o Shri Bal Kishan Dass.
2. Suman Rani aged about 58 years w/o Jagdish Chander through her power of attorney holder Sh.Jagdish Chander.
3. Amit Arora aged about 29 years, S/o Jagdish Chander
4. Smit Arora aged about 26 years, s/o Jagdish Chander All residents of 292, Model Town, Phase-I, Bathinda.
5. Reserve Bank of India, Central Office Building, Shaheed Bhagat Singh Marg, Fort, Mumbai 400 001, through its Governor/Authorised Signatory (deleted vide order dated 04.01.2013) ........Respondents/Complainants.
First Appeal against order dated
17.10.2013 of District Consumer
Disputes Redressal Forum,
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member Shri H.S.Guram, Member.
Member.
First Appeal No.1388 of 2013 2Present:-
For the appellant : Sh.P.M.Goyal, Advocate For respondent : Sh.Sandeep Kumar, Advocate AND First Appeal No.1346 of 2013 Date of institution: 09.12.2013.
Date of decision : 11.06.2015.
1. Jagdish Chander s/o Shri Bal Kishan Dass.
2. Suman Rani w/o Jagdish Chander
3. Amit Arora aged s/o Jagdish Chander
4. Sumit Arora s/o Jagdish Chander All residents of 292, Model Town, Phase-I, Bathinda.
.....Appellants/Complainants.
Versus India Bulls Housing Finance Ltd., Deep Complex, near Hanuman Chowk, Building of Apollo Hospital, Guru Kanshi Marg, Goniana Road, Bathinda, through its Branch Manager/Loan Manager/Location Manager.
........Respondent/Opposite party.
First Appeal
Appeal against order dated
17.10.2013 of District Consumer
Disputes Redressal Forum,
Bathinda.
Bathinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.Sandeep Kumar, Advocate For respondents : Sh.P.M.Goyal, Advocate First Appeal No.1388 of 2013 3 VINOD KUMAR GUPTA, MEMBER By this common judgment, we intend to dispose of the above referred two First Appeals together, as they can be dispose off together conveniently, because they have arisen out of the same order dated 17.10.2013 of District Forum Bathinda, accepting the complaint of the complainants against the opposite party by awarding Rs. 1,00,000/- (Rupees One Lac only), as compensation and Rs.10,000/- as cost of litigation and in case of non-compliance thereof within the stipulated period, the aforesaid amount of compensation i.e. Rs. 1,00,000/- will carry interest @ 9% p.a. till realization of the amount. First Appeal No.1388 of 2013 has been preferred by OP (India Bulls Housing Finance Ltd.) against the same, whereas, the second First Appeal No.1346 of 2013 has been preferred by the complainant Jagdish Chander and others. The facts are taken from First Appeal No.1388 of 2013. The status of the parties will be referred as per First Appeal No.1388 of 2013.
2. The brief facts of the case of the complainant are that Jagdish Chander & others complainants filed the complaint under Section 12 of the Act against the opposite parties on the averments that the opposite party No.1 (India Bulls Housing Finance Ltd.) approached the complainants and offered them a housing loan in the month of October, 2009 with the assurance that it would charge minimum interest i.e. @ 14.75% per annum which is fixed. On the assurance of OP No.1, the complainants applied with opposite party No.1 for loan and the loan was sanctioned for an amount of First Appeal No.1388 of 2013 4 Rs. 20,25,000/- to the complainant, vide loan No.HLAPBAT00054705 and No.HLAPBAT00054667 for Rs.
5,00,000/- in November, 2009 and fixed EMI's of Rs. 32,362/- and Rs. 7,991/- respectively interest @ 14.75% p.a. with monthly rests. It was further pleaded in the complaint that the opposite party No. 1 at the time of sanction of the loans, also created equitable mortgage on the properties of the complainant Suman Rani by way of depositing the original two sale deeds. It was further pleaded in the complaint that OP No.1 at the time of releasing the said loans, took the signature of the complainant on the blank forms/vouchers and agreement with the assurance that the same will be filled as per the rules and regulations with the OP No.2 and also took the blank cheques for Security and Cheques for the above said EMI's. However, OP No.1 did not supply the copy of Loan Agreements and other papers to the complainants till date although it was mandatory for it. The complainant further alleged that at the time of releasing the said loan, the OP No.1 told the complainants that the EMIs of the loan can be deposited on any day of the month and EMIs would not be changed without the prior consent of the complainant. However, OP No.1 increased the rate of interest after nine months from 14.75% to 19%. The complainant lodged the Protest with the OP No.1 regarding increase of interest and deposited lumpsum amount in both the accounts i.e. Rs.5,04,985/- and Rs.1,25,000/- respectively. Thereafter, the complainant arranged the entire loan amount in both the accounts and thereafter, the complainants arranged the entire loan amount in First Appeal No.1388 of 2013 5 both the cases and demanded the statement of balance amount from OP No.1. It was further pleaded in the complaint that the OP No.1 issued letter to the complainant to deposit the amount of Rs.14,18,883.78p. in account No.HLABAT00054705 and Rs.3,49,969.62p in account No.HLABAT00054667. The complainants arranged the balance loan amounts in both the Loan Accounts as OP No.1 had illegally charged rate of interest @ 19% against agreed rate of interest 14.75%. The complainant thereafter paid the EMIs in time and also paid EMIs of October 2012 and November 2012. As per the calculation sheet dated 30.10.2012, after arranging the balance amount, the complainant approached the OP No.1 and protested it by giving the remarks on the receipts of the OP No.1 19.11.2012, but OPs threatened the complainants that if they deposited the amount under protest, they would not adjust their Loan Accounts and having no alternative, the complainants had to deposit the drafts of the balance amounts as per sheet dated 30.10.2012, whereas the OP No.1 issued the new calculation on 19.11.2012, in which they demanded Rs.13,98,054.08p in loan account No.HLAPBAT00054705 instead of Rs.14,18,883.78p and Rs.3,45,323.88p in loan account No.HLAPBAT00054667 instead of Rs.3,49,969.62p. On the next date, the complainant lodged the protest with the OPs under the intimation to the Head Office, vide Registered letter dated 20.11.2012 and demanded the excess amount and prepayment charges, which were charged by the OP No.1 from the complainant. The complainant further alleged in the complaint that First Appeal No.1388 of 2013 6 the OP No.1 on 19.11.2012 charged the alleged amount on account of pre-payment charges. The complainant further alleged that the official of the OP No.1 illegally and with malafide intention put stamp as SOLD on the Registered Sale Deed No.10623,10624 & 6257 dated 06.10.2008 and thereby destroyed the sale deeds and stamp of Rs.99,000/-. Due to this illegal act and conduct of OP No.1, no other bank was ready to give loan to the complainants against these sale deeds because of the stamp of sold put on it and no one was ready to purchase the said property on the ground that the said property had already been sold. The complainants further alleged that the OP No.1 should also charge the rate of interest @ 14.75% instead of 19%. The complainants further alleged that they demanded the original above said deeds in the name of Suman Rani in intact condition and original security blank cheques and EMI's cheques from the OP No.1 on 19.11.2012 vide letter dated 20.11.2012, but all in vain. The OP No.1 neither adjusted the account @ 14.75% p.a. rate of interest as agreed between the parties nor paid the balance excess amount, as above mentioned nor returned the PP/Foreclosure charges, nor returned the above said cheques and nor returned the Original Sale Deeds in the name of Suman Rani. Hence, the complainants have filed the complaint seeking direction to the OP No.1 to totally overhaul the loan accounts of complainant by charging rate of interest @ 14.75% and to refund the excess amount by refunding Rs.1,21,404.48 and Rs.29,476.14, returning all original pre EMI's cheques and Blank Security cheques of Axis Bank and by returning First Appeal No.1388 of 2013 7 the both the above sale deeds besides Rs.2,00,000/- as compensation for mental agony and Rs.50,000/- as litigation expenses. The complainants have also prayed for directions to opposite party No. 1 to give stamp value of the sale deed so defaced by it at new collector rates of the said property and to correct all the above referred three original sale deeds after effacing the stamp of 'sold' put on them.
3. The complaint was contested by OPs by filing separate written replies before the District Forum. OP No.1 had filed the written statement and admitted this fact that the complainants had obtained the loan facilities of Rs. 20,25,000/- under loan account No. HLAPBAT00054705 and Rs. 5,00,000/- under loan account No. HLAPBAT00054667 towards loan against property at floating rate of interest. It was further pleaded that the complainants after completing the necessary formalities and agreeing to comply with all the terms and conditions of the loan agreements, executed the necessary documents in this regard. Both loans were sanctioned and disbursed to the complainants as per the terms and conditions and rules and regulations. The said loans were disbursed to the complainants @14.75% (PLR 17.75% - Variance 3%) and both were payable in 120 installments of Rs.32,362/- against loan account No. HLAPBAT00054705 and Rs.7991/- against loan account No. HLAPBAT00054667 respectively. It was further pleaded that the complainants had opted for floating rate of interest at the time of taking loans and it was then made clear to the First Appeal No.1388 of 2013 8 complainants, that in case of any change in the Primary Lending Rate (PLR), the rate of interest might increase or decrease from time to time and also installments amount or tenure of the loans might be changed accordingly. The opposite party No.1 had pleaded that at the time of disbursing the loans to the complainants, the PLR was 17.75% p.a. The PLR got increased 17.75% p.a. to 18.25% p.a. and the rate of interest of complainants was increased from 14.75% to 15.25%. Due to increase of said PLR, the tenure and EMI of loan accounts were changed w.e.f. 01.09.2010 and a letter dated 27-8-2010 was issued by the opposite party to the complainants accordingly. The PLR got increased from 18.25% p.a. to 18.75% p.a. w.e.f. 1-10-2010, 18.75% to 19.50% p.a. w.e.f. 1-12-2010, 19.50% to 20.25% w.e.f. 1-2-11, 21.50% to 22.00% p.a. w.e.f. 1-8-2011, 21.00% to 21.50% p.a. w.e.f. 1-7-2011, 21.50% to 22.00% p.a. w.e.f. 1-8-2011. It was further pleaded by OPs that due to increase of PLR from time to time, the tenures and EMIs of both loans were changed accordingly. The letters dated 1-10-2010, 1-12-2010, 1-2-2011, 1- 5-2011, 1-7-2011, 1-8-2011 were issued by the opposite party No.1 to the complainants in this regard. The opposite party informed the complainants from time to time regarding the increase of tenure and rate of interest as per rules and regulations and as per loan agreements executed between the complainants and opposite party No. 1. The opposite party No.1 has further pleaded that whenever the complainants approached it, it was fully explained to them regarding the change in the rate of interest due to change in First Appeal No.1388 of 2013 9 PLR. It was also explained to them about the prepayment norms as per loan agreements. The full detail of the amount was mentioned in the foreclosure letter regarding the amounts receivable from the complainants and being satisfied with the amount mentioned in the said letter, the complainants paid the same thereafter. No excess amount was ever demanded from the complainants by the opposite party No.1 and the demand was asserted to be legal and as per terms of the loan agreement. The amount was received from the complainants after deducting an amount of EMI received for the month of November, 2012 on new calculation basis and not as per calculation dated 30-10-2012. The original title deeds and other documents were already supplied to the complainants/property owner by the opposite party after receiving the full and final amount of the loan and OP No.1, thus, prayed for dismissal of the complaint.
4. OP No.2 filed separate written reply alleging the complaint not to be maintainable. It was further averred in the written reply by OP No.2 that the complaint to the extent it relates to Reserve Bank of India is outside the scope of consumer Act because Reserve Bank of India does not offer any service to the complainant, as it is statutory body under the Reserve Bank of India Act, 1934. The Reserve Bank is empowered to regulate the financial activities of non-banking financial companies (in short 'NBFCs') including the acceptance of money and deposits from public by them. OP No.1 is registered under Section 29-A of First Appeal No.1388 of 2013 10 National Housing Bank Act 1987. OP No.1 is not registered with Reserve Bank and does not fall within the regulatory purview of Reserve Bank. The complaint is bad for misjoinder of OP No.2, as it has not rendered any service to complainant. The complaints are filed against the financial institutes without impleading Reserve Bank of India, as a party therein and hence, the instant complaint is bad for mis-joinder of parties. OP No.2 prayed for dismissal of the complaint.
5. The complainant tendered in evidence his affidavit and the documents Ex.C-1 to C-26 and closed the evidence. On the other hand, OPs tendered in evidence the affidavit & documents Ex.OP1/1 to OP1/18 and closed the evidence. On conclusion of evidence and arguments, the District Forum Bathinda accepted the complaint of the complainant awarding Rs.1,00,000/- as compensation to the complainant and Rs.10,000/- as costs of litigation against the opposite parties and in case of non- compliance thereof within the stipulated period, the aforesaid amount of compensation i.e. Rs.1,00,000/- will further yield interest @ 9% till actual realization. Dissatisfied with the order of the District Forum Bathinda, two separate appeals have been preferred against the same by the above referred-parties now the appellants. The name of OP No.2 was deleted from the array of the complaint on the basis of submission of the complainant vide order dated 04.01.2013.
First Appeal No.1388 of 2013 11
6. We have heard learned counsel for the parties in the appeals and have also gone through the record of the case.
7. It is an admitted fact that the complainant had obtained the loan facility of Rs.20,25,000/- vide loan No.HLAPBAT00054705 and No.HLAPBAT00054667 for Rs. 5,00,000/- in November, 2009 against property @ 14%, which is proved on record vide Ex.OP1/2 and OP1/3. It is also an admitted fact that the complainant got their above-referred loan amounts foreclosed on 19.11.2012 and paid an amount of Rs.14,18,884/- in account No..HLABAT00054705 and Rs.3,49,969.62p in account No.HLABAT00054367. As per the allegations made in the amended complaint in para No.19A that the official of the OP No.1 illegally and with malafide intention stamped sold on the registered sale deeds No.10623,10624 dated 06.10.2008 and 6257 dated 02.12.2009. The another contention of the complainant is that the OP No.1 started increasing the rate of interest @ 9% p.a. and increased the rate of interest from 14.75% to 19% without prior consent of the complainant and OP No.1 had charged extra payment of pre-payment or fore-closure charges as well. The OP No.1 has specifically denied in its written statement in para No.19A that the stamp paper of sold has been imposed by its officer on the documents in question. The pleading of the OP No.1 are that the original sale deeds have been returned in the same condition to the complainants without defacing them. We have also examined the report of the Local Commissioner dated 20.05.2013, wherein, it was stated that "as per the record of the Registrar/Tehsildar, there First Appeal No.1388 of 2013 12 is no such stamp of 'sold' having been imposed on any of the sale deeds as mentioned above and he applied for certified copies of the sale deeds, which have been received by him and are attached herewith this report for the perusal of this Forum." It is observed that these certified copies of sale deeds as obtained by the Local Commissioner from the Sub-Registrar concerned are not original sale deeds. There is only one original sale deed which is duly stamped and registered and is passed on to the concerned party after its execution and registration and only copy of the sale deed is retained in the office of the Sub-Registrar for official use. There is not question of proving this fact by OP No.1 on the basis of certified copies of the sale deeds obtained from the office of Sub- Registrar. Consequently, we are unable to place any reliance on the report of the Local Commissioner, as sought by OP No.1, for its exoneration in this case. On the other hand, the photostat copies of the original Sale Deeds are on the record proving that the stamp of sold are put on them. The complainants moved an application before District Forum for direction to OP No.1 to produce the original sale deeds for handing over them to the complainants vide statements of the parties dated 13.03.2013 recorded before District Forum. Jagdish Chander complainant received the sale deeds No.10623, 10624 and 6257 from Pawan Kumar Anand, Branch Credit Manager of OP No.1 under protest on the ground that the stamp of sold were put on them. There is no defence with OP No.1 to refute it on the record. Consequently, we record this observation on the basis of above referred evidence that OP No.1 defaced the First Appeal No.1388 of 2013 13 sale deeds of the complainants with the stamp of sold put on them and thereby spoiled them including the stamp papers affixed on them. OP No.1 is deficient in service on this count.
8. The next point for adjudication before us in this case is whether OP No.1 is justified in charging the rate of interest @ 19% instead of 14.75% p.a. The submission of OP No.1 is that BPLR (Bench Mark Prime Landing Rate) is subject to variation as per direction of Reserve Bank of India from time to time. It was further contended by OP No.1 that the complainants took the loan on floating rate of interest and as such, OP no.1 is authorised to increase the rate of interest to 19% on account of increase in BPLR which is regulated by their Asset Liability Management Guidelines. The submission of the counsel for the complainants is that no notice was issued to the complainants by the OPs for enhancing the interest rate as argued by OPs. We have examined the Loan Agreement Annexure R1/A on the record. Clause 2.C of the loan agreement dealing with interest is reproduced as under :-
"(c) In the event of Borrower's opts for the Floating interest Rate offered by IFSL, the rate of interest applicable to the Loan as on the date of execution of this agreement and the terms applicable to such Floating Interest Rate are as stated in Schedule-B."
Schedule-B clause b (iii) dealing with computation of rate of interest is reproduced as under :-
First Appeal No.1388 of 2013 14
"Floating rate will be reset on the first day of the month following the quarter in which IFSL-PLR is changed."
9. From perusal of the above referred provisions, we have come to the conclusion that OP No.1 can enhance the floating rate of interest by resetting it only after following the procedure therefor. The OP No.1 relied upon the letters sent to the complainants in this regard. We find that there is no evidence on the record that these letters were actually posted to the complainants or sent through any courier service to them. There are no docket booking receipts produced by OP No.1 on the record nor there are any postal receipts or courier receipts to prove this fact that they were actually despatched to the complainants. In the absence of actual proof of their despatch to the complainants, we cannot accept the submissions of OP No.1 that due notice was given to the complainants for resetting the interest rate as per Schedule-B as referred-above. Consequently, we record this finding that OP No.1 reset the interest rate without any notice to the complainants and thereby charged it @ 19% p.a. The OP No.1 can reset the interest rate after giving due notice to the complainant and not without giving any notice to them or in not following the procedure. The counsel for OP No.1 could not rebut it on the record before us by means of any evidence.
10. Sequel to the above discussions, order of the District Forum Bathinda is modified by holding that complainants are entitled to refund of excess amount of interest charged by OP No.1 First Appeal No.1388 of 2013 15 @ 19% p.a. instead of 14.75% p.a. from them without giving any notice to them. On the point of defacing the sale deeds by OP No.1 by putting the stamp of sold on them, OP No.1 is directed to refund the entire stamp value of all the above referred spoiled sale deeds to the complainants at the collector rates. The OP No.1 is further directed to pay the compensation of Rs.35,000/- to the complainants for their mental harassment and the order of cost of litigation is not disturbed in the appeal. The order of the District Forum under challenge in the appeal stands modified protanto as recorded above. Consequently, First Appeal No.1388 of 2013 filed by India Bulls Housing Finance Limited stands dismissed and First Appeal No.1346 of 2013 filed by Jagdish Chander and others is accepted by modifying the order of District Forum as recorded above. The order of the District Forum stands merged with the order of this Commission.
11. The appellants/OPs have deposited an amount of Rs.25,000/- & Rs.25,000/- with this Commission at the time of filing the appeal. The amount of Rs.50,000/- with interest accrued, if any, be remitted by Registry to the complainants by way of a crossed cheque/demand draft after the expiry of 45 days. The order shall be complied by the OP No.1 within 30 days from the date of receipt of the copy of the order failing which OP No.1 shall pay interest @ 9% p.a. over the due amount payable to complainants by it from the date of filing complaint to actual payment.
First Appeal No.1388 of 2013 16
12. The arguments in this appeal were heard on 08.06.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
13. Copy of this order be placed in First Appeal No.1346 of 2013.
(J.S.Klar) Presiding Judicial Member (Vinod Kumar Gupta) Member June 11, 11, 2015 (H.S.Guram) H.S.Guram) Lb/- Member First Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.1582 of 2011
Date of institution: 02.11.2011.
Date of Decision: 25.05.2015.
Jagjit Singh s/o Balour Singh, resident of Village Joganand, Tehsil and District Bathinda.
.....Appellant/complainant.
Versus
1. Jai Shakti Fertilizers, Grain Market, Bathinda-151001, through its proprietor.
2. Vibha Agrotech Limited, "Inspire", Plot No.21, Sector 1, HUDA's Techno Enclave, Madhapur, Hyderabad-500081, Andhra Pradesh, through its proprietor.
.....Respondents/Opposite parties.
First Appeal against order dated
17.08.2011 of District Consumer
Disputes Redressal Forum,
Bathinda.
athinda.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member.
Shri H.S.Guram, Member.
Present:-
For the appellant : Sh.P.K.S.Phoolka, Advocate For respondent No.1 : None For respondent No.2 : Sh.Amit Singla, Advocate First Appeal No.1582 of 2011 2 VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellant (the Complainant in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the respondents of this appeal (Opposite Parties in the complaint) against order dated 17.08.2011 of District Consumer Disputes Redressal Forum, Bathinda (hereinafter called the 'District Forum') in Consumer Complaint No.504 of 02.11.2010, dismissing the complaint of the complainant.
2. The brief facts of the case of the complainant are that Jagjit Singh complainant filed the complaint under Sector 12 of Consumer Protection Act, 1986 against the OPs on the averments that he approached the opposite party No.1 for purchasing cotton (Narma) seeds for sowing in his land. The opposite party No.1 showed the different varieties of seeds i.e. Cot33 Class T/L and Mist II of class T/L, manufactured by opposite party No.2 (Vibha Agrotech Limited "Inspire", Hyderabad) and briefed him that this variety would give good yield as compared to others. The opposite party No.1 also showed another variety of seeds Mist II of class T/L to complainant and claimed that its result would be at par of variety Cot33. The complainant purchased 2 packets of cotton (Narma) seeds of Mist II variety bearing lot No.36239 for a sum of Rs.1,780/- and 3 packets of Cot33 variety bearing lot No.17559 for a sum of Rs.2,670/- vide bill No.1858 dated 11.05.2010. The opposite party No.1 assured the complainant that the above First Appeal No.1582 of 2011 3 mentioned seeds were safe from pests attacks and it would give yield of 40-45 monds of Narma per acre. It was further pleaded that the complainant had sown the Cot33 seeds in his 1½ acre of land as per the instructions of the opposite party No.1. The seeds had good germination power and it had growth also and the plants grew upto the height of 3½ - 4 feet. The complainant took all necessary cares and precautions for the safety of his crop and sprayed recommended insecticides for protection of his crop from attack of pests, as was done by his co-villagers, but the Narma crop of the complainant had suffered attack of leaf curl virus, but he controlled it, by spraying recommended insecticides to prevent further damage to the crop. It was further alleged that the plants of cotton grew to about 4 feet height, but it did not have proper fructification, as was expected as per the assurance of the opposite party No.1.
The complainant reported the matter to the Agricultural officials of Bhucho Mandi, who visited the field of the complainant and assessed that approximate yield from the said field to be 3.93 quintiles (10 monds) of Narma (cotton), which were very less as per assurance of the OP No.1. The complainant was assured by the opposite party No.1 that the land where Cot33 variety had been sown by him, should have given yield of 60 monds even at the rate of 40 monds per acre. It was alleged that the OP No.1 sold spurious cotton seeds to the complainant on the pretext of selling him good quality seeds and in this way, the OP cheated the complainant and had put him to huge financial loss. He approached the OP No.1 and informed him about the yield of his First Appeal No.1582 of 2011 4 land in which seeds of Cot 33 variety were sown by him and asked OPs to pay him the financial loss so suffered by the complainant, but the OPs refused to pay any such compensation. The OP No.2 was the manufacturer of the above seeds and OP No.2 was also liable in the matter for this deficiency. The complainant has filed the complaint seeking direction to the OPs to refund the amount of Rs.2670/- alongwith cost of Rs.10000/- and further to give him the compensation of Rs.70,000/- for financial loss, Rs.20,000/- for mental harassment.
3. The complaint was contested by OPs by filing their separate written reply before the District Forum. OP No.1 has filed the separate reply and preliminary objections were raised by it therein. The OP No.1 has pleaded that the complainant was not a consumer as per the definition of the Consumer Protection Act of OP No.1. The present dispute was not the Consumer dispute. Many complicated questions of facts and law were involved in the present matter, which requires voluminous evidence to be recorded for proper adjudication, as every agriculture operation is a long detailed operation, hence, the matter should be decided by the regular Civil Court. The present complaint is baseless and frivolus, as the allegations made by the complainant are not based on the scientific or laboratory test regarding sub-standard quality of seeds. Complainant was alleged to have no locus standi to file the complaint. On merits, it was pleaded that it carries the business of selling seeds and it never indulged in any type of unfair trade First Appeal No.1582 of 2011 5 practices in its business. It sells the varieties of seeds in cotton, paddy, vegetable etc. of well reputed companies only. It sells the seeds on the demand of the customers and it is approved dealer of all the companies and has a valid license issued by Chief Agriculture Officer, Bathinda for this purpose. It is neither the manufacturer nor marketer of the said seeds. It has sold more than 10,000 packets of BT Cotton seeds in the season on counter sale. The complainant himself demanded the varieties of cotton crops from OP No.1. The opposite party No.1 never gave any assurance about the quantity of yield, quality or result of the crop. All the conditions were printed on the front side of the bill in the mother tongue i.e. Punjabi, which were quite understandable by the purchaser of the seeds and the bill book was also attested by concerned A.D.O. The opposite party No.1 had sold original sealed seeds to the complainant. It was denied that it has not given any instructions to the complainant and there was no proof to support that the processes of agriculture were followed properly by complainant and according to the recommendations of the Punjab Agriculture University, Ludhiana/Agriculture Department/any authorized department. The complainant himself admitted good germination power and its growth, so it clearly shows that the complainant had not taken all necessary care and precautions for the safety and growth of the crop. The complainant has nowhere mentioned that the process was followed by him for the care of the crop. The complainant himself admitted the attack of leaf curl virus, but there was no proof for the control of the above said virus as no First Appeal No.1582 of 2011 6 recommended insecticides were used to prevent damage to the crop by him. The growth of the crop showed that the seeds were of very good quality, which were properly germinated and properly grown. There was no documentary proof of the expenditure incurred on spray etc. On the document of loss assessed by ADO, Bhucho Mandi on application of the complainant, there is nothing about the quality of the seeds and the report and enquires made by ADO on 18.10.2010 were inconsequence. No opportunity of being heard was given to the OPs, which is the violation of the principle of natural justice and fair hearing. The seeds sold to the complainant were of BT Cotton and BT Cotton are generally known to have resistance against American worm (American Sundi) and there was no loss of crop as alleged by the complainant, due to the virus. So, there was no loss of crop as alleged that might be due to the following reasons:-
(a) Wilting of cotton crop due to moisture stress or draught during fruiting stage.
(b) Imbalance nutrition.
(c) High temperature stress.
(d) Light textured/sandy soils, specifically under early sowing.
(e) Presence of hard paw/layer in the root zone of crop/non leveling of land/farm.
(f) Continuous stagnation of water in the field for longer period.
(g) Wrong time of sowing the crop.First Appeal No.1582 of 2011 7
(h) Natural calamities and uncertain contingencies i.e. heavy rains, flood, storms etc.
(i) Carelessness in handling the crop as non spraying of insecticides, pesticides, fertilizers and other material for the good growth of the crops.
The opposite party No.1 has further pleaded that the assessment made by the ADO, Bhucho Mandi about the expected yield of crop, was totally false. The opposite party No.1 has further pleaded that there is no proof about the irrigation manuring and cultivation of the land properly by complainant. Dismissal of the complaint was prayed for.
4. The opposite party No.2 has filed its separate written reply before the District Forum and raised the preliminary objections that the complainant is not a consumer under the Act of OP No.2 as complainant has been doing his farming to sell his crop in the open market to earn profit, as cotton is a commercial crop. On merits, it was pleaded that it was a Nationally well renowned, reputed and research based company. It deals in different varieties of seeds i.e. Paddy, Cotton, Gawar etc.. It deals in approved varieties of seeds in the market for sale after proper prescribed trial and experimentation given by Govt./concerned departments thereto. It was further pleaded that the seeds manufactured and sold by the OP No.1 were not spurious, inferior and mixed quality rather the same were of very superior quality of seeds. The loss, which was caused to the crop might be due to the disease of leaf curl virus/mealy Bug and Black Sundi, which occurred due to the negligence of the complainant in not properly & timely maintaining First Appeal No.1582 of 2011 8 his crop and the seeds are also not immune from such like diseases and these type of diseases are common to all types of seeds due to negligence of the farmer in omitting to take proper care thereto. It was further pleaded that the complainant gave no detail of loss allegedly suffered by him of the amount of Rs.1,00,000/- approximately and other amounts have been calculated and arrived at by the complainant. The complaint of the complainant is without any cause of action. The opposite party No.2 has taken the same pleas as taken by OP No.1 in its written reply. In the report of the ADO, the attack of white fly was mentioned which clearly showed that the complainant was careless about his crop and did not maintain his crop like a diligent person. It was further pleaded that the sale of the seeds were fully approved by the Government for sale in the open market/retailer/dealer and it is further added in license of the retailer/dealer by the concerned Chief Agriculture Officer as well. It can be allowed only, if the seed is permitted for sale in the open market. Moreover, the permission is granted for their sale in open market after long trial and experimentations by the Government concerned department. There was no question unapproved quality of seeds. The seeds sold to the complainant were of BT Cotton and BT Cotton were generally known to have resistance against American ball worm (American Sundi) and there is no loss of any such crop as alleged by the complainant, due to the virus invasion and it could be due to various other reasons as well. Dismissal of the complaint was prayed for by OP No.2.
First Appeal No.1582 of 2011 9
5. The complainant tendered in evidence his affidavits Ex. C-1& C-2; copy of report dated 18.10.2010 Ex.C-3, Invoice dated 11.5.2010 Ex.C-4, Affidavit of Sh.Nachattar Singh dated 22.02.2011 Ex.C-5 and closed the evidence. OPs tendered in evidence photocopy of University Book 2007 Ex.R-1, photocopy of cutting of Kheti Dunia dated 17.5.2008 Ex.R-2, photocopy of University Book 2007 Ex.R-3, Sale Statement Ex.R-4, photocopy of Form-B Ex.R-5, photocopy of judgment Ex.R-6, Affidavit of Subhash Sharma Ex.R-7, Affidavit of Brijesh Kumar Ex.R-8, copy of letters Ex.R-9 to R-14, phamphlets Ex.R-15 & R-16, copy of North Zone Executive Summary (Open Field Research) Ex.R-17 and closed the evidence on behalf of the opposite parties. On conclusion of evidence and arguments, the complaint of the complainant was dismissed by the District Forum. Dissatisfied with the order of District Forum Bathinda, the instant appeal has been preferred against the same by the complainant, now appellant.
6. We have heard learned counsel for the appellant and respondent no.2 as none has appeared on behalf of the respondent No.1 at the time of final arguments in the appeal. We have gone though the record of the case as well.
7. The complainant purchased two packets of cotton (Narma Seeds) of Mist II of class T/L variety bearing lot No.36239 for a sum of Rs.1780/- and 3 packets of Cot33 variety bearing lot No.17559 for a sum of Rs.2670/- vide bill No.1858 dated 11.05.2010 from OP No.1 vide Ex.C-4. As per the affidavit of Jagjit Singh Ex.C-2, wherein in para No.3 he deposed that he sowed the First Appeal No.1582 of 2011 10 Cot33 seeds in his 1-1/2 acre land as per the instructions of the OP No.1. He further deposed that in para No.5, the Narma crop had suffered attack of leaf curl virus, but the deponent controlled it by spraying the recommended insecticides thereon to prevent damages to the crop. In para no.6, it is pleaded, that though the plants grew upto about 4 feet height, but it did not have proper fructification as per assurance of the OP No.1 and the deponent felt deprived by the unfair trade tactics by opposite parties. The complainant reported the matter to the Agriculture Development Officer, Bhucho Mandi on the application of the complainant and the Agricultural Officials, Bhucho visited the agricultural field of the complainant and assessed the approximate yield from said 1 ½ acres of land to be 3.93 quintals (10 monds) of Narma (cotton). We have perused the relevant portion of the report dated 18.10.2010 Ex.C-3 given by the ADO Bhucho Mandi on the application given by the complainant, which is reproduced as under
:-
"Regarding the above said matter, the inspection of the fields in question had been inspected by me alongwith Sh.Gurmeet Singh, A.S.I., Bhucho in the presence of the farmer. The fields in which the inspection was to be conducted, was situated in the area 1½ acre and Narma Crop has been cultivated. According to the crop, the numbering of the plants, was to be found normal from which it is proved that the seeds were of good germination. The plants have grown to the height of 3½ - 4 feet and vegetative growth meaning thereby leaves etc., are in good condition and these were of dark green colour. According to the statement of the farmer, he cultivated the cot33 Narma in his fields. Approximately 75% of the plants has been seen to be effective by the leaf curl virus and due to this, leaves have been turned to the downward side and the attack by white fly/mosquitoes has also been noticed on the plants, at that time, the plants were greener to assess the financial loss. The First Appeal No.1582 of 2011 11 farmer has taken all necessary care and precautions for the safety of his crop as was done by his co-villagers from which, it has been found that the farmer has taken good care and precautions for the safety of his crop. The farmer has not taken any crop from the fields by the farmer. In the standing crop, there were some balls in flourshing condition and some were in matured condition. It is difficult to assess the crop of Narma in the field at this stage, it can only be assessed after cutting the crop but it could be ascertained from the standing crop that there would be total crop about. 3.93 quintiles per acre in this field."
8. OPs have filed questionnaire in the District Forum. The reply for these questioneries was asked from the concerned officer i.e. A.D.O. who inspected the field. Few queries are replied in the following manner :-
"...2. BT cotton is that in which one bacteria Bacillus thurengenesis (Bt.) in which there is one special quality of gene which grows protein is found in the plant of cotton in the technique of bio- technology. Due to this, plant of cotton crop gets resistance to fight with American worm, pink worm and chitkabri worm.
5. B.T. Cotton (BG-1) in addition to American worm, pink worm and chitkabri worm is also capable to control worm of tobacco. This resistance remains upto 90 to 110 days from the date of sowing of plants and thereafter this resistance gets reduced.
6. With regard to area , no record has been checked by the concerned A.D.O.
7. No photographs of fields and crop have been taken.
8. I did not contact the company and dealer.
10. On the spot, there had been no attack of American worm in the field.
11. In nature different pests are grown according to circumstances.
15. After seeing the Narma Plant, it is difficult to tell about its variety.
22. If the field is inspected after cutting of cotton crop, approximate crop could be assessed.First Appeal No.1582 of 2011 12
23.Yes.
25. The following conditions are responsible for good yield of Narma Crop:-
i. Type of Seeds and its capacity of crop
ii. Time of Sowing the seeds
iii. Health of land and quality of water
iv. Time of Crop and Wheather (rain,
temperature,cyclone etc.,)
v. Control to insecticides and diseases
vi. Proper fertilizer
vii. Right time to cultivate the land
27. The kind of seed helps in growth plant of crop whereas other products help in growth of cotton crop.
28. The right management helps in better crop
29. At the time of inspection, I stayed there at about 1-1/2 hours and thereafter, I prepared the report in my office.
34.In summer and dry season there is increase in white mosquitoes/fly. The wild vegetation has the direct connection in the increase of white fly/mostquitoes as the cotton (Narma) yield is not germinated yet and the white fly has taken the shelter in wild vegetation.
35. The wild vegetation can be controlled with the use of recommended pesticides and other mechanical methods and white fly/mostquitoes can be controlled with the spray of recommended insecticides.
36. There has no 100% immunity regarding white mosquitoes/fly in any type of BT Cotton or BG Cotton. Leaf curl has no connection with the yield of Narma crop.
38. If there is good result for continue three years, the seed of that is got permitted.
40. The farmer told me, this is his field. With regard to identify the fields, I have not inspected the stock record and ownership of the field.
41. Permission have to be granted to sell the seed of Transgenic Crop from the Ministry of Environment and Forestry.
42. No. I have prepared this report on the basis of my own inspection and technique."First Appeal No.1582 of 2011 13
9. According to the complainant as well as report of the ADO, the plants were grown to the height of 3 ½' to 4' which shows that seeds would have right germination power. As the complainant had admitted in para No.4 of the affidavit Ex.C-2, the complainant mentioned in his complaint that he took all necessary care and precaution for safety of his crop and sprayed pesticides for protection of his crop from the attack of pets as done by his co- villagers, but no evidence has been placed on file by the complainant to prove it. The complainant himself admitted in that Narma had suffered from leaf curl virus, but he controlled it by spraying pesticides to prevent damages to the crop. But the complainant did not place on record any evidence that the pesticides were used by him which were recommended by the Agriculture University. During the cross examination before the District Forum, the questionnaire at serial No.25 was with regard to weather condition, which are responsible for good yield of Narma Crop. The ADO has replied that the following conditions are responsible for good yield of Narma crop :-
i. Type of Seeds and its capacity of crop ii. Time of Sowing the seeds iii. Health of land and quality of water iv. Time of Crop and Weather (rain, temperature, wind & thunder) v. Control to insecticides and diseases vi. .Proper fertilizer vii. Right time to cultivate the land Besides this, the other factors are also important for the yield of the good crop like, due care in handling the crop and spraying of First Appeal No.1582 of 2011 14 insecticides, pesticides, fertilizers, weather conditions and other material for the good growth of the crop.
10. Hon'ble Supreme Court of India has held in case titled "Haryana Seeds Development Corporation Ltd. Vs.Sadhu and another", 2005 (2) RCR Civil 138 as well as in "M/s Mahyco Vegetable Seeds Ltd. Vs.G.Sreenivasa Reddy and Ors", in Revision Petition No.4280 of 2007, wherein it has been held that variation in condition of crops need not necessarily be attributed to quality of seeds but to other factors unless there is specific mention in the concerned report. The Apex Court has held that onus to prove that there was a defect in the seeds was on the complainant.
11. There is no proof that the process was followed by the complainant according to the recommendation of the PAU/Agriculture Department or any authorized department. The OPs have placed on record the literature regarding the disease of the Narma crop Ex.R-1. If seeds were of spurious quality, then they would not have grown upto the height of 3 ½ - 4' without any lab report. It cannot be presumed that the seeds in question were defective or mixed one unless there is evidence to substantiate it on the record. At the time of inspection of the filed of the complainant by ADO, no notice was given to the dealer/manufacturer i.e. OP No.1&2 and no opportunity of being heard was given to the opposite parties. The ADO has not mentioned in his report that the seeds were defective or of mixed quality. The finding of District Forum under challenge in this appear are affirmed in this appeal.
First Appeal No.1582 of 2011 15
12. Sequel to the above discussions, we are of the opinion that the order of the District Forum is sustainable in the appeal and the same is affirmed and upheld. We do not find any merit in the appeal and the same is hereby dismissed. No order as to costs.
13. The arguments in this appeal were heard on 20.05.2015 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(J.S.Klar)
Presiding Judicial Member
(Vinod Kumar Gupta)
Member
May 25, 2015 (H.S.Guram)
Lb/- Member4
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.368 of 2011
Date of institution: 25.02.2011.
Date of Decision: 15.05.2015.
Bhai Ghanya Trust (Regd.), SCO No.16, Sector 7-C, Madhya Marg, Chandigarh. (Earlier at Office of the Registrar, Cooperative Societies, Punjab, 17 Bays Building, Sector 17-A, Chandigarh) through its Chief Executive Office.
.....Appellant/OP No.1.
Versus
1. Veerpal Kaur w/o Kulwant Singh R/o Village Bariwala, Tehsil and District Muktsar.
.....Respondent/Complainant.
2. Managing Director of India Health Services (TPA) Pvt. Ltd., Max Pro Info Park, D-38, Phase-I, Industrial Area, Mohali Punjab 160056.
3. The New Bariwala Multi Purpose Cooperative Society Ltd., Bariwala, Tehsil and District Muktsar through its President.
4. The Assistant Registrar, Cooperative Societies, Muktsar.
5. The Deputy Registrar, Cooperative Societies, Muktsar.
6. ICICI Lombard Health Insurance (General Insurance Co. Ltd.) Office No.10, Sector 40-B, Chandigarh through its Manager.
7. Dr.Mukesh Bansal c/o Bansal Nursing Home, Kotkapura Road, Muktsar.
.....Respondents/Opposite parties.
First Appeal against order dated 27.01.2011 27.01.2011 of District District Consumer Disputes Redressal Forum, Muktsar.
Muktsar.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Kumar Gupta, Member.
Shri H.S.Guram, Member.First Appeal No.368 of 2011 2
Present:-
For the appellant : Sh.N.S.Vashisht, Advocate For respondent No.1 : Sh.K.S.Sekhon, Advocate For respondent No.2&6: None For respondent No.3,4&5: None For respondent No.7 : None VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellant (the OP No.1 in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the respondents of this appeal, (respondent No.1 Veerpal Kaur) is the complainant in the complaint and respondents No.2 to 7 of this appeal are OPs No.2 to 7 in the complaint against order dated 27.01.2011 of District Consumer Disputes Redressal Forum, Muktsar (hereinafter called the 'District Forum') in Consumer Complaint No.208 of 2010, accepting the complaint of the complainant and awarding lump sum amount of Rs.7500/- on account of medicines, compensation and costs. OP No.1 to further pay an amount of Rs.20,000/- (12500/- + 7500) to the complainant through bank draft from its table from the date of receipt of certified copy, failing which the complainant shall be entitled to receive the interest @ 7½% from the date of order till its realization, whereas the complaint against OP No.2 to OP No.7 was dismissed.
2. The brief facts of the case of the complainant are that Smt.Veerpal Kaur wife of Kulwant Singh complainant filed First Appeal No.368 of 2011 3 complaint under the Act against the OPs on the averments that Opposite Party No.1 (Bhai Ghanya Trust) launched the Scheme, which was being regulated and operated by OP No. 2 (India Health Services (TPA) Pvt. Ltd, Mohali) and the OP No. 6 (ICICI Lombard Health Insurance (General Insurance Company Limited) which is the Insurance Company.
It has been pleaded that the complainant got herself insured under the Bhai Ghanya Sehat Sewa Scheme from 01-01-2010 to 31-12-2010 and paid Rs.4530/- to OP No.3 (The New Bariwala Multi Purpose Co-op Society Ltd.) and the son of the complainant got the Society code 13-91 from the OP No.1 and got insured under the policy, as per the terms and conditions laid down in the said policy by OP No.1. It is further pleaded that Amandeep Singh son of the complainant was main member of Bhai Ghanya Sehat Sewa Scheme. The complainant and the wife of the above main member were included in this scheme and the total premium amounting to Rs.4,530/- for the family was deposited by the main member i.e. Amandeep Singh with the OP No. 3. The complainant was, thus, entitled to cashless treatment. Suddenly, she suffered from pain in the stomach. She got herself admitted in Bansal Nursing Home Muktsar on 31.07.2010 and was discharged therefrom on 01.08.2010. Her attendants contacted OP No.3 & 4 (Assistant Registrar and The Deputy Registrar, Cooperative Society, Muktsar respectively) and requested them to issue identity card, but OP No. 3&4 could not give the identity First Appeal No.368 of 2011 4 card, as the same had not been received from the higher authorities under the above insurance scheme. OP No.3 issued certificate on 26-07-2010, which was to be given to the hospital. The said certificate was shown to the hospital authorities. It was further pleaded that OP No.7 (Dr.Mukesh Bansal) sent the file to OPs for this purpose. However, the complainant had to be treated and thus, paid Rs.12,500/- for that purpose. She also spent huge amount on the medicines. She approached the OPs for compensation and reimbursement of payment under the above insurance scheme, but all in vain. Hence, the complainant filed the complaint seeking directions to the OPs to pay compensation of mediclaim on account of her medical treatment and to further pay Rs.50,000/- on account of mental tension and harassment and Rs.10,000/- as litigation expenses as well.
3. The complaint was contested by OPs No.2,3&6, as OP No.1,4,5&7 were proceeded against ex-parte. OPs No.2&6 filed joint written reply and OP No.3 filed their separate written reply before the District Forum. It was pleaded by OPs No.2&6 that the complainant was not enrolled under the said scheme and mere membership of OP No. 3 did not mean that she was covered under the above said scheme. It was denied that any premium was paid to replying OPs by the complainant. The alleged certificate issued by OP No. 3 was alleged to be not binding on the OPs. It was further averred that there was no deficiency First Appeal No.368 of 2011 5 whatsoever on the part of the OPs No.2 & 6 and hence, they prayed for the dismissal of the complaint.
4. In its written reply, OP No. 3 pleaded that as per the scheme, a sister could not be a dependent member. Amandeep Singh (son of complainant) had filled enrolment form showing his sister Sukhbir Kaur as dependent on him and OP No.3 forwarded the enrolment form to OP No. 4, who in turn sent the same to OP No. 5 (Dy. Registrar Cooperative Society, Muktsar) and the OP No. 5 sent the form to OP No.1. The OP No. 1 had rejected the form of Amandeep Singh and OP No. 3 received the information on 14-08-2010. There was, thus, no deficiency on the part of the OP No.3 and hence, the dismissal of the complaint was prayed for by it.
5. The complainant tendered in evidence affidavit Ex. CW-1/A; copy of membership certificate Ex. C-1; copy of enrolment form Ex. C-2; copy of guide book Ex. C-3; copies of bills Mark-A to Mark-B; copy of report Mark-C; copy of report Mark-D; copy of pre-authorization letter Mark-E and closed evidence. OP No. 2 and 6 tendered in evidence affidavit Ex. OP- 2/A and closed evidence. OP No. 3 tendered in evidence Ex. OP- 3/A; copy of resolution Ex. OP-3/B and closed the evidence. OPs No. 1, 4, 5 and 7 were proceeded against ex-parte before District Forum. On conclusion of evidence and arguments, the District Forum Muktsar, accepted the complaint of the complainant qua First Appeal No.368 of 2011 6 OP No.1 and directed it to pay an amount of Rs. 20,000/- (Rs. 12,500/- + Rs. 7,500/-) to the complainant through bank draft in her favour within two months from the date of receipt of certified copy of the order, failing which, the complainant shall be entitled to receive interest at the rate of 7½% per annum from the date of order till actual realization. Complaint qua OP No. 2 to 7 was dismissed. Dissatisfied with the order of District Forum, Muktsar, the instant appeal has been preferred against the same by the OP No.1 now appellant.
5. We have heard learned counsel for the appellant and respondent no.1, as none appeared on behalf of the respondents No.2,3,4,5,6&7 in this appeal. We have also gone though the record of the case as well.
6. We have perused the enrolment form Ex.C-2, which is filled-up by Sh.Amandeep Singh son of the complainant, in which, the name of the Sukhbir Kaur, his sister, is mentioned as dependant on him. Enrolment form was attested by the OP No.3. The complainant had placed on record the bill No.1523 dated 01.08.2010 Mark A in which, it is shown that his mother was admitted in Bansal Nursing Home Pvt. Ltd., Muktsar on 31.07.2010 and was discharged therefrom on 01.08.2010. The complainant paid Rs.12,500/- on account of the hospital expenses vide Ex. Mark-E. Total premium paid by the main member (Amandeep Singh son of the complainant) on behalf of the family, to OP No.3 was Rs.4530/-. As per the guide book of Bhai First Appeal No.368 of 2011 7 Ghanya Sehat Sewa Scheme vide Ex.C-3, the name of the hospital "Bansal Nursing Home Pvt Ltd., Distt. Muktsar" was mentioned in the guide book, as the empanelled hospital. As per the Service Level Agreement, which was entered on 30.10.2009 at Chandigarh between ICICI Lombard General Insurance Company Limited Vs. MD India Health Services Pvt. Ltd. (TPA) and Bhai Ghanya Trust, the "Family" has been declined at Serial No.1.9 as under :-
"Family" means the persons named in the Member Enrollment Form including the Main Member and any of his or her following relatives irrespective of whether or not they are dependent or residing with the Main Member :-
i. Spouse of the Main Member;
ii. Parents of the Main Member; (if the Main Member
is female, she will have the right to exercise her option to either enroll her parents or her parents in-laws.) iii. Unmarried children of the Main Member; iv. Widow and divorcee daughters of the Main Member v. Minor children of window and divorcee daughters of the Main Members.
Excluding all persons who are more than 75 years of age on the date of commencement of the Policy Plan Period."
7. It is submission of the appellant that the complainant Veerpal Kaur is the Sister of the main member Amandeep Singh First Appeal No.368 of 2011 8 in this case and the sister of the main member is not covered under the definition of the "Family" as said above irrespective of the fact, whether she is dependent on main member or not. We find force in the submission of the appellant in this appeal to the effect that Service Level Agreement dated 30.10.2009 nowhere sets out the sister of the main member, whether dependent upon him or not, to be a member of the family of the main member. The premium has been taken by OP No.1 from the main member with regard to those persons, who fall within the definition of his family only. Consequently, we find that the sister of main member whether dependent upon him or not, is not a part of the family of the main member and hence, the complainant is not covered under the insurance policy. The order of the District Forum accepting the complaint of the complainant is erroneous and unsustainable in this appeal.
8. Sequel to the above discussion, the appeal filed by the appellant/OP No.1 is accepted and resultantly, the order of District Forum, Muktsar dated 27.01.2011 under appeal is set- aside and the complaint of the complainant stands dismissed.
9. The appellant/OP No.1 has deposited an amount of Rs.10,000/- with this Commission at the time of filing the appeal. The amount of Rs.10,000/- with interest accrued, if any, be remitted by registry to the OP No.1 by way of a crossed cheque/demand draft after the expiry of 45 days from the date of issue of certified copy of the order to the parties. First Appeal No.368 of 2011 9
10. The arguments in this appeal were heard on 11.05.2015 and the order was reserved. Now the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of cases.
(J.S.Klar)
Presiding Judicial Member
(Vinod Kumar Gupta)
Member
May 15, 2015 (H.S.Guram)
Lb/- Member
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37- 37-A, CHANDIGARH.
First Appeal No.891 of 2011
Date of institution: 07.06.2011.
Date of Decision: 29.05.2015.
Baljeet Singh S/o Makhan Singh, resident of Village Bhunder, Block Gidderbaha, District Sri Muktsar Sahib.
.....Appellant/complainant.
Versus
1. M/s Aryan Seeds Booth No.180, New Grain Market, Near Old D.C. Office, Muktsar, District Muktsar through its Proprietor/Partner.
2. Maha Gujrat Seeds Pvt. Ltd., 694, Chandk Layout, Near Gittanjali Press Road, Nagpur, Customer Helpline No.01722773748 through its Chairman/Managing Director.
3. Solar Agrotech Private Limited, Syyam-3, Milpara Rajkot 360002 (Gujrat) through its Chairman/Managing Director.
.....Respondents/Opposite parties.
First Appeal against order dated
29.04.2011 of District Consumer
Disputes Redressal Forum,
Muktsar.
Muktsar.
Before:-
Shri J.S.Klar, Presiding Judicial Member Shri Vinod Vinod Kumar Gupta, Member.
Present:-
For the appellant : Sh.P.K.S.Phoolka, Advocate For respondents : None First Appeal No.891 of 2011 2 VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellant (the Complainant in the complaint) against the respondents of this appeal (Opposite Parties in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against order dated 29.04.2011 of District Consumer Disputes Redressal Forum, Muktsar (hereinafter called the 'District Forum') in Consumer Complaint No.294 of 2010, dismissing the complaint of the complainant.
2. The brief facts of the case of the complainant are that Baljit Singh complainant filed the complaint under Sector 12 of Consumer Protection Act, 1986 against the OPs on the averments that he had purchased cotton seed Sartaj 45 from OP No. 1 (M/s Aryan Seeds, Muktsar). It was developed by OP No. 3 (Solar Agrotech Private Limited) and marketed by OP No. 2 (Maha Gujrat Seeds Pvt. Ltd.). OP No. 1 assured the complainant that Sartaj 45 Seed was hybrid cotton seed and was of the best quality. The complainant had purchased 4 packets of the seeds for Rs. 3,600/-
on 08.05.2010 and had sown the seeds on 15.05.2010 in his 2-½ acre of land. It was further alleged in the complaint that after two months, the complainant noticed that cotton seed were not of good quality and were not of BT cotton seed and were rather spurious seeds. The crop of the complainant was badly affected by leaf curl virus due to sub-standard quality of seeds sold to him. He approached Agriculture Development Officer Gidderbaha and the First Appeal No.891 of 2011 3 said official visited his fields on 01-10-2010 and after inspection thereof, he prepared a report to the effect that seeds were not recommended by Punjab Agriculture University. He requested the OP to compensate him, but all in vain. Hence, the complainant has filed the complaint seeking direction to the OPs to pay total compensation to the tune of Rs.2.00 Lacs i.e. approximately Rs.1,60,000/- for loss of cotton crop and Rs.30,000/- for his mental harassment and Rs.10,000/- as litigation expenses.
3. The complaint was contested by OPs by filing their separate written reply before the District Forum. OP No.1 has filed the separate reply and preliminary objections were raised pleading that the complainant is not a consumer, as per the definition of the Consumer Protection Act. The present dispute was not the Consumer dispute. Many complicated questions of facts and law are involved in the present matter, which requires voluminous evidence for proper adjudication, as every agriculture operation is a long detailed operation hence, the matter should be decided by the Civil Court. It cannot be decided by the Consumer Forum in summary proceeding. The present complaint is alleged to be baseless and false, as the allegations made by the complainant are not based on the scientific or laboratory tests. Complaint was pleaded to be frivolous and vague. Complainant is alleged to have no locus standi to file the complaint. On merits, it was pleaded that OP No.1 carried the business of selling the seeds and never indulged in any type of malpractices in his business, it used to sell First Appeal No.891 of 2011 4 the varieties of seeds in cotton, paddy, vegetable etc. of well reputed companies only. The OP No.1 sold the seeds on the demand of the customers and hence, he is an approved dealer of all the companies and has a valid license issued by Chief Agriculture Officer, Bathinda in this regard. OP No.1 is neither the manufacturer nor marketer of the said seeds. It has sold more than 10,000 packets of BT Cotton seeds in the season on its counter sale. The complainant himself demanded the varieties of cotton crops from OP No.1. The opposite party No.1 never gave any assurance about yield, quality or result of the crop on the basis of these seeds . All the conditions were printed on the front side of the bill in the mother tongue i.e. Punjabi, which were easily understandable by the purchaser of the seeds and the bill book was also attested by concerned A.D.O. in this regard. The opposite party No.1 had only sold original sealed seeds to the complainant. It has denied that it has not given any instructions to the complainant for sowing them and there is no proof to support that the processes of agriculture were followed properly and according to the recommendations of the Punjab Agriculture University, Ludhiana/Agriculture Department/any authorized department. The complainant himself admitted good germination power and its growth, so it clearly shows that the complainant had not taken all necessary care and precautions for the safety and growth of the crop. The complainant has nowhere mentioned the process followed by him for the care of the crop. The complainant himself admitted the attack of leaf curl virus, but there was no proof for the First Appeal No.891 of 2011 5 control of the above said virus by him, as no recommended insecticides were used to prevent damage to the crop. The growth of the crop showed that the seeds were of very good quality, which properly germinated and had properly grown. There was no documentary proof of the expenditure incurred, on spray etc. by the complainant. Even on the point of the loss assessed by ADO, Bhucho Mandi, on application of the complainant, there is nothing about the quality of the seeds and the report and qua enquires made by ADO on 18.10.2010. No opportunity of being heard was given to the OPs, which is violation of principle of natural justice and fair hearing. The seeds sold to the complainant were of BT Cotton and BT Cotton is generally known to have resistance against American worm (American Sundi) and there was no loss of crops, as alleged by the complainant, due to the virus. So, there is no loss of crop as alleged by the complainant and it could be due to the following reasons:-
(a) Wilting of cotton crop due to moisture stress or draught during fruiting stage.
(b) Imbalance nutrition.
(c) High temperature stress.
(d) Light textured/sandy soils, specifically under early sowing.
(e) Presence of hard paw/layer in the root zone of crop/non leveling of land/farm.First Appeal No.891 of 2011 6
(f) Continuous stagnation of water in the field for longer period.
(g) Wrong time of sowing the crop.
(h) Natural calamities and uncertain contingencies i.e. heavy rains, flood, storms etc.
(i) Carelessness in handling the crop as non spraying of insecticides, pesticides, fertilizers and other material for the good growth of the crops.
The opposite party No.1 has further pleaded that the assessment made by the ADO, Bhucho Mandi about the expected yield of crop, was totally false. The opposite party No.1 has further pleaded that there is no proof about the irrigation, manuring and cultivation of the land properly and the complainant has produced no proof regarding the process followed by him, on the point whether it was according to the recommendations of the Punjab Agriculture University/Agriculture department/any authorized department or not. Dismissal of the complaint was prayed for by OP No.1.
4. The opposite party No.2 has filed separate written reply before the District Forum and raised the preliminary objections that the complainant is not a consumer under the Act as he has been doing his farming to sell his crop in the open market to earn profit as cotton is a commercial crop. On merits, it was pleaded that it was a Nationally well renowned, reputed and research based company. It deals in different varieties of seeds i.e. Paddy, Cotton, Gawar etc.. It deals in approved varieties of seeds in the market for First Appeal No.891 of 2011 7 sale after proper prescribed trail and experimentation given by Govt./concerned departments. It was pleaded that the seeds manufactured and sold by the OP No.1 was not of spurious, inferior and mixed quality rather the same was of very superior quality. The loss, which was caused to the crop might be due to the disease of leaf curl virus/mealy Bug and Black Sundi, which had occurred due to the negligence of the complainant in not properly maintaining his crop timely and the seeds were not immune to such like diseases and these type of diseases were common to all types of seeds due to negligence of the farmer only. It was further pleaded that the complainant gave no detail on record of any alleged loss. The opposite party No.2 has taken the same defence, as taken by OP No.1. In the report of the ADO, the attack of white fly is mentioned which clearly showed that the complainant was careless about his crops and did not maintain his crops appropriately. It was further pleaded that the sale of the seeds were fully approved by the Government and as to sell the seeds in the open market/retailer/dealer and it is added in license of the retailer/dealer by the concerned Chief Agriculture Officer. It can be done only, if the seed is permitted for sale in the open market. Moreover, the permission was after long trial and experimentations by the Government concerned department and hence, there is no question of unapproved quality of seeds. The seeds sold to the complainant were of BT Cotton and BT Cotton were generally known to have resistance against American ball worm (American Sundi) and there is no loss of crops, as alleged by the complainant, First Appeal No.891 of 2011 8 due to the virus and it could be due to various other reasons. Dismissal of the complaint was accordingly prayed for.
5. The complainant tendered in evidence affidavits Ex. C- 1& C-2; copy of report dated 18.10.2010 Ex.C-3, Invoice dated 11.5.2010 Ex.C-4, Affidavit of Sh.Nachattar Singh dated 22.02.2011 Ex.C-5 and closed the evidence. OPs tendered in evidence photocopy of University Book 2007 Ex.R-1, photocopy of cutting of Kheti Dunia dated 17.5.2008 Ex.R-2, photocopy of University Book 2007 Ex.R-3, Sale Statement Ex.R-4, photocopy of Form-B Ex.R-5, photocopy of judgment Ex.R-6, Affidavit of Subhash Sharma Ex.R-7, Affidavit of Brijesh Kumar Ex.R-8, copy of letters Ex.R-9 to R-14, phamphlets Ex.R-15 & R-16, copy of North Zone Executive Summary (Open Field Research) Ex.R-17 and closed the evidence on behalf of the opposite parties. On conclusion of evidence and arguments, the District Forum Bathinda, dismissed the complaint of the complainant. Dissatisfied with the order of District Forum Bathinda, the instant appeal has been preferred against the same by the complainant, now appellant.
5. We have heard learned counsel for the appellant as none appeared on behalf of the respondents at the time of final arguments in this appeal. We have also gone though the record of the case as well.
6. The complainant purchased two packets of cotton (Narma Seeds) of Mist II of class T/L variety bearing lot No.36239 First Appeal No.891 of 2011 9 for a sum of Rs.1780/- and 3 packets of Cot33 variety bearing lot No.17559 for a sum of Rs.2670/- vide bill No.1858 dated 11.05.2010 from OP No.1, vide Ex.C-4. As per the affidavit of Jagjit Singh Ex.C-2, wherein in para No.3 he deposed that he sowed the Cot33 seeds in his 1-1/2 acre land as per the instructions of the OP No.1. He further deposed in para No.5 that the Narma crop had suffered attack of leaf curl virus but the deponent controlled it by spraying recommended insecticides to prevent damage to the crop. In para no.6, it is stated that though the plants grew about 4 feet height, but they did not have proper fructification as per assurance of the OP No.1 and the deponent felt cheated by the opposite parties. The complainant reported the matter to the Agriculture Development Officer, Bhucho Mandi. On the application of the complainant, the Agricultural Officials and Agriculture Development Officer, Bhucho visited the agricultural field of the complainant and assessed that approximate yield from said 1 ½ acres of land would be 3.93 quintals (10 monds) of Narma (cotton). We have perused the relevant portion of the report dated 18.10.2010 Ex.C-3 given by the ADO Bhucho Mandi on the application given by the complainant, which is reproduced as under
:-
"Regarding the above said matter, the inspection of the fields in question had been inspected by me alongwith Sh.Gurmeet Singh, A.S.I., Bhucho in the presence of the farmer. The fields in which the inspection was to be conducted, was situated in the area 1½ acre and Narma Crop has been cultivated. According to the crop, the numbering of the plants, was to be found normal from which it is proved that the seeds were of good germination. The plants have grown to the height of 3½ -First Appeal No.891 of 2011 10
4 feet and vegetative growth meaning thereby leaves etc., are in good condition and these were of dark green colour. According to the statement of the farmer, he cultivated the cot33 Narma in his fields. Approximately 75% of the plants has been seen to be effective by the leaf curl virus and due to this, leaves have been turned to the downward side and the attack by white fly/mosquitoes has also been noticed on the plants, at that time, the plants were greener to access the financial loss. The farmer have taken all necessary care and precautions for the safety of his crop as was done by his co-villagers from which, it has been found that the farmer has taken good care and precautions for the safety of his crop. The farmer has not taken any crop from the fields by the farmer. In the standing crop, there were some bolls in flourshing condition and some were in matured condition. It is difficult to assess the crop of Narma in the field at this stage, it can only be assessed after cutting the crop but it could be ascertained from the standing crop that there would be total crop about. 3.93 quintiles per acre in this field."
7. OPs have filed questionnaire in the District Forum. The reply for these questioneries was asked from the concerned officer i.e. A.D.O. who inspected the field. Few queries are replied in the following manner :-
"...2. BT cotton is that in which one bacteria Bacillus thurengenesis (Bt.) in which there is one special quality of gene which grows protein is found in the plant of cotton in the technique of bio- technology. Due to this, plant of cotton crop gets resistance to fight with American worm, pink worm and chitkabri worm.
5. B.T. Cotton (BG-1) in addition to American worm, pink worm and chitkabri worm is also capable to control worm of tobacco. This resistance remains upto 90 to 110 days from the date of sowing of plants and thereafter this resistance gets reduced.
6. With regard to area , no record has been checked by the concerned A.D.O.
7. No photographs of fields and crop have been taken.
8. I did not contact the company and dealer.
10. On the spot, there had been no attack of American worm in the field.First Appeal No.891 of 2011 11
11. In nature different pests are grown according to circumstances.
15. After seeing the Narma Plant, it is difficult to tell about its variety.
22. If the field is inspected after cutting of cotton crop, approximate crop could be assessed.
23.Yes.
25. The following conditions are responsible for good yield of Narma Crop:-
i. Type of Seeds and its capacity of crop
ii. Time of Sowing the seeds
iii. Health of land and quality of water
iv. Time of Crop and Wheather (rain,
temperature,cyclone etc.,)
v. Control to insecticides and diseases
vi. Proper fertilizer
vii. Right time to cultivate the land
27. The kind of seed helps in growth plant of crop whereas other products help in growth of cotton crop.
28. The right management helps in better crop
29. At the time of inspection, I stayed there at about 1-1/2 hours and thereafter, I prepared the report in my office.
34.In summer and dry season there is increase in white mosquitoes/fly. The wild vegetation has the direct connection in the increase of white fly/mostquitoes as the cotton (Narma) yield is not germinated yet and the white fly has taken the shelter in wild vegetation.
35. The wild vegetation can be controlled with the use of recommended pesticides and other mechanical methods and white fly/mostquitoes can be controlled with the spray of recommended insecticides.
36. There has no 100% immunity regarding white mosquitoes/fly in any type of BT Cotton or BG Cotton. Leaf curl has no connection with the yield of Narma crop.
38. If there is good result for continue three years, the seed of that is got permitted.
40. The farmer told me, this is his field. With regard to identify the fields, I have not inspected the stock record and ownership of the field.First Appeal No.891 of 2011 12
41. Permission have to be granted to sell the seed of Transgenic Crop from the Ministry of Environment and Forestry.
42. No. I have prepared this report on the basis of my own inspection and technique."
8. According to the complainant as well as report of the ADO, the plants were grown to the height of 3 ½' to 4' which showed that seeds would have right germination power. As the complainant had admitted in para No.4 of the affidavit Ex.C-2, the complainant mentioned in his complaint that he took all necessary care and precaution for safety of his crops and sprayed pesticides for protection of his crops from the attack of pests, as done by his co-villagers, but no evidence has been placed on file by the complainant to prove that due care had been taken by him and pesticides have been sprayed by him for the protection of his crops from the attack of leaf grown, white fly, mosquitoes and American Sundi. The complainant himself admitted that Narma suffered from leaf curl virus, but he controlled spraying pesticides to prevent damaged to the crop. But the complainant did not place on record any evidence to prove that the pesticides were used by him and they were recommended by the Agriculture University of land. During the cross examination before the District Forum, the questionnaire at serial No.25 was with regard to weather condition, which are responsible for good yield of Narma Crop. The ADO has replied that the following conditions are responsible for good yield of Narma crop :-
First Appeal No.891 of 2011 13
i. Type of Seeds and its capacity of crop
ii. Time of Sowing the seeds
iii. Health of land and quality of water
iv. Time of Crop and Weather (rain, temperature, wind
& thunder)
v. Control to insecticides and diseases
vi. .Proper fertilizer
vii. Right time to cultivate the land
Besides this, the other factors are also important for the yield of the good crop like, due care in handling the crop and spraying of insecticides, pesticides, fertilizers and other material for the good growth of the crop.
9. Hon'ble Supreme Court of India in case titled "Haryana Seeds Development Corporation Ltd. Vs.Sadhu and another", 2005 (2) RCR Civil 138 as well as in "M/s Mahyco Vegetable Seeds Ltd. Vs.G.Sreenivasa Reddy and Ors", in Revision Petition No.4280 of 2007, held that variation in condition of crops need not necessarily be attributed to the quality of seeds, but to other factors unless there is specific mention in the concerned report. The Apex Court has held that onus to prove that there was a defect in the seeds was on the complainant.
10. There is no proof that proper process was followed according to the recommendation of the PAU/Agriculture Department or any authorized department by the complainant. The OPs have placed on record the literature regarding the disease of the Narma crop Ex.R-1. If seeds were of spurious quality, then they would not have grown to the height of 3 ½ - 4'. Without any lab report that the seeds in question were defective and mixed one, it cannot be held so. At the time of inspection of the filed of the complainant by ADO, no First Appeal No.891 of 2011 14 notice was given to the dealer/manufacturer i.e. OP No.1&2 and no opportunity of being heard was also given to the opposite parties. ADO has not specifically mentioned in his report that the seeds were defective or mixed one. The findings of District Forum under challenge in this case are affirmed in this appeal.
11. Sequel to the above discussions, we are of the opinion that the order of the District Forum is justified and there is no infirmity in the order of the District Forum and the same is affirmed and upheld. We do not find any merit in the appeal and the same is hereby dismissed. No order as to costs.
12. The arguments in this appeal were heard on 25.05.2015 and the order was reserved. Now the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(J.S.Klar) Presiding Judicial Member (Vinod Kumar Gupta) Member May 29, 2015 Lb/-