State Consumer Disputes Redressal Commission
Jaswinder Singh; vs M/S Bajaj Pesticides, on 26 May, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1895 of 2011
Date of institution: 23.12.2011
Date of Decision: 26.5.2014
1. Jaswinder Singh;
2. Sukhpal Singh sons of Malkit Singh;
Residents of Village Azam Wala, District Fazilka, District Fazilka.
.....Appellants/Complainants
Versus
1. M/s Bajaj Pesticides, Distributor of Dhanuka Agritech Limited,
Cheminova India Limited, mandi No. 1, Abohar, District Fazilka.
2. M/s Cheminova India Private Limited, 242/P, GIDC, Panoli,
District Bharuch, Gujrat.
3. M/s Zimindara Pesticides, Chowk Hakikat Rai, Mandi No. 1,
Abohar, District Fazilka.
4. M/s Chemtura Chemicals Private Limited, Backside Nambaedar
Petrol Pump, Malout Road, Bathinda.
5. M/s Subhash Chander Sunil Kumar, Mandi No. 1, Abohar, District
Fazilka.
6. M/s Dhanuka Agritech Limited, Dhanuka House, 861-862, Joshi
Road, Karol Bagh, New Delhi.
.....Respondents/Opposite Parties
First Appeal against the order dated 2.9.2011
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. Parvez Chugh, Advocate
For respondent No.1 : Sh. N.K. Manchanda, Advocate
For respondent No.2 : Sh. Pankaj Maini, Advocate
For respondents No.3&4 : Ex.-parte
For respondent No. 5 : Sh. K.S. Sekhon, Advocate
For respondent No. 6 : Sh.Saurabh Choudhary,Advocate for
Sh. Arun Nehra, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
2 FIRST APPEAL NO. 1895 OF 2011 The appellants/complainants (hereinafter referred as "the complainants") have filed the present appeal against the order dated 2.9.2011 passed by the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter referred as "the District Forum") in consumer complaint No.10 dated 3.1.2011 vide which the complaint filed by the complainant was dismissed.
2. The complaint was filed by the complainants against the respondents/opposite parties(hereinafter referred as 'opposite parties') on the allegations that they purchased insecticide marked as Trizofas, Aceita Meprid and Vircon-H from OP No. 1 for a sum of Rs. 12,450/- vide bill No. 1164 dated 31.7.2010. Then they purchased more pesticides named Trizofas, Ectara and Vicron-H for a sum of Rs. 10,600/- vide bill No. 1738 dated 19.8.2010 in the presence of Sardool Singh s/o Tek Singh and Surjeet Singh son of Inder Singh, residents of Village Azamwala, Tehsil Fazilka, District Ferozepur and sprayed on the cotton crop in 27 acres of land owned and possessed by the complainants on 5.8.2010 and 26.8.2010. However, to the bad luck of the complainants, the cotton crop where the abovesaid insecticides were sprayed got damaged severally. The cotton flowers of the cotton Guddi and plants started giving monkey hand leaves. They immediately approached to the Block Development Officer. They appointed Soil Testing Officer and Agricultural Development Officer and others, who assessed the loss to the tune of Rs. 6,55,000/-. The cotton crop of the complainant was damaged due to unfair trade practice on the part of the Ops and they are liable to pay 3 FIRST APPEAL NO. 1895 OF 2011 that amount alongwith compensation for mental tension and litigation expenses etc..
3. The complaint was contested by the Ops except OP No. 5, who was proceeded ex-parte. OP No. 1 in its reply have taken the preliminary objections that the complainants were barred by their act and conduct to file this complaint. They had no locus standi or cause of action to file the complaint. They are guilty of concealing the material facts. The complaint was filed just to harass the Ops. There was no analysis report to the extent that pesticide was defective. The complainants did not state that the pesticides used according to the instructions given by the Punjab Agricultural University, Ludhiana. On merits, it was admitted that the complainants had purchased pesticides/insecticides from the OP. It was sold to the complainant in the sealed and intact condition as he received from the Manufacturer/Distributor. However, the persons as alleged in the complaint had never visited the shop of this OP. This Op had sold these pesticides to various other farmers of the area but no other person had lodged any report against the pesticides. It was not alleged in the complaint whether the pesticides was sprayed according to the instructions of the Punjab Agricultural University. The complaint was filed just to harass the OP and to extort the money for extraneous reasons. Therefore, it was stated that there is no merit in the complaint and the same be dismissed.
4. OP No. 2 in its reply had taken the preliminary objections that Cheminova India Ltd. is the manufacturer. The Company has clean record and Mr. R.K. Hooda is Regional Manager and 4 FIRST APPEAL NO. 1895 OF 2011 Authorised Officer of the Company to file the reply. On merits, it was stated that the pesticides Vicrol-H was not permitted to be sold in the State of Punjab. The other allegations as alleged in the complaint were hypothetical and were not based on factual position. As per the allegations in the complaint, these were sprayed Cotton Crop on 5.8.2010 and 26.8.2010. In case the pesticides would have been defective it would have damaged the crop with the first spray. They had sold these pesticides in the area but no complaint was received from any other farmer. It is not clear whether they had sprayed the pesticides according to the recommendations of the Punjab Agricultural University. There was no analysis report attached with the complaint, which was pre-requisite for admission of the complaint. Accordingly, it was stated that the complaint has been filed just to harass the OP. Complaint is without merit and the same be dismissed.
5. OP No. 3 in its written reply had taken the preliminary objections that the complainants are barred by their own act and conduct to file this complaint. They had no locus-standi or cause of action and had suppressed of material facts. There was no laboratory report to prove that these pesticides was defective. On merits, they had stated that this OP had purchased pesticides/insecticides in sealed and intact position from M/s Cheminova India Pvt. Ltd. and sold to OP No. 1 in the same condition. The complainants had used the pesticides on their crops, therefore, it was used for commercial purposes. Accordingly, the complainants are not the consumers. Similar insecticides/pesticides were sold to other farmers but no such 5 FIRST APPEAL NO. 1895 OF 2011 complaint was received. It has not been explained whether the pesticides was used according to the standard instructions issued by the Punjab Agricultural University. The complaint was filed just to extort the money. Complaint is without merit and the same be dismissed.
6. OP No. 4 in its reply had taken the preliminary objections that the complaint has been filed just to grab the money. The complainants had suppressed the material facts from the Court. The samples were taken by the Agricultural Department and were sent to Insecticide Quality Control Laboratory, Bathinda and the result was "Sample conforms to its percentage active ingredient content"; the complainant had purchased the insecticide for commercial purposes. The yield depends upon other factors i.e. preparation of land, fertilizers, quality of land and system of irrigation. On merits again it was reiterated that the sample was taken according to the prescribed standard, therefore, the complaint was filed just to harass the Ops and extort the money, therefore, the complaint be dismissed.
7. OP No. 6 has also filed the written statement on the same lines as has been stated by OP No. 4.
8. The parties were allowed by the learned District Forum to lead their evidence.
9. In support of his allegations, the complainant had tendered into evidence affidavit of Sukhpal Singh Ex. C-1, bill dated 31.7.10, bill dt. 19.8.10 Ex. C-3, letter of complainant Ex. C-4, letter of Land Development Officer Ex. C-5 with report Ex. C-5/A, pamphlet of Vircon-H Ex. C-6. On the other hand, opposite parties had tendered 6 FIRST APPEAL NO. 1895 OF 2011 into evidence copy of Form XX Ex. R-1, R-6, R-8 Form XVII Ex. R-2 to R-5, R-7, affidavits Ex. R-9, R-11, R-13, R-15, R-17, R-19, R-22, R-24, R-27; bills Ex. R-10, R-12, R-14, R-16, R-18, R-20, R-21, R- 23, R-25, R-26, R-28, affidavit of Jaginder Singh, Prop. Ex. R-29, affidavit of Om Parkash Ex. R-30, affidavit of Sh. R.K. Hooda, Ex. R- 31, affidavit of Ravinder Pal Singh Ex. R-32, Form XVII Ex. R-33, affidavit of Suresh Kalra Ex. R-34, Form XVII Ex. R-35, Form VIII Ex. R-36, Chemtura Chemicals India Pvt. Ltd. Ex. R-37, Invoice Ex. R-38 to R-40, affidavits Ex. R-41 to 48, invoices Ex. R-49 to 55, detail of accounts Ex. R-56 and Mr. Sandeep Kumar Rinwa, ADO was also examined before the District Forum.
10. After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought on the record, the learned District Forum did not see any merit in the complaint and the same was dismissed.
11. Aggrieved with the order passed by the learned District Forum, the appellants/complainants have filed the present appeal.
12. We have heard the learned counsel for the parties.
13. In the grounds of appeal, it has been stated that the order passed by the learned District Forum is liable to be set-aside as the learned District Forum failed to appreciate that the insecticides purchased from the Ops were defective. Samples were taken on 15.9.2010 and were sent to the Laboratory on 20.9.2010, therefore, there can be possibility of tampering with. There is report of Soil Testing Officer that the crop was damaged due to use of defective insecticides. The case of the complainant was that the crop was 7 FIRST APPEAL NO. 1895 OF 2011 damaged after the insecticide was used on 26.8.2010. Therefore, the order so passed by the learned District Forum is liable to be set- aside.
14. In case we go through the pleadings of the parties and the record, there is no dispute that the complainants had purchased the insecticides from the Ops on 31.7.2010 and 19.8.2010. The allegations of the complainants are that after the usage of these insecticides/pesticides, the cotton crop of the complainants standing in 27 acres of land was damaged. The loss was assessed by the Soil Testing Officer, who assessed the loss of Rs. 6,55,000/-. The report of the Soil Testing Officer is Ex. C-5/A. The perusal of these report shows that as per the allegations of the complainant, after the use of insecticides, there was damage of their crop but no findings have been given by the Soil Testing Officer whether the insecticides were defective, rather, they have stated that to check quality, the matter be referred to Assistant Plants Security Officer, in whose jurisdiction it is covered and lateron samples of the same insecticides were taken and were sent to Laboratory at Bathinda. Samples were drawn vide documents Ex. R-1 and report of the different Insecticide Quality Control Laboratory, Bathinda are Exs. R-2, R-4, R-5, R-7 and the reports are as under:-
S. No. Name of the Code Name of the Remarks
Insecticide No. Insecticide
Inspector Purporting
1. Sh. Ranbir BCA-4 Triazophos Sample conforms to I.S.
Singh Yadav 40% EC specification with
percentage active
ingredient content
2. Sh. Ranbir BCA-3 Triazophos Sample conforms to I.S.
Singh Yadav 40% EC specification with
percentage active
8
FIRST APPEAL NO. 1895 OF 2011
ingredient content
3. Sh. Ranbir BCA-1 Acatamiprid Sample conforms to Its
Singh Yadav 20% SP percentage active
ingredient content
4. Sh. Ranbir BCA-2 Thiamethoxam Sample conforms to its
Singh Yadav 25% WG active ingredient content
Therefore, on the side of the opposite parties some evidence has been brought on the record that the insecticides sold by them conforms to the prescribed standards.
15. In case the complainants alleged that the damage to the crop was due to defective insecticides/pesticides used by the complainants then onus was upon the complainants to prove this fact. In case the complainants were not satisfied with the report so submitted by Insecticide Quality Control Laboratory, Bathinda then they can opt for another sample but no such effort was made by the complainants. Merely because there is a delay of 5 days in sending the sample, does not mean that the samples were tampered with till the complainants allege or to prove specifically how the samples can be tampered but they have not given the details how the samples were tampered by the opposite parties when the samples were taken(given) by the Government Officials. Moreover, the Agricultural Development Officer had also appeared in the witness box and he in his statement has stated that effect of the spray on the crop starts within 10-12 hours. In the complaint it has not been specifically stated that the crops were damaged after spray of 26.8.2010. The spray was also used on 5.8.2010 is of similar nature. He has further stated that insecticide Ectara, Acetamiprid 20% and Thiamathaxam do not affect the shape of the leaves. Moreover, the insecticides is not to be used 9 FIRST APPEAL NO. 1895 OF 2011 in the container already used and it is not clear how they used it and how much contents of the insecticide and water was used, therefore, there can be some mistake with regard to the use of the insecticide, which does not mean that the insecticide was defective in nature. Therefore, there is sufficient evidence on the side of the Ops to say that the insecticides sold by them are of prescribed standard. Whereas on the other side, the onus was heavy upon the complainants to prove these as defective but they have not been able to bring on the record sufficient evidence to prove that the insecticides used by them were defective, therefore, the learned District Forum has rightly dismissed the complaint. We affirm the findings so recorded by the learned District Forum.
16. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
17. The arguments in this appeal were heard on 12.5.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 26, 2014. (Harcharan Singh Guram)
as Member