State Consumer Disputes Redressal Commission
D.J. Damani & Sons vs Shri. Deepak Madanlal Agrawal on 30 April, 2011
F.A. No.:1043,1058-06
1
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 05.06.2006
Date of Order:30.04.2011
(1)
FIRST APPEAL NO.: 1043 OF 2006
IN COMPLAINT CASE NO.: 98 OF 2004
DISTRICT CONSUMER FORUM: DHULE
D.J. Damani & sons
Shivaji Nagar, Near Bus Stand,
Shivaji Nagar,
Pune (M.S.) ...Appellant
-Versus-
Shri. Deepak Madanlal Agrawal
R/o. Kapadane, Tal Dist. Dhule. ...Respondent
... Respondent
(2) Date of filing : 06.06.2006
Date of Order: 30.04.2011
FIRST APPEAL NO.: 1058 OF 2006
IN COMPLAINT CASE NO.: 98 OF 2004
DISTRICT CONSUMER FORUM: DHULE
Shri. Deepak Madanlal Agrawal
R/o. Kapadane, Tal Dist. Dhule. ...Appellant
-Versus-
1. D.J. Damani & sons
Shivaji Nagar, Near Bus Stand,
Shivaji Nagar,
Pune (M.S.)
2. M/s. Rajaram G. Patil
F.A. No.:1043,1058-06
2
Seeds Company, Sahakar Bhavan,
Shivaji Road, Nashik. ...Respondents
Coram : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. D. B. Mandore, for Seed Company.
Adv. Shri. B. B. Borse, for the complainant.
:: ORAL ORDER ::
Per Shri. K. B. Gawali, Hon'ble Member
1. Both these appeals are originated from the judgment and order dated 22.03.2006 passed by District Consumer Forum, Dhule in complaint case No. 98/04.
The appellant in appeal No. 1043/06 is the original opponent no.1 before the Forum and has come in appeal to set aside the judgment and order of the Forum, whereas the appellant in appeal no. 1056/06 is the original complainant and has come in appeal for enhancement of the compensation awarded by the Forum.
2. The brief facts of the complaint before the Forum are as under:
i) The complainant Shri. Deepak Madanlal Agrawal ( herein after called as complainant) is an agriculturist having land in survey No. 921 at village Nyahalod Tq. & Dist. Dhule. That on 13.08.2002 he had approached M/s. Rajaram G. Patil, Nashik, the org. opponent no.2 and is the authorized dealer of Z-86 papai seeds ( hereinafter called as the "dealer") produced by the D. G. Damani & Sons, Pune i. e. original opponent no. 1 ( herein after called as "seed company") . That on his enquiry about the Taiwan papai seeds the "dealer" recommended him the variety of Z-86 seeds of Papai. The dealer presented before him a very good picture of said variety of the seeds stating that plant germinated by the said seeds gives about 100 fruits to each papai tree and each fruit is about 1 & half to 2 kg. The germination percentage of the said seed is at 70% Thus he was induced to purchase Z-86 variety. Accordingly he F.A. No.:1043,1058-06 3 purchased five packets of the said seed, each packet containing 10 gms. from Lot No.176. He was given receipts for the said purchase, one bearing No. 32708 dated 13.08.2002 in respect of 4 packets and since one packet was not readily available a separate receipt bearing No.32711 dated 13.08.2002 was given & later on one packet was made available by the seed company through parcel. It was contended by the complainant that as per the guidelines given by the dealer he had planted those seeds for preparing saplings in 2700 polythene bags on 20.08.2002. Each polythene bag contained two seeds.
ii) As per the information broacher provided by the dealer for germination of the seeds and for required growth of the sapling the period of about 25 days are required. Accordingly he waited for about one month but there was germination in only 270 polythene bags. He had intimated the same to the dealer. Who assured that he would inform accordingly to the Seeds Company. Thereafter on about 22nd of October the representative of the Seed Company visited his land and inspected the status of germination. On inspection the germination of seeds was found only in 270 bags and hence the representative of the company supplied free of cost three packets of the said variety of seeds each containing 10 gms and one packet of the variety of Minza Papai seeds containing one gram, and after that two packets containing 20 gms of Minza seeds of Papai were made available to him. Thus the total 51 gms of Papai seeds were again planted at the end of October,2002 in 2700 bags. However again only two out of 2700 polythene bags had germination of seeds.
F.A. No.:1043,1058-06 4
iii) He therefore again approached both the dealer and the Seed Company i.e. original opponent no.1 & 2 but they avoided to visit his field and hence on 03.10.2003 he made a complaint to the Agricultural Development Officer, Dhule i.e. the Chairman of the "Dist. Seed Committee". In response to his application the Agricultural Development Officer, Dhule fixed the date of 15.01.2003 for inspection and intimated the complainant accordingly vide its letter dated 07.10.2003. On 15.01.2003 the Agricultural Development Officer along with the members of the Dist. Seed Committee visited the field. The Taluka Agricultural Officer, the representative of the dealer and the Seed Company and the complainant himself were also present. During their joint inspection it was revealed that the germination of the said seeds was very poor as contended by the complainant.
iv) The concern Agricultural Development Officer vide his letter dated 30.01.2003 sent Seed Committee's report in which it was clearly mentioned that the seeds provided by the dealer and as produced by the company are defective and having hard shell they are not capable of germination. Thus, twice he had made attempts to prepare sapling of the seeds and both the times there was hardly any F.A. No.:1043,1058-06 5 germination of the seeds. Therefore he could not prepare the saplings and his entire exercise, of preparation of saplings failed due to defectiveness of the seed. Thus his all efforts, time and money which were put in for the preparation of the saplings had gone waste for which the "seed company" and the dealer are responsible. He therefore alleged that both the dealer and Seed Company have committed deficiency in service.
v) It is alleged that as per the information broacher provided by the dealer the said Z-86 variety of papai seeds are capable of 70% germination. Accordingly in first attempt he prepared 2700 polythene bags of seeds. As per the percentage of germination given by the company it was expected that 1900 polythene bags should have germination and proper growth of saplings however only 270 saplings had grown and second time out of 2700 saplings only two polythene bags had germination. The complainant thus calculated his loss presuming to have 1900 plants of Papai tree and each papai tree in the first harvesting season gives 100 fruits each of about 1 & half to 2 kg. He considered 1 kg. weight of each fruit. Thus 1900 trees equal to 1,90,000 fruits giving 1900 quintals, the value of which comes to Rs.9,50,000/- by taking price of fruits @ Rs.5/- per kg. & in 2nd season each tree is expected to give 80 kg fruits, so the 1900 trees gives 1520 quintal and value of the same @ Rs.5/- per kg. is worked out to @ Rs.7,60,000/-. Thus in one year the production value of two season as contended by the complainant F.A. No.:1043,1058-06 6 is to the tune of Rs.17,10,000/-. For getting this amount of compensation he gave notice dated 28.05.2004 to both the dealer and the Seed Company, but there was no reply from their side, hence he approached to the Forum seeking Rs.17,10,000/- as compensation, Rs.14,500/- as mental agony and Rs.500/- towards cost of notice and this entire amount with interest @ 18 % p.a.
3. i) Both the dealer and the Seed Company appeared before the Forum and filed their written say separately. Both of them have resisted the claim on similar grounds. They have admitted that the complainant has purchased Z-86 variety of papai seeds of 5 packets each containing 10 gms on 13.08.2002 but denied other allegations. It was contended that since the complainant purchased the Papai seeds with the motive of profit, he is not consumer as per Sec. 2 (1) (d) of C.P. Act. Secondly, he has purchased seeds at Nashik and therefore District Forum; Dhule had no jurisdiction to entertain the complaint. It was also contended that when the complainant had made the complaint regarding poor germination of the seeds, the Seed Company had sent its representative named Shri. Shivaji Gorakh Sakhare for spot inspection on 29.10.2002, and after having inspected the spot the said representative of the company submitted that there was germination of 1400 plants of papai. However for satisfying the complainant their said representative supplied him 3 packets of Z-86 papai seeds weighing 30 gams and 1 packet of Minza variety of papai seeds. In addition, two packets containing total 20 gms of said seeds were supplied to the complainant free of cost.
F.A. No.:1043,1058-06 7
ii) It is alleged that seeds committee's report is false and illegal therefore can not be accepted. It is further alleged that the concern Agricultural Officer who is the Chairman of seed committee was given one sealed packet containing 5 gms of the same variety of the seeds of the same lot vide letter dated 28.03.2003 and was requested to send the same to the laboratory for testing, however, he failed to do that. It is also alleged that the representative of the company Shri. Prakash Pandhari Surse who was present at a time of spot inspection of the seed company on 15.01.2003 had requested the Chairman of the Seeds Committee to arrange for the soil testing from the polythene bags. Since however no steps were taken by the Chairman of the Committee, the company itself sent the soil for testing to the "soil testing officer" at Pune, who gave his report on 03.03.2003. As per the report the soil which was used by the complainant in polythene bags for preparation of the sapling was found to be harmful to the germination of the seeds. Thus, both the opponent i.e. dealer and Seed Company contended that there is no deficiency in service on their part that the complaint is false and baseless hence be dismissed.
4. Forum below after perusal of the papers and hearing the parties has partly allowed the complaint and passed the judgment and order under appeal. By way of its order the Forum has held only the Seed Company is responsible for the said deficiency in service and the opponent no.2 i.e. dealer since sold the sealed packets of the said seeds was discharged from the liability. Accordingly by way of its order the Forum directed the Seed Company to pay Rs. 2,28,000/-
F.A. No.:1043,1058-06 8 along with Rs.2,000/- towards the cost within a period of one month, failing which the interest @ 7 % p.a. be paid.
5. Dissatisfied with the judgment and order passed by the Forum the Seed Company as well as the complainant have filed cross appeals. Adv. Shri. Mandore appeared for the appellant Seed Company, whereas the Adv. Shri. Borse appeared for the complainant. Advocate for the appellant Seed Company argued that in view of the complaint made by the complainant about poor germination of seeds he was supplied 51 gms of seeds free of cost. Therefore, as there was no consideration paid by the complainant he can not be termed as "consumer". It was also argued that the first time the seeds purchased by the complainant were from the dealer at Nashik and hence Dist. Forum, Dhule had no jurisdiction to entertain the complaint. It was also submitted by the learned counsel that the District Agricultural Officer and the Chairman of the Seed Committee was requested to get the soil tested but he did not take any steps. Secondly, the Chairman was also requested to get the seeds tested from the concern laboratory but again no action was taken by him. It was also alleged that no opportunity was given for cross examination of the Agricultural Officer named Shri. Shivaji Jagtap. Thus, he submitted that there is no proper evidence on record to establish that there was a defect in the seeds. However, the Forum below did not appreciate these facts and without any proper basis on presumptions arrived at certain loss to the complainant and awarded Rs. 2,28,000/- by way of the impugned order under appeal. Hence, he requested to quash and set aside the same.
F.A. No.:1043,1058-06 9
6. On the other hand, advocate for the complainant argued that from the seed committee's report it was sufficiently proved that the seeds which were supplied by the dealer & as produced by the Seed Company are defective and therefore the Forum below ought to have awarded compensation at Rs.17,10,000/- and also amount of Rs.14,500/- towards mental agony but in spite of the facts of deficiency in service as proved on the part of both the dealers and the Seed Company, the Forum below has erred in granting compensation only to the extent of Rs.2,28,000/-. Therefore, he sought compensation at Rs.17,10,000/- along with Rs.14,500/- towards mental agony.
7. We have carefully gone through the papers available before us as well as the oral submissions made by the parties. It is an admitted fact that the complainant purchased 5 packets of papai seeds of Z-86 variety weighing 50 gms from the org. opponent no.2 which is produced by org. opponent no.1 i.e. Seed Company. It is also admitted fact that on the complaint of the complainant regarding poor germination of the said seeds the appellant seed company supplied to the complainant 3 packets of Z-86 variety of papai seeds weighing 30 gms and of Minza variety of 21 gms free of cost. It reveals that the complainant had to prepare twice 2700 polythene bags each containing two seeds for the sapling. According to the complainant in the first instance there was a germination of only 270 bags and second time he got only two saplings. Thus there was almost no germination of the said seeds.
F.A. No.:1043,1058-06 10
8. The District Seed Committee headed by the District Agricultural officer named Shri. Shivaji Shrirang Jagtap has at the instance of the complainant visited the field and made the spot inspection regarding germination of the seeds, on 15.01.2003. The Seed Committee accordingly submitted its report on 30.01.2011. The committee in its report has reported that due to the hardness of the outer shell of seed they were found incapable for germination. The District Agricultural Officer has also filed affidavit in support of committee's report and the same is on record. Thus, from the report of seed committee it is amply established that the said papai seeds were defective.
9. It is also revealed from the panchanama dated 15.01.2003 conducted by the District Seed Committee and from the extract of "broacher" supplied by the dealer that the seeds under reference were tested by the seed company on 14.08.2002. However, the date of the purchase of the said seeds by the complainant is 13.08.2002 which proves that seeds under reference were sold without testing. It is the contention of the seed company that the seeds are first tested and then brought in the market for sale. However, in the instant case, the seeds are sold without testing. Hence, the contention of the seed company that the seeds were not defective is not acceptable.
10. The appellant seed company's contention is that, the soil used by the complainant in polythene bags in which seeds were sown F.A. No.:1043,1058-06 11 have got tested by them from the Soil Testing Laboratory, Pune, and as per the testing report dated 03.03.2003 the soil was found harmful for the germination. However, procedure for getting the soil tested does not appear to be proper. In fact the appellant seed company should have made representation before District Forum for getting the soil tested but it was not done so. Therefore, soil which was got tested can not go on record as an evidence. It is also the contention of the appellant seed company that he had requested the District Agricultural Officer for testing the seeds from the laboratory and accordingly one packet containing 5 gms of seeds handed over to him but no action was taken, hence in absence of the laboratory report the seeds can not be said as defective. This contention is also not acceptable. In fact the right course for the Seed Company should have been to request the District Forum for the testing of the seeds from laboratory as the burden to prove that the seeds were not defective shifted on the company. However, the company did not produce the seeds for testing to the Dist. Forum. Therefore, in absence of the laboratory report the opinion given by the "Dist. Seed Committee" regarding defectiveness of the seeds prevails.
11. The further contention of the company that there was no loss of income to the complainant as the plants were not planted and no expenditure was incurred. It is further contended that it is not the F.A. No.:1043,1058-06 12 case of the complainant that he had to keep land vacant for these papai plantation, and that the 7/12 extract for relevant period it reveals that the complainant had taken alternate crop from the said land. This stand was also taken before the Forum however, Forum did not consider it and awarded huge amount of compensation. This contention of the appellant seed company does not also appear to be proper. In fact the complainant had planned to plant papai trees and get certain income. However, due to the defective seeds his said plan was set at naught. His efforts, time and money which he put in for preparing the saplings has gone waste and he was left helpless due to the defective seeds. Considering all these aspects the Forum below has rightly awarded compensation which appears to be reasonable. While assessing the compensation the Forum has considered a minimum of 40 fruits to each tree and each fruit of 1 kg. of weight. In a year having one harvesting season for 1900 papai trees it was expected to have the production of 76000 kg and considering price per kilo gram @ Rs.3/- the expected income is calculated as Rs.2,28,000/- which appears to be acceptable.
12. The complainant in his appeal no. 1058/06 has sought enhance compensation i.e. Rs.17,10,000/-. The claim of the complainant is quite exorbitant and therefore the same can not be accepted. This claim of the complainant appears to have been made on the basis of the information given in the broacher regarding the expected income from the said variety of the papai seeds. In fact in the broacher supplied by the seed company the expected income from the seeds is based on the ideal situation regarding soil, F.A. No.:1043,1058-06 13 availability of water, use of fertilizers and so many other factors. It is only in such ideal situation the yield of the papai as given in the broacher can be expected. The complainant has however not produced any evidence on record to that effect. Secondly, no plantation of the plants of papai was actually made in the field and therefore in such circumstances the claim for the compensation of Rs. 17,10,000/- is not at all acceptable. The Forum below by considering all these aspects and considering minimum expected income has awarded the compensation of Rs. 2,28,000/- which appears to be quite reasonable. Hence, the claim of the complainant for enhanced compensation can not be considered. In view of all these observations we are not inclined to interfere with the order passed by the Forum below. Accordingly we pass the following order.
-:: ORDER ::-
1. Both the appeals are dismissed.
2. No order as to cost.
3. Copies of the order be furnished to the parties.
(K. B. Gawali) (Mrs.Uma S. Bora) (S. G. Deshmukh) Member Member Presiding Judicial Member Kalyankar