State Consumer Disputes Redressal Commission
Namdhari Seeds Pvt. Ltd. vs Sh. Jai Parkash. & Anr. on 2 March, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 277/2017
Date of Presentation: 03.10.2017
Order Reserved on : 26.08.2019
Date of Order : 02.03.2020
......
Namdhari Seeds Pvt. Limited C/o Dispatch Department
(Basement) SPS Apollo Hospital Sherpur Chowk Ludhiana Punjab
Through its Proprietor.
...... Appellant/Opposite Party No.2
Versus
1. Shri Jai Prakash S/o Shri Jia Lal resident of Village Kotla P.O.
Chandi Tehsil Kasauli District Solan H.P.
......Respondent No.1 /Complainant
2. M/s Tanwar Agro Chemical Shimla Road Kunihar Tehsil
Arki District Solan H.P. Through its proprietor
......Respondent No.2/Opposite party No.1
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. O.C.Sharma Advocate.
For Respondent No.1 : Mr. Pavinder Thakur vice Mr.Anirudh
Sharma Advocate.
For Respondent No.2 : None despite service.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 19.08.2017 passed by learned DCF/DCC in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 complaint No.84/2016 titled Jai Prakash Versus M/s Tanwar Agro Chemical & Anr.
Brief facts of consumer complaint:
2. Complainant Jai Prakash filed consumer complaint under Consumer Protection Act pleaded therein that on dated 24.05.2016 complainant purchased four packets of cucumber seeds NS 404 (10 grams) each in consideration amount of Rs.880/- (Eight hundred eighty) from opposite party No.1. It is pleaded that no cucumber crops grown. It is pleaded that deficient cucumber seeds were supplied to complainant by opposite party No.1 who is authorized dealer of opposite party No.2. Complainant sought relief to the effect that opposite parties be directed to pay compensation to the tune of Rs.100000/- (One lac) on account of supply of sub standard and inferior quality of cucumber seeds. In addition complainant sought relief of payment of Rs.50000/- (Fifty thousand) on account of mental agony and harassment alongwith interest @ 18% per annum.
In addition complainant sought relief of payment of Rs.10000/- (Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that intricate questions of laws and facts are involved in consumer complaint and complainant be 2 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 relegated to civil court for adjudication of dispute. It is pleaded that opposite party No.1 is not authorized dealer of opposite party No.2. It is pleaded that opposite party No.1 sold seeds manufactured by opposite party No.2 after purchasing the same from Jai Jawala Seeds & Pesticides Solan H.P. It is pleaded that best quality of cucumber seeds were supplied to complainant. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted allegations as mentioned in consumer complaint. Learned DCF/DCC partly allowed consumer complaint against opposite party No.2. Learned DCF/DCC ordered opposite party No.2 to refund amount of Rs.880/- (Eight hundred eighty) paid by complainant for purchasing cucumber seeds. In addition learned DCF/DCC order opposite party No.2 to pay compensation to the tune of Rs.10000/- (Ten thousand) to complainant within 30 (Thirty) days from the date of receipt of copy of order failing which it would carry interest @ 9% per annum from the date of complaint till realization. In addition learned DCF/DCC ordered opposite party No.2 to pay litigation costs to complainant to the tune of Rs.3000/-(Three thousand). Learned DCF/DCC did not grant any relief to complainant against opposite party No.1.
3
Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017
5. Feeling aggrieved against order passed by learned DCF/DCC Namdhari Seeds Private Ltd. filed present appeal before State Commission.
6. Co-respondent No.2 did not appear before State Commission despite notice and co-respondent No.2 was proceeded ex-parte by State Commission.
7. We have heard learned Advocates appearing on behalf of appellant and co-respondent No.1 and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by Namdhari Seeds Private Limited is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit Ext. CW-1 in evidence.
There is recital in affidavit that on 24.05.2016 deponent purchased four packets of cucumber seeds (10 grams each) manufactured by opposite party No.2 Namdhari Seeds Pvt. Ltd. from opposite party No.1 in consideration amount of Rs.880/- (Eight hundred eighty). There is further recital in affidavit that seeds supplied by opposite party No.1 as authorized dealer of opposite party No.2 were of inferior 4 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 quality. There is further recital in affidavit that no cucumber crop was grown. There is further recital in affidavit that deponent also filed application for inspection of production of cucumber crop and loss sustained by deponent for non- production of cucumber crop before Agriculture Extension Officer Dharampur District Solan H.P. There is further recital in affidavit that thereafter Agriculture Extension Officer instructed Agriculture Development Officer Barotiwala to inspect spot personally and submit factual report. There is further recital in affidavit that deponent is entitled to relief sought in consumer complaint because opposite parties have supplied inferior quality of cucumber seeds to deponent.
10. Complainant also filed corroborative affidavit of D.R. Thakur posted as Specialist Agriculture Dharampur District Solan H.P. Ext.CW.2 in evidence. There is recital in affidavit that on the complaint of Jai Prakash deponent deputed Agriculture Development Officer Ms. Anju Thakur to personally visit spot and submit factual report. There is further recital in affidavit that Anju Thakur Agriculture Development Officer personally inspected the spot and submitted factual report to the effect that there was no cucumber crop. There is further recital in affidavit that thereafter deponent also inspected spot personally on 26.08.2016 and factually found that complainant has 5 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 sustained loss due to purchase of NS-404 cucumber seeds manufactured by Namdhari Seeds Pvt. Ltd. There is further recital in affidavit that other Damini cucumber seeds sown by other farmers given best crops to other farmers.
11. Complainant also filed corroborative affidavit of Anju Thakur posted as Agriculture Development Officer Barotiwala District Solan H.P. Ext. CW.3 in evidence. There is recital in affidavit that deponent personally visited the spot on 03.08.2016 and factually found that there was good vegetative growth and enough flowering but no cucumber crop was found in the fields of complainant and other villagers of village Kotla. There is further recital in affidavit that complainant has factually sustained loss due to purchase of NS-404 cucumber seeds. There is further recital in affidavit that other Damini cucumber seeds sown by other farmers given best crops. State Commission has carefully perused all annexures filed by complainant.
12. Opposite parties filed affidavit of Malkit Singh Sales Officer employee of Namdhari Seeds Pvt. Ltd. Ext. OP-1 in evidence. There is recital in affidavit that seeds supplied to complainant manufactured by Namdhari Seeds Pvt. Ltd. were not of inferior quality but were of superior quality having good germination capacity.
6
Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017
13. Opposite parties also filed affidavit of Rakesh Verma Ext. OP-2 in evidence. There is recital in affidavit that deponent is authorized dealer of Namdhari Seeds Pvt. Ltd. There is further recital in affidavit that deponent has purchased cucumber seeds of NS-404 breed from Namdhari Seeds Pvt. Ltd and thereafter supplied cucumber seeds of NS- 404 breed to opposite party No.1 i.e. M/s Tanwar Agro Chemical in the month of May 2016. There is further recital in affidavit that deponent has also sold cucumber seeds in retail to other farmers. There is further recital in affidavit that deponent did not receive any complaint from other farmers regarding any defect in NS-404 cucumber seeds during the year 2016. There is further recital in affidavit that there was lot of flowering and huge quantity of cucumber crop was produced. There is further recital in affidavit that cucumber seeds of Namdhari Seeds Pvt. Ltd were of best quality and cucumber crop produced through seeds of Namdhari Seeds Pvt. ltd were of best quality and quantity.
14. Opposite parties also filed affidavit of Lekh Ram Ext.OP-3 in evidence. There is recital in affidavit that deponent has purchased cucumber seeds from opposite party No.1 in the month of June 2016 of NS-404 breed and sown the same in his agriculture land. There is further recital in affidavit that there was lot of flowering and huge quantity of 7 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 cucumber crop was produced and cucumbers produced were of good quality.
15. Opposite parties also filed affidavit of Sandeep Kumar Ext.OP-4 in evidence. There is recital in affidavit that deponent has purchased cucumber seeds from opposite party No.1 in the month of May 2016 manufactured by Namdhari Seeds Pvt. Ltd. and sown the same in his field. There is further recital in affidavit that there was lot of flowering and there was huge quantity of cucumber crop. There is further recital in affidavit that seeds manufactured by Namdhari Seeds Pvt. Ltd. were of best quality and seeds produced sufficient quantity of cucumber crop. State Commission has carefully perused all annexures filed by opposite parties.
16. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that order of learned DCF/DCC wherein learned DCF/DCC ordered compensation to complainant to the tune of Rs.10000/- (Ten thousand) for supply of cucumber seeds in question is contrary to laws and contrary to proved facts is decided accordingly. Complainant has filed affidavit of D.R. Thakur Specialist Agriculture in evidence. D.R. Thakur has specifically mentioned in his affidavit that he personally visited the spot on 26.08.2016 and found that there was good vegetative growth and there was enough flowering but there 8 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 was no cucumber crop. D.R. Thakur Specialist Agriculture has further specifically mentioned in his affidavit that complainant has sown crop of cucumber in one acre of land. D.R. Thakur Specialist Agriculture has further specifically mentioned in his affidavit that cucumber seeds supplied by Damini were of best quality. D.R. Thakur Specialist Agriculture has further mentioned in his affidavit that there was no cucumber crop in the field. D.R. Thakur Specialist Agriculture has also mentioned in his affidavit that complainant has sustained loss by way of sowing seeds manufactured by Namdhari Seeds Pvt. Ltd. to the tune of Rs.45000/- to Rs.50000/- (Forty five thousand to Fifty thousand).
17. Affidavit filed by D.R. Thakur Specialist Agriculture is trustworthy, reliable and inspires confidence of State Commission. Namdhari Seeds Pvt. Ltd. did not send any interrogatories to D.R. Thakur Specialist Agriculture. There is no evidence on record in order to prove that D.R. Thakur Specialist Agriculture has hostile animus against Namdhari Seeds Pvt. Ltd. at any point of time.
18. Affidavit filed by D.R. Thakur Specialist Agriculture is corroborated by Ms. Anu Thakur who is Agriculture Development Officer. Ms. Anju Thakur Agriculture Development Officer has specifically mentioned in her 9 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 affidavit that she personally visited the spot on 03.08.2016 and found that although there was good vegetative growth and flowering but there was no cucumber crop. Ms. Anju Thakur Agriculture Development Officer has also mentioned in her affidavit that complainant has sustained loss by way of sowing seeds manufactured by Namdhari Seeds Pvt. Ltd. to the tune of Rs.45000/- to Rs.50000/- (Forty five thousand to Fifty thousand). Affidavit filed by Ms. Anju Thakur Agriculture Development Officer is trustworthy, reliable and inspires confidence of State Commission. Namdhari Seeds Pvt. Ltd. did not send any interrogatories to Ms. Anju Thakur Agriculture Development Officer. There is no evidence on record in order to prove that Ms. Anju Thakur Agriculture Development Officer has hostile animus against Namdhari Seeds Pvt. Ltd. at any point of time. It is held that D.R. Thakur Specialist Agriculture and Ms. Anju Thakur Agriculture Development Officer are experts in agriculture and their opinions are expert opinions which are relevant facts in present matter.
19. State Commission is of the opinion that affidavits filed by Malkit Singh and Rakesh Verma are not helpful to the opposite parties because Malkit Singh is posted as Sales Officer in Namdhari Seeds Pvt. Ltd. and is interested person and Rakesh Verma has sold cucumber seeds manufactured by Namdhari Seeds Pvt. Ltd. to complainant and is also 10 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 interested person. It is held that Malkit Singh and Rakesh Verma are not agriculture experts. Similarly affidavits filed by opposite parties of Lekh Ram and Sandeep Kumar are also not helpful to opposite parties because Lekh Ram and Sandeep Kumar are not agriculture experts. There is no evidence on record in order to prove that Lekh Ram and Sandeep Kumar are experts in agriculture field and they have obtained expert diploma or degree in agriculture field from any recognized Agriculture University.
20. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that learned DCF/DCC has granted excessive litigation costs to the tune of Rs.3000/- (Three thousand) to complainant is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate before learned DCF/DCC and has paid Advocate fee and other expenses. State Commission is of the opinion that learned DCF/DCC has granted equitable litigation costs to complainant and it is not expedient in the ends of justice and on the principles of natural justice to interfere in litigation costs order passed by learned DCF/DCC.
21. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that complainant did not place on record any revenue record in order to prove his agriculture land ownership and on this ground appeal be 11 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 allowed is decided accordingly. It is proved on record that complainant has purchased seeds of cucumber in question in consideration amount of Rs.880/- from opposite party No.1 manufactured by Namdhari Seeds Private Limited. State Commission is of the opinion that it is proved on record by way of affidavits of D.R.Thakur Specialist Agriculture and Anju Thakur Agriculture Development Officer that complainant has sown seeds manufactured by Namdhari Seeds Private Limited in his field measuring one acre of land and sustained heavy loss. State Commission is of the opinion that facts could be proved by way of documentary evidence or by way of affidavits of eye witnesses. Eye witnesses namely D.R.Thakur Specialist Agriculture and Anju Thakur Agriculture Development Officer have specifically mentioned in their affidavits that they have personally visited the spot and complainant has sown seeds manufactured by Namdhari Seeds Pvt. Ltd. in one acre of land and sustained heavy loss.
22. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that complicated questions of law and facts are involved in consumer complaint and complainant be relegated to civil court for adjudication of his dispute is decided accordingly. State Commission is of the opinion that present dispute inter se parties could be decided under Consumer Protection Act in summary manner 12 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 because opposite party No.1 has sold cucumber seeds manufactured by Namdhari Seeds Pvt. Ltd. to complainant after receiving consideration amount to the tune of Rs.880/- (Eight hundred eighty) and it is not expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of consumer dispute.
23. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that seeds in question were not tested in any laboratory by an expert and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that expert witnesses namely D.R. Thakur Specialist Agriculture and Anju Thakur Agriculture Development Officer have specifically mentioned in their affidavits that complainant has sustained loss on account of sowing cucumber seeds manufactured by Namdhari Seeds Pvt. Ltd. It is well settled law that onus is always upon the person who asserted particular positive facts and in present matter Namdhari Seeds Pvt. Ltd. has asserted positive facts to the effect that quality of seeds manufactured by Namdhari Seeds Pvt. Ltd. was of superior quality seeds. No reason assigned by Namdhari Seeds Pvt. Ltd as to why Namdhari Seeds Pvt. Ltd. did not obtain report of laboratory. Even Namdhari Seeds Pvt. Ltd. did not obtain counter agricultural expert report. Affidavits filed by expert witnesses 13 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 namely D.R. Thakur Specialist Agriculture and Ms. Anju Thakur Agriculture Development Officer remained unrebutted on record. It is well settled law that positive facts should be proved first. See. 2020 (1) CLT 281 NC titled Manager Shriram Transport Finance Co. Ltd. & Others Vs. M.A. Jose.
24. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that alleged report Annexure C-4 submitted by Ms. Anju Thakur Agriculture Development Officer has been submitted in the absence of opposite parties and on this ground appeal filed by Namdhari Seeds Private Limited be allowed is decided accordingly. Namdhari Seeds Private Limited did not send any interrogatory to Ms. Anju Thakur Agriculture Development Officer who has submitted report Annexure C-4. No reason assigned by Namdhari Seeds Private Limited as to why Namdhari Seeds Private Limited did not send any interrogatory to Ms. Anju Thakur Agriculture Development Officer. Hence adverse inference is drawn against Namdhari Seeds Private Limited.
25. Submission of learned Advocate appearing on behalf of Namdhari Seeds Private Limited that cucumber seeds manufactured by Namdhari Seeds Private Limited were supplied to many farmers and no complaint received from other farmers and on this ground appeal filed by Namdhari Seeds Private Limited be allowed is decided accordingly. In 14 Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 view of the fact that expert witnesses namely D.R.Thakur Specialist Agriculture and Anju Thakur Agriculture Development Officer have personally inspected the spot and they have mentioned in their personal affidavits that complainant has sustained loss on account of seeds manufactured by Namdhari Seeds Pvt. Ltd. State Commission is of the opinion that complainant is entitled to relief as ordered by learned DCF/DCC because affidavits filed by agricultural experts are relevant facts in the present matter.
26. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that in view of affidavits filed by agricultural expert witnesses namely D.R.Thakur Specialist Agriculture and Anju Thakur Agriculture Development Officer in favour of complainant it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of learned DCF/DCC. Point No.1 is decided accordingly.
Point No.2: Final Order
27. In view of findings upon point No.1 above appeal filed by Namdhari Seeds Pvt. Ltd. is dismissed. Order of learned DCF/DCC is affirmed. Namdhari Seeds Pvt. Ltd. 15
Namdhari Seeds Pvt. Ltd. Versus Jai Prakash & Another F.A. No.277/2017 shall comply order of learned DCF/DCC within one month after receipt of certified copy of order. Bill/Cash memo Annexure C-1 issued by opposite party No.1 in favour of complainant dated 24.05.2016 relating to sale of cucumber seeds NS-404 manufactured by appellant in consideration amount of Rs.880/- (Eighty hundred eighty) and written report submitted by Ms. Anju Thakur Agriculture Development Officer Annexure C-4 and expert report submitted by agriculture specialist Annexure C-5 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
28. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of learned DCF/DCC alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. F.A.No.277/2017 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 02.03.2020 Manoj 16