State Consumer Disputes Redressal Commission
Vilas Sukdeo Kekan vs Deshmukh Agro Services & Anr. on 31 March, 2011
BEFORE THE HON BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI First Appeal No. A/10/02 (Arisen out of Order Dated 03/12/2009 in Case No. CC/09/115 of District Nashik ) 1. Vilas Sukdeo Kekan R/o. Puri. Tal. Chandwad, Dist. Nashik. ...........Appellant(s) Versus 1. Deshmukh Agro Services Deshmukh Agro Services, Bhandari Sankul, New Mumbai Agra Road, Pimpalgaon (B) Tal Niphad, Dist. Nashik 2. Dnyaneshwar Rokade Manager of Deshmukh Agro Services, Bhandari Sankul, New Mumbai Agra Road, Pimpalgaon (B) Tal. Niphad, Dist. Nashik, Maharashtra. ...........Respondent(s) BEFORE: Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
Ms.Chitalkar, Advocate for the Appellant.
Mr.Kulkarni, Advocate for the Respondents.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:(1)
This appeal is filed by the original Complainant whose complaint has been dismissed by District Consumer Disputes Redressal Forum, Nashik by judgement delivered in Consumer Complaint No.115/2009 decided on 03.12.2009.(2)
Facts to the extent material may be stated as under:
Complainant is an agriculturist of District Nashik. He had purchased from Deshmukh Agro Services of Pimpalgaon LDPE Companys film 500 micron quality 17600 sq.ft. The rate was `5.77 per sq.ft. The Complainant placed an order with the Opponent at village Puri, Taluka Chandwad, District Nashik and took measurement and thereafter he purchased the LDPE film by paying `1,05,600/-.
Thereafter the dealer brought the film and fitted it in the field of the Complainant. The dealer had given guaranty of one year. The Complainant installed the said film and prepared a farm pond and stored 2 to 3 lac liter water with the help of diesel pump. However, after 11 days it was found that without using the said water the water level had gone down. Hence, he made complaint with the Opponents. Opponents did not give satisfactory answer. Opponents came to the field of Complainant and told that there were some holes to the film and from those holes the water was percolating in the earth. The Complainant requested Opponents to change the film or to repair the film, but, Opponents did not give response. Therefore, Complainant alleged that he could not take proper yield and lost agricultural income. He claimed `1,05,600/-, the amount he had paid to the dealer for purchase of film. Even after sending notice, the Opponent did not reply to the notice. Therefore, he filed consumer complaint totally claiming `15,00,000/-
with interest @18% per annum and also claimed `10,000/-
towards cost of litigation and `1,500/-
towards notice charges.(3)
Opponents filed written version and pleaded that the Complainant had not impleaded film manufacturer as the Opponent along with the dealer. Complainant had purchased LDPE Companys 500 micron film, but it was without guarantee or warranty. The rolls of the film were put together. They were stuck with each other. But, if the soil is soft one and if there are stones in the soil then there is likelihood of the films getting damaged and getting holes and therefore, for 3/4 times experiment of filling of water was to be done and testing was to be carried out. He had given idea to the Complainant about the same. For testing purpose company had sent their representative to the field of the Complainant. Complainant refused to get it tested on the ground that if water was taken out from the field pond he would not have water to fill the pond again and there was no electricity or diesel machine available and therefore, he was told that he was not ready to go for testing. Because of his refusal, Opponent pleaded that he could not give proper services to the Complainant and therefore, he pleaded that complaint is liable to be dismissed.(4)
The District Forum considering the affidavits and documents placed on record noted in its order that Complainant had produced invoice of the film purchased from the Opponents. There was no guaranty mentioned on the invoice. Complainant had not produced in the District Forum guaranty card about the said film. The District Forum also noted in its impugned judgement that the Complainant had not produced expert evidence. He had not got film or soil tested for the efficient use of the film for preparing field pond. The Forum also noted in its order that the Opponent had produced at page no.61 letter dated 26.02.1999 who had offered to carry out necessary repairs. Opponent was willing to drain out the water available in the field pond. Complainant was not prepared to do so. The Forum also found that photographs produced by the Complainant clearly showed that there was still water in the field pond and photos themselves would not prove that films produced by the Opponent were defective. Therefore, the Forum also held that Complainant had failed to prove that the film supplied by the Opponent was defective and was pleased to dismiss the complaint and being aggrieved by the said dismissal of the complaint, the original Complainant has filed this appeal.(5)
We heard submissions of Ms.Chitalkar, Advocate for the Appellant and Mr.Kulkarni, Advocate, for the Opponents.(6)
We are finding that the Appellant had filed complaint in the District Forum without impleding the film manufacturing Company. He impleaded dealer as the Opponent. The dealer is not supposed to answer the charge for defect in the goods. It was the duty of the Appellant to implead LDPE Company as the Opponent in the complaint filed by him before the Forum. Non-joinder of manufacturing Company of the said film itself was fatal to the case of the Complainant.(7)
That apart, the Forum rightly noted in its order that Appellant had not produced any evidence of expert. He had not got his field duly tested as suggested by the Respondent. Respondent was prepared to repair the said film, if Appellant was willing to drain the water from the field pond. Appellant refused to do so on the ground that he would not have any water available for irrigation or to refill the field pond after testing. There was no diesel engine or electric supply for refilling of the water into the field pond. So he avoided testing. He avoided to give chance to the Respondent to repair the said field pond. In the circumstances, the Forum was of the view that the Complainant was to be blamed for all these things. Moreover, the Forum clearly noted that Appellant had not produced on record evidence to show that film supplied by the Respondent was in any way defective. Under Section 13(1)(c) of the Consumer Protection Act, 1986 where the Complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, duty casts on the Forum to obtain a sample of goods from the Complainant, seal it, authenticate it and send it to the appropriate laboratory for testing. This was the formality was neither gone into by the Forum nor the Appellant had suggested the Forum to send the sample of the said film to the appropriate laboratory for testing. Without there being test report from appropriate laboratory it was not possible for the District Forum to record finding that the goods in question were in any way defective as alleged by the Complainant. It was the duty of the Complainant in the first place to produce expert evidence in this behalf. He had not produced the same. He also failed to prove that dealer had given guaranty of the film supplied to him. Thirdly, it is also found that dealer was prepared to repair the film, but Appellant did not give cooperation expected from him and resultantly the remedial measures could not be taken by the Respondent though he earnestly desired to help the Complainant to repair the said film in the best possible manner.(8)
In the circumstances, the blame lies with the Appellant and not with the Respondent. In any view of the matter, we are finding that the order of dismissal passed by the District Forum is appearing to be just, proper and there is nothing on record to prompt us to record different finding than the finding rightly recorded by the Forum. We concur with the findings recorded by the District Forum and hold that Appellant had no case against the Respondent for supplying the alleged defective LDPA film. In the result, we pass the following order:
O R D E R
(i) Appeal stands dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly.
Pronounced on 31st March, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member [Hon'ble Mr. Dhanraj Khamatkar] Member ep