DOF.28.2.08 DOO.12.8.10 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan: President K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 12th day of August 2010 C.C.No.39/2008 Sasi.P.K, Thadikkal House, Padiyoor, P.O.Padiyoor. (Rep. by Adv.O.K.Saseendran) Complainant 1. The Director, H & J Infomark, Industrial Estate Ettumanoor, Kottayam 686 631. (Rep. by Adv.R.P.Ramesan) Opposite parties 2. H& P Estate Pvt.Ltd. 43/1495 Benedict Road, Ernakulam North, Cochin 682 018. 3.Malanad Agencies, Nediyodichal, P.O.Padiyoor 670 703. O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to pay a total sum of Rs.10 lakh towards damages together with the cost of the proceedings. The facts of the case in nut shell are as follows: The complainant, who is managing the property of his wife, planted 227 Rubber plants in the said property having 1 acre of land in R.S.1/1 of Padiyoor Village. They were aged about 5 years and were about to reach for tapping and to give yield within 1 or 2 years. Complainant purchased 8 kg well coat bottles with a cost of Rs.55/- per each bottle of 1 kg. 1st opposite party is the manufacturer. 3rd opposite party recommended well coat for application on the rubber plants on a protective measure against various diseases. The representation of opposite party and the pamphlets issued by 1st opposite party made believe the complainant that well coat is one of the best pesticides of Rubber plants. Complainant applied the well coat to the entire plant in his plantation. But within one week of the application the entire trees were dried up and thus perished. Complainant immediately contacted the 3rd opposite party and as per their instruction the matter was reported to 1st and 2nd opposite party. As instructed by them all the matters were reported to Rubber Board. Representatives of opposite party and on expert from the Rubber Board visited the plantation and were convinced about the disaster. The rubber board authorities collected samples from the remaining portion of the well coat and reported that the plants dried up and perished due to the application of well coat which is defective and harmful. Opposite parties promised to compensate but did not take care to fulfill their promise. Complainant spent more than Rs. 5 lakhs for raising the plants to the level where it perished. The estimate loss sustained by the complainant in toto will come to Rs.10 lakhs. Opposite parties are jointly and severally liable to meet this loss. Complainant sent legal notice but replied denying the liability and stating untrue facts. Hence complainant prays for order for the relief sought for. Pursuant to the notice opposite parties 1 to 3 entered appearance and filed version of opposite parties 1 and 2 jointly and 3rd oppose party separately. The brief facts of the contentions of opposite parties 1 and 2 are thus: Complainant is not a consumer of the opposite parties and there is no consumer dispute between the parties. The allegation of the complainant that by the end of September 2007 the complainant purchased 8 kg of “Well coat” bottles of 1 kg. each at the rate of 55/- per kg. which is manufactured by the 1st opposite party and marketed by the 2nd oppose party is denied. It is false to say that the 3rd opposite party recommended ‘well coat’ for application on the rubber plants as a protection measure against various disease and through the representation of the 3rd opposite party and pamphlets shown to complainant which was published by the 1st opposite party, they made the complainant believe that well coat is one of the best pesticides of the rubber plants and as instructed by 3rd opposite party complainant applied the well coat to the entire plant in his plantation etc. No pamphlets were printed by any one of the opposite parties. It is incorrect to say that the allegation within one week of the application of well coat the entire trees dried up and perished and the complaint immediately contacted the 3rd opposite party and as instructed by them the matter was reported to the 1st and 2nd opposite party and instructed by all of them the matter was afterwards reported to the Rubber Board. ‘the visit of representatives and experts of Rubber Board visited the plantation, collection of samples and reports that the plants dried up and perished due to application of well coat etc. are absolutely false. The representatives of Rubber Board have not made any such report. None of the opposite parties had given any promise to complainant. The opposite parties never supplied to the complainant any superiors or defective pesticide. It is due to the ignorance and in competency of the complainant he met with such a result. He planted 227 plants instead of 180 out of greedy. 180 rubber saplings in an acre of land is recommendable. Complainant is an incompetent planter. The rubber plants were aged about 5 years and about to reach for tapping are false. Normally 5 year old plant will be about 30 feet tall its trunk will have a girth of about 40 to 45 cms at a height of 5 feet from ground level. The report of Commissioner’s shows hat the rubber plants in question had height of only 8 to 9 feet and thickness of about 7 to 8 cm. this shows the tenderness of the plants. Opposite parties sent reply to the notice but it is false to say that representatives visited the plantation. The opposite party never sold the well coat compound to the trees from top to bottom. No one will advice so because it is not the practice and it has never been prescribed by the rubber board or any other expert. The 1st opposite party manufactured several lakhs titles of well coat for the last 9 years. The opposite parties 2 and 3 had sold several lakh liters of well coat over the last 18 years. The product is also approved by the Rubber board. This is the first time a complaint like this has been made. The well coat is either defective or harmful. There is no truth in this complaint. The same is liable to be dismissed. Hence it is prayed to dismiss the complaint. 3rd opposite party filed version separately but he was taken the same contention as that of opposite parties 1 and 2. Hence to avoid repetition the same is not repeating here. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite parties? 2. Whether the complainant is entitled for the remedy as prayed in the complaint? 3. Relief and cost. The evidence consist of oral evidence of PW1 to 4, DW1 to 4, Ets.A1 to A9, & B1 to B11 and Ext.C1 commission report. MO1 & 2 also marked. Issue No.1 The case of the complainant is that he has purchased 8 bottles of well coat 1 kg. each at the rate of Rs.55/- per kg. from 3rd opposite party Malanad Agencies and due the application of this well coat the entire rubber saplings were dried up and perished. Opposite party denied that the allegation of the complainant that he has purchased 8 kg. of well coat of 1 kg. Each bottle. Complainant adduced evidence by way of proof affidavit in lieu of chief examination in tune with his pleadings. He has stated “ CXnse 3þ#mT FXnÀI£n ae-\mSv tF-P³kn-bn \n¶p 8Intem shÂtIm«v F¶-Io-S-\m-in\n Rm³ hm§n-¨n-cp-¶p. 1In-tem-ho-X-ap-ff 8 t_m«n-en\p 55 cq] sh¨v 3þ#mT FXnÀI-£n-bn \n¶p-T-hne sImSp-¯p-hm-§n-¨-Xm-Wv. “. But the receipt Ext.A5 produced by complainant shows the total amount only Rs.192/-. If the price of Rs.55/’- per bottle the amount should have been Rs.440/- for 8 bottles of well coat. The bill produced some other items also purchased. The second item in the bill had shown written thus: “Well coat “Bach No.020607 – 1 Kg. 3 cane Rs.165/-“. No more bills seen produced. Mo1 and 2 canes also marked on the side of complainant. Taking into account of the above evidence Ext.A5 and MOs 1 and 2 it is not possible to believe that complainant had purchased 8 bottles of well coat’ from 3rd opposite party, Malanad Agencies. Even if the receipt is believed it can only be considered he had purchased 3 bottles of “well coat”. There is no explanation in the chief affidavit with respect to this aspect. Malanad Agencies in their proof affidavit they have denied that the purchase of complainant of 8 bottles well coat at the rate of Rs.55/- on the fist week of September 2007. More over opposite party also produced the bill book Ext.B3 (a) and B3 (b), original bill issued by the manufacturer and Ext.B5 stock book in connection with the purchase. Complainant has deposed in his cross examination that “ _nÃv{]Im-cT 3 t_m«n BWv hm§n-b-Xv.-_m¡n 5 t_m«n-ensâ _nÃv-F-\n¡v X¶n-«nÃ. He was asked a specific question whether there is any reason for not producing the bill at the time of filing the complaint. PW1 answered that he has entrusted the bill with the counsel. PW1 also denied that it is not correct to say that Ex.A5 is a manipulate document while answering to a connected other question. Any how there is an express contradiction with the pleadings and the evidence given including the document Ext.A5 receipt with respect to the purchase of well coat. Complainant purchased 8 bottles each carrying 1 kg. But he could produce only more than 2 bottles when Ext.A5 receipts contains only 3 bottles complainant should give a convincing explanation for non production other bottles. In evidence he has deposed that “.-_m¡n 5 t_m«n-ensâ _nÃv-F-\n¡v X¶n-«nÃ. “ But it is a fact that complainant’s case was that he had received 8 bottles but he failed to produce that much number bottles in order to establish his case that he had purchased 8 bottles. It is to be noted that answer to a question of opposite party complainant has also deposed that he is ready to produce the used bottles but he did not produce it. If so it is difficult to believe that the complainant has purchased 8 bottles of well coat from 3rd opposite party Malanad Agencies. It is also important to note that complaint is not definite of the date when he purchased well coat from 3rd opposite party. As per Ext.A5 the date of purchase is 3.9.07. The legal notice issued by complainant DT. 2.11.07 it is clearly stated that complainant purchased well coat from 1st opposite party by the end of September 2007. The complainant also categorically stated that the complainant purchased well coat by the end of September 2007. Complainant requested Rubber Board on 17.9.2007. If well coat was purchased by the end of September complainant could not place request before the Board on 17th September 2007. In the chief affidavit complainant adduced evidence that “2007 k]vX-T-_À amkT Ah-km-\T dºÀ ssXbpsS kT-c-£-W-¯n-\p-thn CXnse 3þ#m FXnÀI£n ae-\mSv tFP³knbnÂ\n¶p 8 Intem shÂtIm«v F¶ IoS-\m-in\n Rm³ hm§n-¨n-cp¶p“. It is pertinent to note that the lawyer notice, complaint and the affidavit evidence categorically stated that the complainant purchased well coat from 3rd opposite party by the end of September 2007. If that be so the denial of the purchase by opposite party with support of his stock book cannot be right away rejected. The evidence of Development Officer of Rubber Board Sreekandapuram Region adduced as PW2 has very much relevancy with respect to the subject matter of application of well coat. He is an officer having 28 years of service in the field of Rubber products. His evidence reveals that he together with Senior Deputy Rubber production Commissioner inspected the rubber plantation of complainant. He has deposed that Ex.tA6 report is given by the Senior Officer, Rubber production commissioner. He has adduced evidence that there were more than 200 rubber saplings which was completed 2 years. In the cross examination he has deposed that well coat is not a harmful product to rubber plants. As far as he is concerned through out his official life this is the first case where rubber plant is dried up due to the application of well coat. He further deposes that he has seen that the complainant applied well coat to the trunk as well as entire branches of the plant. It requires 50 gram well coat for an each plant. If that be so, the total quantity required to apply for the entire plants would be 12 kg. Complainant’s case is that he has purchased 8 kg only. As per Ext.A5 the purchase is 3 kg. With 3 kg. It is possible to apply only to 60 plants. At any rate quantity of purchase and quantity of application of well coat’ does not tally each other. PW2 deposes that 1 kg. Can be used for 20 plants. He deposes in cross that “ tF-I-tZ-iT 12 Intem rubber coat Cu tXm«-¯n D]-tbm-Kn-¨n-«p-m-hpT F¶mWv Fsâ \nK-a-\T.“As per his observation 12 kg. Well coat had been used in the plantation of the complainant. Complainant has no case that he had purchased 12 kg well coat from anywhere. As per the evidence of PW1 the well coat applied in the plantain of the complainant would come at about 12 kg. There is no relation with the purchase quantity and applied quantity. PW3 is an employee of the complainant. He deposed that the well coat was used in the month of September. She did not say first week or last week. But deposed those plants subsequently dried up. Any how PW3 could not identify MO1 cane. She was not sure whether it was changed or not. PW4 adduced evidence to the effect that he also applied well coat to his rubber plants and 12 out of them were dried up. But he did not produce any bill. There is no documentary evidence to say that PW4 had purchased well coat’ from 3rd opposite party. Unless such a document is produced it is difficult to believe this witness. If he has purchased ‘well coat’ he will also get bills. He has not also reported this incident to Rubber Board. Unless there is supporting evidence for what he has deposed it is difficult to believe those facts are true. This is a case where the rip of purchase of complainant itself is in dispute. Unless there is acceptable evidence to show that Rubber plants in the plantation of the complainant were dried up and perished due to the application of well coat purchased from 3rd opposite party it cannot be held that here is deficiency on the part of opposite parties. It is for the complainant to prove his case.He has produced a receipt showing only 3 kg. There is no reason for none giving of receipt for 5 kg. Complainant should also prove the possibility of such a danger of dry up and destruction by the use of well coat. The evidence of PW2, the Development officer of Rubber Board, who was a well experienced officer having more than 28 years of service in his cross examination deposed that well coat is not a harmful product to Rubber plant. It is very important to note that PW2 also deposed that it is the first experience in the service of 28 years with a case of this nature where rubber plant is dried up due to application of well coat. Thus the available evidence does not permit to come to conclusion that the complainant’s rubber plant happened to be destroyed due to the application of well coat. It is also not possible to believe or accept that it is the well coat purchased from 3rd opposite party has been applied for the entire rubber plants of complainant’s plantation since the quantity purchased is much less than that was required for the application as per the evidence of PW2, who deposed in cross examination that 50 gram ‘well coat’ is required for each plant. According to him a total quantity of 12 kg is required for the entire plants. At any rate complainant could not prove that he has purchased that much quantity of well coat from 3rd opposite party. Taking into account the entire aspect it cannot be believed or accepted without any cogent and acceptable evidence that the Rubber plantation of complainant is dried up and perished due to the application of ‘well coat’ on the one hand and the said ‘well coat’ is purchased from 3rd opposite party on the other hand. Complainant has not succeeded in establishing his case by placing acceptable evidence. Hence we hold that complainant is not entitled to get any relief as prayed in the complaint. The issues 1 to 3 are found against complainant. In the result, the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the lawyer notice sent to OP A2.Postal AD A3 & 4.Reply dt.22.11.07 and 14.11.07 sent by Ops A5.Bill dt.3.9.07issued by 3 rd OP A6.Letter dt.20.9.07 issued from rubber board A7. Letter dt.12.11.07 issued from Rubber research institute of India A8.Photographs and negatives A9.Paper cuttings Exhibits for the opposite party B1 & B2.Copy of the report received from the Deputy Director (Public Information Officer) Rubber Board dt.5.1.09 (Information act) B3.Bill book B4.Retail invoice dt.3.9.07 issued by Priya Fertilizers & Agencies B5.Stock book( page)(B5) B6.Provisional registration certificate issued by Industries Office B8 & 9.Copy of the letter dt.18.1.94 and 18.4.94 issued from Rubber research institute B10.Copy of handbook of natural rubber page 284. B11.Copy of extract from natural rubber agro management published by Rubber research institute of India Exhibits for the court C1.Commission report Witness examined for the complainant PW1.Complainant PW2.P.C.Saimon PW3.K.Mini PW4.Koran Witness examined for the opposite party DW1.K.K.Chellappan DW2.Mathew K Joseph DW3.M.C.Thomas DW4.Joseph Mappilacherry /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Froum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
