Date of Filing: 08-03-2016                                      Date of Final Order: 19-06-2017

Sri Gurupada Mondal, President.

This is an application under Section 12 of CP Act, 1986 filed by  Taher Ali and Afzal Mia against Chowdhury Potato Co., Cadila Pharmaceuticals Ltd. (OPs) and Assistant Director of Agriculture, Sitalkuchi Block (Proforma OP) praying for refund of Rs.28,000/- alongwith transportation charges of Rs.5,000/-,loss amount of Rs.3,00,000/-, compensation of Rs.30,000/- each to the Complainants for causing mental pain and agony, Rs.30,000/- for deficiency in service and  Rs.10,000/- as litigation cost.

The case of the Complainants in short is that Jyoti Potato Seeds of six bags at a consideration price of Rs.8,400/- was purchased by Complainant No.1 from OP No.1 on 27.11.15 and Complainant No.2 purchased Jyoti Potato seeds of 15 bags from the OP No.1 at a price of Rs.19,600/- on 26.11.15, 6.12.15 and 8.12.15.  At the time of purchasing the potato seeds, the OP No.1 assured of high quality of the said potato seeds and would give good yield.  The OP No.1 issued Memo in favour of the Complainants.  The Complainants had taken proper care for germination of the seeds as per advice of the OP.  In the month of January, 2016, the Complainants noticed that the seeds supplied by the OP were of inferior quality as the potato seeds were not germinated properly.  Accordingly, the matter was informed to the Assistant Director of Agriculture, Sitalkuchi Block on 11.01.16 by submitting an application.  The official of Sitalkuchi Block visited the spot i.e. potato fields and observed that there was no uniformity of germination and to that effect he submitted a report.

Further case of the Complainants is that the OPs taking the advantages of the Complainants simplicity and good faith deceived them.  The Complainants suffered huge loss and also suffered mental pain and agony and they were harassed by the OPs.  Accordingly, the Complainants have filed this case for proper reliefs.

 The OP No.1 in contesting the case, has filed w/v, denying all material allegations contending inter-alia, that the case is not maintainable, the case is bad for non-joinder and mis-joinder of parties and barred by the law of limitation. Specific case of the OP No.1is that he is a potato merchant and he sold potato to different persons after purchasing potato from OP No.2 and he did not sell potato seeds but sold potato.  It is alleged that the Complainants did not plant the said potato purchased from him (OP No.1) as there were many potato merchants in the State and for that reason he was not responsible and the allegations brought against him are baseless.  According to OP No.1, 21 bags of potato cannot be planted in ten bighas of land and three packets of potatoes are necessary to plant in one bigha of land.  The Complainants planted the potato seeds in order to sell the crop in open market for commercial purpose.  Further case of the OP is that the alleged report of the OP No.3 is false, and fabricated in collusion with the petitioner.  The Op No.3 never collected the potato to send it as sample for testing at laboratory, Department of Agriculture, Govt. of West Bengal at Bansdroni and without proper and valid report, it was not possible to say that the potatoes were defective and there is no expert opinion to that effect. On the basis of aforesaid averment, the OP No.1 prays for dismissal of the case with costs.

In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.

POINTS  FOR  CONSIDERATION

1. Are the Complainants a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?

2. Has this Forum jurisdiction to entertain the instant complaint?

3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?

4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION  WITH  REASONS

We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.

Point No.1.

The Complainants purchased 21 bags of potato from the OP No.1 at a consideration price of Rs.28,000/-. As such, there is a transaction between the seller and buyer, and it relates to goods on consideration. The buyer paid consideration. As such, we hold that the Complainants are consumer. The Ld. Advocate for the OP submits that the Complainants purchased 21 bags of potato in order to plant in his ten bighas of land.  According to the OP, the potato seed purchased by the Complainants to plant in his ten bighas of land amounts to commercial purpose.  Such huge quantity of potatoes cannot consume by a single family.  As per complaint petition as well as his evidence, it is evident to us that the Complainants are an agriculturist and earns his livelihood by cultivating his own land.  Therefore, it cannot be stated that the Complainants planted the potato for commercial purpose.

This point is decided in favour of the Complainants.

Point No.2.

The Ld. Advocate for the OP submits that this Forum has no territorial jurisdiction to try this case.  It reveals from the case record as well as the documents placed before this Forum, we find that the OP No.1 & 2 are not the residents within the district of Cooch Behar and the Branch Offices of the OP No.1 and 2 are not situated within the district of Cooch Behar.  No relief has been claimed against OP No.3.

In this connection, Ld. Advocate for the Complainants cites a case decision reported in (2013) CJ 284 (N.C) wherein Hon’ble National Forum held – Cause of action had arisen at places which fell within the local limits of concerned District Forum.  It is also observed that Actual Cause of action confers jurisdiction of District Forum.  From the evidence on record, it reveals to us that the Complainants purchased the potato seeds from Dhupguri in the district of Jalpaiguri.  The OP No.2 is the resident of another place other than Cooch Behar.  But the Complainants planted the potatoes in his land situated in the district of Cooch Behar.  According to the Complainant, the said potato seeds were not properly germinated.  As such, we hold that cause of action had arisen in the district of Cooch Behar.  Hence, we hold that this Forum has territorial jurisdiction to try this case.

In one another case decision reported in (2014) C.J. 523 (NC), wherein Hon’ble National Commission held jurisdiction would lie with the District Forum where the cause of action has arisen. In this case, the Complainants purchased the potato seeds from Dhupguri under Jalplaiguri district and thereafter, it was planted in the land of Complainants situated in the district of Cooch Behar but there was low germination in the potato seeds as well as the growth of potato plants.  As such, we hold that the cause of action was arisen in the district of Cooch Behar.  Therefore, this Forum has concurrent jurisdiction to try this case.

The claim of the Complainants is within the prescribed limit of this Forum.  As such, this Forum has territorial jurisdiction as well as pecuniary jurisdiction to try this case.   

Point No.3 & 4.

Both the points are taken up together for consideration of discussion as well as the points are related with each other.

            The case of the Complainants is that he purchased 21 bags of potato seeds from the OP No.1 at a consideration price of Rs.28,000/-. Thereafter, he planted the said potato seeds in his ten bighas of land and before plantation, he had taken proper care and precaution for germination of seeds.  There was a low germination of potato seeds and the matter was intimated to the OP No.1 orally in time but there was no response from his end.  Then the matter was informed to the Assistant Director of Agriculture, Sitalkuchi Block on 11.01.16, who visited the field and submitted a report that the potato seeds were defective.

On perusal of the documents filed by the Complainants, it reveals to us that the Complainants submitted an application to the Assistant Director of Agriculture, Sitalkuchi Block on 11.01.16 and the ADA, Sitalkuchi Block received the said application on 19.01.16 alleging low germination of potato seeds. We have failed to understand how the Complainant came to a conclusion that the potato seeds were defective. In such a situation, laboratory test is necessary to ascertain the correct picture of the potato seeds as to whether the potato seeds were defective or not.

In this connection, Ld. Advocate for the Complainants submits that Laboratory test is not necessary in case of seeds.  To that effect, Ld. Advocate for the Complainant cites a case decision reported in (2012) CJ 385 (NC).  We have gone through the above noted case decision.  In the above cited case, Hon’ble National Commission held that documentary evidence clearly established that seeds actually supplied were not of the variety which was supposed to have been sold to the Complainant (Agriculturist).  Seed supplied was not the seed purchased. It is not necessary for the Complainant (Agriculturist) to have sent the seed to an appropriate laboratory for analysis/test, as an agriculturist is not expected to converse a portion of seed for such eventuality.  Hon’ble National Commission further held that documentary evidence thus clearly establishes that the seed actually supplied was not the variety, which was supposed to have been sold to the Complainant.  In this case decision, the Complainant (agriculturist) wanted to purchase one kind of seed but he was supplied another kind of seed.  In such circumstances, laboratory test is not necessary.

The Ld. Advocate for the Complainant cites one another case decision reported in (2014) CJ 666 (NC) wherein Hon’ble National Commission held supply of poor quality of seeds deserves compensation.  In our view, this case decision will not be applicable in this case as it is not established that the potato seeds supplied by the OP are of low quality.

Moreover, Hon’ble National Commission in a case reported in 2017 (2) CPR 329 (NC) held – Agriculture seeds – inadequate germination – District Forum directed petitioner to pay a sum of Rs.1,48,000/- to the Complainant alongwith 8% interest and litigation cost of Rs.5000/-.  Laboratory report clearly shows that there was no defect in seeds purchased by the Complainant – Laboratory reports coupled with fact that no cause for damage to crop was given in the report of field officers is more than adequate to rebut case set out by the Complainant alleging defect in seeds purchased by him – Impugned orders set aside and complaint dismissed.

The Ld. Advocate for the OP submits and cites a case decision reported in III (2016) CPJ 44 N.C, wherein Hon’ble National Commission held – Complainants who have separate agreements with the Opposite Party cannot maintain a joint complaint filed on the plea that they fall within the definition of Complainant as envisaged u/s 2(1) (a) IV of CP Act.  We have gone through the above cited case decision carefully. Wherein Hon’ble National Commission held – Agreed cost of individual apartment booked by the respective Complainants was of Rs.21,95,000/-.  Had the Complainants filed separate Complaints in view of Section 17 of the Act, their Complainants would lie before State Commission which has jurisdiction to entertain this case in which value of reliefs sought is more than 20 lakhs but does not exceed one crore.  In order to circumvent restriction of pecuniary jurisdiction of consumer for a, the Complainants have grouped together to file a joint Complaint in order to inflate pecuniary value of claim to bring within the jurisdiction of National Commission.  Even if the Complainants are permitted to continue with the Complaint jointly, each and every Complaint will have to lead separate evidence to establish their respective claims and relief to be awarded to respective Complainants will have to be separately computed depending upon separate circumstances.

In our view, this case decision will not be applicable here on the ground that the Complainants have not been grouped to file their case in a Forum to bring the jurisdiction.  Moreover, the facts and circumstances of this case and the cited case decision are separate.

According to Section 2(1)(b) of CP Act, Complainant means – (i) Consumer (ii) Any voluntary consumer Association registered under the Companies Act, 1956 or under any law for the time being in force; or (iii) The Central or any State Govt.; (iv) One or more consumers where there are numerous consumers having the same interest and (v) In case of death of consumer, his legal heir or his legal representative.

Therefore, as per Section 2(1)(b) of CP Act, 1986, one or more consumers, where there are numerous consumers having the same interest can file a case against the OPs.  The reliefs claimed by the Complainants are the same.  There is no bar to file a case where there are several consumers having the same interest.

In this case, we do not find any evidence on record that the alleged potato seeds were defective and for that reason, there was low germination while it was planted and 40% of the leaves were curled.  In order to prove the allegations, the potato seeds were required to send for laboratory test for its defectiveness.  Therefore, the Complainants are not entitled to get any decree as prayed for.

Both the issues are disposed of against the Complainants.

Hence,

            Ordered,

                        That the present complaint be and the same is dismissed on contest against the OP No.1 and ex-parte against the other OPs. There is no order as to cost.

Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.

Dictated and corrected by me.