STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution: 23.01.2019

                                                          Date of final hearing: 13.12.2023

                                                     Date of pronouncement: 08.02.2024

First Appeal No.96 of 2019

IN THE MATTER OF:-

M/s Vishnu Kumar & Company, Shop No.25, New Green Market, Mandi Ateli, Tehsil Ateli, District Mahendergarh, Haryana.      

....Appellant

1. Devender Kumar S/o Sh. Sujan Singh, Caste Ahir, R/o Village Bihali, Tehsil Ateli, District Mahendergarh, Haryana.
2. Manager, U.P.L. Ltd, 3-11 G.I.D.C., Vapi-396195, Gujarat.
3. ….Respondents

CORAM:             Sh. Naresh Katyal, Judicial Member

Argued by:-       Sh. Ravi Kant, counsel for appellant.

None for respondent No.1.

Sh. Sachin Ohri, counsel for respondent No.2.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Challenge in this Appeal No.96 of 2019 of appellant/OP No.1 has been invited to the legality of order dated 24.12.2018 passed by District Consumer Disputes Redressal Forum-Narnaul, District Mahendargarh (In short “District Consumer Commission”) in complaint case No.19 of 2018, vide which complainant’s complaint has been partly allowed.

2.      Factual matrix: complainant-an Agriculturist sown mustard seed Marka 45 S 46 Pioneer in one acre of his land. After germination of mustard crop; there was excessive weeding of mustard crop.  He visited OP No.1-appellant who advised him to purchase herbicide “Jhatka-UPL” manufactured by OP No.2-Company. Believing upon assurance given by OP No.1, complainant purchased a packet of herbicide “Jhatka-UPL” on 15.12.2017 from OP No.1 for Rs.250/- vide Bill No.598 dated 15.12.2017 and sprayed said herbicide in his mustard crop as per advice of OP No.1, but when he visited his fields after a week from spray, he noticed that besides grass weeding; his mustard crop was also totally damaged. He (complainant) thereafter brought damaged plants of crop at shop of OP No.1 and told OP No. 1 that as per his advice, he sprayed the said herbicide in his crop, but due to spray of said herbicide, his crop was damaged. After that; a surveyor of OP No.2-Company visited fields of complainant and after inspection, he told to complainant that said crop has been damaged due to spray of herbicide in question. In this way, he suffered financial loss of Rs.7,650/- as he incurred expenses of Rs.650/- on purchase of mustard seed, Rs.1050/- on DAP fertilizer, Rs.300/- on Urea fertilizer, Rs.400/- on spray, Rs.4,000/- on cultivation etc., Rs.250/- on herbicide in question and Rs.1,300/- in removing grass etc. It has been alleged that he suffered a loss of crop amounting to Rs.64,000/- on account of near-about 16 quintals yield of mustard crop from one acre. He wrote to Deputy Director Agriculture-Narnaul. Committee was constituted vide letter No.3013 dated 29.01.2018 and said committee, after inspection, submitted its report assessing loss of crop to the extent of 60-65%. After that, he (complainant) has been requesting OPs to pay him loss of crop amounting to Rs.71,650/- but of no use which constitutes deficiency in service or unfair trade practice on the part of OPs.  He filed complaint for directing OPs to pay him: Rs.71,650/- on account of loss of crop and also to pay Rs.20,000/- as compensation for harassment and mental agony.

3.      OPs raised contest and in defence so entered; it is denied that: complainant has sown mustard crop in his Agriculture fields or that he consulted OPs for removal of weeding in crop. OP No.1 is authorized dealer of seeds, herbicides and fertilizer etc. It has been admitted that OP No.2-Company manufacture herbicide namely “Jhatka” and same is only used in wheat crop and prohibited for use in other crops, which is duly mentioned on wrapper of herbicide in question. As per plea; if complainant used said herbicide in his mustard crop at his own level, then OPs are not liable. It has been denied by OPs that complainant has brought plants of crop to OP No.1 or OP No.1 has sent any surveyor of company. As per plea; OPs have no knowledge about inspection of fields of complainant by officers of Agriculture Department, as no prior notice was ever given by alleged inspecting team and as such, if there is any report of Agriculture Department; same is not binding upon OPs. Complainant cooked up a false story to extract money from OPs. By denying other averments, being wrong, incorrect and manipulated and by pleading that there was no deficiency in service or unfair trade practice on part of OPs; dismissal of complaint has been prayed.

4.      Parties to this lis led their respective evidence; oral as well documentary.

5.      On critically analyzing the same, learned District Consumer Commission-Narnaul vide order dated 24.12.2018 has partly allowed the complaint thereby directing OPs to pay lump sum amount of Rs.20,000/- to complainant, jointly and severally, within a period of 30 days, failing which complainant is entitled to interest @ 7% p.a. for defaulting period, till actual realization. OPs No. 1 & 2 are further directed to pay Rs.2,000/- as litigation expenses.

6.      Feeling aggrieved; OP No. 1 has filed this appeal.

7.      Devender Kumar-complainant has appeared in person in proceedings of this appeal twice on 16.03.2022 and on 08.09.2022. His counsel appeared once on 01.10.2019. After 08.09.2022, there is no representation either by Devender Kumar in person or by his counsel in proceedings of this appeal.  Even on last date i.e. 13.12.2023, when arguments were heard in this appeal only counsel for appellant and counsel for respondent No. 2 was present. Devender Kumar-respondent No. 1 did not appear.

8.      Learned counsel for appellant, while pressing for acceptance of this appeal, has urged that District Consumer Commission has wrongly and unjustly fastened financial liability upon it i.e. OP No.1/appellant. It has passed impugned order on conjectures and surmises by ignoring factual aspects of case. Learned counsel for appellant urged that report of Agriculture Department, besides being vague, is not binding on appellant because no notice was served upon dealer/appellant prior to inspection which was mandatory as per Govt. instructions dated 03.01.2002-Annexure A-7.  Learned counsel for respondent No. 2 has endorsed above submissions of OP No.1/appellant by stating that in fact, both OPs (arrayed in complaint) are similarly situated, as financial liability so imposed through impugned order dated 24.12.2018 is joint and several.

9.      Too much emphasis has been laid upon report of Agriculture Department which is Annexure A-4, which reflects that: field of complainant was inspected on 23.01.2018 by the Committee which noticed that: “probable loss of crop (mustard crop) was to the extent of 60-65%”. Obviously, committee for inspection has been constituted as per instructions/memo dated 03.01.2002-Annexure A-7, issued by The Director, Agriculture Department, Haryana-Panchkula and addressed to all Deputy Directors of Agriculture in State. Phraseology of this letter dated 03.01.2002, in express and unambiguous terms recites that field of complainant farmers will be inspected by a committee comprising of two officials of Agriculture Department, one representative of concerned seed agency and Scientist of KGK/KVK, HAU. In this case, as per contention of learned counsel for appellant, there was no prior notice given by committee to appellant, before visiting at fields of complainant for conducting inspection. This contention of counsel for appellant carries weight. Field inspection report regarding field of complainant is on record of this appeal (pages No. 28 & 29 of paper book-Annexure A-4). Phraseology of this report, nowhere recites that OP/appellant has been given any prior notice by committee before visiting at field of complainant which is clear violation of govt. instructions dated 03.01.2002. Thus legally, report Annexure A-4 is not binding on appellant as it got its light of day at the back of appellant. In this regard, this Commission rely upon ratio of law settled by Hon’ble National Consumer Disputes Redressal Commission, vide judgment rendered in case titled as “Indian Farmers Fertilizers Co-operative Ltd. and Anr. Vs. Bhup Singh” 2015 SCC online NCDRC 215. In this cited judgment, it has been held in para 6 in following terms:-

“6.     Perusal of inspection report clearly reveals that inspection was made by a team of B.A.O., S.M.S. (PP) and SDAO whereas, as per circular of Director of Agriculture, Haryana dated 3.1.2002 fields were to be inspected by a Committee comprising of two officers of Agriculture Department, one representative of concerned seed agency and Scientist of KGK/KVK. Admittedly, inspection was not carried out after due notice to representative of OP and Scientist was not called and admittedly, not in their presence. In such circumstances, inspection report made by some officers of Agriculture Department cannot be acted upon and on the basis of this report, it cannot be inferred that seeds were not of standard quality, particularly, when these seeds were certified by Haryana State Seed Certification Agency.”

May be, facts of cited judgment were pertaining to seeds, whereas facts of this case pertain to herbicide, yet ratio of law laid down is the same. Hence, above quoted pronouncement is squarely applicable to facts of this case. Hence, contention put forward before this Commission that appellant was not given any notice before inspection of field of complainant conducted by team of Agriculture Department and thus report is not applicable to appellant, merits credence.

10.    Matter does not end here. Report Annexure A-4 is amply suggesting fact that: there is approximate loss of Mustard crop to the extent of 60-65% and it further recites that committee noticed that medicine which was given by dealer to farmer, is not meant for controlling yields of Mustard crop and same is used for controlling yields of wheat crop. In addition, report further recites that Agriculture Department and Agriculture Scientists, too, do not recommend use of this medicine for controlling yields of mustard crop. Once, this is the quality of text of report of committee, then in firm opinion of this Commission; there lies absolutely no fault of appellant to the alleged consequences, which complainant/farmer had suffered regarding loss/damage to this mustard crop because of spray of herbicide on it. Entire fallacy in this regard, lay upon complainant-Devender Kumar-respondent No.1. Learned District Consumer Commission has mainly been swayed away by presumptions and conjectures, to partly allow the complaint, by deviating itself from the ramifications flowing from Agriculture Department Committee Report Annexure A-4. Hence, considering from any angle; report Annexure A-4 cannot form any fundamental and acceptable base to partly decree the complaint.

11.    Complainant, having purchased alleged spray from OP No.1/appellant, would inherently, suppose to possess knowledge, that it is not meant for use/spray on mustard crop. Complainant-Devender Kumar is himself negligent while using spray/medicine on mustard crop. He cannot be allowed to reap benefits/advantages of his own wrongs. It has been discussed by learned District Consumer Commission that there is an express mention on wrapper regarding warning. It is mentioned therein under head ‘Recommendation’ that: “It is a post emergence herbicides and is recommended for use to control grass weeds in wheat”. Just because, this quality recital is not mentioned in bold/highlighted manner would not become any ground to fasten financial liability upon OP No.1/appellant. Reason in this regard is obvious. This wrapper is available on record of this appeal as Annexure A-6. On glancing at this document it is deciphered that word: “Recommendation” is mentioned in bold and highlighted manner. Text of recommendation, of course, is in simple format. Eye catching aspect of this wrapper is mentioning of word Recommendation in bold and highlighted manner. Once this is so, then complainant is supposed to read the text of recommendation, regarding use of herbicide for himself. There can be no fallacy of appellant in this regard. Hence, in opinion of this Commission; complainant is supposed to have knowledge regarding use of herbicide at all times. After all, he is not a rustic villager. On his complaint dated 01.02.2018 Annexure A-2 he has signed in English. He is not so novice and neophyte as he has pretended himself to be. Observation of learned District Consumer Commission with regard to text of word recommendation in wrapper is patently erroneous and hence not sustainable at all.

12.    Allegations of complainant that he suffered huge financial loss of Rs.64,000/- on account of yield remain unsubstantiated, so much so, no evidence, worth the name, has been led by him to prove expenses of Rs.7,650/- spent on cultivation, fertilizers etc. There is no report/evidence on record, about quantity of yield of mustard crop extracted from one acre of land. In wake of this factual scenario, grant of compensation to complainant to the tune of Rs.20,000/- (by fastening joint and several liability upon appellant and OP No.2) by learned District Consumer Commission is grossly illegal, unjust and thus unsustainable. Approach of learned District Consumer Commission is erroneous, while partly allowing the complaint with litigation expenses. Finding of learned District Consumer Commission-Narnaul is ex-facie illegal and set aside.

13.    Consequently, impugned order dated 24.12.2018 passed by learned District Consumer Commission in complaint No. 19 of 2018 is set aside. As a corollary so flowing, this appeal is allowed.

14. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment. 

5.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

16.    File be consigned to record room.

Date of pronouncement: 8^th February, 2024.

                                                                             Naresh Katyal              

                                                                             Judicial Member

                                                                             Addl. Bench-II