Punjab

StateCommission

A/11/793

The Jhandu Kay Coop - Complainant(s)

Versus

Harbhajan Singh - Opp.Party(s)

N.K Manchanda

13 Feb 2015

ORDER

First Appeal No.793 of 2011 

                                        Date of institution: 18.05.2011                                            Date of Decision:   13.02.2015

 

1.      The Jhandu kay Coop. Agri. Service Society Ltd. Village Jhandu Kay, Tehsil Sardulgarh, District Mansa.

2.      Amar Biotech Limited (Amar), Branch Officer SCF 84, Phase 1st,      Model Town, Bathinda, through M.Vijay Kumar, Area Sales Manager,           Amar Biotech Ltd. Bathinda.

                                                           .….Appellants/ opposite parties.

                                      Versus

Sh. Harbhajan Singh s/o Sh. Ajmer Singh, Village Jhandu kay, Tehsil Sardulgarh, District Mansa.

                                                …..…Respondent/Complainant.

 

First Appeal against order dated 29.03.2011 of District Consumer Disputes Redressal Forum, Mansa.

Before:-

                Shri J.S.Klar, Presiding Judicial Member

                Shri Vinod Kumar Gupta, Member.

Present:-

 

                For the appellants   :  Sh.N.K.Manchanda, Advocate

                For the respondent :    Sh. Madan Sandhu, Advocate

Vinod Kumar Gupta, Member

                This appeal has been preferred by the appellant (hereinafter referred  as opposite parties in the complaint) against the respondent (hereinafter referred as complainant in  the complaint) under Section 15 of the Consumer Protection, 1986 (hereinafter referred to as the ‘Act’) against order dated 29.03.2011 of District Consumer Disputes Redressal Forum, Mansa, (hereinafter called the ‘District Forum) in  Consumer Complaint No.26 of 2011, (hereinafter called the District Forum), vide which, the opposite parties were directed to pay Rs.2,50,000/- for suffering loss on account of sowing of adulterated seeds in 4 acres of agriculture land, Rs.50,000/- for mental harassment and Rs.5,000/- for litigation expenses to the complainant.

2.             The brief facts of the case are that Sh. Harbhajan Singh,  the complainant, filed the complaint under the Act against the OPs on the averments that he purchased 8 packets of “BT cotton”  ‘OM 333’ cotton seed, manufactured by OP NO.2 (Amar Biotech Limited), for consideration of Rs.6,000/- (Rs.750/- per packet), vide Bill No.002638 dated 03.06.2010 from OP No.1 (The Jhandu Kay Coop. Agri. Service Society Ltd.).  The said seeds were sown by  the complainant in his 4 acres of land and the crop was also well looked after by him.  It was alleged by complainant that he was surprised to find that the plants thereof did not gain the required height.  The complainant brought this fact to  the knowledge of OP No.1 Sh.Gurmail Singh Secretary  and also informed OP No.2 company about  the less growth of the cotton plants, whereupon, OP No.2 visited the spot in the presence of the co-villagers.  It was further pleaded in the complaint that the OP No,2 asked the complainant to spray more insecticides and use more fertilizers in the fields to obtain optimum yield thereof. The complainant acted as per the advise of the officials of OP No.2 company. Even then the plants did not grow to their desired height and also did not bear flowers and fruits. The complainant had spent an amount of Rs.10000/- per acre on fertilizers, insecticides, labour charges etc. it was further pleaded in the complaint that during the past years,  the complainant had been getting average yield of cotton crops from his fields to the extent of 35 maund per acre, as such,  he was expecting to get 48 quintals of cotton crop from his above 4 acre land,  but due to  sowing of sub-standard seeds sold by OP No.1 to the complainant, he suffered a loss of Rs.2,50,000/- in this regard.  Legal notice dated 27.09.2010 was also served upon the OPs, but all went in vain.  Alleging deficiency  in service on the part of the OPs, he filed the complaint seeking direction to the opposite parties to pay Rs.250000/- for loss of his crop, due to supply of  substandard and inferior quality of seeds supplied by the OPs to him besides Rs.40000/- for mental harassment and Rs.10000/- as litigation costs.

3.             The complaint was contested by OP No.1 by filing the written reply before the District Forum, by raising preliminary objections, that the complainant has been barred by his own act and conduct, as he had concealed the material facts.  The complainant has no cause of action to file the present complaint, as he has not stated so in the complaint, that he used the seeds for earning his livelihood by means of self employment.  The complaint is filed just to cause unwarranted harassment to the OPs. No seed can be proved defective without proper analysis through a government recognized lab. The complainant had not taken any expert opinion in this case.  The complainant is not maintainable, as the complaint has also not brought the report on the record to this effect from any agricultural officer. On merits, the OP No.1 admitted that it had sold the seeds in the sealed containers in the same condition with intact seals, as purchased by him from the manufacturing company. The OP no.1 further averred that it never made any promise about the full yield of the crops, as the yield therein depends upon so many external as well as environmental factors. As per recommendation of Agriculture Department, only 127 Kg DAP and 130 Kg Urea khad is to be applied in the fields.  It is clear that the seeds were not defective, rather the complainant was negligent for the less yield of the cotton crop and the OP No.1 cannot be held responsible for the alleged loss due to less yield of the crop. It was further pleaded that the complainant had purchased the seeds on 03.06.2010 and he sowed the seeds after 03.06.2010. The peak season for sowing the crop is up to 30th April, but the complainant has sown the seeds much after passing over the peak season i.e. after 03.06.2010, so Op No.1 is not liable for the complainant's negligence. The complainant has not explained the formula or criteria to assess the loss in his fields. Dismissal of the complaint was prayed for by opposite party No.1.

4.             OP No.2 filed its separate written version on the same grounds and pleading almost the same facts, as averred by OP No.1. it was pleaded by opposite party No.2 that they are leading manufactures/producers of cotton seeds in question and have a very well equipped laboratory, where all  the lots of the products thereof are stringently checked before their release in the market. OP no.2 had also a research center, where field test of the products were carried out before they were released to the market for sale.  It was further pleaded that OP no.2 had never supplied any sub-standard or inferior quality of seeds to its customers all around India and supplied standard seeds bearing the same lot throughout Punjab and they have not received any complaint about the same from any quarter.  Dismissal of the complaint was prayed for by the opposite party No.2.

5.             The complainant tendered in evidence copy of bill Ext. C-1, copy of slip Ext.C-2, copy of legal notice Ext.C-3, copy of postal receipts Ext.C-5 7 C-6, his own affidavit Ext.C-7, affidavit of Sh.Avtar Singh and closed evidence, were as the OPs in order to controvert the evidence of the complainant, has brought on record affidavit of Sh. Gurmail Singh Ext. OP-1, affidavit of Sh.Vijay Kumar Ext.OP-2, copy of literature Ext.OP-3 to OP-5 and closed evidence. On conclusion of evidence and arguments, the District Forum, accepted the complaint with  the directions to the OPs. to pay the compensation of Rs. 2,50,000/- for suffering loss on account of sowing of adulterated seeds supplied by the opposite parties, in his four acre agricultural land, besides Rs.50,000/- on account of mental and physical harassment and Rs.5000/- on account of litigation expenses incurred by complainant. Dissatisfied with the order of District Forum, the instant appeal has been preferred by the opposite parties now appellants.

6.             We have heard learned counsel for the parties and have gone though  the record of the case.

7.             The learned counsel for the appellants submitted that there was not even an iota of evidence, produced by the complainant that the seeds in question so purchased by  him from OP No.1 and manufactured by OP No.2 were of inferior quality. It was further submitted that the District Forum committed an error in allowing the complaint of the complainant. He has further argued that neither the seeds were got tested from the lab nor any expert report regarding the inferior quality of seeds has been  produced by  the complainant and hence, the appeal of the appellants/OPs was sought to be accepted and the complaint of the complainant to be dismissed accordingly.

8.             On the other hand, the counsel for the respondent/complainant argued that the District Forum, passed its order on the correct findings on  the basis  of the evidence produced by the complainant and there is no merit  in this appeal and same be dismissed.

9.             We have gone through  the affidavit of the complainant Ex.C-7 and affidavit of sh. Avtar Singh, Ex.C-8 has proved on record that after purchase of the said cotton seeds, he sowed the same in his four acre of land and he looked after the crop very well. However, the cotton plants did not gain the required height and the complainant suffered a loss of Rs.250000/- due to adulterated seeds supplied to him as sold by OP No.1 and manufactured by OP NO.2. The version of the OPs is that the complainant has failed to prove that the seeds sold to him were defective and no analysis from the competent laboratory was carried out and complaint had not taken the opinion of any expert or consultant of the Agriculture Department to ascertain the real cause of less yield of his crops.

10.           The perusal of the record shows that the complaint purchased 8 packs of ‘BT cotton’ variety ‘OM 333’ cotton seed, manufactured by OP No.1 for a consideration of Rs.6000/- (Rs.750/- per packet) vide Bill No.002638 dated 03.06.2010 from OP No.1, which is proved on record vide Ex.C-1. The provision of section 13(1)(C), which is mandatory in nature has not been complied with  as no seed can be proved defective without proper analysis from Government recognized laboratory, as held by this Commission in the judgment dated 29.09.2008 passed in F.A. No,1435 of 2005(M/s Pagla Enterprises C-1-6 V.  Paramjit Singh and other) held as under:-

        “27. The submission of the learned counsel for the appellants was that the seeds was not got tested by the respondent No.1 from the laboratory, as per the provisions of Section 13 of the CP Act or as per the provisions of seeds Act.  Therefore, no case was made out against the appellants.  In this context, reliance was placed by  the learned counsel for the appellants on the  judgment of Hon’ble National commission reported in “Consumer Protection and Guidance Society national Seeds Corporation” 2008(1) CPC 615 (NC) in which it was held that when  the seed was not got tested from the laboratory as required by section 13 of the CP Act, no relief can be granted to  the respondent complainant.

11.           However, we have also gone through the judgment of the Hon’ble Supreme Court in Haryana Seed Development Cooperation Ltd, Vs. Sadhu and another 2005(3) Supreme Court cases, 198, wherein it was held that variations in condition of crops need not necessarily be attributed to quality of seeds, but to other factors, unless there is specific mention in  the concerned report about the inferior quality of seeds, the apex court had held that onus to prove that there was any  defect in the seed was on  the complainant.

12.           The complainant has not approached the agriculture department to inspect his fields, hence no report of the agriculture department has been placed on record.  From the evidence on the record, we have come to the conclusion that that the factum of the complainant having suffered the loss due to poor quality of seeds has not been established by any scientific method or by way of laboratory analysis due to sub-standard quality of seeds only. As per the guidelines of PAU Ex.OP-4, the peak season of sowing of the cotton seeds was 30th April, whereas the complainant had purchased the seeds on 03.06.2010 after the peak season was over therefor.  The version of the complainant cannot be taken to be true as it is not corroborated by any documentary scientific evidence about the inferior quality of seeds sold to him by opposite parties.  The complainant has deposed in his affidavit that the official of the OP No.2 has visited the spot and inspected the crop and they advised for more pesticides and more fertilizers and on the other hand, the OP NO.2 had filed the affidavit Ex.OP2 in para4, in which he deposed that the complainant never approached the OP NO.2 for visiting the spot of the complainant at all.  The complainant has failed to produce any cogent evidence that the seeds purchased by him from the Op No.1 and manufactured by OP No.2 were of inferior quality and the less yield of cotton crop was due to this sole factor alone.  The District forum, has not properly appreciated the controversy of the case, so the order of the district Forum cannot be sustained in this appeal.

13.           Sequel to the above discussions, appeal filed by the appellants/OPs is hereby accepted and order of District Forum, is set aside. Consequently, the complaint of the complainant is hereby dismissed.

14.           The appellants/OPs has deposited an amount of Rs.25000/- with this commission at the time of filing the appeal.  The amount of Rs.25000/- with interest accrued, if any, be remitted by registry to the appellants/OPs by way of a crossed cheque/demand draft after the expiry of 45 days.

15.           The arguments in this appeal were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

      (J.S.Klar)

                                                                Presiding Judicial Member

 

 

February 13, 2015                                                                                                                                                                           (Vinod Kumar Gupta)

LB/-                                                                                                                                                                                                              Member

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