Haryana

Yamunanagar

CC/885/2013

Rajbir S/o Kehar Singh - Complainant(s)

Versus

M/s Baliyan Traders - Opp.Party(s)

Ranbir Singh

15 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                       Complaint No. 885 of 2013.

                                                                                       Date of institution: 10.12.2013

                                                                                       Date of decision: 15.06.2017

Rajbir son of Sh. Kehar Singh, resident of Village Peer Majra, P.O. Harnaul, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                                                             …Complainant.

                                    Versus

1. M/s Baliyan Traders, Village Harnaul, near Govt. High School Harnaul, Tehsil Jagadhri, District Yamuna Nagar, through its Proprietor Sh. Gurmej Singh.
2. M/s Indian Potash Ltd. No. 727, Annasalai, Chennai-6, through its M.D./Authorized Signatory.                                                                                                                                                                                                                                                                                                                        …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND……….. MEMBER

 

Present:  Sh. Ranbir Singh Advocate, counsel for complainant.    

               Sh. Naresh Khurana, Advocate, counsel for respondent No.1.

               Sh. R.P.Khajuri, Advocate, counsel for respondent No.2.                  

             

ORDER

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986 as amended up to date against the respondents (hereinafter respondents will be referred as OPs). 

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant purchased one bag of Potash vide Bill No. 831 dated 06.07.2013 for an amount of Rs. 840/- from OP No.1 who is authorized dealer of Op No.2. After purchase of the said bag the complainant went to his fields and opened the bag and it was astonished to see that there was a big stone in potash approximately 2/ 2½  Kgs. in weight and so many other small stones therein. The complainant immediately approached the Op No.1 and disclosed about the facts of stones in the bag sold by him. On which, the OP No.1 assured that he will make the complaint regarding the abovesaid fact to the Op No.2. On believing the assurance of OP No.1, the complainant returned to his house. Thereafter, the complainant approached the Op No.1 again and again and requested to replace the said bag with new one or to pay the consideration amount but the Op No.1 flatly refused to accede the genuine request of complainant and also refused to change the bag or to pay the sale amount.  Finding no other alternate, the complainant through his counsel got served a registered AD Legal notice dated 12.09.2013 to the OPs requiring them to pay Rs. 840/- as cost of bag alongwith interest and compensation within 15 days of receipt of the notice, otherwise proper legal proceeding will be initiated but they did not comply with the notice. Lastly, prayed for directing the OPs to return the cost of bag i.e. Rs. 840/- alongwith interest and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice OPs appeared and filed their written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complainant has no locus standi to file and maintain the present complaint; this Forum has no jurisdiction to entertain and decide the present complaint; complainant has not come to this Forum with clean hands and has concealed the true and material facts; the present complaint is not maintainable; the complainant is estopped from filing the present complaint by his own act and conduct; the present complaint is bad for mis joinder and non-joinder of necessary parties and on merit it has been denied that a stone of  2 -2 ½ Kgs. and many other stones were found in the bag of said potash. It has also denied that the complainant ever contacted the OP No.1 and ever complaint about the finding of alleged stones in the bag of potash. The story mentioned in the complaint is totally false and concocted one. It has been admitted to the extent of serving notice by the complainant. However, the notice was duly relied but now the complainant has filed the present false complaint just to harass the OP No.1. It has also been denied that the Op No.1 had sold defective and inferior quality potash to the complainant. So, there is no deficiency in service or unfair trade practice on the part of OP No.1 and lastly prayed for dismissal of complaint.  

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is legally not maintainable because the complainant does not come in the category of “consumer” and the relief sought by the complainant is of civil nature and can be adjudicated only by way of Civil Suit. The Op No.2 is not the manufacturer of white potash fertilizer rather the OP No.2 is a joint stock company under Administration Control of Department of Fertilizer, Government of India, which is importing fertilizer under the policy of Govt. of India and sell/ distribute the same in various states under the provision of fertilizer Control Order, 1985. The complainant is legally estopped from filing the present complaint by his own act and conduct. The complainant has neither informed the OP No.2 regarding any fault in the alleged potash fertilizer and nor moved any application for inspection, not sent the sample of fertilizer for lab testing of the quality of the fertilizer and mere stating that there was a big stone in the potash fertilizer bag is not proof of any fault in the fertilizer. The complainant has not come to this Forum with clean hands; the complainant has no locus standi to file and maintain the present complaint. The complainant has failed to ask for spot inspection or sample of alleged product i.e. case property to the OP No.2, as alleged by the complainant that he had purchased the bag of Potash from the Op No.1 and after opening the bag it was found that a big stone and some small stones were in the bag but after that it was the duty of the complainant to give notice to the OPs for testing the potash and get tested the same in the notified laboratory of the Haryana Government or the complainant may request to the OPs for testing the Potash in notified laboratory of Haryana Govt. but the complainant has not done such exercise therefore, the complainant has not been able to establish/prove that the white potash, allegedly sold by the OP No.1 to him was adulterated or of sub standard quality and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

5.                     In support of his case, complainant tendered into evidence affidavit of Suresh Kumar son of Genda Ram as Annexure CW/A, affidavit of Sh. Ashok Kumar son of Sh. Ram Rattan as Annexure CW/B and documents such as Photo copy of Potash purchase bill as Annexure C-1, Copy of legal notice dated 12.09.2013 as Annexure C-2, Photo copy of registered AD as Annexure C-3, Photo copy of postal receipts as Annexure C-4, Photo copy of reply of legal notice as Annexure C-5 and closed his evidence.

6                      On the other hand, counsel for the OP No1 tendered into evidence of Gurmej Singh Prop. Baliyan traders as Annexure RA and closed the evidence on behalf of OP No.1.

7                      Counsel for the OP No.2 closed the evidence on behalf of OP No.2 without tendering any documents.

8.                     We have heard the counsels for both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in their reply and prayed for dismissal of complaint.

9.                     It is not disputed that complainant purchased one bag of Potash vide Bill No. 831 dated 06.07.2013 (Annexure C-1) from the OP No.1 who is authorized dealer of OP No.2. The only grievances of the complainant is that after purchase of the said bag the complainant opened it in his field and astonished to see that there was a big stone in the bag of potash approximately 2/ 2 ½ Kg. in weight and so many other small stones therein. Learned counsel for the complainant draw our attention towards the affidavit of Suresh Kumar resident of village Mansapur Annexure CW/A and affidavit of Sh. Ashok Kumar R/o village Parwalon Annexure CW/B and argued that from these documents Annexure CW/A and CW/B, it is duly evident that there were big stones in the potash of 2-2 ½ Kgs. in wait due to that complainant has suffered mental agony, harassment and economic loss which constitute the deficiency in service and unfair trade practice on the part of the OPs and argued that OPs be directed to replace the bag with new one and to pay compensation as well as litigation expenses. Lastly, learned counsel for the complainant referred the case law titled as C.T.Sebastian and Saju Versus T. Stanes and Company Ltd. & Others, IV (2013) CPJ Page 407 (NC.).

10.                   On the other hand, learned counsel for the OPs hotly argued at length that a baseless and frivolous complaint has been filed by the complainant just to harass and humiliate the Ops whereas no truth is attached with the allegations mentioned in the complaint. Learned counsel for the OPs  argued that in the absence of any expert report from any authorized laboratory, it cannot be said that there was any stones in the potash bag and referred the section 13(1)( C) of the Consumer Protection Act, 1986 which is reproduced here as under:

“ Where the complaint alleges a defect in goods, which cannot be determined without proper analysis or test of the goods, the District Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect”

                         Lastly, prayed for dismissal of complaint.

11                    After hearing both the parties, we are of the considered view that although the complainant has failed to file any cogent evidence to prove that there was a big stone of approximately 2- 2 ½ Kgs in weight alongwith some other small stones in the bag of potash purchased by the complainant from the OP No.1 and further due to that complainant has suffered financial loss as well as mental agony as alleged in the complaint and the complainant has not placed on file any expert report or any report issued by any authority as per section 13(1)( c) of the Consumer Protection Act. Even then, in view of the allegations/version of the complainant that there was some stones in the bag cannot be disbelieved because every person try to avoid the litigation and try to remain away from the courts due to heavy expenses of the advocates as well as litigation expenses and furthermore, due to time consuming process, till the circumstances compelled him to knock the door of the court for justice. The plea of the OPs that no expert report of any laboratory under section 13(1)( C) of the Consumer Protection Act has not been placed on file is not tenable as there was no necessity to send the product in the laboratory when the stones in the bag of potash were visible from the naked eye. Further more, the complainant has placed on file affidavits of Suresh Kumar and Ashok Kumar as Annexure CW/A and CW/B in support of versioin. It is not the case of OP No.1 or 2 that complainant was having any personal grudge with the Ops and due to that he has filed the false complaint.

                        Resultantly, in the circumstances noted above and to avoid further litigation between the parties, and matter in dispute being petty in nature, we partly allow the complaint of complainant and direct the Ops jointly and severally to refund the cost of bag i.e. Rs. 840/- and further to pay Rs. 1000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced in open court. 15.06.2017.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                    DCDRF,YAMUNANAGAR

 

                                                                                     

                        (VEENA RANI SHEOKAND)          (S.C.SHARMA )

                         MEMBER                                           MEMBER