BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 26 of 2016
Date of Institution : 22.1.2016
Date of Decision : 20.12.2017
Ajit Singh son of Sh. Avtar Singh son of Sh. Khiwa Singh, resident of Sherekan, Tehsil Tibbi, District Hanumangarh.
……Complainant.
Versus.
- M/s Kani Ram Surender Kumar, Shop No.14, New Anaj Mandi, Ellenabad, District Sirsa through its proprietor/partner.
- Indofil Industries Ltd., Regd. Office, Kalpatru Squared, 4th Floor, Kondivita Road, Off Andheri Kurla Road, Andheri (East), Mumbai-400059.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT.
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh. A.K Monga, Advocate for complainant.
Sh. S.S. Goyal, Advocate for opposite party no.1.
Sh. Ritesh Madan, Advocate for opposite party no.2.
ORDER
In brief, the case of complainant is that complainant is a farmer and doing the agriculture work on contract basis in his village Sherekan and he has taken 57 Bigha land for cultivation on contract basis and sown the paddy crop in Sawni 2015, however, insect started to damage the above said crop and to save the crop complainant purchased the pesticide 19 packet Baan @ Rs.425/- per packet from op no.1 and at that time the op no.1 assured that after spraying the above said pesticide on the above said crop, insect cannot damage the crop rather the crop will be grown more and on the assurance of op no.1 the complainant purchased the above said pesticide. It is further averred that complainant sprayed the pesticide on the above said crop but it made no effect on the insect which means the pesticide given by op no.1 was misbranded and of low quality and because of this complainant has suffered too much financial loss because normally in one bigha the yield of paddy crop comes about 20 quintal but due to the misbranded pesticide, the yield remained only 5 quintal per bigha and as such complainant has suffered loss of 15 quintal paddy crop per bigha. The complainant has suffered loss of about Rs.15 lacs for which ops are responsible because op no.1 supplied low quality and misbranded type pesticide and op no.2 is the manufacturing company of the above said pesticide i.e. Baan and that amounts to deficiency in service. Thereafter, complainant has so many times approached and requested the op no.1 to compensate him because the crop of the complainant has been damaged due to misbranded and low quality of pesticide given by op no.1 to the complainant but ops have put off the matter on one false pretext or the other and now two days back op no.1 has flatly refused to compensate the complainant. Hence, this complaint
2. On notice, opposite parties appeared. Opposite party no.2 filed reply taking certain preliminary objections regarding maintainability, cause of action, suppression of material facts, locus standi, limitation, non joinder of necessary parties and jurisdiction and no compliance of mandatory procedure under section 13 of the Act. It is submitted that complainant never sprayed or used Baan (Trycylazole) in his fields and never suffered any loss for which op no.2 cannot be held responsible. After the purchase, the op no.2 has no control over the use of insecticide and op no.2 cannot even confirm or deny whether the insecticide has been sprayed in the fields or not. The op no.2 cannot say whether the complainant used the insecticide in correct way and in the correct preparation. It is further submitted that complaint is bad for non joinder of necessary parties. The bare perusal of the bill issued by op no.1 to the complainant clearly shows that the complainant alongwith Baan pesticide also purchased 15 packets of M45 and 11 packets of Elotis but he has not impleaded the manufacturing companies of these two brands as parties to the present complaint. It is further submitted that complainant has not placed any document on record to show that he had suffered any loss and if at all he had suffered any loss, to what extent and what was the reason behind such loss. The complainant has not mentioned in the present complaint that what is the actual yield of Paddy per acre in the said area and what yield the complainant get per acre. It is further submitted that the complainant has not mentioned that what was the procedure adopted by him at the time of making the solution after the alleged purchase and what was the procedure he adopted at the time of alleged spray by him. The manufacturer can be held responsible only if the chemical composition of the product differs from as declared by the manufacturer on the label of the product. The complainant has not placed on record any document regarding owning any land or having any land in his possession and sowing paddy crop on the said land. Therefore, the present complaint deserves dismissal on this ground alone. On merits, it is submitted that the complainant is required to produce strict proof regarding taking of 57 bigha of land for cultivation on contract as well as Khasra Girdawari showing his name as cultivator with regard to the land in question alongwith tubewell bill etc. It is further submitted that usually as per the guidelines of the experts of the agriculture, about 125 GM of pesticide is used in one acre of land. The complainant has alleged that he had purchased 19 packets of pesticides from the op no.1 of 250 GM each. In this manner, the pesticide allegedly purchased by the complainant should have been used in 38 acre of land whereas the 57 bighas land is 35 acres only and the complainant has sprayed the same in 35 acres of land. Meaning thereby that he had used excess pesticide over his field at his own without taking any suggestion from the expert. The alleged loss in this manner is the result of his own negligence of the complainant and the answering op cannot be held responsible for the alleged loss suffered by the complainant. The allegations regarding sale of misbrand product to the complainant are wrong and baseless. It is further averred that complainant never moved any complaint to the Agricultural Department in this regard. It is necessary to mention here that mixture of all the three pesticides might have been used by the complainant over his crops. However, as per the guidelines of Agriculture Department the mixture of pesticide should not be used. The pesticide Baan(Trycyclazole) is a Fungicide product and its impact is only to control the fungus only including all type of blast. There is no side effect of this product and in order to prove this fact the opinion of an expert can be taken. It cannot be said that the alleged loss has been suffered by the complainant only on account of the use of the Baan. It is further submitted that neither the complainant approached and contacted the answering op nor any prior notice was issued by him to the answering op. With these averments, dismissal of complaint has been prayed for.
3. Opposite party no.1 after appearance through counsel sought various opportunities for filing written statement but did not file any written statement and thereafter opted to be proceeded against exparte. Thereafter, op no.1 moved an application for setting aside exparte order but the said application was dismissed but however, op no.1 joined the proceedings through counsel.
4. The complainant has tendered Ex.C1 his own supporting affidavit, Ex. C2 packet of Baan, and documents Ex.C3 to 16, affidavit of Gurdev Singh Ex.C17, affidavit of Amar Singh Ex.C18, bill Ex.C19 and affidavit of Anil Ex.C19 (it should be Ex.C19A). On the other hand, op no.2 has produced affidavit of Rajesh Kumar Ex.R1, copy of authority letter Ex.R2, copy of certificate of analysis Ex.R3, pamphlet Ex.R4, affidavit of Rajesh Kumar Ex.R5/A.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The complainant in order to prove his case has placed on file inspection report of Sh. Vinod Nogia, Assistant Agriculture Officer alongwith letter dated 20.10.2015 of Assistant Director Agriculture, Hanumangarh. The perusal of the said inspection report reveals that the Assistant Agriculture Officer has mentioned in his report that the number of the plants were normal and the production of the crop was well and it was found that there was effect of neck blast disease on the paddy crop. The plants were healthy but ‘balia’ were having effect of disease. He has also mentioned that due to disease of neck blast, the probable loss is 60 to 65% but the reason of the loss of crop is not mentioned in the report. The report does not pin point the defect in the pesticide in question. The complainant had also purchased other pesticides alongwith pesticide in question as is evident from the bill Ex.C19 and therefore, it cannot be said that crop of the complainant suffered damage only due to sub standard quality of Baan pesticide. Learned counsel for op no.2 has contended that as per version of complainant he purchased 19 packets of Baan pesticide from op no.1 and sprayed all the 19 packets in his field then as to how he is in possession of one sealed packet of Baan pesticide. The complainant has failed to give any explanation in this regard. If the complainant was in possession of one packet of pesticide in question, he could have supplied the same to the officer of Agriculture department who inspected his field for analysis of the same from approved laboratory but the complainant has failed to do so.
7. Further more, it is pertinent to mention here that complainant moved an application for sending the packet of pesticide ‘Baan’ to the laboratory for its chemical test which was resisted on behalf of op no.2 on the ground that pesticide in question was purchased by complainant in the year 2015 whereas application has been moved in the year 2017 after a gap of more than two years. The said application of the complainant was dismissed on the ground that manufacturing date of the said pesticide was 30.7.2015 and its expiry date was 29.7.2017 and when the packet was checked it was found that it was already expired. The complainant purchased the pesticide in question on 25.9.2015 and filed the present complaint on 22.1.2016 but the complainant never made any efforts to get the packet tested from any approved laboratory in time and therefore, it cannot be said that pesticide in question was of inferior quality. Moreover, the op no.2 has placed on file copy of certificate of analysis of ‘Baan’ pesticide as Ex.R3 according to which material complies with specification.
8. Further more, the perusal of the inspection report reveals that even inspecting officer has not mentioned the killa numbers and square numbers of the land which was inspected by him. The complainant has also not mentioned the killa numbers and square numbers of the land in which the pesticide was sprayed. Moreover, the inspecting officer did not serve any notice of his inspection to other party prior to inspection which is mandatory requirement of law. The report further reveals that the sample of the pesticide was not sent for testing. Moreover, the complainant has not been able to show that he did not mix the above said three pesticides purchased by him and that he used the adequate quantity of the pesticide in question in his land. The authorities cited by learned counsel for op no.2 in case titled as Ishwar Singh vs. M/s Punjab Pesticides Industrial Co-op. Society, RP No.2160 of 2012 decided on 15.2.2013 (NC) and the authority of Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case titled as Narender Kumar Vs. Arora Trading company and others 2007(2) CLT 683 are fully applicable to the facts and circumstances of the present case.
9. In view of the above, it appears from the evidence of complainant that complainant has failed to prove his case and there does not appear to be any deficiency in service on the part of ops. Hence, the present complaint is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. Member
Dated:20.12.2017. President,
District Consumer Disputes
Redressal Forum, Sirsa.
