BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.74/14.
Date of instt.: 04.04.2014.
Date of Decision: 20.07.2015.
Ram Phal S/o Sh. Shankar Singh, Caste Jat, r/o Village Bad-Sikri Khurd, Distt. Kaithal.
……….Complainant.
Versus
1. M/s. Pawan Kumar Sanjay Kumar, Prop. of Durga Beej Bhandar (Commission Agent) Kalayat Mandi, Kaithal.
2. Kaveri Seed Company Ltd., 513-B, 5th Floor, Mirerva Complex S.D.Road, Secunderabad-5000003 Andhra Pardesh.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Smt. Harisha Mehta, Member.
Present : Sh. Naresh Dhull, Advocate for complainant.
Sh. Balbir Bansal, Advocate for the opposite party.No.1.
Op No.2 already exparte.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased four cotton seed bags containing 450 gm. in each bag variety KCH-14K 59BG211 for sum of Rs.3300/-vide bill No.1660 from Op No.1. It is alleged that after purchasing the cotton seed, the complainant had sown this seed in his field as per the instructions and guidelines mentioned on the leaflet. It is further alleged that the complainant had spent a huge amount to the tune of Rs.40,000/- on two acre on the preparation of land, pesticide, fertilizer oil ploughing, spray etc. till the maturity/ripening of the crops. It is further alleged that from sowing the seed, the complainant was looking after his crops but at the time of giving fruit (tindo), the cotton plant does not grow fully and there is less tinda (fruit) on the cotton plants due to the less fruit (tinda) which grows on the plants. It is further alleged that the complainant suffered a huge loss in crops which showed the low and duplicate supply of the cotton seed sold by the Op No.1 and manufactured by Op No.2. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party No.1 appeared before this forum, whereas Op No.2 did not appear and opt to proceed against exparte vide order dt. 20.05.2014. Op No.1 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that the complainant has failed to comply with the mandatory provisions of Section 13(1)(c) of Consumer Protection Act; that the present complaint is false and frivolous; that the complaint is not in accordance with the provisions of Section 2(1)(d) of Consumer Protection Act, as such, the goods/seeds have been purchased for the commercial purpose and earning profits. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of their case, the complainant tendered in evidence affidavits Ex.CW1, CW2/A, CW3/A and documents Ex.C1 to C9 and closed evidence on 11.06.2015. On the other hand, the Op No.1 tendered in evidence affidavits Ex.RW1/A, Ex.R1 to Ex.R4 and Ex.R5 to Ex.R6 and closed evidence on 18.06.2015.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely.
5. We have perused the complaint & reply thereto and also have gone through the evidence led by the parties.
6. Keeping in view the facts and circumstances of the case, we found that the provision of section 13(1)( c) of the Consumer Protection Act is mandatory. For further discussion, the same is reproduced below:
“Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or tests of the goods, the District Forum shall obtain a sample of the goods from the complain ant, seal it and authenticate it in the manner prescribed and refer the samples so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, whichever may be necessary with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum.
d) before any sample of the goods is referred to any appropriate laboratory under clause ( c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;
e) The District Forum shall remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause © and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report alognwith such remarks as the District Forum may feel appropriate to the opposite party;
f)if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the district Forum shall require the OP or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory;
g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause(f) and issue an appropriate order under section 14………………….
A perusal of the same it transpired that under this provision it is the complainant who is required to get the sample of the seeds tested in a laboratory and this provision is mandatory in nature. In the authority of Hon’ble National Commission reported as Maharashtra Hybrid Seeds Co. Ltd. Vs. Parchuri Narayana 2009(1) CPC page 471, Hon’ble National Commission has observed that 13(1)(c) is mandatory in nature. The quality of any seeds/product is required to be determined by sending a sample to the Chemical Laboratory as per the procedure given in section 13(1)( c) and not merely on basis of assumptions and presumptions and the order in appeal which was based on the report of Advocate Commissioner is set aside. This provision is mandatory in nature its non-compliance by the complainant is fatal. Because under the provision of section 13(1)© complainant is required to get the sample tested through some recognized laboratory. The OPs, however, can raise the objections and they can file the objection before the Forum and they can get the sample tested.
7. In the present complaint, the complainant alleged that the complainant has suffered loss due to inferior quality of seed supplied by the Ops. The assertion of the complainant is based on the affidavits of Sh. Suraj Bhan, Ex.CW2/A, affidavit of Sh. Bhura, Ex.CW3/A as-well-as report of expert committee, Ex.C4. A perusal of the report, it is reported by the inspection committee that there was disease of cotton leaf curl virus (CLCV) in the said cotton crop and due to the said disease, there was less thindo and so, there was less yield of about 40-45%. So, the said report is itself against the complainant. In the absence of reasoning, this report is not helpful because the expert committee report is required to be self-supporting, self-standing and self-speaking pointing towards the defect in the seeds or for non growth of the complete crops. The variation in the growth of the crop not only depends on the quality of the seeds but it depends on many factors like soil, proper watering, proper cultivation, germination, sprinkling of pesticides at the proper time. So, the report of expert committee in the present case is not considered to be helpful to the complainant. So far as the affidavit of Sh. Suraj Bhan, Ex.CW2/A and affidavit of Sh. Bhura, Ex.CW3/A are concerned, these persons are not expert persons.
8. Thus, as a sequel to abovesaid discussion, reasoning and finding, we consider no merit in the complaint and the same is hereby dismissed. A copy of this order be sent to both the parties free of cost. File be consigned to the record room after due compliance.
Announced.
Dt.20.07.2015.
(Jagmal Singh),
President.
(Harisha Mehta),
Member.
