Punjab

Ludhiana

CC/14/813

Avtar Singh - Complainant(s)

Versus

Nua Seeds - Opp.Party(s)

29 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                    C.C. No.565 of 13.08.2009

                                                                   RB No.813 of 28.11.2014

                                                                   Date of decision: 29.05.2015 

1.Avtar Singh son of Shri Nirbhai Singh, resident of village Ghalori, Post Office Saphera, Tehsil and District Patiala.

2.Jaswinder Singh son of Shri Mohinder Singh, resident of village Ghalori, Post Office Saphera, Tehsil and District Patiala,

                                                                             … Complainants

                             Versus

1.Nua Seeds Private Limited, Sandhu Towers, B-XXX-3369, Gurdev Nagar, Ferozepur Road, Ludhiana through its Managing Director/Chairman/Authorized Signatory.

2.Manpreet Singh Dhillon, Authorized Signatory of M/s Nua Seeds Private Limited, Sandhu Towers, B-XXX-3369, Gurdev Nagar, Ferozepur Road, Ludhiana.

3.State of Punjab, Ministry of Agriculture, through the Principal Secretary, Civil Secretariat, Punjab, Chandigarh.

4.Assistant Agricultural Engineer, Tools, Department of Agriculture, Punjab, India.

Opposite Parties

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

Quorum:    Sh.R.L.Ahuja, President.

                   Ms.Babita, Member.

                  

Present:       Sh.P.P.S.Chahal, Adv, for the complainants.

                   Sh.Sunny Aggarwal, Adv. for Op1 and OP2.

Complaint against OP3 and OP4 was not admitted and dismissed vide  order dated 1.9.2009.

 

ORDER

R.L.AHUJA, PRESIDENT.

  

 

1.                Earlier, a complaint bearing No.565 dated 13.08.2009 was filed by the complainants before this Fora, which was decided vide order dated 08.01.2010 of this District Forum and against the said order, an Appeal No.1101 of 2010 was filed by the Op1 and OP2 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which was accepted by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 13.10.2014 and the impugned order dated 08.01.2010 passed by this District Forum has been set-aside and the complaint has been remitted to this Fora for providing due opportunity to OP1 and OP2 to join the proceedings and contest the complaint and then to decide the case afresh in accordance with law on merits. Pursuant to which, the present complaint has been re-registered.

2.                Brief facts of the complaint are that the complainants are the progressive farmers of Punjab and are technology savvy and always inclined to innovative ideas of farming including use of new machinery and tools. For paddy season 2009, the complainants planned to sow paddy on an area of land measuring 85 acres, including the land of the complainants as well as the daughter of the complainant no.1. Besides, the complainants also entered into an agreement for joint cultivation with Davinder Singh etc., vide agreement dated 27.3.2009. The said land measuring 85 acres falls in three villages i.e. Ghalori, Narangwal, Jandolian, District Patiala. OP3 and OP4 widely published and advertised a machine known as Paddy Transplanter for sowing the paddy crop, to which, the complainants opted to purchase the same and before purchasing the machine, the complainants met OP4, who shown his satisfaction on the performance of the machine and duly emphasized to purchase the said machine by saying that it will cut short the costs as well as the time in planting the paddy crop. OP4 also advised the complainants to meet OP1 and OP2 at Ludhiana by saying that they will explain the merits and narrate functions of the machine. The complainant visited OP1 and OP2, where OP2 advised the complainant to purchase the Paddy Transplanter by saying that the total price of the machine is Rs.2,50,000/- and that a proper demonstration of the machine will be given at the site where transplanting the paddy saplings. Further, assured that in case any problem in the machine, their technician will visit at the spot and set the machine in order without any charges. The complainant decided to purchase the paddy transplanter by booking one machine on 29.4.2009 and paid in advance an amount of Rs.1 lakh and OP1 and OP2 issued the receipt No.1336, bill No.1240 dated 29.4.2009 against the said amount. Since the machine was the recommendation of the State and as such, OP4 issued a demand draft for a sum of Rs.5000/- towards subsidy for the purchase of this machine/tool which was issued in the name of OP1. The remaining amount of Rs.1,45,000/- was paid in cash by the complainants to the OP1 which was received under  the signatures of OP2. After, receiving the full price of the machine, OP1 and OP2 delivered the machine to the complainants on 11.6.2009 but since the paddy was to be sown after 15.6.2009, the time fixed by OP3, the machine could not be put in operation immediately and OP1 and OP2 did not give any demonstration of the machine and they said that the same would function properly as per instructions and the complainants should not worry for the same. However, after 15.6.2009, when the complainants tried to transplant the paddy saplings through the machine supplied by the Op1 and OP2 on the recommendations of OP3 and OP4, the complainant faced lot of humiliation and harassment, as the machine did not function at all and on the first attempt of using the machine, some rivets of the machine did break and it started giving constant trouble in transplanting the saplings. The complainant contacted OP1 and OP2 on telephone as well as by visiting their office at Ludhiana and requested to set the machine right so as to function properly but they did not sent any technician/person as promised by them, to repair the machine. The machine was faulty from the beginning and the complainant tried to get the machine repaired from outside but the machine could not be put to use even after the repair. There are clippers in the machine which hold the sapling to be transplanted in the field and insert it in the ground upto 3 inches depth. But the said clippers of the machine in question were not functioning properly, as the clippers did not have sufficient gripping power and when the machine tried to insert the saplings in the ground, due to loose grip, maximum number of saplings either used to drop or break between before being inserted in the ground. In case, the clippers remained successful in gripping the plant, then the tools meant for pushing the plant into the ground did not function and not pushed the plant into the ground to its optimum depth, which is three inch which is very necessary to grow the paddy. As such, the paddy transplanter used to leave the plant on the surface or insert only upto the depth of one inch or so. The complainants could not transplant the paddy into the entire land on account of faulty machine supplied by the Ops. Thereafter, the complainants made number of attempts to approach the OP1 and OP2 in order to set the machine but with no result. It was lateron revealed that the machine was substandard and the price of the same was also over charged by the OP1 and OP2, as its price was only Rs.1 lakh as fixed by OP3, but OP1 and OP2 charged Rs.2,50,000/- from the complainants. Not only this, in the meantime, the Saplings already used had become useless and the same had to be removed from the ground and new stock of saplings was to be purchased from the other farmers and was re-transplanted besides transplanting the paddy on the remaining ground. On account of their machine having redundant, the Ops are liable to refund of RS.2,50,000/-, paid to OP1 and OP2 towards the costs of machine alongwith interest @18% p.a. from the date of receipt of amount till the realization of the entire amount. The Ops have committed deficiency in service and they have been negligent in providing proper services to the complainant even after receipt of over price of the machine. Such act and conduct of OPs is claimed to be deficiency in service on their part by the complainants. Hence, this complaint.

3.                Upon presentation of the complaint, complaint against OP3 and OP4 was dismissed vide order dated 1.9.2009 by this District Forum and was only admitted against OP1 and OP2 only.

4.                OP1 and OP2 filed their written reply, in which, it has been submitted in the preliminary objections that the complaint filed by the complainants is liable to be rejected on the ground that the same is totally false, malafide and vexatious as the complainants have not come to this District Forum with clean hands and the complaint has been filed with an ulterior motive to extract money from the answering Ops, which is a company renowned all over Punjab for supply of Paddy Transplanters. The complainants do not fall within the definition of Consumers u/s 2(d) of the Consumer Protection Act. The complainants are stopped by their act and conduct from filing the present complaint. The complainants failed to operate the paddy Transplanters as per the operational instructions communicated to the complainants in the training camp organized by the answering Ops after the booking of the machine by the complainant Avtar Singh. The complainant Avtar Singh was delivered a frame for preparing nursery which was further required by the Paddy Transplanters to transplant the paddy. This frame which was given to the complainant was to maintain the standard of nursery in which, there were 16 trays and the complainant Avtar Singh and his 2-3 associates were given all the technical guidelines regarding the machine and it was specifically informed that without this frame, the nursery could not be prepared. The complainants have failed to use the paddy Transplanter as per the operational guidelines and as such,  they are stopped from claiming that there is a defect in the Paddy Transplanter supplied by the answering Ops. The complainants are guilty of suppression of material facts from this District Forum as they have deliberately not disclosed to this Hon’ble District Forum that the complainant Avtar Singh had mis-behaved with the technical staff of the answering Ops on 3.7.2009 when they had gone to attend the complaint with regard to the functioning of the machine and against which, an FIR No.106 dated 13.7.2009 u/s 379/356/295-A IPC has been registered at PS Julkan, District Patiala against the complainant Avtar Singh. The present complaint is a counter blast to the said criminal case. The complainants have no locus standi to file the present complaint as no cause of action has come on record to prove any negligence on the part of the answering Ops and there is no evidence in support of the allegations as brought forth by the complainants in the complaint. There has been no manufacturing defect whatsoever in the machine purchased by the complainants. Reply on facts, it is submitted that the answering OP1 has been supplying Paddy Transplanters and other Farming Equipments to the various farmers in Punjab. The Paddy Transplanters being supplied by the answering OP1 are of the highest quality and the same were approved by the Department of Agriculture, Government of Punjab after proper testing from the approved Farm Machinery Testing Centre, Department of farm Power and Machinery, P.A.U., Ludhiana. The Model purchased by the complainant Avtar Singh was approved by the Government Authority only after the same was duly approved by the Farm Machinery Testing Cetre, P.A.U., Ludhiana vide its Test Report No.FPM/TC/SR/2K9/721 and it was specifically observed that the performance of the machine was good. It is not within the knowledge of the answering Ops if the complainants had met Op4 before purchasing the machine. It is admitted that the complainants had approached the answering Op2 at Ludhiana for the purchase of the Paddy Transplanter and it was explained by the answering OP2 to the complainants that if the machine is operated properly as per the technical specifications in respect of Mat Type Nursery, the same can sow paddy in about 4 to 5 acres of land in a particular day. It was further represented by answering OP2 that as per the advertisement given in Ajit newspaper on 22.4.2009, the answering OP1 company shall be organizing a demonstration regarding the working of the Paddy Transplanters at Malerkotla Road, Nabha on 27.4.2009. The complainant had attended the demonstration camp organized by the answering OP1 company at village Dhuladi, Nabha on 27.4.2009 and took the demonstration of Paddy Transplanters and on being satisfied with the working of the Paddy Transplanters, showed their willingness to purchase the same. The fact regarding booking of the machine in question as alleged is not denied. However, it is denied that the machine was delivered to the complainants on 11.6.2009. Rather, on receipt of the full amount on 3.6.2009, the answering Ops delivered the machine to the complainants who received the delivery of the same after checking the same and finding it in perfect condition. The complainants have deliberately not produced the copy of the bill dated 3.6.2009 as there is a specific endorsement on the bill that the machine has been checked by the Farmer who has found it in perfect  condition at the time of delivery. Further, it is submitted that no complaints were received from the complainants by the answering Ops regarding the functioning of the Paddy Transplanter at any time prior to 2.7.2009. As a matter of fact, the answering OP2 received a phone call from Avtar Singh complainant on 2.7.2009 that the Paddy Transplanter was not working properly. The answering OP2 immediately sent his technician namely Sony alongwith driver Bhola Singh to check the Paddy Transplanter at the farm house of Avtar Singh at village Narangwal, P.S.Julkan. On inspection of the machine, the technician found that the Transplanter was in a fit condition to work but the same was not being used properly as the same was being loaded with 30-40 mm sand instead of the prescribed 15 to 17 mm of sand and as a result, the nursery which was prepared was unusually heavy with excess sand and the same was causing improper working of the machine. When the said fact was told to Avtar Singh ad his employees and his associates present there, they mis-behaved with the employees of the answering Ops and rather beat them and stole their belongings. An FIR No.106 dated 13.7.2009 was lodged at P.S.Julkan, District Patiala against the complainant Avtar Singh. The present complaint has been filed as a counter blast to the said FIR to pressurize the answering Ops not to pursue the said criminal case. It is denied that the clippers in the machine supplied by the answering Ops were not functioning properly as alleged by the complainants. Rather, it is submitted that the complainants have failed/neglected to produce any certificate from an expert to suggest that the machine suffers from manufacturing defect and or inherent defect as required u/s 13(1)(c) of the Act. Further, it is denied that there is any manufacturing defect in the machine in question or other fault in the functioning of the machine supplied by the answering Ops. It is denied that the answering Ops or its employees ever mis-behaved with the complainants or threatened them as alleged. The relief claimed by the complainants are also specifically denied. At the end, denying any deficiency in service and all other allegations of the complaint being wrong and incorrect, answering OPs made prayer for dismissal of the complaint with costs.

5                 Both the parties adduced their evidence in the form of affidavits and documents.

6.                We have heard the learned counsel for the complainants and learned counsel for the OP1 and OP2.  

7.                Learned counsel for the complainants has filed the written arguments, in which, he has reiterated all the contents of the complaint filed by the complainants and further, it has been submitted that the present complaint was initially allowed by this Hon’ble Forum but the same was remanded back so as to give hearing to OP1, who was initially proceeded against exparte. But after hearing, the OP absolutely failed to clear clouts and to prove that the Paddy Transplanter which was supplied to the complainant was workable and was not defective and he only took the shelter of some reports vide which concerned experts of Agriculture Ministry including University people had checked the Paddy Transplanter before launching but it does not in any way mean that if one of the Paddy Transplanters checked before launching, then all other the Paddy Transplanters would also work in the same manner with same efficiency, as there is always possibility of manufacturing defect and snags even best of the best equipment. Otherwise also, the Ops have failed to produce and prove any document in support of their case that any Paddy Transplanters, particularly supplied to the complainants were workable. The complainants have proved on record documents Ex.C1 to Ex.C15, which clearly demonstrate deficiency in service on the part of the OP1, wherein, the payment of the machine has been duly proved by way of Ex.C1, Ex.C2 and Ex.C3. The complaint is within time. In order to prove that the Paddy Transplanter was not working in the field and it was duly checked and observed by the experts. The complainants have given the evidence of Gopal Chand, who is a known mechanic in Patiala working the name of Zimidara Tractors at Patiala, who categorically supported the case of the complainants. From the collective study and reading of all the documents produced by the complainants in their evidence, it has been clearly established that the Paddy Transplanter supplied by the Ops was defective and it was not working and the amount was also overcharged and the substandard the Paddy Transplanter was supplied and thus, there is a clear cut deficiency on the part of the OP1 and made prayer for the relief as claimed for.

8.                On the other hand, learned counsel for the OP1 and OP2 has filed the written arguments, in which, he has reiterated all the contents of the written reply filed by the OP1 and OP2 and further made reference of the documents produced by OP1 and OP2 in their written reply and further, it has been submitted that on inspection of the machine, the technician had found that the Paddy Transplanter was in a fit condition to work but the same was not being used properly as the same was being loaded with 30-40 mm sand instead of the prescribed 15 to 17 mm of sand and as a result, the nursery which was prepared was unusually heavy with excess sand and the same was causing improper working of the machine. When the said fact was told to Avtar Singh ad his employees and his associates present there, they mis-behaved with the employees of the answering Ops and rather beat them and stole their belongings. An FIR No.106 dated 13.7.2009 was lodged at P.S.Julkan, District Patiala against the complainant Avtar Singh. There is no fault or defect in the functioning of the Paddy Transplanter supplied by the Ops. Rather, the complainants have failed to operate the Paddy Transplanter as per the operational instructions and guidelines. The complainants do not fall within the definition of consumer as the complainants are using the Paddy Transplanter for commercial purpose i.e. for sowing the fields of other farmers and as such, the present complaint is not maintainable. The Ops have not charged any excess price in respect of the machine in question. The complainants have deliberately concealed the fact and have rather mis-represented that the machine was delivered on 11.6.2009. The complainants have also failed to produce on record the invoice NO.1062 dated 3.6.2009 issued by the OP1 against the sale of Paddy Transplanter. The said invoice has been produced by the Ops as Ex.D4 which bears the signatures of the complainant Avtar Singh and it is clearly mentioned that the machine has been received by the complainant after checking and finding the same in perfect condition at the time of delivery on 3.6.2009. The complainants have tried to mislead this Hon’ble Forum by examining CW2 Gopal Chand, who alleges to be carrying on business of sale and repair of agricultural implements at Patiala. No certificate or any other proof of qualification of the alleged witness as an expert to repair Paddy Transplanters or other agricultural implement/equipments has been produced on the file. Rather, the copy of the bill Ex.C13 produced by the said witness amounting to Rs.300/- for checking the machine demolishes the case of the complainant. This Hon’ble Forum can well imagine that if it was a genuine case of repair, then what kind of repair could be carried out in Rs.300/- in modern times. Further, the said bill Ex.C13 at the very top shows the name of the firm as Zimidara Tractors and below that it is mentioned that the said firm is specializing in denting, painting and all mechanical works of cars and jeeps. Even as per the said document Ex.C13, it is not shown that the said firm is carrying on business of sale and repair of agricultural implements or paddy transplanters as claimed by the witness CW2. The complainants themselves have produced on record the booking form No.1240 dated 29.4.2009, as such, it means that the complainants before purchasing the machine were aware of the price being charged by the Ops and there is no question of the Ops over charging any price. The complainants have failed to produce any certificate from an expert as required u/s 13(1)(c) of the Consumer Protection Act to prove on record that the machine suffers from manufacturing defect and/or inherent defect. The complainants have not produced on record any document regarding the cost of the seeds and saplings stated to have been purchased by them as referred in para no.12 of the complaint. The present complaint is a counter blast to the criminal case, against which, FIR No.106 dated 13.7.2009 u/s 379/356/295-A IPC has been registered at PS Julkan, District Patiala against the complainants by the Ops and as such, made prayer for dismissal of the complaint.

9.                We have gone through the written arguments filed by learned counsel for the complainants as well as learned counsel for the OP1 and OP2 and have also gone through the record on the file very carefully.

10.              Perusal of the record reveals that it is an undisputed fact between the parties that the complainants had purchased the machine in question i.e. Paddy Transplanter from the OP1 and OP2 against the total price of Rs.2,50,000/-, out of which, Rs.1 lakh was paid an advance by the complainants and the remaining amount was availed as subsidy from the account of the State Government.

11.              As per the allegations of the complainants that the complainants faced a lot of humiliation and harassment when they tried to transplant the paddy saplings through the machine supplied by the OP1 and OP2 as the machine did not function at all and on the first attempt of using the machine, some rivets of the machine did break and it started giving constant trouble in transplanting the saplings. The complainants had contacted OP1 and OP2 on telephone as well as by visiting their office at Ludhiana and requested to set the machine right so as to function properly but they did not sent any technician/person as promised by them, to repair the machine. The machine was faulty from the beginning and the complainant tried to get the machine repaired from outside but the machine could not be put to use even after the repair. Further, there are allegations that there are clippers in the machine which hold the sapling to be transplanted in the field and insert it in the ground upto 3 inches depth. But the said clippers of the machine in question were not functioning properly, as the clippers did not have sufficient gripping power and when the machine tried to insert the saplings in the ground, due to loose grip, maximum number of saplings either used to drop or break between before being inserted in the ground. In case, the clippers remained successful in gripping the plant, then the tools meant for pushing the plant into the ground did not function and not pushed the plant into the ground to its optimum depth, which is three inch which was very necessary to grow the paddy. As such, the paddy transplanter used to leave the plant on the surface or insert only upto the depth of one inch or so. The complainants had not transplant the paddy into the entire land on account of faulty machine supplied by the Ops. Further, there are allegations that the machine supplied by the OP1 and OP2 was substandard and the price of the same was also over charged by the OP1 and OP2, as its price was only Rs.1 lakh as fixed by OP3, but OP1 and OP2 had charged Rs.2,50,000/- from the complainants and made prayer for the refund of this amount.

12.              On the other hand, there is specific plea of the learned counsel for the OP1 and OP2 that the present complaint is not maintainable as the machine was used for commercial purpose. The complainants failed to operate the Paddy Transplanters as per the operational instructions communicated to them by the OP1 and OP2 in the training camp organized by the Op1 and OP2 after the booking of the machine by the complainant Sh.Avtar Singh, who was delivered a frame for preparing nursery, which was further required by the Paddy Transplanters to transplant the paddy. This frame which was given to the complainant Sh.Avtar Singh was to maintain the standard of nursery, in which, there were 16 trays and the complainant Sh.Avtar Singh and his 2-3 associates were given all the technical guidelines regarding the machine and it was specifically informed that without this frame, the nursery could not be prepared. The complainants have failed to use Paddy Transplanter as per the operational guidelines and as such, they are stopped from claiming that there is a defect in the Paddy Transplanter supplied by the Ops. It has further been pleaded that the complainant Sh. Avtar Singh had mis-behaved with the technical staff of the Ops on 3.7.2009 when they had gone to attend the complaint with regard to the functioning of the machine and against which, an FIR No.106 dated 13.7.2009 u/s 379/356/295-A IPC has been registered at PS Julkan, District Patiala against the complainant Sh.Avtar Singh. The present complaint is a counter blast to the said criminal case. Further, it has been pleaded that the Paddy Transplanters being supplied by the OP1 are of the highest quality and the same were approved by the Department of Agriculture, Government of Punjab after proper testing from the approved Farm Machinery Testing Centre, Department of farm Power and Machinery, P.A.U., Ludhiana. The Model purchased by the complainant Sh.Avtar Singh was approved by the Government Authority only after the same was duly approved by the Farm Machinery Testing Cetre, P.A.U., Ludhiana vide its Test Report No.FPM/TC/SR/2K9/721 and it was specifically observed that the performance of the machine was good.

13.              Perusal of the evidence of the complainants reveals that the complainants have produced on record document Ex.C16 i.e. copy of FIR No.137 which has been lodged by the complainant no.1 Sh.Avtar Singh u/s 406/420 IPC which was registered on 1.9.2010. On the other hand, perusal of the evidence of OP1 and OP2 reveals that they have placed on record document Ex.D5 copy of FIR NO.106 u/s 379/356/295-A which was lodged by Bhola Singh against complainant no.1 Avtar Singh which was registered on 13.7.2009.

14.              During the course of arguments, learned counsel for the complainants as well as learned counsel for the OP1 and OP2 have stated at bar that still investigation on the basis of these FIR’s is going on and police authority have not filed the Police Challans. However, they have not stated at bar that these FIR’s have ever been cancelled or the concerned police authorities have submitted any report of Untraced, meaning thereby that police investigation is still pending. Perusal of the complaint of the complainants reveals that the complainants have claimed the refund of Rs.2,50,000/- as the costs of the machine in question and have alleged in the complaint that there is manufacturing defect in the machine in question. However, perusal of the evidence of the complainants reveals that the complainants have not placed on record any opinion of the expert, from which, it could be presumed that the machine in question suffers from any manufacturing defect. It is a well settled principle of law that until and unless, the opinion of the expert is not sought in order to determine the alleged manufacturing defect of the machine or vehicle, it cannot be presumed that machine or vehicle suffers from any manufacturing defect.

15.              Since, the criminal proceedings are still pending between the parties and the complainants have failed to prove on record by leading cogent and convincing evidence on record that their machine suffers from manufacturing defect. Hence, it appears that the complaint of the complainants is not maintainable and is liable to be dismissed.

16.              In the light of our above discussions, we hereby dismiss the complaint of the complainants being not maintainable and being devoid of any merit. However, the complainants are at liberty to approach the Civil Courts for seeking their redresssal of grievances or any other competent authority. Copies of this order be made available to the parties free of cost and thereafter the file be consigned to the record room.

(Babita)                                             (R.L.Ahuja)  

Member                                           President

 Announced in open Forum

on 29.05.2015

Gurpreet Sharma