STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (APPEAL NO. 511 OF 2009 ) Date of Institution: 08.02.2007 Date of Decision : 14.10.2010. M/s Gopi Chand and Company, shop No. 127, First Floor, New Mandi, Sirsa, through its Prop. Smt. Krishna Devi. ……Appellant V e r s u s1] Ram Kishan adopted son of Shri Arjan Dass son of Sh. Chaudhary Ram, R/o VPO Baruwali-I, Tehsil and District Sirsa. ....Respondent. 2] De-nocil Crop Protection Pvt. Ltd., Unit No.1, First Floor, Corporate Park, V.N. Purav Marg, Chembur, Mumbai – 400071, through its Managing Director. ….. Proforma Respondent BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. SH. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Umesh Narang, Adv. for Appellant. Sh. R.S. Madan, Adv. for Respondent No.1. Sh. Manish Joshi, Adv. for Respondent No.2. PER JAGROOP SINGH MAHAL, MEMBER. 1. This order will dispose off the following two appeals filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), against the order dated 9.1.2007, passed by the learned District Consumer Disputes Redressal Forum, Sirsa (hereinafter referred to as District Forum), which were initially instituted before the Hon’ble Haryana State Commission and were transferred to this Commission, in view of the orders dated 26.08.2009, passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. [i] Appeal No. 511 of 2009 – Gopi Chand and Co. Vs. Ram Kishan and Anr. [ii] Appeal No. 512 of 2009 – M/s De-nocil Crop Protection Pvt. Ltd. Vs. Ram Kishan and Anr. 2. The Appellant in Appeal No. 512 of 2009, is the manufacturer of Spinosad 45% S.C. also known as Tracer and M/s Gopi Chand and Co. – Appellants in Appeal No. 511 of 2009 is their dealer, who sold two liters of the same to the Complainant on 20.9.2003 for Rs.18,700/-, vide Annexure C-15 for spraying it on the ‘narma’ [cotton crop] sown by the Complainant – Respondent in his 20 acres of land. The contention of the Complainant was that after he sprayed the insecticide, the crop was burnt and he, therefore, immediately, approached M/s Gopi Chand & Co. (hereinafter referred to as the Dealer) and requested them to visit his fields to assess the loss suffered by him, but the dealer did not pay any heed to the same. He, then, moved an application (Annexure C-16) to the Deputy Director Agriculture, Sirsa and another (Annexure C-17) to the Village Panchayat and Numberdar for inspection of his fields. The officials of the Agriculture Department visited the fields and took from him a sample of insecticide. They told him that they would send the sample to the Govt. Laboratory. The Village Panchayat also visited the spot and made report, which confirmed that the entire crop of the Complainant has been burnt, due to the use of the insecticide. The Complainant received the report of the Agriculture Department about a week before the filing of the complaint, which showed that the insecticide was misbranded. According to the Complainant, he has suffered a damage of Rs. 4,00,000/- due to the loss of his 20 acres of cotton crop. He approached the dealer several times to compensate him for the loss and when they did not, he filed the present complaint before the Learned District Forum, Sirsa, praying for the refund of Rs.18,700/-, spent by him as price of insecticides, Rs.4,00,000/- towards loss of the crop, Rs.50,000/- as compensation for harassment, hardship, mental tension, pain and agony and Rs.5,000/- as cost of proceedings. 3. The dealer, in his written reply, admitted having sold the insecticide to the Complainant for spraying on the cotton crop. He, however, denied any knowledge if the Complainant had sowed ‘narma’ in 20 acres of land and had actually sprayed the same on the said crop. According to the dealer, if there was any deficiency or defect in insecticide, then the manufacturer alone should be held liable for the damage/ loss to the Complainant. According to them, the ‘narma’ crop of the Complainant has not been damaged only with the spray of insecticide, but may be damaged due to some other unknown reasons. It was alleged that the Complainant has not produced any document to show that the ‘narma’ crop was damaged only with the spray of the insecticide. The report of the Laboratory was alleged to be due to collusion between the Complainant and the employees of the Agriculture Department. It was alleged that the sample had not been taken from the same batch of the insecticide, which was purchased by the Complainant, that the report cannot be said to be final as there can be re-testing also, that the Complainant has not suffered any loss and if he suffered the same due to the use of the insecticide, then the manufacturer alone is liable to compensate him. 4. The complaint was opposed by M/s De-nocil Crop Protection Pvt. Ltd. (hereinafter referred to as the Manufacturer). According to them, the Complainant was not a consumer as per the definition under the Consumer Protection Act, 1986; that he has not come to the court with clean hands; that he never used or sprayed Tracer insecticide in the fields and never suffered any loss. According to them, they could not even confirm or deny whether the insecticide has been sprayed in the fields or not and, therefore, could not say whether the Complainant used the insecticide in the correct way (if at all) and in the correct proportion; the mandatory procedure, as laid down u/s 13 of the Act for such complaints, had not been followed; that the Tracer was purchased for commercial purpose and, therefore, does not fall within the ambit of the Act. The report dated 8.2.2005 of the Insecticides Laboratory was not valid, because as per Section 24 of the Insecticides Act, the Analyst has to submit the report within a period of thirty days to the Insecticide Inspector; whereas, in the present case, the date of receipt of sample was 23.10.2003 and it was analyzed on 8.2.2005 i.e. after more than one year. On merits, it was denied if the Complainant – Respondent owns or was in cultivating possession of agricultural land or had sown ‘narma’ in the same. It was denied that the Complainant moved an application with the Agriculture department or their officers ever visited the fields or they took any sample of the insecticide from him. It was also alleged that there was no opinion to show that ‘narma’ crop and got burnt due to the use of insecticide or that any sample was taken by the officers of the Agriculture Department or that the sample was taken from a sealed container, the Complainant was alleged to have shown some other field to the officers of Agriculture Department or his crop was got burnt due to some other reason. According to them, officers of Agriculture Department had no authority to make any inspection. The insecticide manufactured by them was said to be accepted worldwide, it was manufactured with utmost care and was of high quality products, which come in the market for sale after proper verification and thorough laboratory tests. They also prayed for dismissal of the complaint. 5. Both the parties were given opportunity to produce evidence in support of their contentions. 6. After hearing the arguments of the learned counsel for the parties and perusing the record, as well as the written arguments, the learned District Forum allowed the complaint vide impugned order dated 9.1.2007 and directed both the Appellants to pay a sum of Rs.3,23,133/- towards loss of ‘narma’ crop and also to refund Rs.18,700/- as cost of insecticide. They were also directed to pay Rs.10,000/- as compensation, on account of physical and mental harassment and Rs.2500/- as cost of proceedings. The payment was ordered to be made within one month from the date of the order, failing which the amount of Rs.3,23,133/- was to carry interest @9% p.a. from the date of institution of the complaint, till the realization of the amount. 7. The order in question was challenged by both the OPs by filing separate appeals before the Hon’ble State Commission, Haryana. Both the appeals were ordered to be transferred to this Commission, as mentioned above, vide orders dated 26.8.2009 of the Hon’ble National Commission. Since both the appeals are against the same order dated 9.1.2007, these are being heard and disposed off through a common order. 8. We have heard the arguments of the counsel for the parties and have carefully gone through the record. 9. Annexure C-9 is the copy of Jamabandi for the year 2001-02, showing that the Complainant, his sons and wife owned more than 20 acres of land in village Baruwali. Annexure C-13 and C-14 are the copies of Khasra Girdawari for the year 2003, showing that the cotton crop was sown in the said land. The contention of the Appellants that there is no evidence to prove if the Complainant owned land in the village or had sown cotton crop therein, cannot be accepted as correct. 10. It is admitted that the Appellant De - nocil Crop Protection Pvt. Ltd. is the manufacturer of the insecticide in question and M/s Gopi Chand & Co. is the dealer thereof. It has been admitted by the dealer that he sold 2 liters of insecticide to the Complainant. Annexure C-15 is the bill in this respect, showing that the dealer charged Rs.18,700/- for the said insecticide. There is no denying the fact that this insecticide is meant for spray on cotton crop. The contention of the Complainant that he had sprayed the same on his 20 acres of cotton crop is fully proved on record. The Complainant has not only produced his own affidavit Annexure C/1, but has also produced the affidavits Annexure C-2 to C-8 of Khem Chand, Niyamat Ram, Zora Singh, Desh Raj, Karam Chand, Balwant Ram and Ajit Singh, respectively and it is proved beyond doubt that the Complainant had sprayed Tracer insecticide on cotton crop, due to which the entire 20 kills of cotton crop was burnt and damaged. It is also proved from these affidavits that the officials of Agriculture Department came to the fields to assess the damage and they had taken the sample of the insecticide. All the witnesses have proved that the damage to the cotton crop of the Complainant occurred due to the spray of insecticide thereon. As against it, there is the affidavit of Krishna Devi – Prop. of the Dealer (Annexure R1) and Annexure RW2 of Jagdish Bodla – authorized representative of the manufacturer. These affidavits of the Appellants cannot be accepted as correct, because none of them was present, when the insecticide was sprayed and do not even know about the land and the crop of the Complainant and therefore, they cannot prove anything contrary to these affidavits led by the Complainant. 11. The argument of the Appellants that no damage was caused to the cotton crop or that the damage was not caused only due to the spray cannot be accepted as correct. It has been amply proved that the cotton crop existed in the land of the Complainant and his relatives, when insecticide was sprayed thereon and with the spray, the entire crop was burnt and the flowers fell down. The Appellants have not produced any evidence to suggest as to what else could have happened, due to which the crop was damaged. They are depending on mere conjectures and surmises that the spray of insecticide could not have been the only ground for damage to the crop, without mentioning as to what other reason could have been there. It is, therefore, a case in which no expert opinion was needed to conclude that the crop was damaged due to the spray of the insecticide sold by the manufacturer/appellant. 12. Annexure C-16 is the copy of the application moved by the Complainant to the Deputy Director Agriculture, Sirsa, informing him about the spray and damage to his crop. The insecticide was purchased on 20.9.2003. Thereafter, it was sprayed on the crop and the present application was moved on 24.9.2003. The officials of the Agriculture Department took sample, which was sent to the Regional Insecticides Testing Laboratory, Chandigarh. Annexure C-19 is their report to the effect that the sample did not confirm to the relevant specification in the active ingredient content requirement and was misbranded. The learned District Forum took support from this report (Annexure C-19) to hold that the insecticide supplied by the OP was defective and misbranded. This report was assailed by the Appellants on the ground that the report was submitted after a period of one year and not within 30 days, as required under the Insecticides Act. We do not find any merit in this argument. At Sr. No. 2 of the report (Annexure C-19), the date of the letter, vide which the sample was sent to the laboratory, has been mentioned as 22.10.2004. In fact, 23.10.2003 is the date, on which the sample was taken, but it was sent to the laboratory only through a letter-dated 22.10.2004. Obviously, it would take time to deliver the sample in the laboratory. Similarly, 8.2.2005, which is alleged by the Appellants to be the date of analysis of the sample, is also not correct, because it is the date on which the report (Annexure C-19) was signed. Obviously, the analysis would have taken place prior to that. If the Act requires that the sample is to be analyzed within 30 days, we presume that the said requirement is being properly followed by the laboratory. In the present case, there is no such evidence adduced by the Appellants if the sample was not analyzed within a period of 30 days and, therefore, this report cannot be discarded. 13. The learned counsel for the Appellant also referred to another report dated 03.08.2005, given by the Insecticide Analyst, as per which the sample confirmed to the relevant specification in the test conducted. It was argued by the learned counsel for the Appellants that after the sample was reported to have failed vide Annexure C-19, a complaint was filed by the Agriculture Department before the Ld. C.J.M., Sirsa, from where a notice was issued to the Appellants. They availed their right of getting the second sample analyzed from the Central Insecticide Laboratory, Faridabad. This report appears to be dubious. The report was allegedly submitted by the said Analyst on 3.8.2005, but it was never produced before the learned District Forum during the trial of the case. It was attached by the learned counsel for the dealer, along with his written arguments submitted on 19.12.2006 with the result that neither it formed part of the pleadings, nor of the evidence adduced in the case and, therefore, cannot be read in evidence as no opportunity was given to the Complainant – Respondent to rebut the same or to confirm about its genuineness. It is not understood as to why the report was kept a secret for more than 16 months, though the second sample was sent at the instance of the Appellants themselves and they had got benefit of this report by securing their discharge in the said complaint. Otherwise also, this report was signed by the Analyst on 3.8.2005, which was the last date of the validity of the insecticide, because as per the report, 4.8.2003 was the manufacturing date and 3.8.2005 was the expiry date. There is yet another reason that this report could not be accepted, because it related to a different batch number. There is no dispute about it that batch no. of the insecticide sold to the Complainant was RHO4681110; whereas, the batch number of the insecticide sent to the Central Insecticide Laboratory was RHO46B1110. This report was, therefore, rightly ignored by the learned District Forum. 14. It is also argued by the learned counsel for the Appellants that the insecticide allegedly sprayed by the Complainant was not got properly analyzed in accordance with Section 13 of the Act and, therefore, no other report should have been accepted by the learned District Forum. We do not find any merit in this argument. As discussed above, there is overwhelming evidence to prove that the Complainant had sprayed Tracer insecticide on 20 acres of land, in which the cotton crop was standing. It is also overwhelmingly proved that after the spray of the insecticide, the entire crop was burnt and damaged. The Appellants have led no evidence to prove as to how else the crop could be damaged. Since the facts of the case are so clear, no further evidence was required to be led by the Complainant. However, when the matter was, immediately, reported to the Agriculture Department, they took the sample and got the insecticide analyzed, which was found to be misbranded. We cannot expect a farmer to keep a sample of insecticide intact and get it analyzed under section 13 of the Act, subsequently. In fact, when the entire crop of a farmer is burnt, he gets such a shock that legal niceties do not come to his mind. The mere fact that there was no test in accordance with Section 13 of the Act does not mitigate against his case. 15. The learned counsel for the Appellants have cited the case of Haryana Seeds Development Corporation Ltd. Versus Sadhu and Another, II (2005) CPJ 13 (SC); Maharashtra Hybrid Seeds Co. Ltd. Versus Gowri Peddanna & Others, I (2007) CPJ 266 (NC); Sonekaran Gladioli Growers Versus Babu Ram, 2005 CPJ 94 (NC); and Maharashtra Hybrid Seeds Co. Ltd. Versus Parchuri Narayana, 2009 (2) CLT 297. All these cases pertain to the purchase of seeds, that the seeds were not pure or the same did not germinate properly and there was low yield. Needless to mention that germination of the seeds and yield there from depends on a number of grounds and not only on the purity of the seeds. In the present case, it is not the grievance of the Complainant if there was less yield after the spray or the insecticide did not kill the insects properly. His contention is that his crop was burnt after the spray and the spray could be the only reason for the damage to the corp. The Appellants, therefore, cannot get any benefit on the basis of these authorities. 16. The learned counsel for the Appellants also referred to the case Monsanto India Ltd. Versus Balwan Singh and Others, First Appeal No. 2025 of 2003, decided by the Hon’ble State Commission, Haryana on 1.7.2010. In that case also some insecticide was purchased by the Respondent – Complainant and was sprayed on his crop for destroying ‘mandusi’, but it did not affect the same, upon which he complained of the sub-standard quality of the insecticide. Admittedly, his crop was not burnt due to the spray. A local commissioner was appointed in that case, but he was not an expert witness to utter any word with respect to the quality of the pesticide. The local commissioner did not even mention the khasra numbers and killa numbers, so as to arrive at a conclusion that the Complainant suffered any loss of his wheat crop and, therefore, even the identity of the fields of the Complainant was not established. No expert opinion was tendered in evidence and it was on the basis of these facts that the complaint was dismissed. This is not so in the present case. The khasra numbers of the land in which the cotton crop was sown is fully proved from the revenue record. The Complainant has produced his own affidavit and that of his co-villagers, who were supposed to know about the ownership of the land cultivated by him. They have fully proved that the Complainant had sown 20 killas of ‘narma’ [cotton crop], on which the insecticide was sprayed by him due to which the entire crop was burnt. In this manner, none of the authorities cited by the learned counsel for the Appellants is helpful to him. 17. The Complainant had also moved an application (Annexure C-17) on 24.9.2003 to the Numberdar of his village, requesting him to visit his land. On its basis, the Numberdar and several other persons visited the land and submitted a report (Annexure C-18), confirming the damage to his cotton crop due to the spray. The learned counsel for the Appellants argued that they were the co-villagers of the Complainant and would naturally support him. We, however, do not find any merit in his contention. We cannot brand every co-villager of the Complainant as unreliable person, especially when the Appellants have not been able to show any other reason for the damage to the cotton crop and the facts narrated by the Complainant are fully supported by these persons. 18. The Appellants have produced affidavits (Annexure R-13 to R-19) of some persons of different villages to say that they had also purchased Tracer insecticide from the dealer, which was sprayed on the cotton crop and they got good results. The name of none of these persons was mentioned in the reply filed by the Appellants if the insecticide was sold to any of them. The bill number and the batch number in all the affidavits was initially left blank and was filled up, subsequently, which shows that on the date when the affidavits were typed out, deponents had no bill number or the batch number of the insecticide. Had the bills been issued by 18.1.2006, the particulars would have been typed out in the affidavits, along with other matter typed therein. When the bill number and the batch number were entered, subsequently, these are not signed by the deponent. It shows that interpolations were made in all these affidavits to conform the same to the insecticide regarding which the present complaint was filed. When the OPs – Appellants indulge in fabrication of evidence in this manner, they make themselves liable to be prosecuted for fabricating evidence and even exemplary costs can be imposed on them. However, the learned District Forum dealt the Appellants with leniency and did not proceed against the Appellants under the provisions of criminal law. 19. It is also argued by the learned counsel for the Appellants that the compensation awarded to the Complainant is on the higher side. Again, we do not find any merit in this argument. The Complainant got the assessment of damage prepared from the Naib Tehsildar and it was assessed at Rs.3,23,133/-, vide report dated 21.12.2006, which is marked ‘A’. The learned District Forum allowed the said amount of compensation to the Complainant, which in our opinion is not excessive. 20. In view of the above discussion, we are of the opinion that there is no merit in these appeals and the same are hereby dismissed, with cost. The Appellants would jointly pay to the Complainant Rs.5,000/- as cost of litigation of this appeal, along with the other amounts allowed by the learned District Forum. 21. Copies of this order be sent to the parties free of charge. Pronounced. 14th October, 2010. Sd/- [JUSTICE PRITAM PAL] PRESIDENT Sd/- [JAGROOP SINGH MAHAL] MEMBER Sd/-
STATE COMMISSION (F.A. NO. 511 OF 2010) Argued by: Sh. Umesh Narang, Adv. for Appellant. Sh. R.S. Madan, Adv. for Respondent No.1. Sh. Manish Joshi, Adv. for Respondent No.2. Dated the 14th day of October, 2010. ORDER Vide our detailed order of even date recorded separately, this appeal filed by the OPs has been dismissed with cost of Rs.5,000/-. (JAGROOP SINGH MAHAL) (JUSTICE PRITAM PAL) MEMBER PRESIDENT
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (APPEAL NO. 512 OF 2009 ) Date of Institution: 08.02.2007 Date of Decision : 14.10.2010. De-nocil Crop Protection Pvt. Ltd., Unit No.1, First Floor, Corporate Park, V.N. Purav Marg, Chembur, Mumbai – 400071, through its authorized representative Sh. Jagdish Bodla. ……Appellant V e r s u sRam Kishan adopted son of Shri Arjan Dass son of Sh. Chaudhary Ram, R/o VPO Baruwali-I, Tehsil and District Sirsa. ....Respondent. M/s Gopi Chand and Company, shop No. 127, First Floor, New Mandi, Sirsa, through its Prop. ….. Proforma Respondent BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. SH. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Manish Joshi. Adv. for Appellant. Sh. R.S. Madan, Adv. for Respondent No.1. Sh. Umesh Narang, Adv. for Respondent No.2. PER JAGROOP SINGH MAHAL, MEMBER. 1. For orders, see the orders passed in Appeal No.511 of 2009 titled as ‘M/s Gopi Chand and Co. Vs. Ram Kishan & Anr.’. 2. Copies of this order be sent to the parties free of charge. Pronounced. 14th October, 2010. [JUSTICE PRITAM PAL] PRESIDENT [JAGROOP SINGH MAHAL] MEMBER Sd/-
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
