Punjab

StateCommission

FA/1215/2013

M/s Syngenta India Ltd. - Complainant(s)

Versus

Surinder Kumar and Others - Opp.Party(s)

Hemant Bassi & Sanyam Malhotra

24 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1215 of 2013

                                                           

                                   Date of institution: 11.11.2013 

                             Date of Decision:    24.2.2015

 

M/s Syngenta India Ltd., Amar Paradigm S. No. 110/11/3, Baner Road, Baner, Pune 411 045 through its authorized representative Karan Veer Nagpal, Zonal Sales Manager.

…..Appellant/OP No. 2

                                      Versus

1. Surinder Kumar son of Shri Sohan Lal, resident of Village Bazidpur Kattian Wali, Tehsil and District Fazilka.

…..Respondent No.1/Complainant

2. M/s Gopal Dass Ramesh Kumar, Mandi Road, Abohar through its Proprietor/Partner
3. M/s Shiv Narain Periwal & Sons, 2544, Mandi No. 1, Abohar through its authorized signatory (Distributor).

…..Respondent Nos. 2 & 3/Op Nos. 1 & 3

 

First Appeal against the order dated 2.8.2013 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

          For the appellant             :         Sh. Mehtab Singh, Advocate for

                                                          Sh. Hemant Bassi, Advocate

          For respondent No. 1       :         Sh. Harpal Singh, Advocate for

                                                          Sh. Peeush Gagnega, Advocate

          For respondent Nos. 2&3:          Ex.-parte.

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/Opposite Party No.2 (hereinafter referred as “OP No.2”) has filed the present appeal against the order dated 2.8.2013 passed by the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter referred as “the District Forum”) in consumer complaint No.629          dated 12.11.2012 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to the OP to pay to the complainant a sum of Rs. 94,000/- alongwith interest @ 8% p.a. from the date of complaint i.e. 12.11.2011 till realization alongwith litigation expenses as Rs. 5,000/-.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the opposite parties on the allegations that he is an agriculturist and used to take the land on Theka. The complainant had taken the land on Theka measuring 5 acres situated at Village Bazidpur Kattian Wali from Santro Devi and Gokal Chand on 20.3.2012 for one year for the period 1.4.2012 to 1.4.2013 and had sown the Narma Crop. For the betterment of the crop, he approached OP No. 1 and purchased 1 Kg ‘Syngenta Polo Spray’ for spraying in his fields in order to save the crops from the insecticides for which OP No. 1 had issued Bill No. 1300 dated 3.9.2012, which was manufactured by OP No. 2 whereas OP No. 1 is the authorised Dealer of OP No. 2. At the time of purchasing the said insecticide, OP No. 1 had assured that there will be complete satisfaction of the crop from insecticide and accordingly, the complainant had sprayed the said spray in his fields as per the instructions of the opposite party. However, after the spray the complainant found that the corners of the plants of the leaves had burnt and he moved an application before the Assistant Plant Security Officer, Abohar, who sent team of Doctors, who visited the spot and checked the crop and found that there was possibility of burning the whole leaves, which may cause difficulty in the development of the plants and grown up plants may be having loss in the yield to the extent of 30 to 40%. Moreover, this spray was not recommended by the Agricultural University. The plants had burnt due to the spray, sprayed by the complainant, purchased from the opposite party and number of other farmers, who purchased this spray, had also got their crop damaged. The complainant suffered loss to the extent of 40% in the yield, which comes to Rs. 1,31,600/- for 5 acres. Hence, the complaint with a direction to pay Rs. 1,31,600/-, compensation of Rs. 50,000/- and litigation expenses of Rs. 11,000/-.

3.                The complaint was contested by the Ops. Op No. 1 in its reply have taken the preliminary objections that the complainant was barred from his act and conduct to file this complaint; the complainant had no locus-standi or cause of action to file the complaint; the complainant had concealed the material and relevant facts before the Forum; the complaint has been filed just to cause un-warranted harassment to the OP; no pesticide/insecticide can be proved defective without analyse through a Government recognised Laboratory. On merits, it was admitted that the complainant had purchased the pesticide in question through bill No. 1300 dated 3.9.2012, which was manufactured by OP No. 2. OP No. 1 had sold this spray in a sealed condition. No assurance was given by this OP to the complainant as alleged by him. It was denied that the complainant had used the pesticide as per the precautions and preventions, which were required before spraying the said pesticide. As per the PAU instructions, the pesticide, which were not used according to the recommendations do not give the desired results. The permission to sell product in question was accorded by Director, Agriculture, Punjab, Chandigarh. The ADO who inspected the crop has not mentioned the Killa Number and no notice was given to the OP when the said inspection was done. Otherwise there is no report from any laboratory that the insecticide purchased by the complainant was not according to the prescribed standard. Complaint is without merit and it be dismissed.

4.                OP No. 2 in its reply have taken the same preliminary objections as taken by OP No. 1 whereas on merits, it has been admitted that the complainant had purchased the insecticide in question through Bill No. 1300 dated 3.9.2012, which was manufactured by this OP from OP No. 1, who is their Dealer. No such assurance was given by the OP at the time of purchase of the insecticide by the complainant. The complainant had not alleged in the complainant that he took all the precautions and preventions before spraying the spray in the fields. As per the instructions issued by the PAU, Ludhiana in case the pesticide is not used according to the recommendations then it does not give the desired results. The permission to sell this pesticide was accorded by Director, Agriculture, Punjab, Chandigarh. The ADO, who inspected the fields had not mentioned the Khasra Number and no notice was given to the opposite party and OP No. 1 at the time of inspection. There was no laboratory report that their insecticide is not according to the prescribed standard. The complaint is without merit and it be dismissed.

5.                OP No. 3 in its written reply have taken the similar preliminary objections as taken by OP No. 1. On merits, it was admitted that the complainant had purchased the insecticide in question vide bill No. 1300 dated 3.9.2012 from Op No. 1, manufactured by OP No. 2. Other averments are the same as taken by OP No. 1 and 2 in their written statement and ultimately, it was submitted that the complaint was without merit and it be dismissed.

6.                The parties were allowed by the learned District Forum to lead their evidence.

7.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, bill Ex. C-2, letter dt. 26.9.12 Ex. C-3, news Ex. C-4, empty bag Ex. C-5, contract deal Ex. C-6, jamabandi Exs. C-7&8, letter Ex. C-9, receipts Exs. C-10 & 11, original jamabandi Ex. C-12, bills Exs. C-13 to 15. On the other hand, the opposite parties had tendered into evidence affidavit of Vaibhab Ex. R-1, affidavit of Shailinder Singh Ex. R-2, affidavit of Sunil Kumar Ex. R-3, permission-cum-licence Ex. R-4, report of sample Ex. R-5, analysis certificates Exs. R-6 to 8.

8.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint was allowed by the learned District Forum as stated above on the basis of report given by the Assistant Plant Security Officer. With regard to Killa Number, the report itself shows that the team of Doctor had checked the land cultivated by the complainants. When the complainant was not having any residual sample then it was not possible to send the sample to the laboratory. The yield was less upto 40%, which was the result of spray of insecticide purchased from Ops.

9.                In appeal, it has been pleaded that the learned District Forum has not properly appreciated the pleadings and evidence on the record. It was the duty of the complainant to adduce evidence to support his case. There is no evidence produced by the complainant that insecticide purchased by the complainant was defective in any manner. It was not sent to any appropriate laboratory, which is the requirement of Section 13(1)(c) of the Act. The report of the Assistant Plant Security Officer cannot be relied upon as no opportunity was given to the appellant to associate with the said inquiry. The report of the ADO is also silent that the leaf of the plants was burnt due to use of Polo insecticide. There is no report of any Patwari or Tehsildar with regard to any damage(Kharaba) to the crop of the complainant, therefore, the District Forum has wrongly allowed the complaint. It was requested that the impugned order be set-aside and consequently, the complaint be dismissed.

10.              The complaint was filed by the complainant that he had purchased insecticide ‘Syngenta Polo’ 1 Kg. sprayed in his field; vide bill No. 1300 dated 3.9.2012, manufactured by Op No. 2. This fact has not been denied by OP Nos. 1 & 2 in their reply. However, the complaint is silent with regard to the location of the land and their Khasra Numbers. In para No. 2 of the complaint, it has been just mentioned that he had taken 5 acres land on Theka from Santro Devi and Gokal Chand for the year 2012-13 but documents produced on the record by the complainant are his own affidavit, Bill Ex. C-2, report of the Asstt. Plant Security Officer, press cutting Ex. C-4, Logo of Syngenta Polo Insecticide Ex. C-5. There is a writing dated 20.3.2012 Ex. C-6 vide which it has been stated that some 5 acres land was taken on Theka by Surinder Kumar from Santro Devi. Its perusal will make it clear that it is signed by Santro Devi and Gokal Chand, however, the name of Surinder Kumar is not appearing on this writing. However, this writing also does not give the detail of Khasra Number, which were leased out in favour of Surinder Kumar. Exs. C-7 & 8 is copy of Jamabandi which shows possession of Santro Devi. No other document was placed on the record, which may prove the possession of the complainant in any land in village Bazidpur Kattian Wali, therefore, in case there was no land in possession of the complainant then for what purpose he had purchased this insecticide for spray in these fields. Even the report of the Assistant Plant Protection Officer Ex. C-3 is also silent with regard to Khasra Number where the said crop was sown and inspected by the Team of Doctors, therefore, the complaint filed by the complainant is itself vague, does not give the proper particulars of the land in possession of the complainant or that the Narma crop was sown in that land. Even if for the sake of arguments, it is taken that there was five acres of land with the complainant or that he had sown the Narma crop, apart from the report Ex. C-3 we does not have any evidence that Narma crop sown by the complainant was sprayed with the insecticide purchased  from OP No. 1 or that the damage was caused to the crop with this insecticide. Even this report says that they recommend for quality check of the insecticide. Despite these findings given by the Team of Doctors, the said insecticide was not sent to the Laboratory. Even, if there is no remaining of the insecticide of the complainant, the insecticide of the same brand can be taken and could be sent to the laboratory for test. Even before this inspection was conducted by the Plant Security Officer, no notice was given to the opposite party, therefore, the report of the Plant Security Officer is also ex-parte. No person should be blamed un-heard. A reference has been taken from the judgment of the Hon’ble National Commission passed in R.P. no. 1451 of 2011 “Syngenta India Ltd. versus P. Chowdaiah, P. Sreenivasulu”, decided on 31^st July, 2013 wherein it has been held that “inspection without notice to Op is against the principal of natural justice and no reliance was to be placed on inspection report as it was not supplied to the Op to present his view on the report”. With regard to test under Section 13(1)(c) of the Act, a reference has been made to Revision Petition No. 131 of 2003 “National Seeds Corporation Ltd. versus Nalia Narsimha Roa” decided on 11.2.2009, wherein the Hon’ble National Commission had observed as under:-

“It is well settled by now that under Section 13 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), the burden to prove the deficiency, if any, on the part of the respondent, is on the complainant. Section 13(1)(c) provides that where a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtained a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction to make an analysis/test.”

11.              In the present case also, no such sample was sent to the laboratory and mere loss in yield to the extent of 30 to 40% as alleged in the report Ex. C-3 only to the insecticide there can be number of other circumstances, which may affect the yield. Therefore, we are of the opinion that the learned District Forum has not properly appreciated the facts on the record. Without any proper evidence, the onus of the same was heavy upon the complainant but the complainant has failed to bring on the record any cogent evidence to corroborate that the loss of the yield was due to spray of insecticide allegedly purchased from the Ops. In these circumstances, the order so passed by the learned District Forum is not sustainable in the eyes of law and liable to be set-aside.

12.              In view of the above, we accept the appeal. Impugned order is set-aside. Complainant has failed to prove on the record that loss to the yield of the complainant was only due to the alleged insecticide allegedly purchased by him from OP No. 1, manufactured by Op No. 1. Consequently, the complaint is also hereby dismissed.

13.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 25,000/- in compliance with the order dated 22.11.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

14.              The arguments in this appeal were heard on 19.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

15.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 24, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member