A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

 AT HYDERABAD.

F.A.  623/2007  against C.D  238/2003, Dist. Forum, Nellore.   

Between:

M/s. Krishnaveni Feeds

Rep. by  two of its partners

1.  Dandamudi Venkata Ramesh

Chandra  Chowdary, Age: 49 years.

2.  Chava Bala Suresh, Age: 49 years

Manufacturers of Prawn/Fish

Cattle  Poultry Feed, Dandamudi

Ponnur Mandal, Guntur Dist.                               ***                         Appellants/

                                                                                                 O.Ps.

                                                                    And

T. Subba Rami Reddy

S/o. Balakrishna Reddy

Age: 54 years, Agriculturist

R/o. Tallapudi Village

Muthukur Mandal

Nellore Dist.                                                 ***                        Respondent/

                                                                                                 Complainant.      

Counsel for the Appellant:                          M/s. S.S.R. Murthy

Counsel for the Resp:                                  M/s. S. Harinath Reddy  

CORAM:

      HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

    SRI SYED ABDULLAH, MEMBER

&

    SRI  R. L. NARASIMHA RAO, MEMBER

MONDAY, THIS THE NINETEENTH DAY OF OCTOBER TWO THOUSAND NINE.

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                This is an appeal preferred by the opposite party  against the order of the Dist. Forum directing  it  to  pay Rs. 4,05,000/-  together with interest @ 9% p.a., and costs.

2)                 The case of the complainant  in   brief is that  he engaged in  prawn culture in about 20 acres in  Tallapudi village.   On the representation of the appellants  manufactures of  aqua   feed,  known as  “Captain Scampi  Feed”  he purchased on paying its price  from November, 2000  to   March, 2001.  He found that  feed  supplied was  of  inferior  quality.   There was no growth in the  prawn.  When complained they sent a technician,  who opined that the stunted growth was  on account of climatic conditions  and that there was no problem with feed and asked him to  wait for some more  time for good results.  Though  he waited as  there was no improvement, he  again complained,  on which a technician was sent who advised him to use some chemicals.   While normal period was  5 to 5-1/2 months,  he waited for 11 months.  However,  there was no growth.   When he contacted,   the neighbours who  raised the prawns obtained from  different companies,  were of the opinion  that it would be better to  dispose of the prawns as  no useful purpose would be served,   if the same could be kept. In  order to clear his doubt  he  took one packet of feed  No. 4  supplied by the appellant  to  M/s. Italab Pvt. Ltd. an Industrial Testing and  Analytical  Laboratories at   Chennai,  for testing.  It was analysed  on  4. 2.2002.   As against  protein continent   30 it contained 19.82 so also  as against Fat of 3.5,  on analysis it was found 3.09,  while the fibre contained 5.41 as against 8.     On that  he issued a registered notice,   for which there  was no reply.    He cleared all the pond within 10 days and sustained loss. of Rs. 4,05,000/-.   Therefore he claimed  Rs. 4,05,000/-  besides costs of  Rs. 6,000/-. 

3)                 The appellants resisted the case  while admitting that the complainant purchased  prawn feed  from  4.11.2000 to 25.10.2001  nearly  for one  year on credit basis, and  that he fell due to a tune of Rs. 93,841/- as on  24.10.2002.   When he did not pay,   it got issued a legal notice on  27.11.2002  demanding  him to  pay  the  amount  together  with  interest  within  a  week.    

After receipt of the notice,  the complainant  gave the  notice  to counterblast  the claim made by it.   None of the farmers who  had purchased the feed manufactured by it had ever complained.    It was  supplying the feed to  East and West Godavari districts  and other areas where  no complaint was ever made.    The complainant did not furnish the data and the quantity of feed purchased  month-wise and in whose presence  the sample was drawn to send it to analysis.    The  Area Manager  who was looking after the feed supplied by them  never received any complaint.   Since the complainant  fell  due, it  had  stopped  supplying  the  feed  from  25.10.2001.     In fact  651 farmers of  Nellore  district  purchased the feed weighing  about  5,47,400 Kgs. Viz., 21,896 bags of feed  and none of them  had complained.   The complainant does not come under the definition of ‘consumer’  and therefore prayed for dismissal of the complaint with  exemplary costs. 

4)                 The complainant in proof of his case filed affidavit evidence and got Exs. A1 to A9 marked, while the appellants filed Exs. B1 to B3.

5)                 The Dist. Forum after considering the evidence placed on record opined that  admittedly the complainant had purchased  prawn feed from the appellant manufacturing company  and that certificate of analysis Exs. A5 & A9  issued by  M/s. Italab  Pvt. Ltd., Industrial Testing & Analytical Laboratories,  Chennai and Central Institute of  Fresh Water  Aquaculture, Bhubaneswar opined that the feed did  not conform to the standards  mentioned on the packet and therefore opined that  there was deficiency in service  allowed the complaint granting  Rs. 4,05,000/-  together with interest @ 9% p.a.,  and costs.

6)                 Aggrieved by the said order, the appellants, the  manufacturers  preferred the appeal contending that the Dist. Forum did not consider that the complainant was not a consumer,   he having engaged  in commercial business  by raising prawn  in an extent of about 20 acres.  The sample that was sent to various  laboratories  were sent behind its back, and without informing it.    Despite the fact that Central Institute of  Fresh Water  Aquaculture, Bhubaneswar  mentioned that on analysis it contained  more protein  still  the said report was not considered in  correct  perspective.    Importantly  the affidavit evidence filed by them of  various farmers  were not considered, and therefore it prayed that the complaint be dismissed with costs. 

7)                 The point that arises for consideration is whether the appellant  had  supplied defective  prawn feed  and therefore liable to pay compensation?  If so, to what amount?

8)                It is an undisputed fact that the appellant is a manufacturer of  prawn feed.  It supplied prawn feed to the complainant between  4.11.2000 and  25.10.2001 for a price not only evidenced under  copy of account  Ex. B1 maintained by the appellant firm but also bunch of receipts  Ex. A6 and A8. 

9)                It is not in dispute that the  appellant company  in the first instance  issued registered  notice on  27.11.2002  demanding Rs.  93,841/-  due by him.  After receipt of  said notice, the complainant  sent a lawyer notice  Ex. A3  on 7.12.2002  alleging defect in the prawn feed supplied by the appellant.    The version of the appellant/manufacturer  that it sold  5,47,400 Kgs  viz., 21,896 bags of feed to  651 farmers  of   Nellore  District  mentioned in the list Ex. B2 furnished by it was not  disputed.    In fact, the appellant had filed   nine affidavits of  third parties who had purchased the  prawn feed,  having lands adjacent to the complainant.   The complainant did not dispute

that they did neither purchase  nor raise the prawn.  Since they are neighbouring ryots  he could have questioned their veracity.  The complainant except his self serving  affidavit evidence,  did not file  any  of the affidavits  of the farmers,  who had used the  feed manufactured by the appellant,   mentioning  that they sustained loss.   Evidently, the complainant  has been purchasing the seeds  for a period of  almost one year  from 4.11.2000 to 25.10.2001.  More than one  year  and that too after receipt of  the demand notice from the appellant,  he gave a notice and then filed the complaint.

10)              Obviously, to get over the payment due by him, he himself  personally went to  Chennai, handed over a  sample to  M/s.  Ita Lab Pvt. Ltd., an Industrial Testing and  Analytical  Laboratories at   Chennai for testing.  He did not inform the appellants about it.     The certificate reads that  it was personally handed over by the complainant to it.    There was no mention as to the batch number and  other  particulars  from  where  the  complainant  had  drawn  the   sample.  In fact, the appellant suspects  that the sample could have been  of  a  different  company and  at any rate there is no proof that the sample was drawn from the feed supplied by it.    The  analysis or the  sample shows that  as against protein of 30% it contained 19.82% so also  as against Fat of 3.5% on analysis it was found 3.09%  while the fibre as against 8%  it contained 5.41% . Later the complainant sent it to Central Institute of  Fresh Water  Aquaculture, Bhubaneswar.  The Dist. Forum  received Ex. A9 the analysis report.  It showed  the following percentages:

                             Protein        40.84

                             Fat              0.55

                             Fibre           3.14

This report is also without notice to the appellant.  Since it conforms more than the requisite percentage the Dist. Forum by queer  reasoning opined that “generally the manufacturer  did not manufacture  the excess  contents  than what was printed  on the feed bag.  The complainant  contended that due to deterioration also there will  be change of  the contents of the protein.    It is the bounden duty of the opposite parties  that the feed which was  supplied  shall contain 30% of protein, 3.5% of fat, 8% of fibre.  But the  contents  of the sample which was sent to  M/s. Italab  and Central Institute of Freshwater  Aquaculture  are not tallied.  So it is evident that the feed, which was supplied by the manufacturer  opposite parties  to the complainant is inferior quality.”      

11)               We reiterate  that when both the samples were sent to analysis,  it was not intimated to the appellant.   It is not in dispute that the complainant in the light of discrepancy more when the later report was against him  filed  I.A. No. 83/2006  to send the sample  in the presence of both  parties to analysis.   The Dist. Forum allowed the petition  directing the complainant to deposit requisite fee of Rs. 5,000/-.   Since the complainant did not deposit the said amount, the petition was dismissed.   This conduct would tell tale as to why the complainant did not choose to send.  He was afraid that it would confirm to the standards prescribed  on the feed packet.  Necessarily an adverse inference has to be drawn against this conduct. 

12)               Learned counsel for the appellant contended that the avocation of the complainant  is  aquaculture, and therefore he  cannot be termed  as consumer.  The Supreme Court   opined that he cannot be termed as  agriculturist.   However, the applicability of  the Consumer Protection Act is not restricted to agriculturists.  We do not know from where he got this idea.   We may state that  if a manufacturer supplies  defective feed  he would undoubtedly comes within  the jurisdiction of  Consumer Fora.   Consumer need not be a farmer.   More over  he was raising the prawn by himself obviously for his livelihood,  and  it cannot be termed  that it was for commercial purpose.    .

13)              To sum up the complainant for the first time complained the deficiency in prawn feed  only after receipt of  notice claiming the amount due to it  by the  appellant/manufacturer.  For a period of one year,  the complainant  did not allege anything  against the manufacturer.    Belatedly,   without  re-coursing to the appellant he himself personally handed over the sample for analysis.   It is not known whether  the sample supplied was that of the feed supplied by the appellant.   Equally  so, the sample that was sent to  Central Institute of  Fresh Water  Aquaculture, Bhubaneswar  under Ex. A9.   The Dist. Forum ought not to have sent without informing the same to the appellant.   At any rate when the complainant wanted the sample to be sent  in the presence of both the parties  by a  petition in I.A. No. 83/2006  he did not choose to deposit the amount in order to get it analysed.    This conduct would undoubtedly show that all through the complainant was gathering or rather creating evidence,  without reference to the appellant/manufacturer.    This conduct of the complainant was not conducive of  fair play.  He never asked the manufacturer to send  its representative   to  take  the  sample  in  order  to  send  it  to  analysis.    The affidavit evidence  of neighbouring farmers was never disputed.   There was no complaint from any quarter. May be that  it cannot be a ground, still the complainant did not examine  any of the neighbouring farmers  in order to prove that  the feed supplied by the appellant was defective,  and that they  could not get requisite income.    The Dist. Forum believed  whatever documents that were  filed by the complainant.  It did not consider  the contention of the manufacturer nor its documents and  allowed the complaint.    The  order of the Dist. Forum is unsustainable.    We do not see any merits in the complaint.

14)               In the result the appeal is allowed setting aside the order of the Dist. Forum.   Consequently the complaint is dismissed.   In the circumstances of  the case there shall be no order as to costs.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

                                                                                      Dt.  19 .10. 2009.          

*pnr

“CORRECTED – O.K.”