Date of Filing : 28.10.2011
Date of Order : 23.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 23rd APRIL 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 210 / 2011
Sri. K.N. Venkatappa,
Since dead his LR Sri. K.V. Nagaraj,
S/o. Late K.N. Vankatappa,
Aged about 57 years,
Kanajenahalli Village,
Chikkaballapur Taluk,
Chikkaballapur District.
(By Sri. M.G. Venkatareddy, Adv.) ……. Complainant
V/s.
1. The Chief Secretary,
State of Karnataka,
Vidhana Soudha,
Bangalore – 560 001.
2. The Deputy Director of Horticulture,
APMC Yard,
Chikkaballapur.
3. The Senior Horticulture Officer,
Department of Horticulture,
Chikkaballapur.
4. The Asst. Director of Agriculture,
Agriculture Department,
Chikkaballapur.
5. Cheminova India Ltd.,
No. 242-P, GIDC, Industrial Estate,
Pandi, Bharucha District.
Gujarath State.
6. The Extension Co-ordinator,
Horticulture Extension Unit,
NH-4, Tamaka,
Kolar.
7. Cheminova India Limited,
C/o. Sri. Raghavendra Enterprises,
No. 92/2, I Main, New Timber Layout,
Mysore Road,
Bangalore – 560 026.
8. M/s. Sri Lakshmi Agro Seeds,
MCC Trust Building, B.B. Road,
Opp. Indian Oil Bunk,
Chikkaballapur.
(By Sri. D.V. Vishwanatha Gowda, Adv. for
Ops 5, 7 & 8) …… Opposite Parties
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complaint made u/s. 12 of the C.P. Act seeking direction to the Ops 5, 7 & 8 to pay to the Complainant Rs.15,00,000/- are necessary:
Complainant has planted Grape garden in Survey Nos. 8/2, 81 & 126/1 of Kanajenahalli Village, Chikkaballapur Taluk since several decades. As usual he has planted grape garden in the said land this year also. OP5 is the manufacturer of the medicine, Ops 7 & 8 are its authorized dealers. Complainant purchased the said medicines from the said OP8. As per the instructions of Ops 5, 7 & 8, he has used the said medicines. Because of that, grape fruits crop completely damaged by way of black dots and due to the said fact crop at the time of yielding & harvesting totally damaged. Hence, Complainant requested the Ops 2 to 4 in this regard on 07.05.2011 to verify and issue certificate. Ops 2 to 4 verified and assessed the loss at Rs.8,83,000/- and issued the Certificate to that effect. Actual damage is Rs.15.00 Lakhs. In spite of repeated requests and demands no amount has been paid. Hence the Complaint.
2. In this case except Ops 5, 7 & 8 nobody else has contested the matter, though appeared & took time, did not file any pleadings and did not appear subsequently. Ops 5 & 7 had filed pleadings and OP8 has filed Memo stating that version of Ops 5 & 7 be read as their version. In brief the versions of Ops 5, 7 & 8 are:-
These Ops are one among several importers of chemical CIL ZEBB Cheminova Jibralick Acid which is the chemical usually used by grape growers at the time of yield. While selling the said material, Ops usually furnish the necessary literature as to how to use, how much to use (quantity) and the other specifications as to how and when to use it. The yield of the crop and the best result of the crop depends upon various factors like that of weather, manure, fertilizers, usual rains and unusual rains, the cloudy weather, use of quantity of the chemical, since even if it is used as a more concentrate, it will affect the crop so also even if the quantity is put less or diluted, then also it will not work properly and they are supposed to use it only as per the recommended grade & quantity, then only it will work effectively and properly. In the year 2011, Ops have sold sufficient quantity of Jibralick Acid at Chikkaballapur area, but none have complained anything till date. Complainant has invited several Government officials to inspect his crop, but not Ops for the reasons best known to him. No opportunity was given to the Ops. Government clearly opined that product of the OP is upto the mark and there is no fault whatsoever in respect of products of the Ops. All the allegations to the contrary are denied.
3. During the course of proceedings, Complainant died and legal representative came on record. To substantiate their respective cases, parties have filed their respective affidavits & documents. Arguments were heard.
4. The points that arise for our consideration are:
POINTS
(A) Whether there is deficiency in service ?
(B) What order ?
5. Our findings are:
(A) Negative
(B) As per detailed order for the following reasons
REASONS
6. In this case how the Ops 1 to 4 & 6 are necessary & proper parties to the proceedings? There is no answer. Complainant had no transaction with Ops 1 to 4 & 6. The entire grievance of the Complainant is OP5 is a manufacturer of medicines and Ops 7 & 8 are its dealers and he purchased the said medicine from OP8 and it has been used in his garden and there was a crop failure, that’s all. Here, there is no allegation of consumer & trader made between the parties i.e., Complainant on one side and Ops 1 to 4 & 6 on the other side. Complainant has not purchased any goods or availed any service from the Ops 1 to 4 & 6 nor Ops 1 to 4 & 6 have sold any goods or services to the Complainant with respect to medicines in question. Hence, Complaint as against Ops 1 to 4 & 6 is as bald as it could be and is not maintainable and it is misjoinder of necessary parties as rightly contended by the Learned Counsel for the Ops 5, 7 & 8 during the course of arguments.
7. In any consumer disputes, only parties who are to be impleaded are consumer & trader and nobody else. Consumer is a person who purchases any goods or avails any services for consideration and trader is a person who sells the goods or services for consideration. In this case, Ops 1 to 4 & 6 are neither consumers nor traders and they should not have been added as parties to the proceedings.
8. The contention of the Complainant is that he has not sought any relief against Ops 1 to 4 & 6. He may not seek any relief, but why they have been made as parties to the proceedings? There is no answer.
9. The entire grievance of the Complainant is that there was crop failure and he had given representation to Ops 1 to 4 & 6 and they gave certificate, that’s all. That means OPs 1 to 4 & 6 are at the most may be the witnesses to the Complainant and they cannot be made as parties to the complaint. None of the Ops 1 to 4 & 6 filed affidavit supporting the case of the Complainant. This we have to see while pursuing further.
10. Complaint is summarized supra and the same be read herein again. Complaint is as bald as it could be. It does not contain any material particulars. Complainant never stated in the Complaint on what date, for what amount, what medicine and from which of the Ops he has purchased the medicines and he further not stated that on what date he has put that medicine in his grape garden and how he has put that medicine and at what stage the crops were there and how much crops were there etc. Further Complainant never sated how the crop was damaged i.e., whether on the date of putting the medicine or subsequently on what date. All these things are not forthcoming in the Complaint. It is very bald. Even the affidavit is very bald. Hence, what relief we could grant? Even Complainant never stated what quantity of alleged medicine that he has purchased? How he has used it? When it was used? At what stage it was used? and how it was damaged etc.
11. Now let us look into documents produced by the parties. Complainant has produced Receipt No. 6270 & 9455 dtd. 17.05.2011 of the OP8. According to these Receipts, Complainant had purchased 10 Grams (1 Gram x 10 Pkts) each of CIL-GEBB, Batch No. 11C003 & 11A001 for Rs.389/- each. It does not say anything beyond that. It does not say these things were used in a particular fashion by the Complainant, on a particular date and particular time in his land in a particular manner. The deceased Complainant has not given any Complaint to any Authorities. It is his son K.V. Nagaraj, legal representative had given Complaint. He has given complaint on 07.05.2011 to the Asst. Director of Horticulture Department and not to any of the Ops making certain allegations. On that, the concerned have opined that crop at Chikkaballapur area might have been affected with CIL-GEBB chemical spraying and it was banned for some time subject to the result from the laboratory, that’s all. The Deputy Director of Agriculture on 23.05.2011 after analysis has given report which reads thus:
Form-XVII
See Rule 24
REPORT OF INSECTICIDE ANALYST
Laboratory No. | May 0017/11 |
Name and Address of the Insecticides Inspector from whom samples have been received | J. Vijayanarasimha Agricultural Officer, RSK, Kasaba, Chikkaballapur Taluk, Chickballapur District |
Serial No. and Date of Insecticides Inspector’s Memorandum | AO/KSB/PP/1-2/2011-12 dtd. 17/05/2011 |
Manufacturer Name: Human Biological Medicines Factory, China China |
Batch No: 11A001 Date of Manufacture: 15-01-2011 Date of Expiry: 14-01-2013 |
Date of Receipt : 19/05/2011 |
Name of the Insecticide purporting to be contained in the sample | Gibberllic Acid 90% W/w |
Condition of the seal on the package state whether- |
The sample was properly sealed and fastened | Yes |
The seal was intact and unbroken | Yes |
The seal fixed on the container and outer cover of the sample tallied with specimen impression of the seal separately sent by the Insecticides Inspector and | Yes |
The sample was in condition fit for analysis | Yes |
Date of the test or analysis | 23/05/2011 |
Result of the test or analysis with protocols of the test applied | AI%ByWt: 94.24 Conforms |
| IS NO: As per manufactures method |
VERIFICATION
I, certify that I have analysed / caused to be analysed the aforementioned sample and declare the results of analysis to be as above
Sd/-
Signed this on 23rd day of May 2011 K.H. Ravi
Deputy Director of Agriculture
(State Pesticide Testing Laboratory)
Bangalore
That means the chemical is 94.24% and it is good, that’s all. It does not say the medicine sold by OP8 is the root cause of all the damages caused to the Complainant or to anybody. The report does not say so. No expert has gone to the spot in the presence of Ops 5, 7 & 8.
12. Further Complainant has produced copy of Receipt dtd. 11.03.2011. This only shows it is issued by OP8 in the name of K.V. Nagaraj. Complaint is filed by K.N. Venkatappa and not by K.V. Nagaraj. K.V. Nagaraj came on record subsequent to the death of the complainant. K.V. Nagaraj had not filed the Complaint.
13. Complainant had produced RTC i.e,. Phahani with respect to his land for the year 2011-12. In all these RTCs, there is no crop that has been grown and no crop information is available in the land of the complainant. That means, complainant had not grown any crop in his land nor any crop was damaged. Under the Land Revenue & Reforms Act, there is presumption attached to this Phahani i.e., contents are true. Here regarding crop column, no information is there. It means there was no crop that was grown by the Complainant in his land at any point of time nor he has used the alleged medicine and crop was lost. No particular individual has gone to the land of the Complainant at any point of time and gave report stating that in the land of the Complainant these were the crops that were there and these were the crops that were damaged.
14. In any event, if there were to be any damage on using the material purchased from the OP8, Complainant when noticed the defects in his crop and he should have informed it to OP8 or OP7 or OP5, that has not been done. Why? Why he has not called Ops 5, 7 & 8 to his land and got spot inspection made by them? There is no answer.
15. During the course of arguments, the Learned Counsel for the Complainant submitted that the son of the Complainant is a very good politician command and lot of respects and statute in the Society. In such a situation, son of the Complainant would have called the concerned Ops to his land and got it verified and got relief, if at all he has sustained any damages, that has not been done. Everything has been done behind the back of the Ops 5, 7 & 8. Why? There is no answer.
16. Why OP5 has been impleaded as a party? Complainant has not purchased anything from him. There is no privity of contract between OP5 and the Complainant. Hence, it is bad for misjoinder of parties.
17. Here, there is no document to show that the Complainant has used particular material obtained from particular Ops, on a particular date, for particular land and particular crop has been damaged, either on the very date or a particular time later and called Ops 5, 7 & 8 and informed them and showed them the damaged crop, that has not been done. Hence, it is not possible for us to hold that Ops 5, 7 & 8 are responsible for any damage.
18. There is no document to show that Complainant had grown or raised grape in his particular Survey Nos. RTC is blank. Even expert opinion is not there to show that grape in the garden of the Complainant had been damaged owing to particular material purchased from the particular Ops and used in the land of the Complainant in a particular date.
19. In any event, all these things require detailed pleadings, detailed evidence, cross examination, in depth, scrutiny of the evidence, this cannot be done in a summary way. Hence, if the party is aggrieved, if he is entitled to advised so, he may approach Civil Court seeking appropriate relief for which this Order will not come in the way. Hence, we hold the point accordingly and pass the following order:
ORDER
1. Complaint is dismissed.
2. Send copy of the Order to the parties concerned free of cost.
3. Return extra sets to the parties concerned under Regulation 20(3) of Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 23rd day of April 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
