Tamil Nadu

Nagapattinam

CC/21/2014

R.Ganeshan - Complainant(s)

Versus

The Proprietor, Shri Iyyan Agency and One another - Opp.Party(s)

In Person

28 Nov 2014

ORDER

   Date of Filing      : 05.05.2014

                                                                                         Date of Disposal : 28.11.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

CC. No.21/2014

 

DECIDED ON THIS 28^th DAY OF NOVEMBER  2014.

 

R.Ganesan

S/o Ramajayam

No.39,Balasubramaniyapuram,

Thandavankulam, Sirkali Taluk,

Nagapattinam District.                                             …      Complainant

                                                                                                  

                                                                /versus/

                                  

1. Proprietor,

     Sri Iyappan Agencies,

            Urea and Fertiliser seller,

            Sirkali.

2. Proprietor,

     Santhirakala Seeds,

            Kandithampattu,

            Sirkali.                                                                        … Opposite parties

 

                 

 

            This complaint having come up for final hearing before us on 20.11.2014 on perusal of the material records and on hearing the arguments of Thiru.R.Ganesan, Party in person, Thiru.R.Karthikeyan Counsel for the 1^st opposite party, Thiru.P.R.Rajendran, counsel for the 2^nd opposite party and having stood for consideration, till this day the Forum passed the following

 

 

 

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

                        2. The gist of the complaint filed by the complainant is that he purchased 2Kgs of TMV-3 Gingili seeds for sowing in his land, but there was total failure of germination of seeds and not even a single seed germinated. When informed the 1^st opposite party, of the failure of  the germination of the seeds sold by him, he offered to inspect the field, but was evaisve without doing it that he spent the sum of Rs.2,500/- towards cultivation.  There was loss of income of about Rs.54,000/- as the gingili cultivation could have yielded 3 Quintals of gingili to that value and it is deficiency of service on the part of the 1^st opposite party and despite many demands made to him in person, there was no response on his part.  Hence the complainant issued a notice on 20.03.2014, claiming  Rs.1,00,000/-  towards compensation but the opposite party had not sent a reply in spite of the receipt of the notice. The 2^nd opposite party is added only as a proforma party since he is the manufacturer of the seeds as printed in the bag containing the seeds.  Therefore the complainant prays for an order to direct the 1^st opposite party to pay the compensation of Rs.1,00,000/- along with the sum of Rs.29,100/- being the cultivation expenses inclusive of the cost of the Gingili seeds, along with Rs.5,000/- towards cost of this litigation.

                        3. The gist of the written version filed by the 1^st opposite party is that the seeds sold by the 1^st opposite party would not have germinated even if the agricultural operations such as the ploughing, weeding, sowing and watering was not done properly. There is no deficiency of service on the part of the opposite party.  The complainant has to first of all prove that it is the gingili that is sold by the 1^st opposite party which is alleged to be  sown by the complainant in his land.  The opposite party did not send a reply as the complainant himself over phone contacted the opposite party and informed him that he had sent a notice without properly sowing the seeds and therefore he would not take any action in that regard.  Subsequently as the complainant asked for 5 bags of Urea on credit basis and as the 1^st opposite party refused to give on credit basis the enraged, complainant has filed this complaint. The opposite party has supplied only the good quality of seeds of gingili duly certified by the Seeds Certification Officer of the office of the Assistant Director of Seeds Certification, Thanjavur. The complainant ought to have sent a sample of the gingili seeds sold to him to the seeds Certificate Officer, Thanjavur and get a certificate regarding the power of germination the said seeds.  The complaint is also bad of non-joinder of the seeds Certification Officer of Thanjavur. The complaint is therefore liable to be dismissed.

                        4. The gist of the written version filed by the 2^nd opposite  party is that there is no relationship or connection between the complainant and the 2^nd opposite party.  The complainant has not proved that he actually sowed the seeds that was contained in the Exhibit A5 as certified by the seed Certification Officer.  The seeds Certification Officer has given 80% of germination power to the seeds purchased by the complainant. As many documents have contained the Forum’s seal dated 17.04.2014, it is doubtful whether the present complaint is the real complaint presented by the complainant before this Forum.  Further there is no relief as against the 2^nd opposite party and hence the complaint is liable to be dismissed as agaist him.

                        5. The complainant has filed his proof affidavit reiterating all the averments made in the complaint and has filed 8 documents which are marked as Exhibits A1 to A8 to establish his claim. The 2^nd  opposite party has filed his proof affidavit in support of his defence and has filed 3 documents which are marked as Exhibits B1 to B3 and the 1^st opposite party filed his proof affidavit and filed 3 documents which are marked as Exhibits B4 to B6.  The written arguments are filed by the complainant and the 1^st opposite party.

6. Points for consideration:-

1. Whether there is deficiency of service on the part of the 1^st opposite party?

                                     2. Whether the complainant is entitled to any relief? If so to what?

                        7. Point 1: The main allegation of the complainant is that not even a single seed out of the 2 Kgs of gingili seeds purchased by him from the 1^st opposite party to sow in his land had germinated.  The main contest taken by the 1^st opposite party is that the complainant has failed  to prove that he sowed the very gingili seeds purchased from the 1^st oppoist party in his land. His another contention is that there are every so many reasons such as the improper maintenance of his land for cultivation, lack of proper ploughing, watering, etc, also might be the reason for the alleged failure of germination of the gingili seeds.  The 2^nd opposite party has raised the contention in the  6^th paragraph of the written version that, many documents of the complainant are having the office seal dated 17.04.2014 on them and the complaint is having the office seal dated 30.04.2014 which creates a doubt as to whether the complaint dated 30.04.2014 is the genuine complaint filed by the complainant or it has been improvised subsequently.  At this juncture this Forum points out that the complainant originally sent  complaint in manuscript under the registered post and it was received by this Forum on 17.04.2014.  But  the said complaint was returned to him by this Forum on 19.04.2014, for compliance with certain defects.  In order to clarify the doubt raised by the 2^nd opposite party the said original complaint sent by the complainant under registered post and received by the Forum on 17.04.2014 is filed as Exhibit A8 and susequently he had presented the present complaint on 30.04.2014 afresh.

                       

8.  The complainant is cross examined by the 1^st opposite party and vice versa.  The complainant in the course of his cross examination of the 1^st oppoiste party has confronted him with respect to the 1^st opposite party’s allegation that the complainant demanded 5 bags of Urea on credit basis and as the 1^st opposite party refused to oblige him, he had filed this complaint with  ulterior motive, by pointing out that  the complainant had already sent a complaint as early as on 15.04.2014  itself,  that is with in the period of less than a month from the date of sowing of the gingili seeds  and that itself would falify the said allegation as the complainant could not have asked for 5 bags Urea with in the short time from the date of cultivation of the gingili seeds and the very demand for 5 bags of Urea alone for the alleged re cultivation of the gingili seeds is false in itself as no farmer would use urea alone for such recultivation.   The Exhibit A8 would go to show that as early as on 17.04.2014 itself the complainant had sent the complaint in manuscript under the registered post as established by him.  The 2^nd opposite party the manufacturer of the seeds has filed  the Exhibit B4, the certificate given by the seed certification officer of Thanjavur in which the power of germination is given as 80% and Exhibit A6 also has confirmed the germination power of the gingili seeds purchased by the 2^nd opposite party.  In such circustances this Forum requires concrete proof for the allegation of the complainant that there was total failure of germination of the gingili seeds sold by the 1^st opposite party and that not even a single seed had germinated in his field. 

9. The complainant’s contention is that he did not cultivate any crops at all during the season subsequent to the total failure of germination of gingili seeds.  The complainant has failed to substantiate his allegation that not even a single seed sold by the 1^st opposite party had germinated in his field.  While the complainant has sent his earlier complaint in manuscript as early as on 17.04.2014, he would have taken steps to prove his contention by causing the inspection of his field to prove that there was total failure of germination of the gingili seeds sold by the 1^st opposite party. Admittedly the seeds were purchased on 06.03.2014  and the age of the crops of gingili for harvest is 90 days.  He might have taken steps for oppointment of an advocate commissioner to inspect the field to note down, whether there was germination of any gingili or not.  The answer by the complainant to the question put forth by the Forum in that regard is that he dit not know about the procedure for oppointment of an Advocate commissioner to inspect the field.  For the another question put forth by the Forum to the complainant as to why  he failed to get the photo of the land by way of photograph or videograph to prove before this Forum that there was no germination at all in his field, he has given an evasive answer that he caused the inspection by the Village Administrative Officer who has given a certificate in Exhibit A4 and that is why he had not taken such steps to get the land in photographed  or videographed

10. The cultivation of expenses of the gingili crops is very low as pointed out by the complainant, himself Exhibit A8. Ïis¢rt‹ vŸ éij¡fD« (The best and least expensive cultivation for the poor agriculturists is gingili). The complainant whose  alleged loss of income is owing to the failure of germination  might have pursued re-cultiation by purchasing fresh gingili seeds and sowing them.  Therefore for the 1^st question put forth by this Forum to the complainant to that effect the latter has replied that owing  to the mental agony in consequence of the total failure of germination of the gingili seeds he had not chosen to recultivated in that season.  But the said answers are not acceptable ones. No doubt the complainant has filed Exhibit A4 the certificate given by the Village Administrative Officer who has stated that the complainant raised gingili crops in survey no.262/2A but the gingilies did not germinate.

                      

11. The learned counsel appearing for the 1^st opposite party contended that the said Exhibit A4 can not be relied upon as concrete proof of the alleged total failure of germination of the gingili seeds, since the Village Administrative Officer who issued the said certificate has not filed any proof affidavit and subjected himself  to cross examination by the 1^st opposite party with respect to the Exhibit A4 and the said document can not therefore be relied upon as the valid documentary evidence.  The certificate given by a living person can be received as evidence only when that person himself has been examined and subjected to cross examination by the adverse party.  Though the Forum is following summary procedure, the main issue in question is whether there is total failure of germination of seeds in the complainant’s land.  The said certificate being a material one and relied upon by the complainant could not be accepted as valid evidence in as much as the said Village Administrative Officer has not filed a proof affidavit before this Forum so as to get himself subjected to cross examination by the 1^st opposite party.  The complainant had taken steps to summon the said Village Administrative Officer to be cross examined before this Forum but in vain and he has filed a memo stating that the whereabouts of the said Village Adminstrative Officer is not known as the Village Administrative Offficer is no longer in service.

                        12. Exhibit A1 is the proof for the purchase by the complainant the gingili seeds from the 1^st opposite party, Exhibit A2 is the office copy of the notice sent by the complainant to the 1^st opposite party, claiming compensation for the deficiency of service on his part, Exhibit A3 is the receipt of the said notice by the 1^st opposite party, Exhibit A4 is the certificate given by the Village Administrative Officer, Thandavankulam, Exhibit A5 is the bag which contained the 2Kgs of gingili seeds sold by the 1^st opposite party to the complainant, Exhibit A6 is the bill for the purchase of some other pestisides from the 1^st opposite party by the complainant, Exhibit A7 is the label giving the particulars of packing and expiry date of the gingili seeds sold by the 1^st opposite party and  Exhibit A8 is the 1^st complaint sent by the complainant in manuscript to this Forum under registered post.  Exhibit B1, the extract of the seeds certification register  maitained by the said certification officer, Exhibit B2 is the particulars of result of seeds test issued by the said certification officer and the Exhibit B3 is the certificate of the gingili seeds and the manufacturer’s card authorising  the  sale of the seeds are filed on the side of the 2^nd opposite party.  The Exhibit B4 and B6 filed by the 1^st opposite party are nothing, but the very same exhibits B2 and B1 respectively, filed by the 2^nd opposite party, Exhibit B5 is the Format containing the particulars specifing the ratio of minimum power of germination for various seeds.  The gingili seeds sold by the 1^st opposite party has been certified by the competent seed certification officer to be having of 80% of power of germination. Further there is no evidence that any another agriculturist has made such complaint of failure of germination of the gingili seeds sold by the 1^st opposite party.  Since the complainant has failed  to prove his allegation that there was total failure of germination of gingili seeds sold by the 1^st opposite party and his conduct in not cultivating the land for that season by getting, fresh gingili seeds for re  cultivation, which is unbecoming of an  agriculturist whose sole source of income of livelihood is agriculture, this Forum could not give a finding that  there is deficiency of service on the part of the 1^st opposite party.  However having received a notice from the complainant under the registered post containing the allegations that there was total failure of germination of the gingili  seeds sold by him to the complainant, the opposite party ought to have sent a suitable reply to the complainant.  His failure to send a reply to the complainant alone is found to be deficiency of service on his part by this Forum.

                       

13. Point 2: In the result, the complaint is dismissed.  But the 1^st opposite party is directed to pay the sum of Rs.2,000/- (Rupees two thousand only) to the complainant for not sending a reply to the original of Exhibit A2, the notice sent by the complainant to him under registered post with acknowledgment due, within 30 days from the date of this order, failing which the said amount shall carry an interest at te rate of 12% per annum from the date of this order till the date of its realization.

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  28^th day of  November 2014.

 

 

    MEMBER I                                    MEMER II                                      PRESIDENT

List of documents filed by the complainant

 

Ex.A1/Dt.  Nil            : The receipt for the purchase of Gingili seeds by the complainant

   from the 1^st opposite party

Ex.A2/Dt.20.03.2014: The Xerox copy of the notice sent by the complainant to the 1^st

    opposite party.

Ex.A3/Dt.20.03.2014: The receipt of the said notice by the 1^st opposite party.    

Ex.A4/Dt.Nil                : The certificate given by the Village Administrative Officer to the

     complainant.

.Ex.A5/Dt.Nil             : The bag which contained the 2Kgs of gingili seeds sold by the 1^st

   opposite party to the complainant.

Ex.A6/Dt.28.11.2013: Bill for Purchase of some other pestisides from the 1^st opposite

   party by the complainant.

Ex.A7/Dt.Nil              : The label giving the particulars of packing and expiry date of the

    gingili seeds sold by the 1^st opposite party.

Ex.A8/Dt.19.04.2014: The earlier complaint filed by the complainant before this Forum.

 

List of documents filed by the oppoisite parties

 

Ex.B1/Dt.02.12.2013: The xerox copy the extract of the seeds certification register

    maitained by the seeds certification officer, Thanjavur.  

Ex.B2/Dt.23.12.2012: The xerox copy of  the particulars of result of seeds test issued by

    the seeds certification officer, Thanjavur.

Ex.B3/Dt.07.01.2013: The xerox copy of the certificate of the gingili seeds and the

   Manufacturer’s card of the 2^nd opposite party.

 

Ex.B4/Dt. 23.12.2012: The xerox copy of  the particulars of result of seeds test issued

    by the seeds certification officer, Thanjavur.

Ex.B5/Dt.07.01.2013: The xerox copy the seed test report specifing the minimum power

   of germination for various seeds, issued by the seeds certifiction

   officer

Ex.B6/Dt. 02.12.2013: The xerox copy the extract of the seeds certification register

                                         maitained by the seeds certification officer, Thanjavur.

 

 

 

 

    MEMBER I                                    MEMER II                                      PRESIDENT

 

 

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.21/ 2014

Order Dt.:28.11.2014.