R.S. Sharma, President:
1. The complainant Shamsher Singh, has filed this complaint under Section 17 of the Consumer Protection Act, 1986 seeking compensation of Rs.70,00,000/- for decrease in production on account of sale of adulterated and sub standard quality of white potash, Rs.12,00,550/- for loss suffered in Drip System, Rs.4,00,000/- towards compensation for mental agony along with interest @ 9% p.a. i.e. Rs.11,07,074/- totaling Rs.97,07,624/-.
2. The complaint of the complainant in brief is that : the complainant is an educated farmer. Agriculture is only source of his livelihood. The complainant is carrying agriculture activities with the help of his brother Jitendra Singh and other family members. The complainant has obtained 45 acres agricultural land on rent from Chawla Krishi Farm, Mandir Hasaud (Riko Road) and is carrying agriculture activities. O.P.No.1 is a company registered under Indian Companies Act, 1956 and it is manufacturer of white potash fertilizer, O.P.No.2 is regional office of O.P.No.1 in Chhattisgarh State and O.P.No.3 is dealer of the O.P.Nos.1 and 2. The O.P.No.3 is dealer of the O.P.Nos.1 and 2, therefore, for any act done by the O.P.No.3, the O.P.Nos.1 and 2 are liable. On 30.10.2012, the complainant purchased near about 240 bags of white potash fertilizers from O.P.No.3. Each bag was containing 50 kgs of white potash fertilizer and a sum of Rs.2,04,000/- was paid by the complainant to the O.P.No.3. In the month of November, 2012 the complainant spread/sprinkled white potash fertilizer in his field and thereafter he irrigated the land through Drip System. After 10-15 days, the complainant came to know that some black particles were mixed in white potash fertilizers, on account of which the drip system was choked and the field of the complainant could not be suitably and properly irrigated and for want of adequate irrigation, the growth of the plant was affected and the productivity of the crop was also affected. The agricultural operation is carried out by the complainant in 45 acres of land and in the month of November, 2012 he sown banana plants in 40 acres of land, out of which crop of banana of 25 acres suffered heavy loss due to adulteration in the white potash and the banana plants which were grown in remaining 15 acres of agriculture land were not developed for giving fruit. Thus, the banana plants, which were grown in the 40 acres of land of the complainant damaged completely and drip system was also closed after choking and was not suitable for irrigation. The complainant sent information Regional Chief Head of O.P.No.2 Shri Rajeev Kapoor regarding the adulteration in the white potash and by use of it, it badly affected the production and defect in the drip system. Rajeev Kapoor along with other officers of the I.P.L. Company came to the agriculture farm of the complainant and opened the bags of white potash and saw that a black colour particles was there and assured the complainant to compensate him, but the O.P.Nos.1 and 2 had not taken any action. The complainant sent complaint to Deputy Director (Agriculture), Government of India Agriculture Department and Agriculture and Cooperative Department, Chief Minister Chhattisgarh Government, and Chemical and Fertilizer Ministry, Fertilizer Department and the matter was taken into Chhattisgarh Legislative Assembly as Dhyanakarshan Suchna Kramank 301 and the Deputy Director, Horticulture, Raipur was directed to give his report and the matter was also published in the daily newspapers. The Deputy Director, Horticulture examined the white potash and found it as unfit for using as fertilizer and of sub standard quantity. The complainant sent white potash for laboratory test to Maharashtra Rajya Draksha Bagaitdar Sangh, Pune from where report was received in which it is mentioned that quantity of potash was found less by 10% i.e. 52.58% whereas the quantity of Potash should be 61 to 62% and thus on account of sub standard quality and adulterated potash the complainant suffered loss which has been mentioned in relief clause of his complaint at para 19 regarding which the complainant contacted the OPs but they had not taken any action and therefore, the complainant was required to file complaint. Therefore, the complainant prayed for granting compensation as mentioned in para 19 of the complaint.
3. O.P.Nos.1 and 2 have filed their written statement jointly and averred that the complainant does not come in the category of œconsumer? and therefore this complaint is not maintainable and the relief sought by the complainant is of civil nature and can be adjudicated only by way of civil suit. Under the provisions of Indian Companies Act, 1956 a complaint can be instituted only through a Company Secretary, therefore mis-joinder of the parties is present in the complaint. The complainant is carrying agriculture activities by taking agriculture farm on rent from which it is clear that the complainant is working for the commercial purpose therefore, he does not come in the category of consumer as defined in Consumer Protection Act, 1986. The O.P.No.1 is not manufacturer of white potash fertilizer. The O.P.No.1 is a Joint Stock Company under Government of India, which is importing fertilizers under policy of Government of India and sell / distribute the same in various states under the provisions of Fertilizer Control Order, 1985. O.P.No.2, is regional head of the O.P.No.1 but the O.P.No.3 has not been authorized by the O.P.No.1 and 2 under Indian Companies Act, 1956 and O.P.No.3 is not responsible for any act of the O.P.Nss.1 and 2. The O.P.No.1 and 2 have not committed any transactions with O.P.No.3 in respect of subjected matter and therefore, under Fertilizer Control Order, 1985 and are not authorized. Resultantly, O.P.Nos.1 and 2 are not responsible for the act of the O.P.No.3. Deputy Director, Horticulture is not authorized to examine under Fertilizer control Order, 1985. Under Rule 27 and 28 of the Fertilizer Control Order, 1985 the Fertilizer Inspector appointed or authorized is only competent to inspect and took samples of fertilizer and to sent it to Fertilizer Control Laboratory, therefore, the report given by the Deputy Director, Horticulture is not acceptable and the news published in the newspaper cannot be made a basis for proving the facts. The complainant is not entitled for any relief. The complaint is liable to be dismissed with cost.
4. The O.P.No.3 also filed written statement separately and averred that the white potash was provided to O.P.No.3 by the authorized depot of the O.P.No.1. No advise was given to the complainant to spread the fertilizer through drip system. If the drip system was used by the complainant for spreading white potash fertilizer, then it is his individual responsibility and the O.P. No.3 is not liable for the loss suffered by the complainant The O.P.No.3 provided the standard quality of white potash to the complainant. Under Section 27 of the Fertilizer (Control) Order, 1985 the appointed and authorized Fertilizer Inspector can only analyze the samples of the potash fertilizer, in the Fertilizer Quality Control Laboratory, Labhandi, District Raipur which is an authorized laboratory, from where after examining the white potash, it was found that the white potash was of standard quality. The white potash sold by the O.P. No.3 was of standard quality, which was confirmed by the analysis report of the authorized laboratory of the State Government and in this circumstance, the complaint of the complainant is influenced by the political activities. The complaint of the complainant is not maintainable and is liable to be dismissed.
5. On the basis of averments of both the parties, the points for determination are :-
1. Whether the complainant is a consumer ?
2. Whether the complainant has carried out the agricultural activities by obtaining the agricultural land on rent from the Chawla Krishi Farm ?
3. Whether the O.P.No.1 has distributed the adulterated/Sub standard quality of white potash to O.P.No.3 and the aforesaid white potash has been sold to the complainant by the O.P.No.3.?
4. Whether due to use of adulterated/sub standard quality of white potash, the banana crop of the complainant was damaged, and if yes, whether the complainant is entitled is for getting compensation, and if yes then upto what extent ?
Conclusion and reasons of reaching to conclusion of Question Nos. 1 and 2 :
6. Shri G.S. Chandrakar, learned counsel appearing for the complainant argued that the complainant is an agriculturist and is carrying out agriculture activities along with his family members and he sown banana plants in 40 acres of agriculture land after obtaining the same on rent from Chawla Krishi Farm. The complainant purchased white potash fertilizers of near about 240 bags from the O.P.No.3 and he spread/sprinkled the same in his agriculture field and irrigated the crop through Drip System. After conducting irrigation of the land, the complainant noticed that the Drip System was choked because some insoluble black particles were mixed with white potash fertilizer, therefore, the land could not be properly irrigated and due to insufficient/inadequate irrigation, the banana crop of the complainant was badly damaged. He further argued that the complainant opened another bag of white potash, then he found that in white potash, some black particles like coal was mixed. The white potash was purchased by the complainant from O.P.No.3 and O.P.No.3 gave the complainant a cash memo i.e. Annexure “ 1. The complainant had already paid the amount of Rs.2,40,000/- and due to sub standard quality and adulterated white potash fertilizer supplied to him, the complainant could not obtain banana fruit upto mark and suffered heavy loss. Shri J.S. Chandrakar, learned counsel for the complainant specifically submitted that the complainant is an agriculturist and source of his income is only agriculture and the agriculture does not come within the purview of commercial purpose, therefore, the complainant is a consumer and the dispute between the parties is a consumer dispute.
7. Shri Anurag Dayal Shrivastava, learned counsel appearing for O.P.Nos.1 and 2 argued that the complainant could not prove that he had taken 45 acres of land on rent from Chawla Krishi Farm. The complainant has not produced any document, which can indicate that the land was taken by the complainant from Chawla Krishi Farm on rent. It is not possible for any owner of the Krishi Farm that without executing any agreement, he will give his land to other person for cultivation, therefore, mere oral submission of the complainant is not sufficient to establish that he had taken the land from Chawla Krishi Farm on rent for agriculture purpose. In document Annexure 1, which has been filed the purchaser of the white potash has been mentioned as Chawla Krishi Farm, Mandir Hasaud and according to annexure 8 Jitendra Kumar Yadav has purchased 240 bags of white potash on 30.12.2012. Thus actually the complainant purchased the white potash or Jitendra Kumar Yadav or Chawla Krishi Farma has not been proved and are contradictory to each other and from the perusal of annexure 8 it is clear that the said potash was purchased for Chawla Krishi Farm. Sowing of banana crop in 45 acres of land indicates that the cultivation of banana crop by the complainant is for commercial purpose. The complainant could not prove that he purchased the white potash from O.P.No.3, which was distributed by O.P.No.1 and 2, therefore, the complainant is not consumer of O.P.nos.1 and 2 hence the complaint is liable to be dismissed.
8. Shri K. Anandani, learned counsel appearing for O.P.No.3 has also supported the arguments advanced by learned counsel for O.P.Nos.1 and 2.
9. We have heard the arguments of learned counsel for the parties and have also perused the documents produced.
10. In para 2 of the complaint, the complainant stated that the complainant is carrying agriculture activities by taking land from Chawla Krishi Farm on rent and in para 7 of the complaint the complainant stated that he carried agriculture activities on 45 acres of land but he has not produced any document which indicates that the complainant has obtained agriculture land from Chawla Krishi Farm on rent and the owner/proprietor of Chawla Krishi Farm is a material person, who can prove that the agricultural land was given to the complainant for the agriculture purpose on rent, but the complainant did not file any documents in this regard. Even no affidavit of proprietor / owner of the Chawla Krishi Farm has been filed by the complainant.
11. In this case, neither the complainant has filed affidavit of proprietor or owner of the Chawlal Krishi Farm nor has filed any document, which indicates that the complainant has grown banana crop in Chawla Krishi Farm. Annexure 1 is a cash memo in which it is mentioned Prati, Chawla Krishi Farm, Mandir Hasaud, is mentioned and in which the name of the chemical fertilizer is mentioned as Potash Safed, matra 240 bori, 50 kilo gram, prati bori dar 850/- (Aath Sau Pachas Rupye) kul 2,04,000/- (Do Lakh Char Hajar Rupye). Document Annexure 8 is a letter dated 21.11.2012 sent by Jitendra Kumar Yadav to the Deputy Director Agriculture, Raipur in which it is mentioned that œI have purchased 240 bags (each bag 50 Kg) white potash on 30.12.2012.? From perusal of annexure 8 it appears that potash fertilizer was purchased by Jitendra Kumar Yadav. Had the white potash was purchased by the complainant through annexure “ 1 (Cash Memo), then the name of the complainant could have mentioned. From perusal of annexure 8, it appears that the white potash was purchased by Jitendra Kumar Yadav. In the complaint, the complainant pleaded that the white potash was purchased by him from O.P.no.3, but in document Annexure “ 1, the name of Chawla Krishi Farm, is mentioned. Therefore, there is contradiction regarding purchase of the white potash fertilizer, hence, the complainant could not prove that actually the complainant purchased 240 bags of white potash from O.P.No.3 through annexure 1.As from annexure 1 it is clear that white potash was sold to Chawla Krishi Farm, Mandir Hasaud and the complainant could not prove that he is proprietor or owner of Chawlal Krishi Farm or he has obtained land on rent from Chawla Krishi Farm, in this circumstance, when the complainant could not prove that he purchased 240 bags of white potash from O.P.No.3, the complainant does not a consumer.
12. According to the complainant he had grown banana crop in 40 acres of land out of 45 acres. Although the complainant tried to state that he has grown the crop for self employment, but in 40 acres which is production of banana and the crop which is prepared cannot be conserved and certain income is earned from selling of the banana. In this situation it will held that if the complainant has grown production of banana crop then certainly it is for commercial purpose and is not for self employment. In this case from annexure 20, there are 22 documents.
Messrs œ HINDI? Post œHINDI?
| œ HINDI? | œ HINDI? | œ HINDI? | œ HINDI? | œ HINDI? | Expences | œ HINDI? |
| œ HINDI? (69) | 854 | 4/- | 3416/- 3416/- | œ HINDI? | 239/- 500/- 70/- 809/- | 2607/- 2607/- |
Rs. 2607/- has been credited in your account | ||||||
13. The word œconsumer? has been defined in Section 2(1)(d) of the Consumer Protection Act 1986 according to which :-
œ(d) œconsumer? means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promises, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promises, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation - For the purposes of this clause, œcommercial purpose does not include use by a person of goods bought and used by him and service availed by him exclusively for the purposes of earning his livelihood by means of self employment;?
14. In the case of Synco Textiles Pvt. Ltd. Vs. Greaves Cotton and Co. Ltd. 1991 (1) CPR 615, Honble National Commission held thus :
"13¦¦ for the excluding clause to apply, it is necessary that there should be close nexus between the transaction of purchase of goods and large scale activity carried on for earning profit. The complainant in the instant case has not come up with a plea that his activities are small-scale in which he himself is personally engaged to earn a livelihood. Onus probandi lies heavily on the complainant to substantiate his contention that he answered the description of a 'consumer' in the Act and the purpose for which he bought the 2000 plantlets from the opposite party was not for commercial purpose but for self-support This burden assumes importance in view of the decision of the Honble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in AIR 1995 Supreme court 1428 = II (1995) CPJ 1(SC), wherein the scope of the Explanation alluded to above has been explained in details. A portion of para “ 12 of the judgment reads as follows :-
œ..... The National Commission appears to have been taken a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be a consumer within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion “ the expression large scale is not a very precise expression “ Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression commercial purpose “ a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work, for consideration or for plying the car as a taxi, can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression of expression consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self employment, such purchaser of goods is yet a consumer. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself , exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions œused by him? and œby means of self-employment in the explanation. The ambiguity in the meaning of the words œfor the purpose of earning his livelihood? is explained and clarified by the other two sets of words?.
15. In M/s Rohit Chemical and Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Honble National Commission observed thus :
œ22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
œ12. Now coming back to the definition of the expression consumer in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression resale is clear enough. Controversy has, however, arisen with respect to meaning of the expression œcommercial purpose?. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. Commercial denotes œpertaining to commerce? (Chambers Twentieth Century); it means œconnected with, or engaged in commerce; mercantile; having profit as the main aim? (Collins English Dictionary) whereas the word commerce means œfinancial transactions especially buying and selling of merchandise, on a large scale? (Concise Oxford Dictionary). The National Commission appears to have been taken a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be a consumer within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion “ the expression large scale is not a very precise expression “ Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression commercial purpose “ a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work, for consideration or for plying the car as a taxi, can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression of expression consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self employment, such purchaser of goods is yet a consumer. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself , exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions œused by him? and œby means of self-employment in the explanation. The ambiguity in the meaning of the words œfor the purpose of earning his livelihood? is explained and clarified by the other two sets of words?.
16. In the case of C.P. Belliappa v. Indo American Hybrid Seeds, III (2000) CPJ 523, Karnataka State Consumer Disputes Redressal Commission, Bangalore, has observed thus :
œ11¦¦¦A reading of the complaint will show that the complainant has not said anything about the nature and extent of his profession, whether it is a large-scale commercial venture or an attempt in self-employment to earn a livelihood. It has not been denied by the complainant that growing cardamom in tissue culture system is a commercial crop cultivation and the yield is meant to be sold in domestic and global markets. By his own admission, he also grows cardamom in the conventional native system. The material placed on record shows that he also grows coffee along with cardamom as a mixed-crop and coffee, like cardamom or pepper is grown for commercial sale.
12. Explanation below Section 2(1)(d) of the Consumer Protection Act, 1986 (for short the Act) gives an insight into the type of commercial activity which does not preclude a person from retaining a consumer-tag. The said explanation reads as follows :-
œExplanation “ For the purpose of Sub-Section (1), Commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment.
13. In Synco Textiles Pvt. Ltd. V. Greaves Cotton and Co. reported in I (1991) CPR 615 (NC), the National Commission has held that "for the excluding clause to apply, it is necessary that there should be close nexus between the transaction of purchase of goods and large scale activity carried on for earning profit. The complainant in the instant case has not come up with a plea that his activities are small-scale in which he himself is personally engaged to earn a livelihood. Onus probandi lies heavily on the complainant to substantiate his contention that he answered the description of a 'consumer' in the Act and the purpose for which he bought the 2000 plantlets from the opposite party was not for commercial purpose but for self-support. This burden assumes importance in view of the decision of the Honble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in AIR 1995 Supreme court 1428 = II (1995) CPJ 1(SC), wherein the scope of the Explanation alluded to above has been explained in details. A portion of para “ 12 of the judgment reads as follows :-
œ¦.The National Commission appears to have been taken a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be a consumer within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion “ the expression large scale is not a very precise expression “ Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression commercial purpose “ a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work, for consideration or for plying the car as a taxi, can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression of expression consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self employment, such purchaser of goods is yet a consumer. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself , exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions œused by him? and œby means of self-employment in the explanation. The ambiguity in the meaning of the words œfor the purpose of earning his livelihood? is explained and clarified by the other two sets of words?.
17. Neither the complainant could prove that he obtained 45 acres of land on rent from Chawla Krishi Farm for agriculture purpose nor the complainant has filed any document, which indicates that the complainant has purchased white potash from O.P.No.3. The receipt which has been produced is in the name of Chawla Krishi Farm and from which it appears that Chawla Krishi Farm had purchased white potash and if actually the white potash was purchased by the complainant for agriculture work, the he could obtain receipt in the name of the complainant and as the complainant could not prove that he purchased white potash from O.P. No.3, therefore, he is not consumer of OPs.
18. From the perusal of explanation of Section 2(1)(d) of the Consumer Protection Act, 1986, it appears that the complainant has not been able to prove that he has grown banana crop for his livelihood. Contrary to it, it appears that the banana fruit was sold in the open market, which is for commercial purpose. Therefore, it is established that the complainant is not consumer of the OPs, hence, the complainant does not come in the category of consumer under Consumer Protection Act, 1986 and he is not consumer of the OPs. Thus, question Nos.1 and 2 are decided against the complainant.
Conclusion and reasons of reaching to conclusion of Question Nos.3 and 4 :-
19. Shri G.S. Chandrakar, learned counsel appearing for the complainant argued that the complainant had purchased white potash from O.P.No.3 which is authorized dealer of O.P.Nos.1 and 2 and in the potash in which a black particle like coal was mixed, which is insoluble in water. Due to existence of insoluble black particles in white potash, the drip system of the complainant was choked. The complainant has complained regarding this in para 9 of the complaint and on the basis of complaint of the complainant, the matter was taken into Chhattisgarh Legislative Assembly on the basis of Dhyanakarshan suchna and the matter was inquired by Deputy Director, Horticulture, Raipur, who submitted his report (Annexure 14) after inspecting the Potash, wherein in the Potash adulteration was found and due to which drip system was choked. From this, it is clear that OPs have sold the adulterated/Sub standard quality potash and due to which the complainant suffered loss. The fact of the complainant gets support from document Annexure 15, 16 and 17. On behalf of the complainant document annexure 18 has been produced. The said document was sent by Kriti Industries (India) Limited to Chawla Krishi Farm, Rico road, Mandir Hasaud, Raipur (C.G.) and from aforesaid documents it is clear that the agricultural land is of Chawla Krishi Farm, Mandir Hasaud. He further argued that the complainant has been duly able to prove that white potash was purchased by the complainant from O.P.No.3, which were adulterated and of sub standard quality and due to black particles, which were mixed in white potash which were insoluble in water , drip system of the complainant was choked and banana crop of the complainant was badly damaged and he suffered heavy loss. He further argued that the contention of the complainant is corroborated by the news published in the newspaper and also by dhyanakarshan prastav which was taken into C.G. Legislative Assembly. He further argued that report of the Deputy Director, Horticulture, Raipur and report of Maharashtra Rajya Draksha Bagaitdar Sangh, Pune also prove that the white potash supplied to the complainant were adulterated and were of sub standard quality and due to use of sub standard quality of white potash, the banana crop of the complainant was badly suffered and therefore, the complainant is entitled for getting compensation as mentioned in the complaint from the OPs.
20. The learned counsels appearing for OPs argued that the Deputy Director, Horticulture is not a competent and authorized officer under Notification dated 09.02.2003 issued under Fertilizer (Control) Order, 1985 and due to which the report given by him is null and void. Merely on the ground that the matter was taken into Chhattisgarh Legislative Assembly and the matter was published in the newspapers, it cannot be held that the OPs sold adulterated fertilizer to the complainant. If in any bag of white potash, black particles, which were insoluble in water, were found, then it is the duty of the complainant to give notice to the OPs for testing the white potash and get tested the white potash in the notified laboratory of the Chhattisgarh Government or the complainant may request to the OPs for testing of white potash in notified laboratory of Chhattisgarh Government, but the complaint has not done such exercise, therefore, the complainant has not been able to establish/prove that the white potash sold by the O.P.No.3. to him were adulterated or of sub standard quality. The report of the Deputy Director, Horticulture is not admissible and on the basis of said report, it cannot be established that the said white potash was adulterated or of sub-standard quality.
21. In the case of M/s National Seeds Corporation Ltd vs. M. Madhusudan Reddy and Another, 2013 (3) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"38. Reference can usefully be made to the orders of the National Commission in N.S.C. Ltd. v. Guruswamy, E.I.D. Parry (I) Ltd. v. Gaurishankar and India Seed House v. Ramjilal Sharma (2008) 3 CPJ 96. In these cases the National Commission considered the issue relating to non-compliance of Section 13(1)(c) in the context of the complaints made by the farmers that their crops had failed due to supply of defective seeds and held that the District Forum and State Commission did not commit any error by entertaining the complaint of the farmers and awarding compensation to them. In the first case, the National Commission noted that the entire quantity of seeds had been sown by the farmer and observed :-
"There is no doubt in our mind that where complainant alleges a defect in goods which cannot be determined without proper analysis or test of the goods, then the sample need to be taken and sent to a laboratory for analysis or test. But the ground reality in the instant case is that reposing faith in the seller, in this case the leading Public Sector Company dealing in seed production and sale, the petitioner sowed whole of the seed purchased by him. Where was the question of any sample seed to be sent to any laboratory in the case Whatever the Respondent/Complainant had, was sown. One could have appreciated the bonafides better, if sample from the crop was taken during the visit of Assistant Seed Officer of Petitioner “ N.S.C. and sent for analysis. Their failure is unexceptionable. In our view, it is the Petitioner Company which failed to comply with the provisions of Section 13(c) of the Act. By the time, complaint could be filed even this opportunity had passed. If the Petitioner Company was little more sensitive or alert to the complaint of the Respondent/Complainant, this situation might not have arisen. Petitioner has to pay for his insensitivity. The Respondent/Complainant led evidence of State's agricultural authorities in support who made their statements after seeing the crop in the field. The onus passes on to the Petitioner to prove that the crop which grew in the field of the complainant was of 'Arkajyothi' of which the seed was sold and not of 'Sugar Body' as alleged. He cannot take shelter under Section 13(c) of the CP Act. Learned Counsel's plea that Respondent/Complainant should have kept portion of seeds purchased by him to be used for sampling purposes, is not only unsustainable in law but to say the least, is very unbecoming of a leading Public Sector Seed Company to expect this arrangement."
22. In Jaswinder Singh vs. Punjab Pesticides and Seeds and Ors., I (2014) CPJ 618 (NC), Honble National Commission observed thus :
œ7. Learned State Commission rightly observed in paragraphs 22, 23 and 25 as under :
œ22. The original complaint of the appellants was that use of Ramban fertilizer had damaged the crops of the appellant but sample of Ramban was not sent to any laboratory. Even otherwise, in the present complaint of the appellant had alleged that on the advice of respondent No.1 he had mixed the weedicides with the fertilizer and then had used the mixture on his paddy crop which damaged his crops. It means, therefore, that even Rambn was mixed with the other weedicides / fertilizer. If the appellant had sent the samples of power plus and agrianio then he should have sent the sample of Ramban fertilizer to the Lab so that the quality of Ramban could also have been analysed and assessed. There is also no report on the file if the mixing of these weedicides with the fertilizers could have damaged the paddy crops.
23. In other words, neither Ramban fertilizer has been got tested by the appellant against which he had complained originally nor he had got tested the mixture of all these chemicals if these were liable to damage his crop.
25. So far as the analysis report of fertilizer sample of Power Plus (Ex. C-13) is concerned the respondents had taken the plea in the written statement that these sealed packets were required to be kept in particular temperature and were to be kept away from sunshine failing which these were likely to lose its strength. There is no evidence on the file if these instructions of respondent No.2 were followed either by respondent No.1 or by the appellant himself before sending the sample to the chemical laboratory. Moreover, the appellant has admitted in his cross examination that he had kept the weedicides/fertilizers in his room. The light was entering the room where he had placed the insecticides / fertilizers. Therefore, it might be possible that because the power plus and agrianilo were not kept in proper temperature away from the sunshine which reduced the strength of these insecticides/weedicides/fertilizers.
8. Petitioner has not led any evidence to prove the fact that sample from insecticides/fertilizers purchased by the petitioner from the respondents was sent for analysis by District Forum. Learned Counsel for the respondent submitted that as the drug purchased by the petitioner had already been spread in the fields, petitioner purchased another drug and had sent for analysis through District Forum. Respondent cannot be held responsible for any loss on the basis laboratory report of the drug which was purchased by petitioner from the respondents/later on, which was not part of insecticides / fertilizers."
23. From the certificate annexure 19 which has been filed by the complainant it is not proved that the complainant has sent a part of same white potash fertilizer, which was purchased by him from O.P.No.3 and the complainant has not been able to prove that before sending sample of white potash to Maharashtra Rajya Draksha Bagaitdar Sangh, Pune, he had given notice to the OPs prior to testing white potash. The complainant has also not made any application before the competent authority to take sample of white potash and sent it to authorized laboratory for testing. The complainant has not led any evidence to prove this fact that the sample from white potash fertilizer purchased by the complainant from O.P. No.3, was sent for analysis to the competent laboratory, therefore, on the basis of report of Deputy Director, Horticulture (Annexure 14), it cannot be said that the OPs have sold sub-standard quality / adulterated white potash fertilizer to the complainant and white potash which was sold by the O.P.No.3 to Chawla Krishi Farm was adulterated.
24. In para 7 of the complaint the complainant stated that in 40 acres of land he prepared plants of banana and in para 11 he has given details in respect of production of crop he was obtaining, but in this regard he has not filed report of any competent office or expert that how much plants are grown per acre of land and how much production is obtained in per acre land and the complainant has also not produced any evidence that what was the mode of using white potash fertilizer for banana crop. The complainant has not produced any conclusive and dependable evidence to establish that due to sub standard quality of white potash fertilizer, the complainant suffered loss. Even the complainant has not produced any evidence regarding per acre production of banana crop. Except the report of Deputy Director, Horticulture, Raipur, there is no evidence to show that due to use of sub standard quality / adulterated white potash fertilizer, the production of banana was decreased. So far as loss suffered by the complainant is concerned, in the complaint the complainant pleaded that he had suffered loss of near about Rs.70,00,000/- whereas in the document Annexure 8, it is mentioned that the loss suffered by the complainant is to the tune of Rs.15,00,000/-, therefore, there is material contradiction regarding the loss suffered by the complainant.
25. In view of aforesaid discussion, the complainant utterly failed to prove that the OPs have sold him adulterated/sub standard quality white potash fertilizer and due to sub standard quality and adulterated white potash, banana plants were not germinated properly and there was decrease in production of banana crop. From perusal of the complaint it is clear that in near about 40 acres of land of Chawla Krishi Farm, banana crop was sown and the banana was sold in open market. Looking to the documents filed by the complainant, it appears that the agriculture land is belonging to Chawla Krishi Farm and the production of banana was obtained by Chawla Krishi Farm, for its commercial purpose. The complainant has not been able to prove that white potash fertilizer purchased by the complainant from the O.P.No.3 was adulterated and of sub standard quality.
26. In these circumstances, the complaint filed by the complainant is not maintainable and the complainant is not entitled for getting any compensation and the complaint is liable to be dismissed.
27. Therefore, the complaint of the complainant, is liable to be and is hereby dismissed. Parties shall be their own cost.