Dhanraj Khamatkar, Member:
[1] All these appeals filed by the Appellants/original Complainants take an exception to a common order dated 24/01/2011 passed by the District Consumer Disputes Redressal Forum, Kolhapur in Consumer Complaints Nos.624 of 2009 to 641 of 2009. Since all these appeals involve identical facts and common question of law, all these appeals are clubbed together and are disposed of by this common order.
[2] Facts leading to these appeals can be summarized as under:-
"The Appellants/original Complainants (hereinafter referred to as the Complainants for the sake of brevity) purchased an organic manure - Hortimeal-5:10:5 and Hortimeal-5:10:0 from the manufacturer “ M/s. Opal Farm Agro Chemicals Pvt. Ltd. - Respondent/original Opponent No.1; and the dealer “ M/s. Pandit Agro Services, Medha Krishi Seva Kendra and Janori Vividh Karyakari Seva Santha. 300 bags of said organic manure was directly purchased from the manufacturer viz. the Respondent/original Opponent No.1 by one Mr. Suresh Ambadas Khode, while Mr. Sunil Vishram Kahandal purchased 100 bags of the said organic manure. According to Mr. Suresh Khode, out of the 300 bags purchased by him, he used 133 bags in his fields situated at Gat No.239 and 222 and thereafter, he sold 100 bags Mr. Govind Shriram Sonawane, Smt. Chandrakala Sonawane and Mr. Balkrishna Shriram Sonawane and remaining 67 bags were confiscated by Fertilizers Officers from the Panchayat Samitee. As regards 100 bags purchased by Mr. Sunil Vishram Kahandal, he contended that he has sold 12 bags to Mr. Bhausaheb Vishram Kahandal, 31 bags to Mr. Vishram Laxman Kahandal, 04 bags to Smt. Thakubai Murlidhar Kathe, 05 bags to Mr. Prabhakar Murlidhar Kathe, 09 bags to Mr. Baban Bakerao Jadhav, 12 bags to Mr. Damu Murlidhar Bose, 25 bags to Mr. Bakerao Saojiram Jadhav and one bag remained with himself and remaining one bag was given by him to the In-Charge Officer, Grapes Research Institute at Pimpalgaon on 26/09/2007. The Complainant in Consumer Complaint No.221 of 2011 also purchased 300 bags from the Opponent No.1. Some of the Complainants have purchased the said organic manure from the sale-agents of the manufacturer."
[3] All the Complainants have alleged that after using the said organic manure in their respective vineyards, the growth of grape plants/creepers was adversely affected and thereby crop was also adversely affected. It is the contention of the Complainants that they lodged complaints with the Agriculture Development Officer, who is the Chairman of District Seeds Grievances Redressal Committee and on 06/11/2007, the said Committee had visited the agricultural fields of the Complainants affected by use of said organic manure. During its field visit, the Committee observed that the loss of crop was to the extent of 70% - 75%. Again the Committee visited the fields on 16/12/2007 and came to a conclusion that there is 100% loss of crop. In its report, the Committee further observed that they have sent the sample of organic manure “ Hortimeal 5:10:5 from Lot No.39 and leaves of the plants/creepers to Central Research Centre at Pune, Onion and Grapes Research Centre at Pimpalgaon, Manures Testing Laboratory at Pune, and the Manure Testing Laboratory at Pune had informed that in the said organic manure the percentage of nitrogen, phosphorous and potash was less than what is prescribed under the Fertilizers Control Order, 1985 and the said laboratory had declared the said sample as a non-standard one on 15/11/2007. Thus, the District Seeds Grievances Redressal Committee arrived at a conclusion that there is 100% loss of crop. Alleging sale of non-standard organic manure as deficiency in service on the part of the Respondents/original Opponents, the Complainants approached the District Forum and filed consumer complaints seeking compensation as per prayer clause in each complaint.
[4] Respondents/original Opponents Nos.1 and 2 appeared before the District Forum and contested all these complaints by filing their written versions inter-alia denying the allegations in the complaints and contended that the Complainants have not directly purchased the said organic manure from them and hence, the Complainants are not the consumers vis-Ã -vis these Opponents. According to these Opponents, the Complainants have filed criminal complaints and hence, present complaints are not maintainable. It is contended that all these complaints pertain to use of organic manure and in respect of fertilizers, there is special enactment viz. Fertilizers Control Order, 1985 and as such, the Complainants cannot take recourse to remedy available under the Consumer Protection Act, 1986. It is also contended that samples were sent for testing to the Central Laboratory and unless the report from Central Laboratory is obtained, the Complainants cannot file a consumer complaint. According to the Opponents Nos.1 and 2, organic manure produced by them is not harmful to the crops. Samples of this particular organic manure were not collected by the authorities as per the standard procedure and protocol prescribed under the Fertilizers Control Order, 1985. As per the Fertilizers Control Order, 1985 at the time of taking the sample, manufacturer is required to remain present and the sample should be sealed and one such sample is required to be handed over to the manufacturer. However, according to these Opponents, in the instant cases, such prescribed procedure was not followed. It is contended that in case of grape cultivation, at every stage, spraying of pesticides is necessary and the grape cultivation is affected by the changes in atmosphere. Further, it is contended that nowhere in these complaints, the Complainants have stated as to whether the bags of manure were in a sealed condition or loose condition when they purchased the same. According to the Opponents Nos.1 and 2, complaints as filed are bad for non-joinder of necessary parties. Further, it is contended that all these complaints are filed by a power-of-attorney holder and the actual consumer has not filed these complaints. On these main grounds and other grounds as set out in the written version, Respondents/Opponents Nos.1 and 2 prayed that all these complaints may please be dismissed.
[5] Respondent/Opponent No.3 died during the pendency of these complaints and the Complainants have accordingly filed pursis to that effect. However, the name of the Respondent/Opponent No.3 was not deleted from the array of the Opponents.
[6] Respondent/Opponent No.4 stated that he had resigned from the post of Director and his resignation has been accepted and prayed that he may please be discharged.
[7] Opponent No.5, in Consumer Complaints Nos.628 of 2009, 630 of 2009 and 637 of 2009, had stated that the organic manure manufactured by the Respondent/Opponent No.1 is not of standard quality and thus, in turn, supported the case of the Complainants.
[8] Complainants filed their rejoinders to the written versions filed by the Opponents and stated that provisions of Consumer Protection Act, 1986 are in addition to and not in derogation of any other law for the time being in force and the Complainants can seek remedy under the Consumer Protection Act, 1986. Further, the Complainants contended that the report of the District Seeds Grievances Redressal Committee is on record and there is no point in waiting till the report from Central Laboratory is obtained.
[9] District Forum, after going through the complaints, written versions filed by the Respondents/Opponents, rejoinders filed by the Complainants, evidence filed by the parties on affidavits, report of the District Seeds Grievances Redressal Committee, reports of various laboratories and pleadings of the respective advocates, came to a conclusion that the Complainants could not prove that the loss of crop or damage to the vineyards occurred only because of use of organic manure manufactured by the Respondent/Opponent No.1 and dismissed all these complaints. Feeling aggrieved by the said order, out of 18 original Complainants, only 09 Complainants have filed these appeals.
[10] We have heard learned Adv. M. D. Karade on behalf of the Appellants, learned Adv. Rajendra R. Wayangankar on behalf of the Respondents/original Opponents Nos.1 and 2 and learned Adv. Pratap Jadhav on behalf of the Respondent/original Opponent No.4. Parties have also filed their respective briefs of written arguments in support of their respective claims. We have gone through the voluminous record placed before us.
[11] Admittedly, one Mr. Sunil Vishram Kahandal had purchased 100 bags of organic manure from the Respondent No.1 on 24/09/2007 and the Respondent No.1 has accordingly issued a receipt for the payment made by Mr. Sunil Vishram Kahandal. In turn, Mr. Sunil Kahandal had sold 12 bags to Mr. Bhausaheb Vishram Kahandal, 31 bags to Mr. Vishram Laxman Kahandal, 04 bags to Smt. Thakubai Murlidhar Kathe, 05 bags to Mr. Prabhakar Murlidhar Kathe, 09 bags to Mr. Baban Bakerao Jadhav, 12 bags to Mr. Damu Murlidhar Bose, 25 bags to Mr. Bakerao Saojiram Jadhav and one bag remained with himself and remaining one bag was given by him to the In-Charge Officer, Grapes Research Institute at Pimpalgaon on 26/09/2007. We have perused the receipt which Mr. Kahandal had issued to other purchasers. From perusal it is seen that in all the receipts it is shown that the remaining manure bags are sold to purchasers. Here, it is pertinent to note that Mr. Sunil Kahandal had not used the said organic manure in his fields. When he purchased the manure bags from the manufacturer why he had not purchased it for the individual purchasers is a question which is not answered by the Learned Counsel for the Appellants. As against this, Learned Counsel to the Appellants tried to argue that the persons to whom Mr. Sunil Kahandal sold said organic manure are his family members. However, for the sake of arguments even if it is accepted, even then, it is admitted that only 43 bags were used by the family members of Mr. Sunil Kahandal and remaining bags were sold to the different persons, who have no direct relation with Mr. Sunil Kahandal. Again it is very strange to observe that Mr. Sunil Kahandal had purchased the organic manure on 24/09/2007 and he had handed over one bag to the In-Charge Officer, Grapes Research Institute at Pimpalgaon for the purposes of demonstration on 26/09/2007. Said admission on the part of Mr. Sunil Kahandal is at page (83) of the appeal compilation. However, neither before the District Forum nor before this Commission in the appeal proceedings, it is explained as to what are the observations recorded by In-Charge Office, Grapes Research Institute, Pimpalgaon with regard to said organic manure. Again a question arises that when Mr. Sunil Kahandal had purchased the organic manure on 24/09/2007, what prompted him to hand-over one bag to the In-Charge Officer, Grapes Research Institute, Pimpalgaon immediately on 26/09/2007?
[12] At page (56) of the appeal compilation, in the rejoinder filed by Mr. Suresh Ambadas Khode, as a power-of-attorney holder of the Complainants, with regard to contention of the Opponents Nos.1 and 2 in the written version that the Opponents have given a notice to the power-of-attorney holder “ Mr. Suresh Ambadas Khode, as to why action should not be initiated against him under Section-500 of the Code of Criminal Procedure for filing false complaint, it is stated that the complaints are filed by the Complainants and the power-of-attorney is not concerned with these complaints and the Complainants have not appointed a power-of-attorney holder to file these complaints. In fact, all these complaints are filed by the Complainants through their constituted attorney “ Mr. Suresh Ambadas Khode said Mr. Suresh Khode has filed a rejoinder to the written version stating that the Complainants themselves have filed these complaints. These are the contradictions in the statements made by the power-of-attorney himself, who has filed all these complaints.
[13] As regards, Mr. Suresh Khode, Learned Counsel for the Appellants contended that Mr. Suresh Khode had purchased 300 bags of said organic manure directly from the manufacturer viz. the Respondent/Opponent No.1 on 19/09/2007. At page (87) of the appeal compilation, there is a tax invoice. It is issued in the name of Mr. Suresh Ambadas Khode C/o. Chandan Krishi. Learned Counsel for the Appellants tried to clarify that Mr. Suresh Ambadas Khode had used 133 bags out of 300 bags and he had sold 100 bags to Shri Govind Shriram Sonawane, Smt. Chandrakala Sonawane and Mr. Balkrishna Shriram Sonawane. Learned Counsel for the Appellants has not explained as to what was the propriety in not purchasing 100 bags in the names of the persons to whom he sold those bags. We have also minutely gone through the report submitted by District Seeds Grievances Committee, wherein it is mentioned that 94 bags were used by Mr. Balkrishna Sonawane, 94 bags were used by Mr. Govind Shriram Sonawane, 100 bags were used by Smt. Chandrakala Sonawane and 67 bags remained with Mr. Suresh Ambadas Khode. Thus, from rendition of accounts made by District Seeds Grievances Redressal Committee in respect of 300 bags purchased by Mr. Suresh Ambadas Khode and the bags sold by him, it comes to a total of 488 bags. When in fact, 300 bags were purchased by Mr. Suresh Ambadas Khode, how he can use 488 bags? Further, in the sale voucher, the care-of address of Mr. Suresh Ambadas Khode is recorded as that of M/s. Chandan Krishi. All these complaints are filed by Mr. Suresh Ambadas Khode as a power-of-attorney holder and from his care-of address it is clear that he has a relation with M/s. Chandan Krishi. Nowhere in these complaints, has Mr. Suresh Ambadas Khode explained his relationship with M/s. Chandan Krishi.
[14] Respondent/Opponent No.1 took a plea that all these complaints have been filed by a power-of-attorney holder and the evidence is also filed by a power-of-attorney holder. In fact, a person who has a personal knowledge of the facts can only lead evidence and as the power-of-attorney holder who has no personal knowledge of the facts cannot lead evidence. Both the parties have filed authorities on this aspect contrary to each other and the Learned Counsel for the Appellants argued that all the Appellants/Complainants have executed a power-of-attorney in favour of Mr. Suresh Ambadas Khode and in the power-of-attorney it is made clear that Mr. Suresh Ambadas Khode is aware of the facts and hence, he can lead evidence. Considering the facts of the case, we are not convinced by the justification given by the learned counsel for the Appellants.
[15] We have gone through the report of District Seeds Grievances Redressal Committee. On 06/11/2007, the Committee visited the affected fields and observed that there was loss of crop to the extent of 70% to 75% and decided to visit the fields after a period of fifteen days after the receipt of report from the Grapes Research Institute at Pimpalgaon and other laboratories and the report of District Seeds Grievances Committee is signed by its Members. However, on the final report there is signature of Agriculture Development Officer, Zilla Parishad, Nasik and its Chairman. Other Members of the Committee have not signed the final report. From the report it is seen that all the Committee Members have not visited the fields on 16/12/2007 as decided on 06/11/2007.
[16] Present appxzCeals are regarding organic manure/fertilizer and for taking the samples the provisions of Fertilizers Control Order, 1985 are applicable. However, on record there is no evidence to show that samples of the manure were taken as per the procedure prescribed under the Fertilizers Control Order, 1985. Similarly, there is nothing on the record to show as to what happened with the one bag of organic manure handed over for the purpose of demonstration to the In-Charge Officer, Grapes Research Institute, Pimpalgaon. Further, the Appellants have failed to justify as to why they have handed over one bag for demonstration immediately i.e. on 26/09/2007 to the In-Charge Officer, Grapes Research Institute, Pimpalgaon after two days of its purchase on 24/09/2007. The Appellants miserably failed to clarify whether the manures are used for demonstration? If used, what were the results? Similarly, the power of attorney holder who has filed all the complaints has himself purchased 300 bags. He stated that he used only 133 bags in his field and he sold 100 bags to his relatives and 67 bags remained with him which were confiscated. However, the figures given by the District Seeds Grievances Redressal Committee does not tally with the figures which the power-of-attorney has given. Again the power-of-attorney failed to explain his relations with M/s. Chandan Krishi. Thus, we find that there are no proper accounts of the bags purchased and the bags actually used. Thus, the possibility of adulteration cannot be ruled out. Similarly, the agriculture authorities while dealing with the matter had not observed the procedure prescribed under the Fertilizers Control Order, 1985 while taking the samples for testing. When the samples are not properly taken, the results thereof cannot be relied and acted upon.
[17] The District Forum, after going through the facts of the case and evidence on record, has rightly passed the order and in view of missing links in the evidence, we do not find any plausible reason to interfere with the said order passed by the District Forum. Thus, we find present appeals devoid of any merit. We hold accordingly and pass the following order:-
ORDER
Appeals bearing Nos.214 of 2011 to 222 of 2011 stand dismissed.
No order as to costs.