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2014 DIGILAW 16 (UTT)

VINLAB EXPORT PVT. LTD. v. NEERA LAUHAN

2014-01-27

B.C.KANDPAL, C.C.PANT

body2014
ORDER (Per: Mr. C.C. Pant, Member): This appeal is directed against the judgment and order dated 20.11.2003 passed by the District Forum, Haridwar in consumer complaint No. 05 of 2002, thereby allowing the consumer complaint and directing the opposite parties, jointly or severally, to pay to the complainant a sum of Rs. 10,250/- towards cost of the seeds, Rs. 25,000/- as compensation, Rs. 4,000/- towards cost of sowing the seeds and Rs. 1,000/- as litigation expenses within a month from the date of the order. 2. The facts of the case, in brief, are that the complainant – Smt. Neera Lauhan had purchased 7000 gladiolus bulbs (seeds of gladiolus flower) worth Rs. 10,250/- from M/s Vinlab Export Pvt. Ltd., Lucknow (herein after referred as “company”). When the complainant received the gladiolus bulbs, she found that the bulbs were of inferior quality and were infected. She contacted Sh. Ashutosh Srivastava, representative and authorized signatory of the company–opposite party No. 1 over telephone and made a complaint regarding the quality of the said bulbs. The opposite party No. 1 assured the complainant that they would replace the said bulbs with healthy bulbs, as per the sample shown to her, but the opposite party No. 1 neither replaced the bulbs nor contacted her thereafter. When the complainant contacted the opposite party No.1 again over the telephone, they told her to sow the seeds and if less than 90% of the bulbs get germinated, the company would refund the cost of the seeds including sowing expenses, such as labour, fertilizers etc. and the company shall supply extra bulbs when it receives the new lot. Relying on this assurance given by the opposite party No. 1, the complainant sowed the seeds, but out of 7000 seeds, only 15% to 20% of the seeds could germinate. The complainant informed the opposite party No. 1 regarding the low germination of the seeds, who assured her to replace the bulbs. After waiting for a long time when the opposite party No. 1 did not respond, the complainant came to the conclusion that the opposite party No. 1 neither would replace the seeds, nor would refund the cost of the seeds. The complainant sent a registered notice on 22.11.2001 through her counsel to the opposite party No. 1 and Managing Director of the company – opposite party No. 2. The complainant sent a registered notice on 22.11.2001 through her counsel to the opposite party No. 1 and Managing Director of the company – opposite party No. 2. Instead of replying the notice, the opposite party No. 1 threatened the complainant in a harsh tone and asked her to take back the notice. Upon this, the complainant filed a consumer complaint before the District Forum, Haridwar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint in the above manner vide its order dated 20.11.2003. Aggrieved by the said order, the company has filed this appeal through its Authorized Signatory Sh. Pankaj Singh – appellant No. 1 and Managing Director of the company – appellant No. 2, under Section 15 of Consumer Protection Act, 1986. 3. We have heard the learned counsel for the parties and perused the material placed on record. 4. The main argument advanced by the learned counsel for the appellants is that the consumer complaint of the complainant-respondent is not maintainable under the provisions of the Consumer Protection Act, 1986 because, as the respondent has herself admitted, the respondent is the Chairperson of a Co-operative Society engaged in commercial activity of floriculture and other works. Secondly, the learned counsel argued that if the seeds were defective, then she should have returned the seeds to the company. He submitted that there is no such documentary evidence that the company had ever assured the complainant to refund the cost of seeds including sowing expenses, if the germination of seeds was less than 90%. Further, the learned counsel submitted that in case of defective seeds, these should have been sent to an appropriate laboratory. No such expert report has been submitted in respect of the quality of seeds. In support of his contention the learned counsel pressed into service the following judgments of Hon’ble National Commission and this Commission:- (I) Gyan Chandra Sharda vs. Prabhari Sachiv Kshetriya Sadhan Sahkari Samiti & Ors.; III (2009) CPJ 19 (NC). (II) Banta Ram vs. Jai Bharat Beej Company & Anr.; II (2013) CPJ 617 (NC). (III) This Commission’s decision dated 12.12.2006 passed in First Appeal No. 477 of 2004, Neelam Agro Sales and another vs. Sh. Prem Lal. (II) Banta Ram vs. Jai Bharat Beej Company & Anr.; II (2013) CPJ 617 (NC). (III) This Commission’s decision dated 12.12.2006 passed in First Appeal No. 477 of 2004, Neelam Agro Sales and another vs. Sh. Prem Lal. Thus, the District Forum has failed to make a proper appraisal of the facts of the case and, therefore, the impugned order suffers from factual as well as legal infirmity and is liable to be set aside. 5. The learned counsel for respondent-complainant reiterated the facts of the case and argued in support of the impugned order. 6. We considered the submissions raised by the learned counsel for the parties. We do not find any force in the arguments advanced by the learned counsel for the appellants in respect of non-maintainability of the consumer complaint. Even if the respondent is the Chairperson of a Co-operative Society, the magnitude of the business carried on by the society appears to be very small. A purchase of 7000 seeds of the gladiolus (bulbs) for Rs. 10,250/- itself indicates that the extent of business is very small. Further, each member of the society is a self-employed person engaged in floriculture and other such activities. In such cases, a Co-operative Society is formed by such growers to get a better price of their produce. The net profit earned by the society is shared by the members of the society. Therefore, in our considered opinion, it would be most unjust to dismiss the consumer complaint merely on a technical ground that the respondent is the Chairperson of a Co-operative Society. Further, the respondent is also a member of the society engaged in floriculture and other activities and is, thus, a self-employed person. In respondent’s entrepreneurship, if her husband also assists the respondent occasionally, then that would not mean that she has no right to file the consumer complaint. The allegations made against the appellants also appear to be true, because the P.C.O’s call-slip indicates that the respondent had made some conversation with the company. In respondent’s entrepreneurship, if her husband also assists the respondent occasionally, then that would not mean that she has no right to file the consumer complaint. The allegations made against the appellants also appear to be true, because the P.C.O’s call-slip indicates that the respondent had made some conversation with the company. In the registered notice, which was sent to the company, the respondent has narrated all the facts, right from the beginning when the company’s representative contacted her, showed her the sample of the bulbs, supply of the bulbs, details of conversation in respect of defective bulbs, assurance given to her and lastly, not to respond to her request to supply healthy bulbs or to pay compensation for the same as per company’s assurance. The record reveals that the company did not respond to this notice. Thus, this registered notice is itself a documentary evidence, which substantiates the allegations made by the respondent against the company. 7. We carefully perused the case laws cited by the learned counsel for the appellants. The facts of all the three cases, as cited above, are different from the facts and circumstances of the instant case. In our opinion, in the instant case the respondent had timely intimated the company that the seeds (bulbs) supplied by it, were of inferior quality. The respondent sowed the seeds on the assurance given by the representative of the company and after sowing the seeds, she found that the germination was only upto 15% to 20%. This fact was also intimated by the respondent to the company. All these facts have also been narrated in the registered notice sent to the company, which has not been replied by the company. Therefore, in the instant case, any expert report with regard of the quality of the seeds, is not of much significance, because the circumstantial evidence itself prove that the company had supplied inferior quality of the seeds. Therefore, the view taken by the District Forum in this case cannot be said to be erroneous, either factually or legally. However, the fact that 15% to 20% of the bulbs could germinate indicate that the compensation awarded by the District Forum against the cost of bulbs is on a higher side. Keeping in view the percentage of germination, it would be just to reduce it to Rs. 8,000/- from Rs. 10,250/-. However, the fact that 15% to 20% of the bulbs could germinate indicate that the compensation awarded by the District Forum against the cost of bulbs is on a higher side. Keeping in view the percentage of germination, it would be just to reduce it to Rs. 8,000/- from Rs. 10,250/-. The compensation awarded by the District Forum for mental and physical agony and cost of litigation appears to be just and reasonable. Therefore, the impugned order is liable to be modified to this extent and accordingly the appeal is fit to be partly allowed. 8. Appeal is partly allowed. The impugned order dated 20.11.2003 passed by the District Forum, Haridwar is modified by reducing the amount awarded by the District Forum towards cost of the seeds from Rs. 10,250/- to Rs. 8,000/-. Rest of the impugned order is confirmed. Cost of the appeal shall be borne by the parties.