Hindustan Ciba Geigy Ltd. vs SHANKER PATEL

THIS appeal is directed against the order dated 30.12.2000 passed in Case No. 8/1996 by the District Consumer Disputes Redressal Forum, Dhar (for short the "District Forum").

FACTS giving rise to this appeal are thus : The respondent No. 1, an agriculturist purchased the Weedicide Metolachlor 50 per cent EC (Herbicide) Dual 50EC manufactured by the appellants on 20 and 27.6.1995 of Rs. 9,175/- for control and destruction of the weeds in the fields. The respondent No. 1 alleged that after sowing the soyabean, weedicide Dual 50 EC sprinkled on the crops of soyabean, which did not destroy and check the growth of weeds hence he suffered loss for supply of sub-standard quality of herbicide and claimed compensation of Rs. 1,86,175/-. The complaint was resisted on various grounds. The District Forum vide order dated 16.7.1998 dismissed the complaint holding that the complaint involves complex issues requiring expert evidence and elaborate inquiry, which cannot be held in summary jurisdiction, the complainant, if so advised, may institute the civil suit in the Court of competent jurisdiction to claim the loss suffered due to supply of sub-standard quality of weedicide. This Commission allowed the appeal of the complainant vide order dated 3.2.2000 and remitted the case for deciding the complaint on all legal and factual issues. The District Forum after appreciation of evidence adduced by the parties held that Dual 50 EC was of sub-standard quality which could not destroy the weeds hence ordered the appellant and respondent No. 2 to pay jointly or severally, the amount of Rs. 9,175/-, the purchase price of the Dual 50 EC, compensation of Rs. 10,000/- along with the interest on the total amount at the rate of 12 per cent per annum from the date of its purchase i.e. 10.6.1995 and Rs. 1,000/- as costs of the proceedings.

Mr. Deepesh Joshi, learned Counsel for the appellants submitted that the District Forum erred in not considering the expert evidence adduced by the appellants to demonstrate that Metolachlor of which branch name is Dual 50 EC of 1 litre contains 500 gms. of metolachlor and remaining 500 gms. is of emulsifiers. For manufacture of Dual 50 EC product, the metolachlor is imported which after its manufacture is sold through the distributors appointed by the appellants for its use as weedicide for destruction and control of unwanted plants in the crop. Weedicides are of two kinds, one is pre-emergence and other is post-emergence. The formulae contained for manufacturer of Dual 50 EC has been approved and cleared by the Central Insecticides Board, New Delhi established under the provisions of the Insecticides Act, 1968 that the product can be used for seven kinds of weeds. To establish that the weedicide is of standard formulae as per specification and is of standard quality, the appellant filed the affidavits of Girish Nanabhai Mahatre, Dr. Purshottam Raya Pednekar, Manager, Quality Assurance of the appellants who proved that on 5.2.1996 Dr. Pednekar analysed the weedicide Dual 50 EC of the same batch which was purchased by the respondent No. 1 and found the same according to the standard specifications laid down by the Government of India, that is 50 per cent metolachlor m/m. Appearance in cold test 24.5 and above flash point and emulsion stability 0.025. He annexed the report of analysis done on 28.4.1995. The Dual 50 EC was not used by the respondent No. 1 as per instructions published in Hindi prior to sowing on the same day. It was also not mixed with the soil prior to sowing. Dual 50 EC is used for particular types of weeds which are not of broad leaves. The respondent No. 1 on the other hand did not adduce any expert evidence except the affidavit of one Mr. Radheshyam Sharma, Senior Agriculture Development Officer, whose prayer for cross-examination was rejected by the District Forum vide order dated 10.8.2000. The appellants contacted the senior officers of Mr. Radheshyam Sharma, who directed him to file a detailed affidavit clarifying therein which type of grass or weeds was found by him at the time of inspection of the fields. He then filed his affidavit attested on 13.9.2000 and affirmed in para 4 that the weeds which were found were not of small leaves but were of broad leaves, i.e. Chhoti Dudhi, Badi Dudhi, Adhasisi Kuchha Divaniya, Bikhana. The affidavit so filed was not to support the case of the appellants but was to clarify the kind of weeds. The District Forum with an erroneous approach discarded this affidavit and placed reliance on his first vague affidavit and passed strictures observing that a false affidavit dated 15.9.2000 has been sworn in which reflects his dishonesty and misuse of the office. Hence, ordered the Chief Secretary, Government of Madhya Pradesh to hold an inquiry and to punish for the major misconduct. The strictures so passed are unwarranted and against the principle of natural justice. The burden to prove that Dual 50 EC was of standard quality was not discharged by the respondentNo. 1 as no expert evidence or analytical test from the laboratory, was produced. Lastly, it was submitted that the District Forum not only ordered to return the purchase price but awarded compensation without any proof of loss suffered in the crops by the complainant more than the double of its cost and also interest which is excessive. To support the contentions Counsel cited the decisions of the State Commission, Chandigarh in case of Northern Minerals Ltd. v. Kanshi Ram, III (1997) CPJ 541=1998 (2) CPR 473, and Estate Officer, Haryana Urban Development Authority v. Kanwar Rohit, 1998 (2) CON.LT 596.

MR. Mohan Chouksey, learned Counsel for the respondent No. 1 submitted that burden was on the appellants to establish the Dual 50 EC was of prescribed formulae and of standard quality. The appellants except the filing of the report of their Manager, Quality Assurance did not send the sample of the Dual 50 EC of the same batch number to the appropriate laboratory for its analysis or test as mandated by sub-section of Section 13(c) of the Consumer Protection Act, 1986 (for short the "Act"). From the broucher and pamphlets, it is evident that the appellants have publicized that Dual 50 EC destroyed weeds before its growth or at the time of its growth or immediately afterwards. In the caption of advantages of use of Dual, it is published that it is effective on weeds of broad leaves like Amarenthas. It is useful in adverse climate and circumstances when it is difficult to destroy the weeds. It is also stated that grass and weeds of broad leaves which have not been specified the Dual 50 EC is most effective. In the circumstances, the appellants cannot contend that Dual 50 EC was not used as per instructions and that it was not for destroying the weeds of the broad leaves. The report of the Quality Control Assurance of the appellants is self-serving which cannot be placed reliance. The complainants could not send the Dual 50 EC for laboratory test as at the time of sowing it was sprinkled on the fields. Admittedly there was growth of weedicide as is evident from the two affidavits filed by the Senior Agriculture Development Officer, which certainly caused loss to the crops, hence, award of compensation is just and proper. Counsel cited a decision of the Supreme Court in Nath Seeds Ltd. v. Malaprabha Neerwani Balakedara Co-operative Santh Ltd., (1994) 2 CTJ 293 (CP), and a recent decision of the National Commission in N.S.C. Ltd. v. Guruswamy, I (2002) CPJ 13 (NC), followed by this Commission in Managing Director, M.P. Rajya Beej Vikas Nigam v. Mohd. Khan, Appeal No. 1823 of 2001 dated 26.8.2002, and a decision of this Commission in case of M.P. Rajya Beej and Farm Vikas Nigam v. Suresh Kumar, 2002 (1) CPR 273. After hearing learned Counsel for the parties and on reappraisal of evidence on record the submission that Dual 50 EC was not used as per instructions cannot be accepted in view of the pamphlet which is in four colour pages, publishing advantage of dual, use of dual, quantity to be used, security and poisonousness etc. and also another pamphlet of one page. The report produced by the appellants of their Quality Assurance Department produced in defence is not binding on the complainant. The proper course ought to have been to follow the procedure as prescribed in Section 13(c) of the Act to give the sample of the same batch for its analytical test to the District Forum, which after its seal could have been sent to the appropriate laboratory of the Central or State Government with a direction to the laboratory to make analysis or test with a view to find out whether the sample of Dual 50 EC so sold of the same batch suffers from any difficulty or is of sub-standard quality. The appellants for the analytical test has not followed the procedure prescribed under Section 13(c) of the Act, hence, the analytical test performed by the Quality Control of the appellants which found the Dual 50 EC is of standard and specified quality prepared by appropriate formulae carries no value. See the decision of the National Commission in N.S.C. Ltd. v. Guruswamy & Anr. (supra).

THIS Commission in Suresh Kumar''s case (supra), wherein the report of the Agriculture Extension Officer was challenged as not admissible which was without notice to the appellant observed that to prove that the seed so supplied of the particular batch number of complainants was of standard quality, the manufacturer or supplier of the seed could have made a prayer for the examination of the seed by a recognised agency. That course was not adopted, therefore, the District Forum rightly ordered to return the amount of purchase price of the seeds and compensation. However, it was observed that when the compensation is awarded the order of payment of interest is unwarranted. This Commission in case of Managing Director, M.P. Rajya Beej Vikas Nigam (supra), and another a case in relation to supply of sub-standard quality of soyabean seeds after following the decision of the Supreme Court in case of Nath Seeds Ltd. (supra), held that when an agriculturist files a complaint of supply of seeds of sub-standard quality which do not germinate properly then certainly he suffers loss, hence, for that he is entitled to be compensated. Learned Counsel for the appellants submitted that the use of Dual 50 EC does not adversely affect the growth of crops. It is highly poisonous and is used only for destroying of the weeds. Its function is to destroy the weeds or if it is ineffective it does not destroy the weeds, hence, the award of compensation more than the double, the value of the purchase price with interest is unjustified.

THE submission deserves consideration as it is well-settled that if the compensation is awarded, the award of interest on the amount of compensation and on the purchase price at the rate of 12 per cent per annum inclusive is unwarranted. See, the decision of the National Commission in Kedar Das v. Jalaj Motor Transport Co., III (2000) CPJ 11 (NC)=2001 (1) CCC 64 (NS). In view of this considering the circumstances, in our opinion the ends of justice would meet if a just compensation of Rs. 8,000/- is awarded without interest.

IN view of the above, the appellants and respondent No. 2 are ordered, jointly or severally, to pay the purchase price of the weedicide, Rs. 9,175/- and compensation of Rs. 8,000/- with Rs. 1,000/- as costs of the proceedings to the respondnet No. 1 within a period of two months from the date of receipt of certified copy of this order failing which the total amount shall carry interest at the rate of 9 per cent per annum from the date of this order. Before parting with the case, it is necessary to observe that order of the District Forum in para 15 passing serious strictures and order holding of an enquiry against the Senior Agriculture Development Officer, who filed the affidavit, on which the prayer for cross-examination was refused filed another affidavit, may be at the instance of the appellants, to clarify the nature of the weeds and to demonstrate that the broad leaves of particular specified growth was there, in that case too such harsh strictures were unjustified and unwarranted, particularly without affording him an opportunity of hearing. It is well-settled that before passing disparaging remarks against a witness or a party which may affect reputation and career, such a witness or a party should be offered an opportunity of hearing. Without giving an opportunity passing strictures would be against the principles of natural justice. See, the decisions of the Supreme Court in State of M.P. v. Nandlal Jaiswal, AIR 1987 SC 251; Dr. Dilip Kumar Deka v. State of Assam, (1996) 6 SCC 234. In view of this, we expunge the strictures and remarks and consequently set aside the direction to the Chief Secretary in para 15 to hold an enquiry for the alleged misconduct.

In the result, the appeal is partly allowed. The order of the District Forum shall stand modified as indicated hereinabove. In the circumstances, parties to bear their own costs of this appeal. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal partly allowed.