NORTHERN MINERALS LTD vs Kanshi Ram

THIS order shall dispose of 13 appeals Nos. 415 to 427 of 1994 filed by M/s. Northern Minerals Ltd. against the order dated 30.6.1994 passed by the learned District Forum, Gurgaon, whereby 13 complaints alleging sale of sub-standard insecticides by the appellants were allowed.

ACCORDING to the complainants, they had purchased insecticide known as BHC 10% for use by them while sowing the chilli crop in their fields for removing the termite effect. But as the plants did not grow despite the use of the insecticide purchased by them, they brought the fact of damage to their crop to the notice of the Revenue Authorities of district Gurgaon on 28.9.1992. Thereupon, the Revenue Authorities got the damage assessed which was 85%. Alleging defect in goods and deficiency in service on the part of the appellants, the complainants approached the learned District Consumer Forum, Gurgaon, claiming compensation to the tune of Rs. 18.500/- per acre. In their reply, the appellants pleaded that firstly some of the complainants had not purchased the insecticides from them. Hence, they were not consumers within the definition of the Consumer Protection Act. Secondly, no sample of the insecticides was sent to any laboratory on the basis of which it could be concluded that the insecticides supplied by the appellants were of sub-standard or misbranded quality etc. It was further pleaded that BHC 10% insecticide had been recommended for control of pests of paddy, maize, cotton, gram, sugarcane and coffee and had not been recommended for the control of termite. It was also pleaded that this insecticide was to be used in the soil before plantation and the method of spray was only meant for controlling of pests/insects. Thus, according to the appellants, the insecticide having not been used in proper manner and in proportion, they were not liable for any damage of the plants. The parties produced their evidence to substantiate their respective stands. On behalf of the complainants, it were Dr. (Mrs.) Ramesh Chauhan, Entomologist, Agricultural Research Station, Bawal, and Dr. Jai Pal Singh, Assistant Entomologist, and Shri Bhupal Singh, District Agricultural Officer, Gurgaon, who in their reports stated that all the plants had been burnt/killed showing severe case of phyto-toxicity. Moreover, sample of BHC dust had also been sent to the Hissar Agricultural University, which showed excessive amount of beta, alpha and delta isomers and the presence of excessive amount of beta isomers in the formulation of BHC had caused phyto toxicity to the plants. On the other hand, the appellants produced two reports of the Government experts on the subject according to which no defect in the sample was found and the contents/ingredients of the sample were found in accordance with the specifications. One of the reports dated 11.1.1993 had been given by the Scientific Officer of the Ministry of Agriculture, Directorate of Plant Protection, Faridabad, according to which Gamma Isomer was only 1.25% and alkalinity was only in traces. There was no mention on the bags regarding the dates or manufacture of expiry of the insecticides, though these bags had been purchased in August/September, 1992. Accepting the claim of the complainants, the learned District Consumer Forum came to the conclusion that the damage to the crops was attributable to the use of the insecticides for which the compensation as mentioned above was allowed. Regarding the objections of the appellants about the complainants not being "consumers" within the meaning of the Act, the plea was repelled and they were found as consumers, and the objection regarding the cases being of complicated nature requiring sifting of voluminous record and to be referred to the Civil Court was also rejected.

In the appeal before us, Mr. Arun Nehra, the learned Counsel for the appellants, has vehemently contended that the appellant is one of the leading companies engaged in the manufacture/ formulation of the insecticides/pesticides. It purchases BHC Technical from M/s. Hindustan Insecticides Ltd., or from M/s. Kannodia Chemicals. BHC Technical purchased by appellant is of 95% or above concentration. The appellant by adding fillers to this technical grade merely reduces the concentration from 95% to 10% DP. BHC 10% DP formulated by the appellant is meant for use for paddy, maize, cotton, gram, coffee crops only and even Government of India vide notification dated 30.6.1990 has banned the use of BHC on vegetables and fruit crops.

IN nutshell, the learned Counsel has laid emphasis that firstly there was ban by the Government of INdia on the use of BHC insecticide on fruits and vegetables; and secondly it was not meant for use as an insecticide for chilli plants at all; and thirdly it was neither used in proper manner, i.e. by putting it in the soil instead of being sprayed, nor was it used in proper proportion. IN reply to the argument advanced by Mr. Nehra, Shri Rajesh Bindal, Advocate, appearing on behalf of the respondents, has vigorously pleaded that Entomologist of the Agricultural Research Station, Bawal, had come to the conclusion that the crop had been damaged due to the bad quality of the BHC 10%. After hearing the learned Counsel, we find that the stand taken by the appellants is certainly correct and has not been repelled by the respondents, as would be evident from the impugned order also. Assuming for argument sake, the damage to the crop might have been caused by the use of BHC 10% powder as opined by the Entomologists, yet the fact remains that when the use of this insecticide had been clearly banned by the Government of India the complainants should not have used the same at all. Therefore, there is no deficiency in service or defect in the goods, which can be attributed to the appellants for sustaining the acceptance of the complaints under the Consumer Protection Act. Apart from that, it has further been emphasised by Mr. Nehra, the learned Counsel for the appellants, that it was a mandatory requirement of the statute, i.e. Section 13(1) of the Consumer Protection Act, that the District Consumer Forum on receipt of a complaint obtain a sample of goods from the complainant, seal it and send the same to the laboratory concerned for chemical analysis. This provision has not been complied with by the District Forum despite written application submitted by the appellants soon after their appearance. Not only that, even the complainants instead of agreeing to the sending of the sample of the insecticide in dispute for chemical analysis opposed the request of the appellants. This non-compliance of the mandatory provision according to the learned Counsel, vitiates the finding arrived at by the learned District Consumer Forum with regard to the quality of the insecticide in dispute whether sub-standard or otherwise. We find merit in this contention of the learned Counsel and hold that in the absence of the laboratory analysis of the sample of the insecticide in dispute, the appellant Company could not be held guilty of any defect in goods or deficiency in service.

IN view of the conclusions arrived at above, we are of the considered view that the appeals deserve to be allowed and the complaints of the respondents are liable to be dismissed. Resultantly, the appeals are allowed with no order as to costs. Appeal allowed.