Raj Singh vs Khatri Feeds (P) Ltd

The present Revision Petition has been filed by the Complainant against the order dated 27.04.2016, passed by the Haryana State Consumer Disputes Redressal Commission at Panchkula (hereinafter referred to as the State Commission), whereby the State Commission has allowed the Appeal, preferred by the Respondent herein (Opposite Party in the Complaint), and has dismissed the Complaint, filed by the Petitioner herein, by setting aside the order dated 06.01.2015, passed by the District Consumer Disputes Redressal Forum, Sonepat (hereinafter referred to as the District Forum).

The ground on which the State Commission has allowed the Appeal, preferred by the Respondent/Opposite Party, has been mentioned in para-5 of the impugned order, which for ready reference is reproduced below:

"5. While assailing the order of the District Forum, learned counsel for the appellant/opposite party has referred to cheque dated 10.09.2011 (Annexure-A) issued by the respondent/complainant for Rs.4,50,040/- and Return Memo Report dated 12.09.2011 (Annexure-B), copy of complaint filed under Section 138 of the Negotiable Instruments Act (Annexure-C). No evidence has been led by the respondent in support of his allegations that there was any defect in the poultry feed or that the chicks remained under-weight or that there was any mortality on account of defective feed. Mere version of the respondent cannot be treated as gospel truth unless and until supported by any cogent evidence. The cheque was dishonoured on 12th September, 2011, complaint under Section 138 of the Negotiable Instruments Act was filed on 8th November, 2011 and the instant complaint was filed on 14th February, 2012. Had the complainant been really aggrieved of the quality of feed, which was sold to him in April, 2010, he would have immediately approached Consumer Forum and not waited till filing of the complaint under Section 138 of the Negotiable Instruments Act. Thus, the District Forum fell in error in allowing the complaint and as such the impugned order cannot sustain."

It may be mentioned here that vide order dated 03.04.2018 service on the Respondent has been held to be sufficient. Nobody has appeared on behalf of the Respondent.

I have heard Learned Counsel for the Petitioner/Complainant. He submitted that the District Forum had considered the material on record and had recorded a categorical finding of fact that the poultry feeds purchased by the Petitioner/Complainant suffered from high level of toxicity and, therefore, the loss suffered by the Petitioner/Complainant was liable to be made good. The District Forum vide order dated 06.01.2015 had directed the Respondent herein to pay a sum of Rs.10,00,000/- as lump-sum compensation to the Petitioner/Complainant, which included the loss for supply of defective feeds, rendering deficient services, causing unnecessary harassment, mental agony and litigation expenses. According to the Learned Counsel, the District Forum had considered the report given by the Doctors of CCS, HAU, Hissar, who had diagnosed the problem after testing the feed supplied by the Respondent and, therefore, the ground taken by the State Commission for allowing the Appeal, reversing the order of the District Forum and dismissing the Complaint is erroneous and suffers from material irregularity.

I have perused the orders passed by the State Commission as also the District Forum and find that the District Forum had considered the report filed as Annexure C-62 of the Doctors of CCS, HAU, Hissar, who have diagnosed the problem after testing the feeds supplied by the Respondent and found high level of toxicity. Relevant paragraph-5 of the order of the District Forum for ready reference is reproduced below:

"5. After hearing both the learned counsel for the parties at length and after going through the entire relevant records available on the case file very carefully, we are of the view that there is no dispute with regard to the fact that the respondent has supplied the poultry feed to the complainant, but the respondent has denied the fact that the chicks of the complainant died or there was weight loss problem in the chicks or the poultry feed supplied by the respondent was defective.

In the present case, we have perused the report Annexure C62 of the doctors of CCS, HAU Hissar who diagnosed the problem after testing the feed samples of feeds supplied by the respondent. There was presence of toxicity in the feed and found toxic as under:

Sample of invoice No. AF 78-11 dated 31.3.2011 contains near 100 ppb instead of 30 ppb which is very high and very loss able to the chicks.

In the present case, there is no rebuttal to this report from the side of the respondent."

The State Commission has not considered Annexure C-62, i.e. the report of the Doctors of CCS, HAU, Hissar, and has wrongly observed that no evidence has been led by the Petitioner/Complainant in support of his allegation that there was defect in the poultry feed or that the chicks remained under-weight or that there was any mortality on account of defective feeds. The said finding is contrary to the evidence and material on record and, therefore, cannot be sustained.

Further, the State Commission appears to have taken note of the fact that the cheque given by the Petitioner/Complainant had been dishonoured and proceedings under Section 138 of the Negotiable Instruments Act were initiated on 08.11.2011 whereas the Complaint, giving rise to the present Petition, was filed on 14.02.2012. The State Commission lost sight of the fact that the Complaint, filed under Section 138 of the Negotiable Instruments Act by the Respondent, was withdrawn on 25.03.2014 after receiving the payment of Rs.2,26,836/-. Even otherwise, if the Complaint under the provisions of the Consumer Protection Act, 1986, is filed after filing of the Complaint under the provisions of Negotiable Instruments Act, the same would neither have any restriction nor the right in approaching the Consumer Fora under the Consumer Protection Act, 1986 would be closed.

In view of the foregoing discussion, the order passed by the State Commission cannot be sustained and is hereby set aside. The order passed by the District Forum is restored.

The Petition succeeds and is allowed.