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Judgment
This appeal has been filed by the appellants Rambhau Jagannath Dhavane & Ors. against the order dated 21.08.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Complaint Case No.15 of 2012.
Brief facts as mentioned by the State Commission are as follows:
Complainants being members of Hindu joint family are agriculturists having agriculture field at village Lone Khurd, Tq. Rahata, District Ahmednagar. Since last 20 years they grow export quality grapes in their fields. Opponent No.1 Krishi Rasayan Exports Pvt. is a flag-ship company of opponent No.3 Krishi Rasayan Group of Companies. Opponent No.2 is a branch of opponent No.1 and opponent No.4 is the authorised dealer/distributor of opponent Nos.1 to 3. Opponent No.1 company manufactures "Ethephon/Tripun (39% SL) plant growth regulator and when the grape garden of the complainants was ready for harvesting, representative of opponent No.1 to 4 advised the complainants to spray 'Ethephon (39% SL) on their Sharad Seedless grapes to make the grapes more attractive and shining. Therefore on 30.12.2011 complainants purchased 'Ethephon (39% SL) from opponent No.4 for Rs.2,252/- and sprayed the same on 10 acres grapes. After 3-4 days grapes lost their hardness and becoming tender started to trickle down from the bunches in large quantity. Thus according to the complainants grape garden was damaged and affected due to 'Ethephon (39% SL). Therefore, on 9.1.2012 they made complaint to the Taluka Agriculture Officer, Rahata and Block Development Officer, Panchayat Samiti, Rahata. On 16.1.2012 Taluka Level Agriculture Committee inspected the grape garden of the complainants in presence of District Quality Control Inspector and Sales Executive of the opponent No.1 to 3 and made panchanama. It is averred that the said committee opined that Sharad seedless grapes plot suffered loss because of trickling down of the grapes in large quantity. Taluka Agriculture Officer also obtained sample of 'Ethephon (39% SL) from opponent No.4 and sent it to Government Insecticide Testing Laboratory, Pune, which gave report as "sample failed to conform to relevant CIB/BIS specification hence misbranded."
Thus, according to the complainants, opponent committed unfair trade practice. Therefore, their grapes garden is damaged sustaining loss at Rs.90,57,270/-. Taluka Level Agriculture Committee also observed and opined that complainants suffered loss at Rs.58,32,270/- calculating loss at Rs.45/- per kg. Therefore, by notice dated 9.4.2012 complainants claimed damages at Rs.1 crore from the opponents but by reply dated 30.4.2012 opponent Nos.1 to 3 denied the claim. Hence alleging deficiency in service and unfair trade practice on the part of opponents, complainants filed consumer complaint claiming compensation of Rs.1 crore towards damage as well as mental agony and Rs.20,000/- towards expenses.
The complaint was resisted by the opposite parties/respondents. The respondent Nos.1 to 3 filed a joint written statement and respondent No.4 filed separate written statement. It was stated that the sample of the 'Ethephon (39% SL)' was declared as fit for use by the Central Insecticide Laboratory, Faridabad (CIL) and therefore, the report of the Insecticide Testing Laboratory, Pune cannot be relied upon. It was further mentioned that visual inspection by the Taluka Level Agriculture Seeds Grievance Committee has no meaning as the Laboratory test of the compound has not found any misbranding of the compound. However, the State Commission dismissed the complaint vide its order dated 21.08.2014. Hence the present appeal.
Heard the learned counsel for the parties and perused the record. Learned counsel for the appellants argued that the State Commission has not considered various vital facts about the chemical. The State Commission has disallowed the complaint mainly on the ground that the complainants had stated that the grapes started falling after 3-4 days of the application of the chemical Ethephon (39% SL), whereas the complainants have stated that the use of chemical Ethephon (39% SL) continued from 31.12.2011 till 07.01.2012. It is the observation of the State Commission that if the grapes started falling after 3-4 days, the complainants should have stopped the application of the chemical Ethephon (39% SL). It was argued by the learned counsel that the spraying was taken up in succession and immediately the complainants/farmers could not realise the effect of the chemical Ethephon (39% SL). However, as soon as the bad effects of the chemical Ethephon (39% SL) were realised, application was stopped. This can be no ground for dismissing the complaint as the farmers covered the whole field of grapes in order to get the better quality of grapes, which was promised.
Learned counsel further argued that this chemical Ethephon (39% SL) is not recommended in the Registration Certificate issued by the CIB for application on grapes. However, the leaflet and the label mentions that it is recommended for grapes. This is prima facie violation of condition of Registration of the chemical Ethephon (39% SL) under the Insecticide Act, 1968.
It was further pointed out by the learned counsel for the appellants that one of the conditions of the Registration is that the information about insecticide shall be printed on the packet and leaflet in regional language apart from Hindi and English. Learned counsel referred to Rule 19(7) of the Insecticides Rules, 1971 which reads as follows:
"19 Manner of labeling (7) The label and the leaflets to be affixed or attached to the package containing insecticides shall be printed in Hindi, English and in one or two regional languages in use in the areas where the said packages are likely to be stocked, sold or distributed."
On the basis of the above legal position, learned counsel stated that even if active ingredient of the chemical was not found substandard in the laboratory test conducted by the CIL, the sample would still be treated as misbranded as per Section 3(K)(V) of the Insecticides Act, 1968 which clearly provides that:
3 K "misbranded" - an insecticide shall be deemed to be misbranded-
"(v) If it is not packed or labelled as required by or under this Act."
In this regard, learned counsel also referred to the Registration Certificate of the chemical in question where the following condition is specifically mentioned:-
"(v) A copy of approved label and leaflets is enclosed. No charge addition, alteration, modification or deletion with respect to the inscription of the labels/leaflets shall be done without the prior approval of the Registration Committee. Copies of the labels and leaflets as approved in English and Hindi shall also be printed in regional language of the area, where the product is likely to be marketed and the same shall accompany the insecticide package as required under Rule 19(7) of the Insecticides Rules, 1971."
It was emphasised by the learned counsel for the appellants that misbranding of sample is clearly proved as no information was printed either on the package or leaflet in Marathi language as the product was sold in Maharashtra. This is clearly unfair trade practice and the innocent farmers, who do not know English or Hindi fall prey to the sinister designs of the opposite parties. The State Commission has not given any heed to these aspects and dismissed the complaint on flimsy grounds. It was argued by the learned counsel for the appellants that a complaint was lodged before Taluka Level Agriculture Committee. This Committee visited the field along with representative of the opposite parties, therefore, it cannot be said that the Committee has given one sided report in favour of the complainants. It is also not correct to say that the Committee was not technically competent to give its opinion. The Committee included Scientist Dr. B.V.Garad, Horticulturist Grape Research Project M.F.A.U. Rahuri along with Mr. A.H.Bankar, Taluka Agriculture Officer, who is supposed to be expert in this own right. This Committee visited the field on 16.01.2012 and submitted its report as under:-
"Conclusion:- The medicine Ethephon (39% S.L.) Plant Growth Regulator of Krishi Rasayan Exports Pvt. Ltd. appears to be instrumental in the damage of grape orchards of the farmers. In this way the conclusion has been drawn that, the total loss of the said farmers appears to be to the tune of Rs.58 Lakhs 32 Thousand 270. From the said loss affected area 2.50 to 3 Ton grapes were sold in the local markets at the rate of Rs.45/- per kg. and the remaining entire berries decayed and dropped down. The above information report submitted with respect."
From the above report, it is clear that grapes were badly damaged due to application of this chemical Ethephon (39% S.L.), which was advised by the opposite parties against the conditions of Registration Certificate. The Committee has logically arrived at a loss of Rs.58,32,270/- and therefore, complainants are entitled to get this compensation from respondents/opposite parties.
On the other hand, learned counsel for the respondent Nos.1 to 3 stated that it is the active ingredient of the chemical Ethephon (39% S.L.) that works on the plant and in the lab test of CIL the active ingredient of the compound has been found as per the specifications. Thus, clearly no damage would be caused by application of this compound. Learned counsel for the respondent Nos.1 to 3 stated that he has filed following literature to support the view that application of this plant growth regulator has a positive effect on grapes:-
"(1) Literature issued by the Department of Horticulture, Punjab Agricultural University regarding use of ETHEPHON on grapes. (Effect of pre-harvest treatment on yield, maturity and quality of Flame Seedles grape (vitis vinifera L.) J.Hortl. Sci. Vol. 8(1): 35-40, 2013
(2) Literature issued by the Department of Horticulture, Haryana Agricultural University regarding use of ETHEPHON on grapes (Effect of Ethephon (12-chlorethyl phosphonic acid) on quality and ripening of Beauty Seedles grape, Vitis 18, 1170121 (1979)
(3) Circular issued by Ministry of Finance Govt. of India showing ETHEPHON as plant growth regulator for Grape. (Circular No.1022/10/2016-CX) FA No.106/03/2013-CX.3"
On the basis of the literature, learned counsel argued that even if Ethephon (39% S.L.) is not recommended for grapes in the Registration Certificate by the CIB, however on the recommendation of the Universities and other research institutions, company has recommended chemical Ethephon (39% SL) for grapes and farmers are benefiting from it.
Learned counsel further stated that State Commission has observed the same in its impugned judgment. The learned counsel referred to the following observations of the State Commission:-
"However, undisputedly though in CIB registration 'Ethephon (39% S.L.) is not recommended for grapes, opponents in their leaflet recommended it. But according to opponents they have recommended the 'Ethephon (39% SL)' for grapes on the basis of recommendation of the universities and some foreign countries."
Learned counsel for respondent No.4 stated that he agreed with the arguments advanced by the learned counsel for the respondent Nos.1 to 3. However, he further states that even if there is any shortcoming in the chemical Ethephon (39% S.L.), the respondent No.4/dealer is not responsible as the compound is manufactured by respondent Nos.1 to 3 and they would be responsible.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. First of all it is seen that there is a delay of 24 days in filing the present appeal. The delay is condoned on the grounds mentioned in the application for condonation of delay. There is no doubt that report of the Taluka Level Agriculture Seeds Grievance Committee lends support to the case of the complainants that the application of Ethephon (39% S.L.) compound has led to the damage of the grape crop. The sample was first tested in Insecticide Testing Laboratory, Pune where the sample failed and was found misbranded. However, the sample was sent by the Magistrate to the CIL for testing and the report of the analyst is as follows:-
8.8.
Remarks:
The sample to the relevant specifications in the active ingredient content test requirement.
It is difficult to comprehend actual meaning of this report. The company and the State Commission have treated this to be a report that sample conforms to the specifications. As no objection has been raised on the report by the complainants or their counsel, it may be deemed to be a report of the sample conforming to the specifications in respect of the active ingredient of the compound. The admitted facts as observed by the State Commission are that this compound is not recommended for grapes under the Registration Certificate issued by the CIB whereas the leaflet and the packet recommends it for the grapes. The literature submitted by the learned counsel for the respondents is basically information on research by the institutions in form of research papers that have been published by different Universities. In one of the research published from Department of Horticulture, Agriculture University, Hissar, Haryana, the following has been mentioned in the heading:-
Effect of Ethephon (2-chloroethyl phosphonic acid) on quality and ripening of Beauty Seedles grape by P.K. Mehta and B. S. Chundawat
Introduction
"Uneven ripening is one of the serious problems in Beauty Seedless grape, which is an early cultivar recommended for commercial cultivation in north India. Ethephon has been found effective in accelerating the ripening and improving the quality of many fruits (Eck 1970, GERDITS AND OBENAUF 1972, CHUNDAWAT et al. 1977). Dipping experiments with Ethephon have resulted in enhanced anthocyanin development and an increase in total soluble solids to acid ratio in Doradillo grapes (HALE et al. 1970). RAO et al. (1974) reported that ripening response of Ethephon in Pusa Seedless (Sultanina) grape varies with stage of treatment. Looking at the usefulness of this chemical on grapes, the present study was designed to work out the proper concentration of Ethephon with standard timings of its application for uniform colour development and early maturity of Beauty Seedless grapes."
From the above, it seems that the use of this Ethephon chemical with respect to dose and timings are not yet standardised. In such situation, the recommendation by the company for its application on grapes against the condition of the Registration Certificate clearly comes under the purview of unfair trade practice. In fact, this paper throws some light on the damage to the grapes in the present case. This paper clarifies that this chemical causes early ripening. In the present case, early ripening seems to have damaged the grape crop and grapes started dropping down after early ripening. Otherwise also use of chemical Ethephon (39% SL) against the condition of Registration is a grave offence and violation of the Insecticides Act, 1968. In a consumer case like this, consumer fora is only authorised to penalise the company for unfair trade practice in terms of awarding compensation.
Another accepted violation is in respect of non-printing of packaging material and the leaflet in Marathi. This also clearly brings the sold material into the category of misbranded insecticide as per Section 3(K)(V) of the Insecticides Act, 1968. The same is also violative of Rule 19 (7) of the Insecticides Rules, 1971. Thus, inspite of the report of CIL, the sold material remains misbranded as defined in the Insecticides Act, 1968. Misbranded material cannot be sold or can be recommended for use. From this aspect also, the respondents are guilty of unfair trade practice as the farmers in Maharashtra may be unable to understand the instructions printed in English or Hindi.
Coming to the question of the report of the Taluka Level Agriculture Seeds Grievance Committee, it is seen that it is a committee having experts from related fields like agriculture and horticulture and technical experts from the University. Thus, their report cannot be brushed aside in the light of the report of the CIL, which itself is not very categorical. It is admitted that the complainants had purchased this Insecticides/Plant Growth Regulator from the respondent No.4 and the same was manufactured by the respondent Nos.1-3. This chemical Ethephon (39% S.L.) was applied on 10 acres of grapes crop of the complainants and the crop has been damaged. The Committee has given its estimate of loss to the tune of Rs.58,32,270/- , however the same cannot be accepted in the light of the final test report of the CIL wherein the sample had not been found misbranded in respect of its active ingredient. However, the complainants are simple farmers and they have used this compound as recommended in the leaflet against the condition of Registration and the leaflet is also not printed in the local language Marathi. As already examined that these two aspects constitute unfair trade practice on the part of the respondents and therefore, complainants are entitled to get compensation for being victim of these unfair trade practices adopted by the respondents/opposite parties.
As the person selling misbranded insecticides is also at fault and therefore, respondent No.4 is also guilty of deficiency in service along with manufacturers being respondent Nos.1 -3. After report of the CIL it cannot be conclusively said that the loss to grapes has occurred only due to application of Ethephon (39% S.L.) though the early ripening being the effect of the chemical in question might be a cause for damage to the grape crop. Therefore, the complainants cannot be fully compensated for the loss assessed by the Taluka Level Agriculture Seeds Grievance Committee. However, in the facts and circumstances of the case, I deem it appropriate to award a compensation of Rs.10,00,000/- (rupees ten lakhs only) to be paid by all the respondents/opposite parties to the complainants. Out of this amount Rs.8,50,000/- (rupees eight lakhs fifty thousand only) will be paid by respondent Nos.1-3 jointly and severally and Rs.1,50,000/- (rupees one lakh fifty thousand only) will be paid by respondent No.4 to the complainants within a period of 45 days from the date of this order, failing which, the amounts shall attract interest @8% p.a. from the date of this order till actual payment. Respondent Nos.1-3 shall also pay jointly and severally a cost of Rs.8,000/- (rupees eight thousand only) as litigation cost to the complainants. Similarly respondent No.4 shall pay litigation cost of Rs.2,000/-(rupees two thousand only) to the complainants.
First Appeal No.1171 of 2014 is disposed of in terms of the above order.