Back
The Branch Executive, Godrej Soaps Ltd. - Appellant
Versus
M.V. Harshavardhana Reddy - Respondent
Decided On : 06/21/1996
First Appeal No. 142 of 1995 and Revision Petition Nos. 165 and 166 of 1995
Advocates Appeared :
Mr. Joseph Vellapally,Thomas Joseph,Mr. M.V.S. Reddy
Headnote:(i) Consumer Protection Act, 1986 Sections 21, 21(b) and 2(1)(d)(i) - Appeal and Revisions against orders of State Commission - Main dispute in all these cases is whether poultry concentrate and starter supplied to complainants defective - Opposite Parties raised preliminary objections that purchase of poultry feed by various complainants amounts to purchase of goods for commercial purpose Cannot be termed consumer - State Commission held that complainant running small poultry farms cannot be said to be running business on large scale and they are running small poultry farms to eke their livelihood by way of self-employment - Finding of State Commission confirmed.
Held: Merely because these poultry farmers are engaging labourers etc., to help them in running the farms it cannot be said they are not engaged in self-employment or earning their livelihood. There is no allegation on the part of the contesting Opposite Parties that these Complainants are doing any other business for earning their livelihood. As remarked by the Supreme Court in the above quoted passage question of profit is not very material. Profit depend upon the nature of business. If the arguments of the Opposite Parties is accepted even small farmer who sells his produce of the land in the market, will be deemed to be engaged in commercial activity. That does not appear to be the intention of the Parliament while using the words "of earning his livelihood by means of self-employment" in the explanatory clause. Therefore the finding of the State Commission in an the above three cases that the various Complainants had purchased the poultry feed for earning their livelihood has only to be confirmed. (Para 11)
(ii) Consumer Protection Act, 1986Sections 21, 21(b) and 13(1)(e) - Opposite Party contended that District Forum relating to Revision Petitions and State Commission relating to complaint in appeal did not follow procedure laid down in Section 13(1)(e) of the Act Sample of alleged defective poultry feed not sent to appropriate laboratory for analysis and test - By the time complaints filed much time had elapsed - No useful purpose would have been served even if any sample available - Sent to Laboratory for tests and analysis - In case opposite parties sure of their product they would have supplied samples of batch of feed which was taken back from farmers and request would have been made to District Forum or State Commission for sending sample for test and analysis Non-compliance of Section 13(1)(c) in cases in hand will not vitiate orders of District Forum and State Commission.
Held: The State Commission also discussed this point in detail and held in an these cases that all the broiler concentrate and starter which has remained unused had been taken back by the Godrej Soaps Ltd. through their distributor and therefore nothing was left with the above poultry farmers for sending a sample to the laboratory for analysis and test. Moreover much time had lapsed by the time the complaints were filed and it is clear from the various extracts from the journal and text reports filed that toxine in the feed increase if those are not properly kept. By the time the complaints were filed much time had elapsed and therefore, no useful purpose would have been served even if any sample was available and was sent to the laboratory for tests and analysis. In case the Opposite Parties were sure of their product they would have supplied the samples of the batch of the feed which was taken back from the farmers and a request could have been made to the District Forum or the State Commission for sending the sample for test and analysis. Hence we are of the opinion that non-compliance of Section 13(1)(c) in the cases in hand will not vitiate the orders of the District Forum and the State Commission. (Para 12)
(iii) Consumer Protection Act, 1986 Sections 21 and 21(b) - Complainants alleged that Aflotoxine level in concentrate and starter was of level of 0.37 PPM - Mortality rate of birds increased and also caused loss in weight of birds No expert opinion on point of Aflotoxine B1 at 0.37 PPM fatal to birds in question - State Commission should have asked parties if they wanted to lead expert evidence - Cases remanded to State Commission for fresh decision.
Held: We are of opinion that in such circumstances there should have been an expert opinion on the point if Aflotoxine B1 contents at 0.37 ppm was fatal to the birds in question. The State Commission should have asked the parties if they wanted to lead expert evidence on this point. (Para 16)
We are also of the opinion that the disposal of the case relating to the First Appeal is further vitiated because the State Commission has relied upon the report of the Veterinary Biological Research Institute given with respect to a sample of the feed starter sent to the Institute by the Durga Poultry Farm, Autonagar for analysis but there is no evidence on the file to show as to which feed had been supplied by the owner of the said poultry Farm i.e. Shri G. Shrinivas for analysis and test.
(Para 17)
In the light of the above we have no other option but to accept the First Appeal and the Revision Petitions and remand the cases to the State Commission for fresh decision. The State Commission shall examine such expert witnesses and take such other evidence as may be produced by the parties in all the three cases. The State Commission will be at liberty to consolidate all the three cases i.e. the original complaint of Harshvardhana Reddy and the appeals giving rise to the above two Revision Petitions and take evidence in one case. The evidence already led in these cases can also be considered by the State Commission while deciding the cases provided it is admissible evidence. (Para 18)
Result: Revision Petitions accepted.
B.S.Yadav, Member - This Order will dispose of the above titled First Appeal and the Revision Petitions as the matter involved in all these cases is similar. It may be mentioned here that the above two Revision Petitions arise out the common order dated 16th December, 1994 passed by the State Consumer Disputes Redressal Commission, Andhra Pradesh while the First Appeal arises out of a separate order dated 23rd January, 1995. By the order impugned in this appeal the State Commission has directed the Appellants who are the Branch Executive, Godrej Soaps Ltd., Animal Feeds Division, Patamala, Vijayawada(Andhra Pradesh), and the General Manager, Godrej Soaps Ltd. "Animal Feeds Division, 1-B, Industrial Estate, Ambal1ur. Madras who were Opposite Party Nos. 1 & 2 respectively in the complaint to pay a sum of Rs. 1,65,951/- with interest at 12% from 18th September, 1991(date of the complaint the realisation) to Respondent No.1 in the appeal i.e. M.V., Harshavardhana Reddy who was the Complainant. Present Respondent No.2 is the Managing Director of M/s. Diamond Enterprises, Falaknuma, Hyderabad who was Opposite Party No.3 in the complaint and is distributor of broiler poultry concentrate and starter manufactured and marketed by Godrej Soaps Ltd. First, we will take the case of the Complainant Harshavardhana Reddy. The Complainant is running a broiler farm in Hayath Nagar since November, 1990. He is purchasing broiler poultry concentrate since 20.12.1990 from Opposite Party No.3. The statement given in the complaint mentions the bags of starter and concentrate purchased by the Complainant on various dates from the third Opposite Party up to 6th March, 1991. He fed the concentrate and starter four batches of broilers. The first batch was of 4080 birds whose average weight 1.950 kgs. per bird and the mortality rate was 4.4% and the total birds that died was 175. The second batch consisted of 3060 birds between 18th January, 1991 to 15th March, 1991 and the average weight was 1.350 kgs. per bird and the mortality rate was 7.7% and the total birds that died was 232. The third batch also consisted of 3060 birds between 2nd February, 1991 to 9th March, 1991 and the average weight per bird was 1.300 kgs. and the mortality rate was 32.6 and the total birds that died was 969. The fourth batch too consisted of 3060 birds and the average weight of per bird was 1.200 kgs. and the mortality rate was 49.9% and the total birds that died was 1499. The case of the Complainant was that on account of birds being fed with defective feed supplied by the Godrej Soaps Ltd. through their distributors from 10th February, 1991 onwards large number of birds died and the mortality rate went up to 49.9% and the average weight of the birds carne down from 1.95 kgs. per bird to 1.200 kgs. in the fourth batch. The complainant had purchased the Godrej concentrate and starter from the Godrej's Distributors at a very high cost compared to other brands in the market relying on the reputation of the Company. According to the Complainant the concentrate and starter manufactured by the Godrej Soaps Ltd. was defective and substandard resulting in heavy mortality in birds and loss of weight in the remaining birds. The affected birds were taken to V.H.L. Poultry Diagnostic Laboratory, Hayathnagar for the expert treatment and advice and it was diagnosed by Dr. Kalyani that the birds were affected with toxicity and mineral deficiency. Before filing the complaint, the Complainant gave a representation on 27th March, 1991 to the Godrej Representatives and Distributors complaining about the defects in the feeds. The officers of the Godrej Soaps Ltd. came and inspected the farm of the Complainant and were satisfied that heavy mortality of the birds was due to the defect in the feed and starter and suggested that they would supply feed for two months at a concessional rate for the damage occurred to the Complainant. The Complainant rejected that offer as it was quite disproporti
