CLAIM U/S 4&13 OF THE PUNJAB CONSUMER PROTECTION ACT 2005.
1. The claimant Ali Asghar filed a claim against the defendants for recovery of Rs. 13,22,550/- for loss sustained by him and damages.
2. Briefly stated facts of the case are that in the month of November 2010, the defendants visited the claimant at Chak Dhola Rakh Malka Hans Tehsile & District Pakpattan. They highly praised for the onion seeds of their own company in presence of Haji Latif, Masood Ahmad and Muhammad Ali, the residents of the same place. The defendants persuaded the claimant to purchase onion seeds from them with arguments that such seeds would give good results. The claimant accepted the offer of the defendants.
Consequently, he purchased "Nasarpori" onion seeds from the defendants @ Rs. 2400/- per maund. The claimant paid them Rs. 10,000/- as advance in lieu of the provisional receipt No. 470 dated 02-12-10 and also handed over to them a cheque of Rs. 1,00,000/-. Later the cheque was returned and on demand of the defendants, he remitted Rs. 1,00,000/- through online process of UBL Bank Pakpattan on 06-12-2010. After having received the amount, 42 maund of "Nasarpori" onion seeds were supplied to the claimant and remaining 03 maund were settled to be provided him after two days. The claimant sowed those seeds in agricultural land which he had taken on lease. The claimant submitted that the onion seeds "Nasarpori" sold by the defendants were found defective resulting in poor crop. The total expenses alongwith amount of damages, item vise has been described in Para No. 3 of the claim. Feeling that the crop was poor, the claimant contacted with the defendants apprising them the situation but they could not furnish any satisfactory explaination for it. Then the claimant approached Deputy Director Federal Seed Certification and Registration Department Sahiwal. He inspected the site and vide letter dated 04-04-2011 observed that "Nasarpori" onion seeds sold by the defendants was poor in quality and standard. The claimant, for further action, moved an application before Executive District Officer Agriculture Pakpattan. The Deputy District Officer Agriculture Extension alongwith his team conducted survey of the crop of the onion. Vide report dated 04-04-11 it also concluded that the seeds were defective and unapproved for the crop in the area. Therefore, claimant issued legal notices to the defendants for payment of total amount of cost/damages to the tune of Rs. 13,22,550 but the defendants did not reply to it. The claimant claimed that he was entitled to recover aforementioned amount from the defendants as cost of onion seed, expenses incurred on the crop and damages.
3. The defendants No. 2&3 Waseem Raja and Abdul Samad did not appear in the court despite observing due formalities for procuring their attendance. Therefore, they were proceeded against exparte.
4. The defendant No. 1 Amjad Ali Zia appeared in the court and contested the matter by filing his written statement. Taking preliminary objections, he submitted that neither any notice was issued to him nor the claimant had a cause of action nor this court was competent to adjudicate upon the matter. He also claimed that claim was filed just to blackmail him.
5. The defendant No. 1, on merits, submitted that he never met with the claimant nor he ever sold onion seeds to him nor he ever persuaded him to do so nor any receipt was issued by him nor he had received any amount through online process and that facts mentioned in the claim were fake, concocted and afterthought. He also submitted that he was never called by any government officer of agriculture department for inspecting/examining the crop belonging to the claimant.
6. An effort was made to being the parties to some settlement but it brought no positive results.
Therefore, the parties were directed to produce their evidence in support of their respective contentions.
7. The claimant Ali Asghar Pw-1 tendered affidavit Ex-P1 as his statement in chief and he also produced Muhammad Ali Pw-2 Haji Latif Pw-3.
Both of them placed on record affidavits Ex-P5 &P6. They verified that affidavits were duly signed by them. The documentary evidence of the claimant comprised of receipt No. 470 Ex-P2, letter dated 18-04-11 issued by District Officer Agriculture (extension) Pakpattan Ex-P3, letter dated 04- 04-11 issued by Government of the Pakistan Federal Seed Certification and Registration Ex-P4, online receipt of UBL bank Ex-P7, receipt of supply of 42 maund of seeds and receiving of sale price 1,08,000/- issued by Harvest Agro Vision Ex-P8, brochure of Harvest Agro Vision (seeds division) Ex- P9, receipts showing expenses incurred by the claimant Ex-P11 to Ex-P15 accounts and expenses maintained by the claimant Ex-P16, legal notice to all the three defendants Ex-P17 to Ex-P19, reminder legal notice Ex-P20 and postal receipts Ex-P21 and Ex-P22.
8. Ajmad Ali Zia one of the defendants appeared in witness box as Dw-1.
He placed on record an affidavit Ex-D1. He also examined Muhammad Zubair Dw-2 who brought on record his affidavit Ex-D2.
9. The documentary evidence of the defendants comprised of dealer ship deed Ex-D3, original brochure of the company Ex-D4 and D5, original receipt of the company Ex-D6, original registration certificate Ex-D7, notice of the company Ex-D8, certificate of chamber of commerce Multan Ex-D10, clipping of newspaper Ex-D11, form of registration Ex-D12, form 12 Ex-D13 partnership deed Ex-D14, registration certificate Ex-D15, application to agricultural department Ex-D16, certificate Ex-D17, photocopy of renewal certificate Mark-A, NTN certificate Mark-B, photocopy of application to police station New Multan Mark-C (all these documents were ordered to be placed on record subject to objection on the behalf of the learned counsel for the claimant for decision at the time of disposal of the claim).
10. Ali Asghar, the claimant Pw-1 in his affidavit Ex-P1 duly signed by him reiterated facts incorporated in the claim. Likewise, his witnesses Muhammad Ali Pw-2 and Haji Latif Pw-3 also placed on record their affidavits Ex-P5 to P6. Both of them verified that the contents mentioned in the affidavit were correct and that the affidavit were signed by them. All the three witnesses appeared in the Court on behalf of the claimant, were subjected to cross examination.
11. Ali Asghar Pw-1 stated in his cross examination that he had taken one square of land on lease subject to payment of Rs. 50,000/- per acre. According to him Haji Latif and Muhammad Ali the witnesses were the residents of the village but not related to him. He admitted that provisional receipt Ex-P2 was not signed by anybody however, according to him he had remitted Rs.
1,00,000/- on 06-12-10 to the account of Muhammad Waseem Raja the defendant No. 2. He clarified that he did so on the advice of Amjad Ali the defendant No. 1. He admitted in his cross examination that agricultural department inspected his field crop in absence of the defendants. However he clarified that none had turned up on their behalf of that occasion. He reconfirmed in his cross examination that all the three defendants used to visit together and all of them had apprised him that they were managing partners. He admitted it correct that no online payment was ever made directly to Amjad Ali Zia defendant No. 1. He ultimately explained that the amount was transferred to the account of Waseem Raja through online process on the asking of the defendants.
12. Muhammad Ali pw-2 and Haji Latif pw-3 both unanimously stated in their affidavits that all the three defendants had contacted the claimant together and persuaded him to purchase "Nasarpori" onion seeds from them. Thereafter the claimant agreed and purchased 42 maund of "Nasarpori" onion seeds for price of Rs. 1,08000/-. The amount of Rs. 10,000/- was paid in advance.
The claimant gave a cheque of Rs. 1,00,000/- to the defendant No. 1 which was returned with direction to make payment through online process and accordingly the said amount was remitted on 06-12-10. When the amount /price of onion seeds were received, the seeds were supplied to the claimant. They further stated that the "Nasarpori" onion seeds supplied by the defendants were defective which resulted in poor crop causing a great loss to the claimant. When subjected to cross examination they admitted that online payment of 1,00,000/- was remitted in the name of Waseem Raja.
13. The defendant Amjad Ali Zia in his affidavit Ex-D1 mentioned that his company i.e Harvest Agro Vision uses to deal with business of pesticides only. He had no sub- office anywhere else. He further submitted in his affidavit that his company had not issue any brochure about sales of seeds. He denied that he ever met with the claimant. According to him he neither sold onion "Nasarpori" seeds to the claimant nor he ever issued any receipt nor did he receive sale price thereof. He denied that the defendants No. 2 &3 were his managing partners.
14. During his cross examination, he remained strict to his version taken during his statement in chief however, he admitted that brochure Ex-P9 carried his PTCL and Mobile number. He also admitted that the receipt Exp8 showed supply of 42 maund of onion seeds for a consideration of Rs. 1,00,000/- this receipt carried signatures of marketing manager but he was not employee of his company. The factum of issuance of payment of Rs. 1,00,000/- through online process of UBL bank was also admitted by him.
15. Muhammad Zubair Dw-2 in his cross examination stated that he was working with Harvest Agro Vision as an employee for last 05 years. According to him brochure Ex-p9 belonged to Harvest Agro Vision (seed division) however, the said brochure did not relate to the company of the defendant. No. 1. He denied that invoice Ex-p8 related to the company of the defendant. He also reiterated that Harvest Agro vision dealt with pesticides only.
16. The learned counsel for the claimant contended that all the three defendants being managing partners had contacted with the claimant persuading him to purchase "Nasarpori" onion seeds with justification that the same would give good crop. Resultantly the claimant agreed to purchase 42 maund of "Nasarpori" onion seeds for a price of Rs. 10,8000/-. The payment was made through online process. After receiving the amount, the requisite seeds were supplied to the claimant. He sowed the said seeds using all methods to get good crop by way of making sprays and using pesticides etc but despite all efforts made, the crop did not bring good results. He further contended that concerned authorities i.e District Officer Agriculture Extension Pakpattan and Federal Seed Certification and Registration Department verified that poor results of crop was due to defective seeds and also for the reason that "Nasarpori" onion seeds had not been sanctioned by the government for sowing in the area. He concluded his arguments with claim that due to poor quality seeds, the claimant had to suffer a great financial loss and other losses regarding expenses incurred on preparing land for sowing. He also claimed damages to the tune of Rs. 10,00,000/-.
17. On the contrary, the learned counsel for the defendant argued that the defendant Harvest Agro vision owned by the defendant No. 1 had no connection whatsoever with Waseem Raja and Abdul Samad defendant No. 2 &3. According to him, "Nasarpori" onion seeds were never sold to the claimant nor did defendant No. 1 ever receive the price of the seeds. He further argued that the defendant No. 1 never persuaded the claimant to purchase "Nasarpori" onion seeds.
18. At the outset and also in order to arrive at the just and right conclusion, the spirit of preamble of the Punjab consumer Protection Act 2005 is to be critically examined and seen. The preamble of the said Act laid down that whereas it was expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of the consumer complaints and for matters connection therewith, the Act ibid was promulgated. In simple worlds, the sole object of the Act was to provide for protection and promotion of the rights and interests of the consumers. Therefore, when two interpretations of a question of fact and law, were possible, the interpretations favouring the consumer shall be paid significance.
19. The prevailing social set up particularly with reference to rural areas and people residing there having link with agriculture, being the only source of their livelihood, is to be explained and kept in mind. Generally, the agricultural class in rural areas has small holding. Sometime they take land on lease and sow agricultural products to earn their livelihoods. Such types of people are generally uneducated and suffer from poverty. Owing to lack of facilities, they avoid to have direct approach with big companies for the purposes of purchase of seeds and pesticides and prefer to contact with local agents who assure them to provide maximum facilities to fulfill their requirement obviously for some consideration. Such big and registered companies depute their agents to have contact with such agriculturist/cultivators. Sometimes such companies issue them appointment letters to deal with the cultivators on their behalf and some times they orally ask them to visit different places to persuade the cultivators to purchase some particular king of seeds and pesticides. The cultivators being poor, uneducated with small holdings of land generally on lease with meager sources feel reluctant to have direct link with the companies and elect to purchase pesticides and seeds from such authorized or unauthorized agents. It is also observed that the such agents introduce their respective product in such a manner that poor cultivator fell to their prey. The authorized or unauthorized dealers do not act of their own and generally, they do contact with cultivators or they act on behalf of some authorized and registered companies.
20. The perusal of entire record of case and evidence has swayed me to observe that the defendant No. 1 Amjad Ali Zia persuaded many people including defendant No. 2&3 to visit different places, contact various type of cultivators with aim and object to persuade them to purchase seeds by showing that those would give good results. Waseem Raja the defendant No. 2 and Abdul Samad defendant No. 3 might not be the duly authorized agent of Amjad Ali Zia, the defendant No. 1 but they had been acting as agent on behalf of Amjad Ali Zia defendant No. 1 who was proprietor /owner of Harvest Agro Vision. The said Amjad Ali Zia the defendant No. 1 was doing the business of pesticides only but he was also un-authorizedly involved in business of seeds. It being so, Waseem Raja and Abdul Samad both acted and performed their duty on the asking /advice and direction of Amjad Ali Zia the defendant No. 1 who in order to get maximum benefit, violating the law of land, trapped the claimant to purchase "Nasarpori" onion seeds though he was not authorized to sell.
The purchase of Nasarpori" onion seeds of 42 maund for price of 1,08,000/- is admitted fact on record. The claimant sowed it in order to get good results but unfortunately, the seeds were not approved for sale in the area and defective and substandard therefore crop did not bring the requisite good results.
21. The Deputy District Officer Agriculture Extension Pakpattan vide dated 14-04-2011, after inspection of field, opined as under
1. Satisfactory plant population
2. Quality, quantity of size of the onion bulb was very small then the normal. No desease insect/ pest incidence was recorded. Inflorescence cluster rod 2 to 3 per bulb. The crop had attained maturity.
22. On application Ex-p4 for action against the Harvest Agro vision Company moved by the claimant, government of the Pakistan Federal Seeds Certification and Registration Department reported that the claimed variety "Nasarpori" onion seeds was not approved U/s 10 of the Seed Act 1976 for cultivation and seed production. Since its morphological character and other specifications were not available with this department therefore, it could not be inspected. It was also reported that no person or company was authorized to sell, offer for sale, or advertise, or hold in stock for sale, or barter or otherwise supply any seed of any variety or species which were not approved under section 10 of seed Act 1976. However, the said department showed its inability to compensate the claimant and advised to approach proper available forum for compensation of losses.
23. The delivery of seeds by Harvest Agro vision for price of 1,08,000/- stands established from receipt available on record as Ex-p8, online payment through UBL bank Pakpattan by the defendant to the account of Waseem Raja defendant No. 2 was also proved on record through receipt Ex-p7. The contesting defendant No. 1 admitted that brochure Ex-p9 carried his PTCl landline number besides mobile number. This brochure/pamphlet was used by the defendants when they persuaded the claimant to purchase "Nasarpori" onion seeds. It can be seen with naked eyes that Harvest Agro Vision Company had also its Seeds Division. If the defendant No. 1 had no connection with the said seed division of "Harvest Agro vision, there was no justification for mentioning his PTCL and mobile number on it. All the three witnesses of the claimant unanimously and unequivocally submitted that all the three defendants were available at particular place where the claimant was also available. The bargain was struck down between them on pursuation of the defendants and the claimant agreed to purchase "Nasarpori" onion seeds. The evidence on this point produced on record by the claimant could not be shattered during course of cross examination. The defendant has placed on record numerous documents mentioned in earlier part of this order. All these documents i.e Ex-D3 to D17, if read together, would give an impression that the Harvest Agro Vision was a partnership company and defendant No. 2 &3 had no connection with it. The brochure, receipt and invoice used by the Harvest Agro Vision Company were different and distinguishable from such type of documents produced on record by the claimant. The examination of these documents would reveal that the defendant No. 1 was in fact authorized to deal with pesticides business only with name and style Harvest Agro Vision. On the other hand documentary as well as oral evidence produced by the claimant would show that the defendant had also opened another wing of the said Harvest Agro Vision which was dealing with seeds and used the name of Harvest Agro Vision (seed division). It was a deliberate attempt on the part of the defendant No. 1 that in the garb of license issued to him for sale of pesticides, he also started his business of seeds and for this illegal business, he had hired different people to persuade the farmers to use seeds and out of such person, Waseem Raja and Abdul Samad also used to act on the direction /advice of the defendant No. 1. This was the reason that he used different receipts, invoice and other printed material while selling seeds. Had the defendant No. 1 been dealing with his sole business of pesticides in good faith, he would not have got printed the brochure showing as if the company Harvest Agro Vision was also dealing with business of seeds. I am of the confirm view that the transaction done by the defendant No. 2 Waseem Raja was in fact a deal on behalf of defendant No. 1 with his will and consent and the said Waseem Raja acted as an agent of the defendant No. 1. Otherwise, there appears no malafide on the part of the claimant to sue defendant No. 1 and 3 wrongly because he had no previous ill will, grudge and animosity against them.
24. Since the defendant had denied sale of seeds to the claimant and factum of receiving any price therefore he was not presumed to have any concern as to what loss the claimant had to sustain because of poor and defective seeds. It was established on record that the seeds were factually sold by the defendant No. 1 through defendant 2 and others and claimant had paid Rs.
1,08,000/- through different modes including online payment of res. 1,00,000/-. The claimant annexed with claim certain receipts Ex-P11 to 12 showing that he used pesticides and other necessary things in order to get good crop by spending money on different occasions. There was no rebuttal to these receipts on record on behalf of the defendants. Therefore, claim of the claimant to the extent of purchase of "Nasarpori" onion seeds and amount incurred on sowing to get good crop and expenses incurred thereon stands established. So far as damage to the tune of Rs. 10,00,000/- is concerned, the claimant failed to bring on record sufficient and confidence inspiring evidence.
Simple assertion that the claimant was entitled to damages of 10,00,000/- was not enough to exceed to his plea. Consequently, the claim regarding damages cannot be accepted.
25. The factum of issuance of legal notices stands proved through legal notices Ex-P17 and reminder legal notices Ex-P 20 and postal receipts Ex-P18 to Ex-P21 and P22. The delivery of seeds was made at Pakpattan, therefore this court has jurisdiction to decide the case. The preliminary objections of the defendant No. 1 are answered accordingly.
26. Some documents mentioned in Para No. 9 of this order, were allowed to place on record subject to their admissibility in evidence. Needless to mention that law of evidence is not strictly/directly applicable to consumer court. Therefore, there is no bar if those documents are reed in evidence.
Obviously, with due care and caution.
27. In view of my findings and reasons recorded above, the claim is accepted in terms that the claimant shall get Rs. 3,22,550/- as amount spent on purchase of seeds and pesticides , fertilizers etc and on preparation of land for the purposes of sowing onion seeds. He is also held entitled to get Rs. 10,000/- as minimum counsel fee because counsel fee certificate is not attached. The claim of damages of Rs. 10,00,000/- is turned down. All the defendants are held jointly and severally liable to pay Rs. 3,32,550/- (three lac thirty two thousand five hundred fifty rupees only) to the claimant within 30 days from today failing which claimant would be at liberty to file execution petition.