T.S.P. Moosath, Judicial Member
Both these appeals are filed by the second opposite party in OP.No.257/04 and OP.No.258/04 of the Consumer Disputes Redressal Forum, Idukki, in short, the district forum has filed against the common order passed by the district forum by which they were directed to pay Rs 3,42,000/- by way of compensation and Rs 2000/- as cost to the complainant in CC.No.257/04 and pay compensation of Rs 2,40,000/- with cost of Rs 2000/- to the complainant in CC.No.258/04.
2. The complainants in these cases are brothers and they are holding rubber plantations having an extent of 4 acres each. The estate was re-planted and tapping started in the year 2002. Having been attracted by an advertisement published in the “Rubber’ magazine published by the first opposite party, Rubber Board, to the effect that a rain guarding compound named “Indseal” manufactured by the second opposite party was having the approval of the first opposite party, the complainants purchased the compound packed in 6 containers of 25 kgs each at a cost of Rs 400/- per tin from the shop of the 4th opposite party, who is a sub dealer of the 3rd opposite party. The second opposite party is the manufacturer and the third opposite party is the dealer in Thodupuzha. The complainant in OP.No.257/2004 had applied the compound on 1300 trees and the complainant in OP.No.258/2004 applied it on 900 trees. After few days, it was noticed that some ring shaped cracks had formed on the trees and consequently the trees were totally damaged. The mater was reported to the Regional Office of the Rubber Board and they inspected the trees in question and prepared reports. They have recommended tapping rest for six months for the trees to which the compound was applied and also directed application of “Indofil’ at 10 days interval and application of rubber coat on the affected portion. Though the directions were complied with, no improvement was noticed and the damage was seen increased. Notice was issued to the first opposite party detailing the matter but no reply was received so far. The complainants have sustained huge monetary loss due to the damage caused to the trees and the same was caused due to the substantial manufacturing defect in the compound manufactured by the second opposite party and sold by opposite parties 3 & 4. So the complainants seek appropriate direction for payment of compensation by the opposite parties.
3. Separate written versions have been filed by opposite parties 1,2,3 and 4 in both the cases. The contentions raised by the first opposite party in substance are that they have no involvement in the particular matter and no services were hired from them by the complainants nor any goods were purchased. The Rubber Board has not granted any approval for commercially marketing the product in question for application in the rubber plantation. The manufacturer of the “Indseal” brought a sample of rain guarding adhesive for testing in the laboratory of the first opposite party. The sample was tested and a certificate was issued to the manufacturer. The certificate relates only to the sample tested and it was not an approval for any like product marketed by the manufacturer. The gist of the contentions raised by the second opposite party is that the second opposite party is a firm and the firm is not properly impleaded in the proceedings. There was no manufacturing defect in respect of “Indseal” manufactured and marketed by them. Even if the paste had affected the bark it would confine to the area where the paste was applied only, and the other portion including the tapping panel was unaffected. The complainant could continue tapping after providing new rain guard just above the affected area. Since the tapping bark below was unaffected the tapping could have been continued and no loss in that regard had occurred. The trees have the capacity to heal any small injury as alleged in the complaint. Even if a few days were lost the trees would compensate it later. The complainants could have and in all probability might have been tapping the trees and enjoying the benefits after a week of the alleged incident. No loss has been sustained by the complainants. The complainants are not entitled for any compensation. The third opposite party in their written version has admitted that they distributed the “Indseal” to their retail dealer, the 4th opposite party. But they are not aware whether the complainants purchased the alleged quantity of “indeseal” from the fourth opposite party. As such there is no consumer relationship between the complainants and the third opposite party. The compound is of good quality and it is being used largely by the rubber cultivators and no defect has been reported. In the written version filed by the fourth opposite party, it is contended that the “Indseal’ paste was being sold by them for the past 4 years at an average of 2 tons per year. None of the consumers of the product have so far raised any complaint against the compound. It is reasonably suspected that the complainants might have overheated the paste and applied it on the bark of the rubber tree after deeply scratched with rough objects by unskilled labourers and minor damages might have been caused to the rubber trees for a few days. The 4th opposite party was distributing the paste in sealed containers, as sealed by the manufacturer. No damage is likely to be caused to the trees if the compound is used as per the instructions. The compensation claimed is highly excessive and the 4th opposite party is not liable to pay any compensation.
4. Both complainants were tried jointly and evidence was recorded in OP.No.258/04. Complainant in OP.No.258/04 was examined as PW1 and Exts.P1 to P7 were marked on the side of the complainants. DW1 and DW3 were examined and Exts.R1 to R8 were marked on the side of the opposite parties. The reports filed by the commissioner were marked as Exts.C1 and C2.
5. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the second opposite party has preferred the present appeals. By the judgment dated 19.05.2010 this Commission dismissed both appeals and confirmed the Order of the District forum. Aggrieved by the judgment passed by this Commission the second opposite party had preferred revision petitions before the National Consumer Disputes Redressal Commission as RP.No.3039&3040/2010. By the order dated 22.08.2016, the National Commission allowed both revision petitions and the judgment passed by this commission was set aside and the matter was remanded to this commission for fresh adjudication on merits, on the basis of the materials placed on record by both parties. The National Commission observed that the judgment of this commission was unsustainable, on the ground that it does not show any independent application of mind on the part of this commission.
6. Heard both sides. Perused the records.
7. The complaint relates to some defect in a rain guarding compound, admittedly manufactured by the second opposite party and marketed through opposite parties 3 & 4. Purchase of the material from the 4th opposite party who is the sub dealer of third opposite party, who, is the dealer of the material in Thodupuzha by the complainants is not disputed. The district forum observed that it is more or less admitted by the opposite parties 2 to 4 in the course of trial though disputed in their written version, that the particular quantity of “Indseal” purchased by the complainants were suffering from defects. Further it is also evident from Exts.P2, P3 & P4, the communications issued by the Rubber Research Institute, to the complainants. In Ext.P2 letter issued by the Deputy Director (Plant Pathology) of the Institute it is stated that he along with scientists made visit of the plantations of the complainants on 26.04.2004. It is stated that rain guarded trees were showing severe phytotoxic symptoms on the applied bark and latex was found oozing out from several points on the applied ring. The bark was observed to be damaged. Nearly 2000 trees were found to be affected and showing varying degrees of phytotoxicity. Some of those trees might have complete ringing effect in which case the trees could not be saved. Certain directions were given to be done on the trees, to save the trees. In Ext.P3 letter dated 12.05.2004 it is stated by the Deputy Director, RRI that the plantation was revisited on 11.05.2004 by the experts and noticed that all the 2200 trees applied Indseal were affected with full or partially decaying of bark including cambium. Restoration of tapping immediately was found to be detrimental resulting in heavy loss of yield in future. Therefore, six months of tapping rest was advised. In.Ext.P4 letter dated 14.09.2004 is stated that almost 1000 trees were found to have recovered from the adverse effect due to the timely intervention with proper control measures and those trees would be brought under tapping once in three days. So it is proved that damages were caused to the rubber trees of the complainants due to the application of the particular compound in question. DW2, the third respondent, who is the dealer, stated that since the compound in question was found to be defective, the balance stock was returned to the second opposite party, as evidenced by Ext.R4. He deposed that the 4thopposite party who had purchased the material from him also returned the balance stock to him. DW2 deposed that immediately on receipt of the complaint from the complainants he went to the properties and contacted the Rubber Board. According to him he sold the materials in sealed containers in the same form in which he received the same from the second opposite party. He deposed that for the last several years he was dealing with that particular material and for those years that was the best for rain guarding. In cross examination, DW2 deposed that only in one batch of consignment the received in that year alone the defect was found. So, as found by the district forum, it can be safely concluded that the material in question was suffering from certain manufacturing defects, so as to cause damages to the trees, especially to the sensitive / barks of the rubber trees. So the second opposite party manufacturer is primarily liable to compensate the complainants. Considering the evidence, facts and circumstances of the case we consider that there is no reason/ ground to interfere with the said finding of the District Forum. Further, it is to be noted that in the appeals the appellants have not raised any serious contentions regarding the said finding of the district forum and their main contention / grievance is regarding the compensation fixed by the District Forum. It is stated by the appellants that the compensation awarded is excessive.
8. In the order to assess the extent of the loss sustained by the complainants, a Commissioner was appointed and she had submitted the reports which were marked as Exts.C1 & C2. The commissioner was examined as DW3, she is a retired Mycologist from RRI, Kottayam. The district forum, considering her evidence, found that it was not possible to rely upon the reports submitted by her for want of clarity and finally. According to the PW1 the replantation of the property was necessitated due to the defects caused to the rubber trees. But there is no sufficient evidence to find that majority of the trees have been completely damaged so as to necessitate replanting. The district forum found that the only course open in a proceeding like this is to provide a reasonable compensation to the complainants, having regard to the extent of the possible loss sustained by them. Full tapping rest was advised and followed for six months. Considering all the aspects the district forum found that it will be justified to award 50% of the annual income for two years by way of compensation. Regarding the annual income, only evidence available is the testimony of PW1 and DW1. Having regard to the evidence of those witnesses the district forum found that it will be just and reasonable to take 5 kgs of dry rubber per year as net profit from each tree. Calculating at that rate the net income per year from the 1300 trees involved in OP.No.257/2004 would work out at 6500 kgs of dry rubber. The market price of dry rubber during the relevant time was around Rs 50 to 60 per kgm. The district forum had taken the minimum price of Rs 50 and making calculation at that rate the annual income was found to be Rs 3,25,000/- 50% of that for two years will work out the same amount. The district forum found that due to the damages caused to the trees, the complainants might have suffered considerable amount of mental agony and for protection of the trees he might have necessarily incurred considerable expenses but there was no evidence regarding those expenses. The district forum found that it would be reasonable to award Rs 10,000/- as compensation for mental agony and Rs 7000/- by way of compensation for the expenses incurred for the protective measures. So the total compensation will work out at Rs 3,42,000/-. The district forum found that the complainant was also entitled to get Rs 2000/- as costs from the second opposite party. In OP.No.258/04 taking the same calculation for 900 trees, the amount arrived was Rs 2,25,000/- The district forum awarded Rs 10,000/- as compensation for mental agony and Rs 5000/- for the expense incurred for the protective measures. So the total compensation in OP.No.258/2004 will work out to Rs 2,40,000/-. The district forum found that the complainant was entitled to realize Rs 2000/- as costs from the second opposite party. The district forum directed the second opposite party in both complaints to pay the amounts ordered to the complainants, within 30 days of receipt of copy of order, failing which the amounts will carry interest at the rate of 12% per annum, from the date of default.
9. It is to be noted that both the appellants and the respondents (complainants and the opposite parties ) have no case that the district forum ought to have relied Exts.C1 and C2 reports submitted by the commissioner. The complainants have not filed any appeal against the Order passed by the district forum. The appellants filed objection to the commission reports in the district forum. The counsel for the appellants submitted that the district forum ought to have set aside the commission reports and appointed another commissioner to assess the loss sustained by the complainants. It may be true but the complaints were filed in 2004,
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now it is 2019. The subject matter of the complaints, the rubber trees might have been cut and removed and replanted. So at this stage, there is no other option other than to consider the evidence available before the district forum and to take a decision in the matter. There is some basis for the contention of the appellants that the first respondent in both appeals who were selling latex to rubber suppliers could have produced the statement of accounts or other documents to prove their loss of production and income. But in the absence of such documents, on the basis of the deposition of PW1 and DW1 the district forum had taken 5 kg dry rubber per year as the net yield from a rubber tree. Considering the evidence, facts and circumstances of the case it can be seen that the compensation ordered by the district forum is not excessive as contended by the appellants and it is just and reasonable and it was fixed by considering the available evidence. We consider that there is no reason / ground to interfere with the Order passed by the district forum in the complaints. So the appeals are to be dismissed. In the result, both the appeals, A.803/06 & A.814/06 are dismissed and the order passed by the district forum is confirmed. Parties are directed to suffer their respective costs. Appellants in both appeals have deposited Rs 25,000/- each before the Commission at the time of filing of the appeal. The first respondent in both appeals / complainants are permitted to obtain release of those amount by filing proper application, to be adjusted / credited towards the amount ordered, as above.