BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Thursday the 16th day of September, 2010
C.C.No 35/09
Between:
M.Babu Setty, S/o Narasaiah Setty,
D.No.2/112, Boyalgudemgramam, Gattu Mandalam, Mahaboob Nagar District. …Complainant
-Vs-
1. A.P. State Seed Certification Agency, Represented by its Director, Hyderabad,
Having its head office at 5-10-193, 1st Floor, Opp. to Public Guardians, HACA Bhavan, Hyderabad-500 001.
2. A.P. State Seed Certification Agency, Represented by its Senior Seeds Certification Officer, Kurnool
Situating at Office cum Godown D.No., Near Ragavendra Talkies,
Ragavendra Nagar, Kallur, Kurnool-518 002
3. The A.P. State, Represented by the District Collector,
D.No.5/50, Collector Complex, Kurnool-518 002. …Opposite PartieS
This complaint is coming on this day for orders in the presence of Sri. S.Chand Basha, Advocate, for complainant, and Sri. A.Tulasi Raj Gokul & Subramanyam, Advocates for opposite parties No. 1 and 2 and opposite party No. 3 is called absent set ex-parte and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No. 35/09
1. This complaint is filed under section 12 of C. P. Act, 1986 praying to direct the OPs
(a) to pay a sum of Rs.7,90,215/- towards damages caused to
the complainants Hybrid NHH – 44 Cotton Seeds,
(b) to pay interest @ 18% p.a from the date of damages from the date of the complaint on Rs.7,90,215/- till the amount is paid,
( c) to grant damages for truma , mental agony a sum of Rs.2,00,000/- ,
(d) to grant costs and such other relief as the Hon’ble Court deems fit and proper in the in the circumstances of the case.
2. The case of the complainants in brief is as follows:- The complainant produces, develops agriculture Hybrid Seed and sell the same in the open market . During kharif season 2006-2007 the complainant produced the hybrid cotton seed through its farmers. The complainant shifted the cotton seed to the common godown of OP.No.2 at Kallur for getting same certified as per seed Act. The complainant used to pay rents, service charges, etc as demanded by Ops 1 and 2 from time to time for storing NHH 44 Cotton Hybrid Seeds till the certification is over and seeds were duly lifted by the complainant. The Ops 1 and 2 used to insure the seeds kept in the common godown where the hybrid seeds were stored for certification purpose. On 22-06-2007 and 23-06-2007 there were floods in the Handri river , Kallur ,Kurnool District due to which the undelivered NHH 44 Cotton Hybrid Seeds stocks of 2917 packets worth Rs.6,56,325/- of the complainant were sunk , badly damaged and became useless. The Ops are bound to take much care of the cotton seeds in the godown till the seed was lifted by the complainant. The Ops due to their negligence did not renew the insurance policies. Failed to insure the certified seeds which were in the care and custody of OP.No.2. The Ops failed to deliver the Hybrid cotton seed to the complainant after certification. There was negligence on the part of the Ops 1 and 2 .The complainant requested the Ops 1 and 2 to pay damages. The complainant also got issued legal notice to the Ops to pay damages. Inpsite of several demands the ops did not pay the damages to the complainant. Hence the complaint.
OP.No.3 remained ex-parte. Ops 1 and 2 filed written version stating that the complaint is not maintainable .The complainant is engaged in the business of production and selling of various crop seeds including NHH 44 variety of Hybrid Cotton Seed. The complainant used to avail seed certification services from the Ops 1 and 2 for commercial purpose. The complainant is not consumer as he availed the services of the seed certification from Ops 1 and 2 in respect of the seed which is to be sold in the open market to make business gains. It is a purely commercial activity. Availing of services for any commercial purpose by any person is excluded from the meaning of the Consumer U/s 2(1) (d) (ii) of the Act. The complainant is not the consumer and this forum has no jurisdiction to adjudicate the alleged grievance set out in the complaint.
There is no deficiency of service relating to the job of certification availed by the complainant. The Ops can not be held responsible for the loss sustained by the complainant due to vismajor. The claim of damages for such loss can not be adjudicated by the consumer Forum. The complainant did not pay any kind of charges towards rents and insurance for stocking the seed lot in the godown on the date of stocking of their seed lot. In the present case the seed test report and grow out test report was communicated to the complainant by way of displaying on notice board in the office of the OP.No.2 on 18-04-2007 and 17-05-2007 respectively. The complainant shifted the seed lots after seed processing to the godown of the Ops exclusively for the purpose of facilitating the Ops to draw samples for the purpose of conducting the above said two tests and not for storage as alleged by the complainant. By way of abundant caution, the ops insured the stocks in the godowns to cover the damages that may be incurred due to various reasons. The seed lot is stocked in the godwon only to avoid tampering of seed lots after drawing of sample and until the tagging is done. The claim of the complainant that the Ops are responsible to safeguard , protect and insure the seed lot of the complainant and until they lift the lot from the godown is wholly baseless, and incorrect. The Ops 1 and 2 are not responsible for the seed lot once the result of the two tests i.,e seed test and grow out test are communicated , as since the complainant is responsible for taking his seed lots immediately after communication of the result of grow out test which in the instant case is communicated on 17-05-2007 . In the case of NHH 444 Hybrid cotton seeds the time period prescribed for completion of certification job from the date of seed sampling of tagging is 90 days. Insurance is done by the Ops for the period of 90 days. In the present case the complainant shifted his yield to the godwon of the Ops on 23-02-2007 and samples were drawn from the said seed lot on 23-02-2007 for the purpose of conducting the two tests mentioned above. The Ops are not responsible to insure the godwon and the stocks contained beyond a period of 90 days since it is the responsibility of the complainant to lift the stocks by taking necessary steps to pack the seed lots at their own costs. The complainant deliberately did not lift the seed lot by getting the same packed since the said variety of cotton has lost its demand in the market by the time the results of tests were communicated. The complainant is not a consumer within the meaning of Sec. 2(1) (d) (ii) of the Act. There is no deficiency of service on the part of the Ops .The forum has no jurisdiction to grant relief prayed for and that the complaint is liable to be dismissed.
4. On behalf of the complainant no documents are marked. The sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B5 are marked and sworn affidavit of Ops 1 and 2 is filed.
5. The points that arise for consideration are
(i) whether the complainant is a consumer within the meaning of Sec. 2(1) (d) (ii) of the Act?
(ii) whether there is deficiency of service on the part of the Ops 1 and 2.
(iii) Whether the complainant are entitled to the relief as prayed for ?
- To what relief?
6. Both sides filed common written arguments.
7. Points No.1 :- Admittedly the complainant produced NHH 44 Cotton Hybrid Seed during the Kharif season 2006-2007. The complainant shifted the seed lots after seed processing to the godown of the Ops 1 and 2 in the year 2007 for the purpose of facilitating the Ops to draw the samples for the purpose of conducting the seed test and grow out test. Admittedly the seed lots shifted to the godown of the ops were drowned in Handri River floods on 22-06-2007 and 23-06-2007. The main contention of Ops is that the complainant availed services of Ops for commercial purpose, that the complainant is not consumer within the meaning of Sec. 2(1) (d) (ii) of the Act and that the complainant are not entitled to any relief as prayed for. In the light of the facts it has to be decided as to whether the complainant is a consumer within the meaning of Sec. 2(1) (d) (ii) of the Act.
8. Sec. 2(1) (d) (ii) of the Act reads as under :- “hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ‘ hires or avails of the services for consideration paid or promised , or partly paid and partly promised, or under any system of deferred payment , when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.”
9. The explanation provided under Sec. 2(1) (d) of the Act reads as under :
Explanation: For the purposes of this clause , “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self –employment” .
10. Sec. 14 (1) (d) of the Act provides that the Forum under the Act can direct payment of compensation awarded by it to the consumer for any loss or injury suffered by the consumer due to the negligence of the Ops .
11. The burden is on the complainant to establish that he is a consumer as defined Sec. 2(1) (d) (ii) of the Act. According Sec. 2(1) (d) (ii) of the Act a person who avails services for any commercial purpose would not fall within the ambit of consumer. If the service is availed for any commercial purpose, the person availing the services will not be a consumer and consequently complaint will not be maintainable. But a person who avails services for any commercial purpose exclusively for his livelihood by means of self employment is a consumer. In the present case it is not the case of the complainant that he sought the services of the Ops for commercial purpose. It is also not the case of the complainant that he availed services of the Ops exclusively for the purpose of earning livelihood by means of self employment.
12. It is the case of the Ops that the activity of the complainant is commercial in nature and that he availed the services of Ops 1 and 2 for carrying their commercial activity . It is argued by the learned counsel appearing for the complainant that the complainant produce cotton seed , and that the production of seed by agriculturist is not a commercial activity. The learned counsel appearing for the complainant in support of his contention that the agriculture is not a commercial activity relied on the following decisions.
- 1957 AIR SC 768
- IV (2008) C.P.J. 34
- III (1999) C.P.J.10
- IV(2004) C.P.J.181
- II (2007) C.P.J.369
- IV (2005) C.P.J.474
13. In the 1st decision cited above at para No. 49 it is observed that the definition of agriculture would exclude all cultivation of fibrous plants such as cotton, jute etc., In the 2nd decision cited at para No. 10 it is observed that the agriculture as an economic activity can be and is being practiced for commercial purpose . The learned Judge in said decision also opined that the purchase of sun follower seeds by the complainant was for a commercial purpose and as such no complaint was maintainable before the consumer forum. The decisions cited by the learned counsel appearing for the complainants have no bearing on the point to be decided except the decision No. 3 cited above. It is not the case of the complainant that he is an agriculturist and that he depends on agriculture for his livelihood. It is no where mentioned in the complaint that the complaint is an agriculturist and that his livelihood is mainly on agriculture. In the complaint filed by the complainant it is stated that the complainant produces, develops hybrid seed and sells the same in open market. Admittedly during the pendency of the complainant the Ops served interrogatories on the complaint. For question No. 10 that after certification of seeds and packing do you sell the seeds in the open market under your brand name , the complainant gave a positive reply. Therefore the contention of the learned counsel appearing for the complainant that the complainant is an agriculturist and that the agriculture is not a commercial activity can not be accepted. Raising of crops by a farmer in his land for his livelihood is not a commercial activity. In the present case the complainant is doing business of selling cotton seed in the open market after getting certification from the Ops 1 and 2. Admittedly cotton crop is a commercial crop. The complainant produced the cotton seed for the purpose of selling the same in the market for profits.
14. In the present case the complainant shifted the cotton lots to the godown of the Ops for the purpose of certification. The said stock was damaged due to floods occurred on 22-06-2007 , 23-06-2007 . The seed certification is wanted in order to enable the seed producing companies to market the seed produced by them for profit . Admittedly the complainant wanted to sell the cotton seed after certification by the Ops in the open market. The complainant is entrepreneur by profession carrying on business of selling the seeds in open market. The complainant availed the service of the Ops for commercial activity . The services of Ops 1 and 2 hired by the complainant have nexus with profit making activity by the complainant.
15. The learned counsel appearing for the Ops relied on a decision reported in (1955) 3 Supreme Court Cases 583 .In the above said decision the Apex Court observed as follows:- “Immediate purpose as distinct from the ultimate purpose of purchase, the sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction – whether it is of “commercial Purpose’ or not. Thus buyers of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act ”. In another decision reported in 1991 2 CPR 355 it is held that purchasers of seed to raise crops for sale on commercial basis is not consumer under Sec.2(1)(d) of C.P.Act, 1986. In the present case the complainant produced the Hybrid Variety of Cotton seed to sell in the open market after certification from the Ops 1 and 2. The services hired by the complainant have direct nexus with the profit making activity by the complainant .
16. In the decision citied by the e learned counsel appearing for the complainant reported in IV (2008) CPJ 34 also the Delhi State Commission held that the commercial purpose is one when persons hires/avails service for trading / selling that service further to earn profit. In the present case also the complainant hired the services of certification of seed in order to sell the said seed in the open market to make profit. The activity of the complainant in the present case is a commercial activity i.e, to produce the hybrid cotton seed and sell the same in the open market after certification by the Ops . The complainant is not the tillers of spoil .On the other hand the complainant is entrepreneur doing business in seed. In the process of his activity the complainant engaged the service of the Ops 1 and 2 in order to sell his seed in the open market for a better price. The complainant is not only the producers of hybrid cotton seed but also the trader engaged in sale of the hybrid seed after certification by the complainant. The complainant availed the services of the Ops for consideration for commercial purpose. The persons who avail the services for any commercial purpose are excluded from the definition of the consumer. In the light of the facts and the evidence available on record we have no hesitation to whole complainant is not the consumer within the meaning of Sec.2(1)(d) (ii) of C.P.Act and that complaint is not maintainable.
17 Points 2 and 3: Admittedly the complainant shifted the hybrid cotton lots to the common godown of the OP.No.2 for the purpose of certification of the seed. The said cotton hybrid lots were damaged in the floods that occurred on 22-06-2007 , 23-06-2007 . It is submitted by the learned counsel appearing for the complainant that the ops did not certify the seed within the time, and that there was deficiency of service on the part of the Ops 1 and 2 . The word deficiency is defined in Sec. 2(1) (g) as follows: - any fault, imperfection, short coming or inadequacy in the quality , nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”
18. Admittedly the Ops 1 and 2 collected fees from the complainant for certification of the seed. In the interrogatories filed by them Ops 1 and 2 it is stated that the formal charges were collected by the Ops for certification of seeds sought by the complainant. Therefore it can be said that he Ops 1 and 2 agreed to certify the seed of the complainant after collecting the required fees including the godown charges. It is argued by the learned counsel appearing for the complainant that the Ops did not certify the cotton seed of the complainant till the seed was damaged in floods. According to the Ops that after receiving the results of the seed test and grow out tests they certified the seed of the complainants and that complainant failed to take delivery of their seed after tagging and packing. On behalf of the Ops Ex.B1 copy of the processing register is marked. In Ex.B1 the columns No.18 to 28 are not filled up. No certification number is found in Ex.B1. The date on which seed tags were issued to the complainant is also not mentioned. Had OP completed certification of the seed lots of the complainant he would have mentioned certificate number and date in column No. 18 of Ex.B1. Ex.B1 is not signed by the certifying officer. In the absence of the relevant entries in Ex.B1 it can not be said that the job of certification of cotton seed was done by the Ops. There is also no material to show that the results of seed test and grow out test were communicated to the complainant immediately. No document is filed by the Ops evidencing that the test reports were exhibited on the notice board in the office of Op.No.2 or near the godown.
19. The learned counsel appearing for the complainant relied on the following decisions in support of his contention that there is deficiency of service on the part of the Ops
- 2007 (ii) CPJ 35 NC
- 2008 (iv) CPJ 34 DELHI
- 1995 BCR (Consumer) (4) Page 161
- 1993 BCR (Consumer) (3) page 54
- 1993 BCR (consumer) (3) page 37
- 2004 AIR JARKHAND PAGE 101
- 2008 (2) CPJ 322 NC
In the above said decisions it was observed that there was deficiency of service on the part of the Ops. There is no dispute.
20. The Ops did not place any material on record to show that after receiving the test results they informed the complainant to take back the cotton seed and that the complainant wontenly did not shift the stock from the godown as there was no demand for the seed in the market during the relevant period. As already stated there is no material to show that the Ops certified the cotton seed before it was damaged. There is deficiency of service on the part of the Ops . Admittedly the cotton seed lots of the complainants were damaged in floods when the said cotton lots were under the control of Ops. There is deficiency of service on the part of the Ops.
21. Point No:-4 In view of our findings on points 1 and 2 the complainant is not maintainable. The complaint is dismissed.
22. In the result the complaint is dismissed. In the circumstances without costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 16th day of September, 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nil
List of exhibits marked for the complainant:- Nil
List of exhibits marked for the opposite parties:
Ex.B1. Photo copy of Extract showing proof of receipt of stock by the complainant, dt. 22-02-07.
Ex.B2. Photo copy Intimation of result of seed test, dt.26-3-07 & 10-04-07.
Ex.B3. Photo copy of Intimation of result of grow out test, dt. 17-05-07.
Ex.B4. Photo copy of Circular NO.SCA/C/GB-83/2002-2003, dt.27-01-2003.
Ex.B5. Photo copy of Insurance policy, Dt. 20-02-2007.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
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