PER MR SUBHASH CHANDRA

1.     This revision petition filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails order dated 03.09.2010 of the State Consumer Dispute Redressal Commission, Madhya Pradesh, Indore Circuit Bench (in short, ‘State Commission’) in First Appeal No. 578 of 2009 arising from the order of the District Consumer Disputes Redressal Forum, West Nomar, Mandleshwar, Madhya Pradesh (in short, ‘District Forum’) in consumer complaint No. CC 77 of 2008 dated 07.03.2009. 

2.     In brief, the facts of the case are that respondent no. 1 sowed cotton seeds on his agricultural fields in village Karouli, Tehsil Maheshwar in 2008. The seeds were procured from respondent no. 2, the authorized seller of cotton seeds manufactured by Rasi Seeds Pvt. Ltd, the petitioner. 6 packets of seeds of 450 gms each were purchased for planting in 5 acres of land. After 4 months of sowing, the crop was reported to be dry and had a poor yield of 2-4-6 betel nuts. On the basis of a complaint field, the crop was inspected by the Officers of the Agriculture Department, Maheshwar who advised that pesticide treatment be undertaken. According to the petitioner, the report of the Officers of the Agriculture Department, did not indicate that the seeds were of poor quality and there is no evidence produced that the pesticide treatment advised was undertaken. On 05.04.2008 and 02.05.2008 the petitioner tested the seeds in his laboratory and found the purity to be 99.9%. On 18.10.2008 respondent no. 1 preferred a complaint before the District Forum which came to be dismissed on 07.03.2009 on the ground that deficiency on part of the petitioner was not proved since there was no evidence produced to the effect that pesticides/micronutrients and chemicals had been sprayed as advised by the Officers of the Agriculture Department, and the test report produced by the petitioner had indicated that the seeds were 99.9% of good quality. Respondent no. 1 approached the State Commission in appeal no.578 of 2009 on 25.03.2009. This appeal was allowed on 03.09.2010 with directions to pay Rs 1,25,000/- at Rs 25,000/- per acre, Rs 7,450/- as cost of seeds and Rs 1,000/- as costs.

3.      The petitioner is before us impugning this order on the grounds that the State Commission erred in putting the onus on the petitioner to get the seeds tested as also the burden of proof to prove that the seeds were not defective. The State Commission’s reliance on the judgment of the Hon’ble Supreme Court in Maharashtra Hybrid Seeds Co. Ltd. Vs. Alavalapati Chandra Reddy (1998) NCJ (SC) 464 is assailed as erroneous since this judgment was applicable to a particular case where there was no finding by the Apex Court which declined to interfere under Article 136 and observed that this Commission should have given a reasoned order in view of the State Commission’s findings. It is also urged that the State Commission erred in not accepting the report of the Officers of the Agriculture Department,which had been accepted by the District Forum and that the petitioner could not have proved that the seeds were defective, since a negative cannot be proved in law. It is also argued that the State Commission erred in determining the loss without there being any basis for it on record. It is also argued that the impugned order overlooked the fact that the Officers of the Agriculture Department, had advised the respondent to undertake various chemical treatments and that the same had not been done. It is argued that the conclusions are based on surmises and an erroneous reading of the order in Alavalapati Chandra Reddy (supra). It is therefore prayed to set aside the impugned order of the State Commission with costs.

4.      The State Commission’s order reads as below:

5.       Learned counsel has brought to our notice the decision of the Supreme Court in M/s Maharashtra Hybrid Seeds Co. Ltd., vs Alavalapati Chandra Reddy, (1998) NCJ (SC) 464. In this case also the Agricultural Officer visited the land and found that there was no germination. He also found that in view of the letter written by him to the opposite parties to which they sent no reply, the same seeds that were purchased from the opposite parties were sown and they did not germinate. The District Forum therefore, felt that seeds should not be sent for analysis. The Supreme Court observed that if the opposite parties have disputed that the seeds were not defective, they should have applied to the District Forum to send the sample of seeds from the said batch for analysis by appropriate laboratory but the opposite parties did not choose to do so. Learned counsel has also brought to our notice the laboratory test reports Ex R 1 and R 2. The two reports, Ex R 1 and R 2 are the report of the testing laboratory of the respondents only. Section 2 (1) ( a) of the Consumer Protection Act, 1986 defines ‘appropriate laboratory’ and reads as follows:

“(a)    ‘appropriate laboratory’ means a laboratory or organization ----

1. Recognized by the Central Government;
2. Recognized by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or
3. Any such laboratory or organization established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect”.

6.       It is not the case of the respondents that their laboratory has been recognized by the State Government. Under these circumstances, the District Forum erred in holding that since the seed has been tested in the laboratory aforesaid there was no defect in the seeds.

7.       The complainant has purchased seeds twice, first time he paid Rs.4675/- for the seeds and second time he paid Rs.2775/-, thus in all Rs.7450/-. The question that remains to be decided is as to how the loss is to be determined. The complainant says that normal yield in 1 acre is 20 quintals and per quintal price is Rs.3000/-. We find that both are exaggerated apparently to extract unjust amount. We find that 1 acre land yield will not be more than 10 quintals and applying the rate of Rs.2500/- the loss per acre comes to Rs.25,000/- and total in five acres Rs.1,25,000/-. The complainant is also entitled to cost of the seeds Rs.7450/-.

8.       In the result, this appeal succeeds. The respondents are directed to pay collectively and severally, a sum of Rs.7450/- towards cost of the seeds and Rs.1,25,000/- towards loss of crop. The respondents shall also pay Rs.1000/- as cost of the litigation. The appeal is thus, disposed of”.

(Emphasis added)

5.      We have heard the submissions of both the learned counsels for the parties and perused the records carefully.

6.     The petitioner has contended that the reliance of the State Commission on Avalapati Chandra Reddy (supra) is erroneous as there was no finding arrived at in the case. It has been argued that in several orders of this Commission it has been held that the reasons for poor yield of crops can be several and not necessarily only be the poor quality of seeds. Reliance has been placed on the orders of this Commission in Hindustan Insecticide vs Kopulu Sambasiva Rao - IV (2005) CPJ 47 (NC) in support. It is argued that there was a responsibility on the respondent to take steps by way of spraying of pesticides, micronutrients and chemicals as advised which was not done since evidence of the same has not been brought on record.  Finally, it is argued that the fixation of the compensation amount by the State Commission is arbitrary and without any basis.

7.     On the other hand, it was argued by the learned counsel for the respondent on the basis of Consumer Protection and Guidance Society vs National Seeds Corporation – IV (2007) CPJ 192 NC that the onus of proving the quality of the seed sold lies upon the seller since it cannot be expected that a farmer will retain seed to be used for testing as per section 13 (i) (c) in the expectation of crop failure. Section 2 (1) (a) of the Act defines an ‘appropriate laboratory’. It is also contended that the laboratory tests have to be conducted in a government laboratory or government certified laboratory whereas the tests by the petitioner were done in its own laboratory and therefore lack credibility as evidence. It was also urged that in the absence of the availability of seeds, an alternative method for testing has to be adopted. This includes an inspection by the experts from the agriculture department who have the requisite technical knowledge and experience in such matters. The quantification of loss has been arrived at as per the prevailing rates for cotton and the seeds and should therefore be accepted.

8.     From the foregoing it is apparent that it is not disputed that there was a low crop yield in the cotton seeds sown by the respondent no. 1. The reasons for the same are, however, disputed with the respondent ascribing it to the poor quality of seeds and the petitioner contending that the quality of seeds was not in dispute but correct agricultural practices on the basis of technical inputs of agriculture department officers were not undertaken. In the absence of any sample of seeds from the lot sown being available with the respondent, the onus of proving the poor quality of seeds has been argued by the respondent to be shifted to the petitioner. The test undertaken in its own laboratory by the petitioner cannot, however, be considered acceptable as per section 13 (i) (c) of the Act which mandates that the test be undertaken in an ‘appropriate laboratory’ as per section 2 (1) (a) which should either be a laboratory of the Central or State government or one certified by it. In the absence of the sample of seeds being available or its test results, alternative methods are the only option of testing the quality of seeds as per the judgment of the Hon’ble Supreme Court in the case of M/s National Seeds Corporation Ltd., vs M Madhusudan Reddy and Anr., in Civil Appeal no. 7543 of 2004. By having approached the concerned technical experts of the agriculture department, the respondent can be considered to have discharged the primary onus cast upon him. In the normal course, a farmer cannot be expected to retain seeds for use as sample in anticipation of crop failure. Therefore, the respondent cannot be faulted for not having done so. While the procedure prescribed in section 13(1) (c) of the Act requires testing of seeds in an appropriate laboratory, in the absence of any sample of the seeds having been retained, the extent of the loss has to necessarily be estimated through an alternative method. The procedure under this section cannot be mandatory in the circumstances of the instant case.  From the available records, the basis for the petitioner’s contention that the advice of the Officers of the Agriculture Department was not followed by the respondent is not evident. The fact that the order of the District Forum does not refer to it cannot be a cogent enough ground for this.  

9.      The issue of testing of seeds as well as onus to prove that the seeds were of poor quality or of good quality lies on petitioner as judgment of Hon’ble Supreme Court National Seeds Corporation Ltd., vs M Madhusudhan Reddy – 2012 (2) SCC 506 which held as under:

“………the consumer cannot be expected to preserve a portion of the seeds for testing under Section 13. We may note that, even prior to this decision, the National Commission had in National Seeds Corporation Ltd., vs Guruswami and Anr. – 2001 CTJ 733 (CP ) (NCDRC) expressed a very similar sentiment. It had observed that:-

“if the petitioner company was little more sensitive or alert to the complaint of the respondent/ complainant, this situation might not have arisen. Petitioner has to pray for his insensitivity. The respondent/ complainant led evidence of State’s agricultural authorities in support who made their statements after seeing the crop in the field. The onus passes on to the petitioner to prove that the crop which grew in the field of the complainant was of ‘Arkajyothi’ of which the seed was sold and not of ‘Sugar Baby’, as alleged. He cannot take shelter under Section 13 ( c) of the C P Act.”

10.    Similarly in Seed Works International Pvt. Ltd. and Anr. Vs Nampelly Sudhakar – RP no.2742 of 2014 and other connected matters this Commission has held as under:

Similarly in the present revision petitions, nothing stopped the OPs from applying for the test and anlysis and sending the requisite sample on their own. But no application was made before the District Forum for such a test. We find ourselves in complete agreement with the Fora below that nothing prevented the RPs/ OPs from making such a prayer before the District Forum and seeking independent third party assessment of the quality of their seed. Therefore, this argument is rejected.

11.     From the above facts of this case and findings of the Hon’ble Supreme Court and this Commission, we are of the view that the onus to prove that seeds are of good quality lies with the petitioner. Petitioner cannot take shelter under section 13 (1) (c) of the CP Act. Nothing stopped the petitioner from applying for the test by a third party rather than sending the sample to their own laboratory. No application was also filed by the petitioner before the District Forum for laboratory test for assessment of the quality of the seeds when they are confident  the seeds were of good quality. It is an incorrect assertion by the petitioner that the State Commission has directed it to prove a negative, i.e., that the seeds were defective. The quality test of seeds as envisaged under the Act is intended to establish its ‘quality’ which is in question. Germination of seeds and their yield is clearly a function of its quality. A test by an appropriate laboratory would have settled the issue one way or another. However, the petitioner chose not to get such a test done in an ‘appropriate laboratory’’. The test is its own laboratory is not an acceptable test under section 13 (1) (c ) and 2 (1) (a).

12.   As regards the calculation by the State Commission of the loss, it is seen that the same is based upon the cost of the seed furnished in the complaint/ appeal which is not disputed. The cost of cotton has been taken as per the market price for the year which has not been disputed before the District Forum or the State Commission. The petitioner has to comply with the order of the State Commission that is based upon Rs.7450/- as expenditure on seeds purchased and Rs.1,25,000/- for loss from the cotton crop at Rs.25,000/- per acre for five acres planted.

13.   For the reasons stated above, we find no merit in the revision petition and disallow the same. The impugned order of the State Commission is hereby affirmed.