Order No. 16 Dt. 03.01.2008
The facts of the case in which a complaint has been filed by some consumers may briefly be stated. The petition has been filed by Secretary, Malda Sahajogita Samity, Sarat Chandra Road, Old Malda, Malda against Dadubhai Beej Bhander and Sarkar Beej Bhander alleging that the purchasers named in the annexed copy of the petition purchased seeds of Kalai from shops of both the O.P.s which were sown in their fields but in spite of subsequent supply of water used for irrigation, long dry spell, salt accumulation in surface layer, sowing methodology, moisture content and soil physical condition germination of Kalai seeds was not up to standard giving rise to the present complaint alleging that the germination of seeds was found to be poor and the seeds were of sub-standard quality. According to the complaint, the consumers suffer a loss of price of seeds, irrigation cost, loss of crop and also mental torture with further prayer to direct both the O.Ps to pay compensation.
Notices were issued to both the O.P. Nos. 1 & 2 [1) Dadubhai Beej Bhander, C/o. Shri Kanailal Mandal, Bamangola More, Gazole, Malda, P.O. & P.S. Gazole. & 2) Sarkar Beej Bhander, C/o. Shri Achinta Sarkar, Garuhut,(Silver Hut), Gazole, Malda] amongst whom only Sarkar Beej Bhander has filed written objection alleging that the complaint is not maintainable and has further contended that the seeds sold by him was of quality and that the consumers have never at any point of time have purchased Kalai seeds or any other seeds from his shop. His further contention is that some of the officers of Agriculture Department inspected the local fields and have not found the seeds purchased from him to be of low quality and sub-standard and in such circumstances he has prayed for dismissal of the complaint on the ground that the complaint is false and frivolous and liable to be dismissed.
On pleadings of both the parties the following points have emerged.
- Whether the complainant has no locus-standi to file such complaint?
- Whether the service of the O.P.s suffers from deficiency ?
- Whether the petitioners are entitled to get any relief as prayed for?
::DECISION WITH REASONS::
Point No. 1
This case is heard exparte as against Sarkar Beej Bhander ( O.P.No.1) as none has made appearance on behalf of O.P.No.1, nor O.P. No.1 has made his appearance physically to contest the present case inspite of service of notice which he has refused to accept. Hence the case is disposed of exparte as against Dadubhai Beej Bhander ( O.P. No.1). It has vehemently been challenged on behalf of O.P. No.2 that the present petition has been filed on behalf of some of the persons, nor the present petitioner ( Secretary, Malda Sahajogita Samity ) has any authority to institute the present case.
Ld.counsel on behalf of Malda Sahajogita Samity ( to be called petitioner hereinafter) has duly been authorized to institute the present case. Sec. 12 of the C.P. Act in its Sub-section 1 (b) has recognized that consumer association is eligible to institute such a complaint and in its Explanation it has stated, “ for the purposes of this section, ‘recognized consumer association’ means any voluntary consumer association, registered under the Company’s Act, 1956.” In the instant case the petitioner has been examined as PW-8 and has categorically stated that he has filed this case on behalf of consumers stating further, “ I was secretary of one voluntary consumer organization and as such I have got the authority to file such case on behalf of some of the consumers who approached us. It appears from cross-examination of PW-8 that merely a negative question was put to him which has been replied in such a fashion, “ Not a fact that I have no authority to file such petition.”
It is a common practice among the villagers who are illiterate or bit literate to authorize certain persons on their behalf to institute such a case before the Forum. This forum has discussed hereinbefore that with regard to locus-standi only a mere negative question has been put to PW-8 who represents the consumers. That apart, the petitioner has filed the petition of complaint which has been marked Ext-10 in this case and that has not been challenged by the O.P. Thus, after considering the above facts and circumstances and that the authorization has been marked Ext-10, the submission on behalf of O.P. does not appear to be entertainable.
In addition to what has been stated above it has further been contended on behalf of the O.P. that the persons named in the petition of complaint or the persons appearing in annexure of Ext – 10 are consumers as have sown Kalai seeds for commercial purpose with the intention for selling Kalai in market and thus the purchase was for commercial purpose and hence, the names of persons appearing in Annexure – 10 cannot said to be ‘Consumers’ within the meaning of the Consumer Protection Act (1986) (hereinafter be referred as ‘the Act’) but nothing has been shown on behalf of O.P. No.2 that Kalai seeds purchased from his shop were meant for commercial purpose and hence this submission does not find any leg to stand on. On perusal of evidence of PWs 1 to 6 this Forum is satisfied that Kalai seeds were purchased not for commercial purpose, nor any such question was put to either of those PWs. The annexure of Ext – 10 has named many persons and amongst whom some of the persons have been cited as witnesses and have been examined who appear to have purchased such meagre quantity of Kalai seeds who cannot but be presumed to have been sown for their personal purpose and can never be said to have purchased sale Kalai to earn profit therefrom.
In view of above, this point is disposed of in favour of the petitioner.
Point No. 2
It has been contended on behalf of the O.P. that germination of seed depends upon several factors such as climate condition, type of soil, water and irrigation facilities, quality of fertilizer, etc. which have not been maintained by present consumers. This submission also does not appear to be palatable in view of cross-examination of the PWs who appear to be categorical in their statements that they have observed all kinds of norms required to be observed for germination and for production of usufructs in respect of the Kalai seeds.
It has further been contended on behalf of the O.P. that the Kalai seeds are subjected to test by the recognized laboratory.
It appears from examination of all the PWs that they have purchased minimum quantity of Kalai seeds as appear apparent in the receipts which have been marked Exts 8 & 9 and also from both the receipts filed by the O.P. which have been marked Exts A & B respectively and evidence of the PWs also make it sufficient to understand that they have sown the entire Kalai seeds in their respective fields and hence, they had no scope to send the sample seed for analysis. In this connection it may also be stated that O.P. No.2 claims to be a dealer of Kalai seeds in respect of which he has filed one Challan dt. 16.02.2007 being No. 02/01 issued in the name of Achinta Sarkar ( O.P.No.2) that 600 kgs.of Kalai IR8, Sarada Variety was sent to him through Lorry No. WB-25B/5401 and that apart, he has also filed the License Certificate bearing No. GAZ-109(seed) /P – 2004 granted on 24.05.2004 to 31.03.2007 granted by Principal Agricultural Officer, Malda who is the licensing authority. Both these documents manifest that O.P. No.2 was authorized dealer of seeds at the relevant time when the seeds were purchased from his shop by the consumers and that he has received IR8 Kalai ( Sarada Variety ) from one Kishan Seeds vide Challan No. 02/01 dt. 16.02.2007 who has License No. 145 dt. 20.07.1997.
Such being the above position when the O.P. disputes about the quality of seeds, he himself could have applied before this Forum to send the sample seed for analysis. In the instant case none has prevented O.P.No.2 from sending the said seeds for a testing to prove his case that the seeds were not defective. Except for contending that the complainants have not followed proper procedures and also that other external factors like climatic condition, improper manuring are the causes of tuberization, the O.P. has also not adduced any evidence to support its plea that there was no deficiency of service on his part. Be it further noted that the consumers appearing in the present application are poor and illiterate people and whatever seeds were purchased from both the O.P. Nos 1 & 2 was sown in their respective lands and thus they had no occasion to send the sample of seeds for testing to the laboratory. Thus, no adverse inference can be drawn against the present petitioner on the ground of their having not sending the sample of seed for a test to laboratory.
In addition to what has been stated above this Forum has gone into the Seeds Act, 1966 (Act 4 of 1966) is an Act to provide for regulating of quality of certain seeds for sale and matters connected therewith. Sec. 2 of the said Act defines ‘seed’. In Sub-section 11 wherein it is stated that ‘ Seed means any kind of following classes of seeds used for sowing or planting which includes seeds of fruits and vegetables in Clause I (11) and in Sub-section of the aforesaid Act power to specify minimum limits of germination and purity has been mentioned and this Forum finds opportunity to refer Ss. 6 & 7 which are noted below as they appear to be relevant in connection with sale of seeds by any seller.
6. Power to specify minimum limits of germination and purity etc.:
The Central Government may, after consultation with the Committee and by notification in the Official Gazette, specify-
(a) The minimum limits of germination and purity with respect to any seed of any notified kind or variety;
(b) The mark or label to indicate that such seed conforms to the minimum limits of germination and purity specified
under Clause (a) and the particulars which such mark or label may contain.
- Regulation of Sale of seeds of notified kinds or varieties:
No person shall, himself or by any person on his behalf, carry on the business of selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of any notified kind or variety, unless,-
- Such seed is identifiable as to its kind or variety;
- Such seed conforms to the minimum limits of germination and purity specified under Clause (a) of Section 6;
- The container of such seed bears in the prescribed manner, the mark or label containing the correct particulars thereof, specified under Clause ( b ) of Section 6; and
- He complies with such other requirements as may be prescribed.
In the instant case the mark or label to indicate that seed conforming to the minimum limits of germination and purity has not been shown on behalf of the present O.P. It is a fact that O.P. has sold Kalai seeds to some of the consumers who have been examined as OPW-1 and OPW-3. Be it noted herein that OPW-3 has admitted in course of his cross-examination that he has attended the Forum with this contesting O.P.No.2 and he was present while evidence of OPW-2 was going on for which his testimony does not help the present O.P. in any way this OPW-2 being a tutored witness.
In course of examination of PW-1 who has purchased Kalai seeds on 18.02.2007 from the present O.P.No.2 as admitted, “ Said Kalai seeds did not yield usufructs up to my satisfaction.”
Khitish Ch. Roy (OPW-2) is Krishi Prajukti Sahayak, attached to Gazole Block, Malda who has admitted the present O.P. as seller of Kalai seeds and appears to have stated that he came to know from one Naresh Mandal that usufructs from Kalai seeds was not optimum. This OPW-2 has also named Sarkar Beej Bhander and Dadubhai Beej Bhander (who are OPW-2 and 1 respectively) deal with Kalai seeds and has been constrained to admit, “ I know that Kalai seeds purchased from both the Beej bhander did not produce optimum usufructs, I have heard from local cultivators.” In this connection testimony of Shri Arup Kr. Chattopadhyay, Subject Matter Specialist attached to Sub-divisional Agricultural Office, Malda, who has been examined as PW-6 deserves consideration as he has stated relevant portions of which are noted below:-
“In course of our enquiry we visited 3 affected fields for which there were standing Kalai crops. On our inspection the affected fields we noticed that no economic yielding of Kalai.” and has further stated, “ the fields visited by us would not produce any economic yield.
True it is that sample could not be collected, nor the same could be examined from both the shops yet it appears from testimony of PW-6 that he is aged 39 years and serving department to be presumed, for years to come and hence their random survey of the affected field can be said to have produced no economic yielding of Kalai.
O.P. No. 2 has also failed to observe the regulation of sale of seeds of notified kinds or varieties as the appear in Sec.7 of the Seeds Act., 1966.
In facts and circumstances stated above this Forum has reason to believe that the Kalai seeds sold to the agriculturists by O.P. No.2 suffers from deficiency.
This Forum has gone into the document filed by O.P. No.2 about receipt of 600 kg. of Kalai seeds, Sarada Variety from Kishan Seeds vide Challan No.02/01 dated 16.02.2007 but this challan also does not indicate that the seeds were inconformity with prescribed standard.Thus, having gone through the discussion held hereinabove the germination of the seeds depending upon the factors being proved by P.W. – 1 to 5 it cannot but be said that the crops have suffered due to poor germination of seeds and hence it is crystal clear that the seeds were very poor quality and did not yield maximum crop and hence the irresistible conclusion is that the service of O.P. No.2 suffers from deficiency for which the petitioners have also suffered financial loss as well as physical harassment for which they are entitled to compensation.
This issue is thus disposed of.
In this connection it may be noted that in absence of any allegation against O.P. No.1 (Dadubhai Beej Bhandar) the present petition fails against O.P. No.1.
Point No.3.
In the result, the case succeeds in part.
Proper fees have been paid.
Hence, ordered,
that Malda D.F. Case No.39/2007 stands dismissed exparte as against O.P. No.1 (Dadubhai Beej Bhandar C/o. Shri Kanailal Mandal, Bamangola More, Gazole, Malda, P.O. & P.S. Gazole) and allowed on contest as against O.P. NO.2. (Sarkar Beej Bhander, C/o. Shri Achinta Sarkar, Garuhut,(Silver Hut), Gazole, Malda).
The petitioner (Secretary, Malda Sahajogita Samity) do get award of Rs.50,000/- who, in his turn, shall disburse the amount equally amongst the farmers who will produce cash memo showing purchase of Kalai seeds from Sarkar Beej Bhandar.
Sarkar Beej Bhander do pay the aforesaid quantum of money within 30 days from date of receipt of copy of the order failing which the amount shall carry interest @9% till its final realization and the petitioner also be at liberty to take recourse to law under Ss.25 and 27 of the C.P. Act.
Let a copy of the order be given both the parties free of cost.
