DATED 22.05.2014 PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 05.11.2011, passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in two cross appeals, i.e., Appeal No. 1164/2010, “Motilal versus Ankur Seeds & Ors.” and Appeal No. 1695/2010, “Ankur Seeds Pvt. Ltd. & Anr. versus Motilal & Anr.” vide which, while dismissing both the appeals, the order dated 25.03.2010, passed by the District Consumer Disputes Redressal Forum, Badwani in consumer complaint no. 2/2006, allowing the consumer complaint in question, was upheld. 2. Brief facts of the case are that the complainant/respondent no. 1 Motilal purchased 20 packets, weighing 50 gm each, of cucumber seeds for ₹9000/- from the present respondent no. 2 / OP No. 3 Patel Beej Bhandar, Badwani which is a dealer of the petitioners, the producer of such seeds. It has been alleged by the complainant that the fruits of the said seeds were mostly uneven, and not uniform. The complainant got total yield of just 10 quintals and most of the fruits were early ripened which showed that the seeds sold by the OPs were non-meritorious seeds. As per the complainant, the petitioner company had assured that there would be yield of 50 quintal of produce per acre, implying that 500 quintal of produce shall be from 10 acre of land but in actual practice, he obtained only 10 quintal of produce. In this way, the complainant suffered a loss of 490 quintal of produce and presuming a price of ₹300/- per quintal, there was loss of ₹1,47,000/- in addition to the money spent for pesticides, irrigation, cost of seeds etc. The complainant demanded a total sum of ₹1,96,000/- from the OPs alongwith an interest @12% p.a. and ₹5,000/- as legal expenses. In their reply to the complaint filed by the petitioners/OP, it was stated that the complainant had purchased the seeds for commercial purpose and hence he could not be called a ‘consumer’. The activity of sowing seeds and obtaining crops was with the purpose of earning profit only. Further, there was no assurance given to complainant that 50 quintal of produce shall be obtained from one acre of land. The OP 1 & 2 also stated that they did not receive any notice about the inspection made by the Agricultural Development Officer. The District Forum allowed the complaint and the operative portion of the order of the District Forum is as below:- “1) The complainant is entitled to receive ₹9,000/- as cost of the seeds from the respondents. 2) The complainant is entitled to receive ₹10,000/- for preparation of land and ₹10,000/- as loss of crops from the respondents. 3) The complainant is entitled to receive ₹5,000/- for deficiency in services from the respondents. 4) The complainant is entitled to receive interest @ 8% on the amount mentioned in order Para 14(2) and (3) from the date of filing complaint till receipt of the amount. 5) The complainant is entitled to receive ₹1,000/- as litigation cost from the respondents. The respondents are directed to pay the above amount to the complainant without any delay.” 3. Against the order of the District Forum, appeals were filed by the complainant Motilal and also the petitioners Ankur Seeds Private Limited. However, both these appeals were rejected by the State Commission, observing that the seeds sold were substandard and the complainant did not receive good crop, despite following the instruction about the farm practices. The learned State Commission upheld the award given by the District Forum. It is against this order that the present revision petition has been made. 4. At the time of hearing before us, learned counsel for the petitioner has drawn our attention to a copy of the spot inspection report made by the officers of the Agriculture Department. It has been stated therein that seeds of cucumber, variety Ragini 20, K/126/8237 were sown in five acres of land belonging to the complainant and another five acres belonging to his partner. It was found on inspection that the size of the fruits was irregular and less than the standard, claimed by the company and the colour was also not green. It has been stated in the report that the yield was only 10% to 15%. The learned counsel argued that the report had not stated anything about the quality of seeds. Moreover, the report makes it clear that the seeds did germinate, meaning thereby that there was no defect in the quality of the seeds. The learned counsel has further drawn our attention to order passed by the National Commission in Revision Petition No. 2368/2007 “Mahyco Seeds Co. Ltd. versus Basavaraja Shivappa Byadagi & Anr.” dated 23.07.2011 saying that the onus to prove that the seeds supplied were defective was on the complainant and in the absence of the evidence that the seeds were defective, the reliance could not be placed on the report of the Assistant Agriculture Officer. The learned counsel has also produced copies of the orders passed by the National Commission in support of his argument in the following cases:- Sl. No. | Case No. | Parties Name | 1. | RP No. 23/2011 | Ankur Seeds Pvt. Ltd. versus Mushtak | 2. | RP No. 2046/2007 | Mahyco Seeds Ltd. versus G. Venkata | 3. | II (2007) CPJ 148 (NC) | Indo American Hy. Seeds versus Vijay Kumar | 4. | AIR 2005 SC 2023 | Haryana Seeds Dev. Corp. Ltd. versus Sadhu | 5. | RP No.3800/2006 | Mayco Seeds Ltd. versus Doddabasappa | 6. | RP No. 2602/2008 | Maharashtra Hybrid Seeds versus Garapati Srinivas Rao & Anr. | 7. | RP No. 1451/2011 | Syngenta India Ltd. versus P.Chowdaiah |
5. Although, the learned counsel maintained during arguments that the onus to prove that the seeds were defective was on the complainant, but he could not give any satisfactory reply when asked whether the petitioners/purchasers of the seeds have any technical certification or verification about the particular variety of seeds sold by them to the complainant through their dealer. 6. Both the respondents in this case did not appear despite notice for hearing at admission stage and they were proceeded against exparte. However, after the admission hearing, the petition was admitted and another notice was sent to the respondents to put an appearance for final hearing. However, they did not appear again, despite service of notice and were ordered to be proceeded exparte again. 7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 8. The District Forum vide their order dated 25.03.2010 held that the complainant is an agriculturist who works on the land taken on rent and the land received from his father. There was no evidence to show that the activity in question was meant for commercial purpose as no document had been produced to establish the same. The District Forum also held that the complainant was entitled to receive a sum of ₹9,000/- as cost of seeds, ₹10,000/- as compensation for preparation of land, ₹10,000/- for loss of crops and ₹5,000/- for deficiency in service alongwith interest and ₹1,000/- as cost of litigation. In this way, the District Forum allowed a total sum of ₹35,000/- to the complainant as against his demand for ₹1,96,000/- alongwith interest @12% p.a. The said order has been upheld by the State Commission vide impugned order and both the appeals filed before them – one by the complainant and the other by the OP, had been dismissed. 9. On the face of it, we do not find any patent error of jurisdiction or perversity in the concurrent findings made by the fora below. This view is strengthened by the fact that the OP have not been able to produce any technical authorisation from a competent authority for production of the said variety, Ragini 20 of the cucumber seed. It is the primary duty of the producer of the seed to establish that a competent technical authority had given their approval for the production of the given variety of the seed. 10. Further, the main line of arguments taken by the petitioner says that it was the duty of the complainant/respondent to prove that the seeds were sub-standard or defective. The petitioners have referred to the orders passed by this Commission in Revision Petition No. 23 of 2011, “M/s. Ankur Seeds Private Limited vs. B. Mushtak Basha” and in Revision Petition No. 2368 of 2007 “Mahyco Seeds Co. Ltd. vs. Basavaraja Shivappa Byadagi & Anr.” dated 23.07.2011, saying that the onus to prove that the seeds were defective, was on the complainant. In this regard, it is stated that when the complainant felt that the crop of cucumber was not coming up properly, he lodged a complaint with the agricultural experts in the State Government. On his initiative, the inspection report was prepared by the agricultural experts who are officers of the State Government and hence independent persons. It was stated in the said report that the size of the fruit was irregular and less than the standard claimed by the respondent. It is very clear, therefore, that the complainant has sufficiently discharged the onus to prove the allegation that the seeds were sub-standard. I do not think that there could be any better method of discharging the said onus, than making a reference to the State agricultural experts and obtaining their inspection report. In case, the said agricultural experts of the State Government wanted opinion from some laboratory or other institutions, they were free to get the same. It shall be wrong to presume that a farmer, having just a few acres of agricultural land, could approach big technical institutions or laboratories, on his own. Moreover, there was no need for any further probe or analysis, after the agricultural experts carried out the said inspection. 11. It may be further stated that the seeds in question were purchased on 26.05.2005 and planted in the fields thereafter. As stated in the consumer complaint, a complaint was lodged with the Senior Agricultural Development Officer, Rajpur on 01.09.2005 and the spot inspection was carried out on 02.09.2005 and the inspection report was prepared. It is very clear that the inspection was made in about three months’ time and it can be reasonably presumed that the crop takes about this much time to mature. Further, the opposite parties have not been able to controvert or disprove the contents of the inspection report in any manner. 12. In a famous similar case, decided by the Hon’ble Supreme Court, “National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr.”, as reported in 2012 (2) SCC 506, it has been held that the farmers, who may suffer loss of crop or who may get insufficient yield due to use of defective seeds, are liable to be compensated. Such a farmer is also covered under the definition of Consumer under the Consumer Protection Act, 1986. 13. Further, it is a settled legal proposition that at the stage of exercising revisional jurisdiction, the concurrent findings of the lower court can be interfered only if there is a patent error of jurisdiction. This view has been taken by the Hon’ble Supreme Court in the case, “Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd.”, as reported in (2011) 11 SCC 269. It has been stated that interference, on the basis of a different interpretation of same set of facts, was not permissible. 14. In view of the discussion above, it is held that there is no merit in this revision petition and the same is ordered to be dismissed. The orders passed by the consumer fora below are upheld. There shall be no order as to costs. (DR. B.C. GUPTA) PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioners against the order dated 05.11.2011 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (in short, ‘the State Commission’) in Appeal No. 1694 of 2010 – Motilal Vs. Ankur Seeds Pvt. Ltd. and in Appeal No. 1695/2010 – Ankur Seeds Pvt. Ltd. Vs. Motilal by which, appeals of both the parties were dismissed against the order of District forum allowing complaint partly. 2. Brief facts of the case are that complainant/respondent no.1 purchased 20 packets of 50 gms each of the cucumber seed for Rs.9000/- from OP No.3/Respondent No. 2 on 26.5.2005, which were produced by OP No. 1 & 2/petitioners. Complainant had sown seeds in 10 acres of land and found that crops germinated flowers, but the size of the cucumber was small, uneven and the fruit ripened early. It was further submitted that he received crop of 10 quintals, whereas he was to receive crop of 50 quintals per acre. On his request, Senior Agricultural Development Officer and garden superintendent inspected his filed on 2.9.2005 and prepared panchnama. On the basis of this report, notice was given to OP for compensation. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP nos. 1 & 2 resisted complaint and submitted that as complainant had sown the seeds for commercial purposes, he did not fall within the purview of consumer. It was further submitted that nowhere in the complaint seeds have been shown as sub-standard and panchnama was not prepared in their presence; hence, prayed for dismissal of complaint. OP No. 3 filed reply and submitted that he was not concerned with the quality of the seeds as he was only the seller of seeds manufactured by OP No. 1 & 2 and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to pay Rs.9,000/- as cost of seeds, Rs.10,000/- as loss of crops, Rs.10,000/- for preparation of land, Rs.5,000/- for deficiency in service and Rs.1,000/- as litigation cost. Appeals filed by both the parties were dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. 3. None appeared for the respondent even after service. 4. Heard learned Counsel for the petitioner and perused record. 5. Learned Counsel for the petitioner submitted that learned District forum committed error in placing reliance on ex-parte inspection report that too without any pleadings in the complaint regarding sub-standard seeds and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. 6. Complainant has alleged in the complaint that due to defective and bogus seeds, only 10 quintals of produce was received and most of the fruits were uneven and early ripen. It was further submitted in the complaint that complainant was to get yield of 500 quintals. Nowhere it has been stated that seeds were sub-standard. No analysis report of the seeds has been placed on record and learned District Forum allowed complaint only on the basis of inspection report prepared by Senior Agricultural Development Officer and garden superintendent which was admittedly not prepared in the presence of OP or after due notice to the OPs. In this report also, no where it has been mentioned that seeds were sub-standard. Only this fact has been observed that size of fruit was uneven and below the standards and cucumber’s colour was also not green. It was also observed that complainant obtained only 10 to 15% production. 7. As per inspection report, inspection was made after 99 days of production of seeds. Normally, duration of crop of cucumber is between 45 to 90 days and as inspection has been made after about 98 days, no waitage can be given to this inspection report as crop must have been taken by complainant before inspection. Not only this, as per inspection report, complainant obtained 10 to 15% of the crop, whereas as per complaint, he was to obtain crop of 500 quintals and he obtained crop of only 10 quintals which is apparently false because 10% to 15% of the crop comes to 50 to 75 quintals of cucumber. 8. Learned Counsel for the petitioner has placed reliance on judgments of this Commission rendered in R.P. No. 23 of 2011 – M/s. Ankur Seeds Pvt. Ltd. Vs. B. Mushtak Basha in which Coordinate Bench of this Commission observed as under: “Counsel for the petitioner contends that the report of the Joint Director, Agriculture nowhere states that the seeds supplied were defective or of substandard quality. Onus to prove the same was on the Respondents which the Respondents had failed to prove by leading any cogent evidence. We have gone through the report submitted by the Assistant Director Agriculture which has been confirmed by the Joint Director. The same has been reproduced in the earlier part of the order. The report of the Joint Director Agriculture nowhere states that there was any genetic deficiency in the seeds produced by the Petitioner and supplied by Respondent No. 5 dealer or the said seeds were of substandard quality. There is no evidence to prove that the seeds supplied were either defective or of substandard quality. The Respondents failed to discharge the initial onus put on them”. 9. He has also placed reliance on judgment rendered by this Commission in R.P. No. 2368 of 2007 – Mahyco Seeds Ltd. Vs. Basavaraja Shivappa Byadagi & Anr. in which while dismissing complaint it was observed as under: “A perusal of the reports shows that the Asst. Agricultural Officer in his report has nowhere stated that the seeds were defective. The onus to prove that the seeds supplied were defective was on the complainants, which they have failed to discharge. In the absence of any evidence that the seeds supplied were defective, the fora below have error in allowing the complaints filed by the respondents relying upon the report of the Asstt. Agricultural Officer. Fora below have misread the report given by the Asstt. Agricultural Officer”. 10. This Commission in R.P No. 2046 of 2007 – Mahyco Seeds Ltd. Vs. G. Venkata Subba Reddy & Ors. while dismissing complaint observed that genetic defect in seeds cannot be detected through visual inspections and would need to be tested in a scientific laboratory. It was further observed that complainant’s action in not informing the OP about the so-called failure of the seeds and not involving him in the inspections further makes his case suspicious. 11. In R.P. No. 1451 of 2011 – Syngenta India Ltd. Vs. P. Chowdaiah & Ors. in paragraph 32, the Coordinate Bench of this Commission observed as under: 32. Another aspect to be noted in the present cases is that there has been violation of principles of natural justice. It is an admitted fact that before conducting the inspection of the fields of the farmers on 6.12.2006 as well as on 13/14.2.2007, no notice was given to the petitioner’s company to join the inspection. Whatever inspection have been conducted on these two dates, the same were done at the back of the petitioner’s company. There is also nothing on record to show that copy of these reports was ever supplied by the inspecting officials to the petitioner’s company so as to give an opportunity to the petitioner’s company to present its view. Under these circumstances, we hold that there has been violation of the principles of natural justice, for which respondents cannot derive any benefit”. 12. In the light of aforesaid judgments, it becomes clear that inspection made without notice to OP and without giving him opportunity to present his view cannot be relied on and learned District Forum committed error in allowing complaint on the basis of so-called panchnama prepared in the back of petitioner. 13. Hon’ble Apex Court in 2005 (3) SCC 198 – Haryana Seeds Developments Corporation Limited Vs. Sadhu observed that germination of seed would depend upon several other factors such as, climate-condition, type of soil, water and irrigation facilities, quality of fertilizer, etc. and Hon’ble Apex Court dismissed complaint as complainant could not show that the crop had suffered due to poor germination of seeds. 14. It appears that District forum has also not placed reliance on panchnama because as per panchnama complainant obtained 10 to 15% crop and as per complainant he obtained only 2% crop then District Forum ought to have allowed compensation for claimed quantity of crop, whereas learned District Forum allowed only cost of seeds and Rs.10,000/- as loss of crop. 15. In the light of above discussion, I am of the view that complainant failed to prove that seeds manufactured by the petitioner were of sub-standard which caused loss to the complainant and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed. 16. Consequently, revision petition filed by the petitioners is allowed and impugned order dated 5.11.2011 passed by learned State Commission in Appeal No. 1694 of 2010 – Motilal Vs. Ankur Seeds Pvt. Ltd. and in Appeal No. 1695/2010 – Ankur Seeds Pvt. Ltd. Vs. Motilal and order of District Forum dated 25.3.2010 in Complaint No. 2/2006 – Motillal Vs. Ankur Seeds Pvt. Ltd. & Ors. is set aside and complaint stands dismissed with no order as to costs. (K.S. CHAUDHARI) PER JUSTICE K.S. CHAUDHARI AND DR. B.C. GUPTA (22.05.2014) In R.P. No. 381 of 2012 Ankur Seeds Pvt. Ltd. & Anr. Vs. Motilal & Anr., arguments were heard on 03.03.2014 by Bench No. 4. The draft order was dictated by Dr. B. C. Gupta, Member and sent for approval to Honle Mr. Justice K. S. Chaudhari, Presiding Member. Honle Mr. Justice K. S. Chaudhari sent his dissenting judgment. As Members of the Bench differ in their opinion, the matter may be placed before the Honle President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The point of difference in the orders, written by the two Members is: i) From the inspection report made by independent, Government agricultural experts, at the initiative of the complainant, whether the complainant has been able to prove that the seeds in question were sub-standard or of bad quality? |
(K.S. CHAUDHARI) (DR. B.C. GUPTA) |
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17.10.2014 D.K. JAIN, J. PRESIDENT This Revision Petition, by the producer of seeds, calls in question the correctness and legality of order dated 05.11.2011 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for short “the State Commission”) in cross Appeals No. 1164 of 2010 (Motilal Vs. Ankur Seeds Pvt. Ltd. & Ors.) and Appeal No. 1695/2010 (Ankur Seeds Pvt. Ltd. & Anr. Vs. Motilal & Anr.). The State Commission has dismissed both the appeals and has affirmed order dated 25.03.2010 made by the District Consumer Disputes Redressal Forum, Badwani in Consumer Complaint No. 02 of 2006. 2. The material facts, necessary for disposal of the case are that: on 26.05.2005, the Complainant/Respondent No. 1 (Moti Lal) purchased from Respondent No. 2, a dealer of the Petitioners, 20 packets, weighing 50 grams each, of cucumber seeds for ₹9,000/- for sowing in 10 acres of land. According to the Complainant the fruit ripened early, mostly disfigured and small in size. According to him, as against the expected yield of 50 quintals per acre, the actual yield of the crop was only 10 quintals and thus, he suffered a loss of 490 quintals of fruit valued at ₹1,47,000/-. As according to the Complainant low yield was because of poor quality of the seeds, he lodged a complaint with the Senior Agriculture Development Officer and Garden Superintendent of the Block concerned. The fields were inspected on 02.09.2005. The material portion of the Inspection report prepared by the Sr. Agriculture Development Officer, dated 02.09.2005, reads as follows: “On inspecting the crop yield, it is found that the size of fruits (cucumber) was irregular and less than the standard claimed by the Company and the cucumbers were found irregular in shape not uniform and colour was not also green and the flowers also groomed less. The agriculturists uptill now got 10 to 15% yield.” 3. On receipt of the said report, the Complainant issued a notice to the Petitioners demanding compensation for the loss suffered by him on account of poor quality of the seeds produced by them. Having failed to elicit any response, the Complainant filed the complaint inter alia praying for award of compensation of sum of ₹1,96,000/- along interest @ 12% p.a., etc. The Complaint was resisted by the Petitioners, mainly, on the grounds that: (i) the seeds having been purchased for commercial purpose, the Complainant could not be treated as a “consumer”, within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 (for short, “the Act”); (ii) there was no assurance by the Petitioners that the yield would be 50 quintals per acre and (iii) before inspection, no notice was received by the Petitioners from the Agriculture Department and therefore, the said report, having been prepared at its back, could not be relied upon by the Fora below to hold that the seeds supplied were defective or of inferior quality. 4. The District Forum rejected the preliminary objection by observing that the Complainant was carrying agricultural operations on his own land as well as on lands taken on rent, for his livelihood by self-employment and not for any commercial purpose. Finally, concluding that the seeds produced by the Petitioners were defective and of substandard quality, the District Forum directed the Petitioners to pay to the Complainant a sum of ₹9,000/- as cost of the seeds; ₹10,000/- for preparation of the land; ₹10,000/- as loss of crop; ₹5,000/- for deficiency in service and ₹1,000/- as litigation cost (totaling ₹35,000/-). The Appeals filed by both the parties were dismissed by the State Commission. Hence the present Revision Petition. 5. The Revision Petition was heard by a Bench comprising Mr. Justice K.S. Chaudhari (Judicial Member) and Dr. B.C. Gupta (non-Judicial Member). Referring to the decision of the Supreme Court in Haryana Seeds Development Corporation Limited Vs. Sadhu (2005) 3 SCC 198 and some decisions of this Commission, the Ld. Judicial Member came to the conclusion that the Complainant had failed to prove that the seeds produced by the Petitioners were of substandard quality, which caused loss to him and therefore, the District Forum committed an error in allowing the complaint. The Learned non-Judicial Member, however, held that immediately on noticing that the crop of cucumber was not coming out properly, the Complainant lodged a complaint with Agricultural Experts of the State Government, who opined that the size of the fruit was irregular and less than the standard claimed by the Petitioners. According to the Ld. Member, the Complainant had sufficiently discharged the onus to prove the allegation that the seeds were substandard and the scope of interference in Revisional Jurisdiction being limited, the Revision Petition deserved to be dismissed. 6. As there was difference of opinion amongst the Ld. Members, the Bench made a reference under Section 20 (1A) (iii) of the Act, formulating the following question for the opinion of the third member:- “From the inspection report made by independent, Government agricultural experts, at the initiative of the complainant, whether the complainant has been able to prove that the seeds in question were sub-standard or of bad quality?” 7. That is how the matter has now come up before me. 8. I have heard Mr. Abhishek Bhoot, Ld. Counsel appearing for the Petitioners. The Respondents are ex parte. The main thrust of the arguments of the Ld. Counsel is that: (i) the report submitted by the Senior Agriculture Development Officer cannot be relied upon against the Petitioners as the fields were inspected without notice to them, (ii) even otherwise the report does not indicate that the seeds supplied by the Petitioners were of substandard quality or genetically defective and (iii) the Complainant having failed to obtain any report about the quality of the seeds from a recognized Laboratory, has failed to discharge the onus to prove that the seeds, produced and marketed by the Petitioners, were in any way defective resulting in low yield of the cucumber crop. 9. I am unable to persuade myself to agree with the Learned Counsel. It is cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction between the phrase burden of proof and onus of proof. Explaining the said distinction, in A. Raghavamma & Anr. Vs. A. Chenchamma & Anr. AIR 1964 SC 136, a three Judge Bench of the Hon’ble Supreme Court held that: there is essential distinction between burden of proof and onus of proof: burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. 10. It is manifest from the statement of Objects and Reasons and the scheme of the Act that its main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial forums at the District, State and National level, with vide range of powers vested in them. The rigors of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 are not applicable to the proceedings before these quasi-judicial bodies. Undoubtedly, the Principles of natural justice are required to be observed. 11. Having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given Purposive, Broad and Positive construction, more so, when the remedy under the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. (See: Section 3). The doctrine of purposive construction was lucidly explained in Bengal Immunity Co. Ltd. Vs. State of Bihar & Ors., AIR 1955 SC 661 by S.R. Das, Agt. CJI (as his Lordship then was), in his majority opinion, as follows: “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when – ‘Heydon’s case’, (1584) 3 Co Rep 7a (V) was decided that – “……… for the sure and true interpretation of all Statues in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st What was the common law before the making of the Act, 2nd What was the mischief and defect for which the common law did not provide, 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and ‘pro private comodo’, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, ‘pro bono public.’” 12. In New India Assurance Company Ltd. Vs. Nusli Neville Wadia & Anr. and New India Assurance Company Ltd. Vs. KLM Engineering Company (P) Ltd. & Ors. (2008) 3 SCC 279, invoking the rule of ‘Purposive Construction’, while interpreting section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 S.B. Sinha J. opined as follows: “………..For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations.” 13. In my view therefore, to give effect to the Objective of the Act, its provisions have to be construed by resorting to the doctrine of ‘Purposive Construction’. Considered from that perspective, in my opinion, if a Complainant is able to create a high degree of probability of deficiency on the part of the Opposite Party, the onus would shift on to the Opposite Party (the defendant) to discharge the onus to prove his denial. 14. In National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, analysing the provisions of the Seeds Act, 1966, particularly with reference to Section 13(1)(c) of the Act, which confers power on Consumer Fora to obtain test report from an appropriate laboratory with a view to finding out whether the goods in question suffer from any defect alleged in the complaint, the Supreme Court observed as follows: “We shall now deal with the question whether the District Forum committed a jurisdictional error by awarding compensation to the respondents without complying with the procedure prescribed under Section 13(1)(c). A reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect. In some of these cases, the District Forums had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit report about the status of the crops. In one or two cases the Court appointed the Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports the District Forums felt satisfied that the seeds were defective and this is the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. In our view, the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Consumer Protection Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Protection Act had not been followed. The issue deserves to be considered from another angle. Majority of the farmers in the country remain illiterate throughout their life because they do not have access to the system of education. They have no idea about the Seeds Act and the rules framed thereunder and other legislations, like, the Protection of Plant Varieties and Farmers’ Rights Act, 2001. They mainly rely on the information supplied by the Agricultural Department and government agencies, like the appellant. Ordinarily, nobody would tell a farmer that after purchasing the seeds for sowing, he should retain a sample thereof so that in the event of loss of crop or less yield on account of defect in the seeds, he may claim compensation from the seller/supplier. In the normal course, a farmer would use the entire quantity of seeds purchased by him for the purpose of sowing and by the time he discovers that the crop has failed because the seeds purchased by him were defective nothing remains with him which could be tested in a laboratory. In some of the cases, the respondents had categorically stated that they had sown the entire quantity of seeds purchased from the appellant. Therefore, it is naïve to blame the District Forum for not having called upon the respondents to provide the samples of seeds and send them for analysis or test in the laboratory. It may also be mentioned that there was abject failure on the appellant’s part to assist the District Forum by providing samples of the varieties of seeds sold to the respondents. Rule 13(3) casts a duty on every person selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of notified kind or variety to keep over a period of three years a complete record of each lot of seeds sold except that any seed sample may be discarded one year after the entire lot represented by such sample has been disposed off. The sample of seed kept as part of the complete record has got to be of similar size and if required to be tested, the same shall be tested for determining the purity. The appellant is a large supplier of seeds to the farmers/growers and growers. Therefore, it was expected to keep the samples of the varieties of seeds sold/supplied to the respondents. Such samples could have been easily made available to the District Forums for being sent to an appropriate laboratory for the purpose of analysis or test. Why the appellant did not adopt that course has not been explained.” 15. In this behalf, the following observations of the Hon’ble Supreme Court in Maharashtra Hybrid Seeds Co. Ltd. Vs. Alavalapati Chandra Reddy & Ors. (1998) 6 SCC 738 are also apposite:- “………..Moreover, if the opposite parties have disputed that the seeds were not defective they would have applied to the District Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstance that it has not on its own accord sent the seeds for analysis by an appropriate laboratory.” 16. In the present case, as noted above, noticing that cucumber fruit was deformed and the yield was less than the expected, the Complainant lodged complaint with the Senior Agriculture Development Officer. The said officer found that fruits (cucumber) was irregular in shape; less than the standard claimed by the Company; flowering was less; the fruit was not greener and the agriculturists were getting less yield. In my view, even if the report does not comment on the quality of the seeds, it did raise a strong presumption in favour of the Complainant that defective seeds were the cause for low yield and deformed cucumber crop. As observed by the Supreme Court, it was not expected that the Complainant/farmer should have retained a sample of the seeds, so that in the event of less yield on account of defect in the seeds, he could have got it tested in a laboratory to prove that it was defective or of inferior quality. On the contrary, after the filing of the complaint for compensation, nothing prevented the Petitioners, from tracing out the samples from the batch of the seeds and getting it tested for its quality on their own accord or move an application before the District Forum for sending the sample of the seeds, which ought to have been available with them, for analysis by an appropriate laboratory. Having failed to do so, the Petitioners cannot be heard to say that from the report of the Agriculture Officer no adverse inference regarding quality of the seeds could be drawn on the ground that the Complainant had failed to send the sample of seeds to a laboratory for testing. In my opinion, by placing on record the report of the Agriculture Officer, the Complainant had discharged the initial onus to prove that the seeds in question were sub-standard or defective. In light of the said report, onus shifted on to the Petitioners to prove that the seeds were not defective, as alleged. 17. For the aforegoing reasons, the question referred is answered in the affirmative. The Revision Petition shall now be placed before the Bench, comprising members who had heard the case, for pronouncing the final order in accordance with the opinion of the majority of the members. 18. Reference is answered accordingly. |
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PER JUSTICE K.S. CHAUDHARI AND DR. B.C. GUPTA 05.11.2014 In R.P. No. 381 of 2012 – Ankur Seeds Pvt. Ltd. & Anr. Vs. Motilal & Anr. arguments were heard on 03.03.2014 by our Bench. Judgment was dictated by Hon’ble Mr. Justice K.S. Chaudhari, Presiding Member and sent for approval to Hon’ble Dr. B.C. Gupta Member. Hon’ble Dr. B.C. Gupta sent dissenting judgment. As Members of the Bench differed in their opinion, the matter was placed before Hon’ble President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. The Hon’ble President vide order dated 17.10.2014 held that complainant has been able to prove that the seeds in question were sub-standard or of bad quality.Consequently, in the light of majority judgment, Revision Petition filed by the petitioners is dismissed. |
