BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A. 1224/2008  against C.C.77/2007,  Dist. Forum, Kurnool & BATCH         

Between:

1.  P. Chowdaiah

S/o. P. Naganna

Agriculturist

2.  P. Sreenivasulu

S/o.  Chowdaiah

Agriculturist.

Both are R/o. Pamulapadu (V&M)

Kurnool Dist.                                              ***                          Appellants/

                                                                                                  Complainants.

                                                                   Vs.

1. Sai Agro Agencies

Rep. by its Managing Partner

Distributor of  Syngenta Seeds

Near RTC Bus-Stand

Nandyal

2.  Syngenta India Ltd.

Rep. by its Managing Director

Seeds Division, H.No. 1170/27

Revenue Colony, Sivaji Nagar

Pune-411 007.                                            ***                         Respondents/Ops

Counsel for the Appellants:                         M/s.  M. Hari Babu.

                                                                   M/s. M. Ramgopal Reddy

                                                                   M/s. J. Janakiram Reddy

Counsel for the Respondent:                       M/s.  V. Ravindranath Reddy

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

                                 SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE TWETIETH DAY OF DECEMBER TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 These appeals numbering 39  in all, filed by the  unsuccessful complainants agriculturists  against manufacturer of  Roshini Chilly seeds.   Since  common questions of fact and law arise  all these appeals are  taken up for disposal by a common order.   Since facts are similar  F.A. 1224/2008  is taken as model case for narrating the facts, equally so the defence taken by the respondents manufacturer and dealers  of the seeds.

2)                The case of the complainants in brief is that  they are agriculturists  owned agricultural lands in  Pamulapadu  village  of Kurnool District purchased 40  packets  of  hybrid  chilly seeds called ‘Roshni’   @ Rs. 170/- per packet  manufactured by  R2 sold by R1 its distributor-cum-agent on  7.6.2006.   They  had sown the seeds, adopted the agricultural practises ,  and applied fertilizers and pesticides and incurred an expenditure of Rs. 30,000/- per acre.  Despite assurance of yield of  25  quintals  per  acre, hardly he could get  2 quintals  per acre due to defect in the seed.    The growth was poor and did not give even the minimum yield.  When  he complained  the agricultural  department, the  Joint Director of  Agriculture along with   Scientists and   Asst. Agricultural Officer  visited the crop in the last week  of  December,2006, and opined that the seed was defective.    In fact local variety  334 had yielded  around 12 – 14 quintals  per acre.  He  had in all sustained a loss of  90 quintals and therefore claimed Rs. 6,800/- towards refund of cost of seeds, Rs. 3,79,845/- towards compensation, Rs. 1,10,000/- towards cost of fertilizers, pesticides and labour etc. besides Rs. 50,000/- towards mental agony in all Rs. 5,46,645/-.   A tabular from is given  mentioning  the claims of each of the complainants  in all these cases  at para 19. 

3)                 The opposite parties resisted the case.    While putting the complainants  to strict proof  of the ownership of the land and that  they  had sowed  the seed etc., alleged that the cash bill issued by R1 did not give any  guarantee regarding  the growth and yield  of the crop as it depends  on various environmental components.   What all it had guaranteed  was mentioned on the label  printed on the  packet.    There was no  guarantee for quantum of yield  or resistance from  viral disease or ‘thrips’.  The complainant did not adopt  correct procedure.    It should be grown  in the first instance in a nursery and then by transplantation.  The total period of crop duration is  6 to 9 months.    He took the scientist after six months by that time the crop  will be at the end of its life.    The report shows that it was infected  with sucking pests ‘thrips’.   The hybrid seeds have no resistance  to viral diseases or sucking pests.   It requires special treatment under the advise of  Agricultural Officer.  The complainant had failed to  apply the required pesticides etc.  There was no defect in the seeds.  It was due to external factors  which it has no concern.    Therefore it prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case filed his affidavit evidence and examined  Dr. Y. Rama Reddy, Senior Scientist, Plant Breeding, RARS, Nandyal   as PW1,  and  Sri N. Venkatesham, Joint Director of Agriculture, Kurnool as PW2 and got  Exs. A1 to A10 marked while the OP2 filed the affidavit evidence of  its  Territory Sales Manager and filed  Ex. B1  hybrid Roshini seed  brochure.

5)                The Dist. Forum after considering the evidence placed on record, opined that the printed brochure relating to  hybrid Roshini seeds did not in any where mention  the expected yield  or that it was resistant to pests.    Holding that  the complainants  could not establish  that the seed was defective  dismissed the complaints. 

6)                Aggrieved by the said decision,  the complainants preferred the appeal contending that the Dist. Forum did not appreciate either   facts  or law in correct perspective.    Despite report of the expert, and more so,   the opposite parties having  not  been challenged  the opinion by sending  it to a laboratory,  it ought not to have opined that the seeds were not defective.   The opposite parties did not file the test reports from  the laboratories taken before releasing  of the seeds.  Therefore they prayed that the complaints be allowed by awarding the amounts claimed by them. 

7)                The points that arise for consideration  are :

         i.        Whether  the seeds that were purchased  by the complainants were defective?  

       ii.        Whether the complainants are entitled to any of the amounts claimed?

      iii.        If so, to what amount and to what relief?

8)                It is an undisputed fact that the complainants are  agriculturists own lands evidenced under  adangal Ex. A4 wherein they raised chilly crop in the month of June, 2006.  It is also not in dispute  that  R1 is the dealer  while R2 is the manufacturer of  chilly seeds.  The complainants purchased the chilly seeds evidenced under receipts Ex. A3  by paying its value.    A categorical mention was made  that the seeds that were purchased  was  Roshini manufactured by  R2.  Lot number and validity of the seeds  were also mentioned in the said receipt.    It is also not in dispute that  when the complainants could find that crop did not grow  nor the yield as promised  in the brochure of the company Ex. B1.    They  gave a report to the  Joint Director of Agriculture, Kurnool, who in turn deputed the Senior Scientist, Regional Agricultural Research Station, Nandyal.     PW1 Dr. Y. Rama Reddy inspected  the fields on 13.2.2007 and 14.2.2007  along with  Assistant Director of  Agriculture and Agricultural Officers  and opined that “ Over all hybrid vigor was  very poor, due to this,  poor growth, less productive plants and more poor productive plants were observed.   Due to these reasons poor yields are expected.  But local variety 334 was  good and the yield  expected  around 12 to 15 quintals  per acre in all the divisions.”   He stated on oath that “ I observed hybrid vigour was poor for said Roshini Chilly variety crop.  The growth of the crop was poor.  Different type of  pod formation  plants observed i.e.,  poor productive plants, more than productive  plans are less.   Because of these reasons poor yields are expected at 1 to 2 quintals per acre.   But at the same time I observed  in neighbouring fields, LCA variety 334 chilly crop  was showed  good performance and with an expected yield of 12 to 15 quintals per acre.    The said LCA variety 334 is not a hybrid variety as it is a local variety.   The Hybrid Roshini  Chilli variety expected  yield is 12 to 17 quintals per acre.  Along with me   Assistant Director of Agriculture, and Agricultural Officers  of  Atmakur and Pamulpadu visited   fields  on that day.”   Since he observed sucking pest, cross-examination was made  as whether  he sent the same  to a laboratory  to know the exact virus that was afflicted.    A suggestion was made that the hybrid seed  is more vulnerable  to the  diseases  and less resistance.    He  maintained that  as Hybrid seed production authored by  B. D. Singh says otherwise indicating  that  it could resist the pests.    He further clarified that  Chilli  thribs also called  scir to thribs dorsalis.  It  survives in tropical countries. 

9)                 PW2  Sri N. Venkatesham, Joint Director of Agriculture  confirmed the report of PW1.    The respondents did not choose to contradict the  evidence of PWs 1 & 2 by examining  any  of the persons  who are responsible for manufacturing of these seeds.  It may be stated herein that  the complainant did not  resort to recoursing to Section 13© of the C.P. Act  to send the seeds to a laboratory  to get them tested.    Equally the respondent  dare not send the  seeds to a laboratory. 

10)               The learned counsel for the  opposite parties contended  that the  by the time  the  complaints   filed  the  complaints,  the shell life of the seed was expired and  therefore they could not send it.    It  is also contended that the scientist has visited the  crop at the fag end of the period,  and therefore  it may not  project  correct assessment.      The complainants filed the seed packets wherein the seeds were kept.  They have given the label number, kind, variety,  lot no.,  and  that it was tested on  12.5.2006 and it was valid up to  11.2.2007.  The packing was made on  16.5.2006.   It has also given percentage of germination etc.    It was mentioned germination(min)    60%, physical purity (min)  98%, inert matter (max) 2%,  moisture (max) 6% and genetic purity (min) 95%.    The seeds were tested with ‘Thiram and carbendazim.”   It was a hybrid variety.      It is contended that there was no mention on  any of these packets  that they were  not resistant to pests.   We may equally say  that there was no mention that  they were not resistant to pests. 

11)               It is important to note that that the sale of seeds is  circumscribed by several statutory  provisions to protect the farmers.   The conduct of sale of ‘notified kind or variety’ of seeds is governed by  Seeds Act and the rules made there under  besides various control orders   as under : 

1.          The seeds Act 1966 (the Act) especially Secs. 2(5), 2(8), 2(9), 
      2(16), 5, 6 & 7 of the Act enriched  by item (b) of the Statement 
      of Objects and Reasons.

2.        The Seeds Rules 1968 (the Rules) especially Rules 7 to 13.

3.         S.O.No.767 (E) dated 6.11.1991 providing for specifications    for the size, contents, colour, mark or label to be affixed on the seeds container (container itself is defined u/s 2 (5) of Seeds Act as including even the sack, bag, wrapper among some more things)

4.         S.O.No.882 (E) dated 18.12.1991 providing for minimum   
            limits of genetic purity of seeds of notified varieties.

5.         Seeds (Control) Order 1983 especially clauses 3 and 9.

These statutory provisions are made  in order to assure the farmers purchasing seeds, the guaranteed germination and genetic purity as also purity of quality.

In this connection Sec.5 of the seeds Act provides for as follows:

5.      Power to notify kinds or varieties of seeds: -

If  the  Central  Government,  after  consultation  with  the  committee,  is  of opinion that it is  necessary or expedient to regulate the quality of seed of  any  kind or  variety  to  be  sold for  purposes  of  agriculture,  it  may,  by notification in the  Official  Gazette,  declare  such kind or  variety  to  be  a notified kind or variety  for the purposes of the Act and different kinds or varieties may be notified for different States or for different areas thereof.

It is therefore evident from Sec.5 that it is only a notification in that behalf that can make the seeds in question as being ‘notified kind of variety. 

12)              Of course no evidence is placed to show that the seeds in question are notified in terms of Sec.5 of the Seeds Act.   The next step would be to ascertain whether the seller had tendered evidence of complying with the conditions laid down in Sec.7 & Sec.6 of the Seeds Act which read as follows:

Regulation of sale of seeds of notified kinds or varieties 

7.         No person shall, himself or by any other 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- 

(a)       such seed is identifiable as to its kind or variety;

(b)       such  seed conforms  to  the  minimum  limits  of 
           germination and purity specified under clause (a) of
           section 6;

(c)       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

(d)      he complies with such other requirements as may be prescribed.

Power to specify minimum limits of germination and purity, etc.

6.         The Central Government may, after consultation of 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 marks or label may contain.

The respondents ought to have filed the certificate obtained from the testing laboratory before releasing  of the seed  to see that  this seed has been in conformity with the specifications mentioned  on the label.    Undoubtedly this is not in conformity  with Section 8 of the Seeds Act which reads as follows :

8.   Contents of the mark or label. – There shall be specified on every mark or label- 

            (i)    particulars, as specified by the Central Government under
            clause (b) of section 6 of the Act; 

            (ii)   a correct statement of the net content in terms of weight and
            expressed in metric system; 

            (iii)   date of testing; 

            (iv)    if the seed in container has been treated- 

(a)    a statement indicating that the seed has been treated; 

(b)   the commonly accepted chemical or abbreviated chemical (generic) name of the applied substance; and 

(c)   if the substance of the chemical used for treatment, and present with the seed is harmful to human beings or other vertebrate animals, a caution statement such as “Do not use for food, feed or oil purposes”.  The caution for mercurials and similarly toxic substance shall be the word “Poison” which shall be in type size, prominently displayed on the label in red: 

(v)    the name and address of the person who offers for sale, sells or otherwise supplies the seed and who is responsible for its quality; 

            (vi)    the name of the seed as notified under section 5 of the Act. 

For the contention of the learned counsel  for the opposite parties that the shell life of the seed was over  and therefore they could not send  for analysis  does not stand in the light of Section 13 of the Seeds Act.  If we compare the format and contents of Ex.B1 with which alone the purchaser was obliged to make do, with Rule 8 of Seeds Rules is crystal clear that the  respondents gave a go by even to the barest minimum of compliance with law.  This disobedience to law on the part of  respondent becomes all the more clear if we compare Ex. B1 more so when Rule 13(3) of Seeds Rules set out above casts an obligation on the part of the seller of seeds to preserve the samples of seeds in terms thereof for the purpose of getting them tested if required.  The dispensation in Rule 13(3), thus, amply indicates that when the quality of seeds sold is called in question the seller has to raise to the occasion to dispel it.  It is for the seller to get them tested for their efficacy in germination and genetic purity and other purity in quality especially when such data is not proved by producing the statutory labels.  It is therefore clear from the material available that the opposite parties totally failed in showing the seeds in question  were free from defect namely the standard germination and genetic purity.  This deficiency smacks  both the defect in seeds as also deficiency in service of supply of seeds.

13)               The complainants  are  agriculturists  who own lands could find that crop did not grow  nor the yield as promised   approached the agricultural authorities in fact  gave a report to the  Joint Director of Agriculture, Kurnool, who in turn deputed the Senior Scientist, Regional Agricultural Research Station, Nandyal.     The  Scientist and Agricultural  Officrs who visited the crop categorically stated that   over all hybrid vigor was  very poor.  Due  to this,   there was poor growth, less productive plants and more poor productive plants were observed.    In fact they compared  with the  local variety 334  and opined that there would be very low yield.   Taking cue from the report of the scientists that sucking pest was  afflicted, the learned counsel for the respondents contended that no where it was stated that it was not resistant to pests.   There is no meaning in creating hybrid variety after conducting  resistance tests etc., if they are not resistant to pests.      In fact the manufacturer  ought to have  mentioned that it would not resist to pests, and in case if afflicted  the precautions to  be taken to contain these pests or viruses. 

14)               Obviously the agriculturists do not have wherewithal to conduct tests etc. as that of a  manufacturer.      What all they could do is obtain an opinion of the agricultural officer  and expert in the subject. 

15)               The Hon’ble Supreme Court  after taking congnizance  of these factors  in  M/s. Maharashtra Hybrid Seeds Company Ltd. Vs. Alavalapati  Chandra Reddy reported in  III (1998) CPJ 8 (SC)   upheld the report of the Agricultural officer  when he held  that the seeds were defective.  They approved the opinion of the Agricultural Officer by stating “

In view of the letter written by the Agricultural Officer to the opposite parties to which they sent no reply it is clear that the same seeds that were purchased from the opposite parties were sown and they did not germinate. In view of the aforesaid letter of the Agricultural Officer, the District Forum felt that the seeds need not be sent for analysis. 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 circumstances that it has not on its own accord sent the seeds for analysis by an appropriate laboratory……”

16)               Subsequently in  H.N. Shankara Sastry Vs. Assistant Director of Agriculture, Karnataka reported in II (2004) CPJ 37 (SC)  the Supreme Court upheld the order of the Dist. Forum when it directed  the manufacturer  to refund the price of paddy seeds besides damages and costs.  Quoting with approval the law laid down in Lucknow Development Authority Vs. M. K. Gupta III (1993) CPJ 7 (SC)  it was  held:

“The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, `a network of rackets' or a society in which, producers have secured power' to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot."

17)               The learned counsel for the  respondents contended that  it  looks as though  the agriculturists have shown  the seeds directly  in the field by broadcasting  method.    The correct procedure is that it  should be  by growing nursery and by transplantation of the deserving number  of population.    The manufacturer did not mention the manner in which  the cultivation has to be made particularly in regard to these seeds. The learned counsel for the respondents contended that  when they have mentioned  this fact in the  counter, the complainant in order to get over it mentioned  in the affidavit that they had  grown in nursery  and then transplanted.  The fact remains the  Agricultural Officers and the Scientist did not  say that the complainants did not follow the procedure in raising the crop.     The complainants have used the fertilizers, pesticides etc. evidenced from bills.    The learned counsel for the respondents relyng  the Vyvasaya Panchangam  contended that  indiscriminate use of fertilizers, and pesticides etc. would lead to negative results.    When the very scientists and agricultural officers  after inspecting the crop  did not find fault with the complainants in  their agricultural practises, the manufacturer cannot raise this hyper-technical contention without any basis.    These contentions have no place more so, when  the manufacturer itself did not take any steps  to show that the seeds that were sold were  in conformity with all the standards etc. 

18)               At the cost of repetition, we may state that the complainants have proved their cases beyond doubt by examining the  Scientist as well as  the Joint Director of Agriculture  that the crop  had failed   The  Scientists also compared this crop with that of the neighbouring crop raised with a different variety, and found that  it had yielded 12 – 15 quintals per acre.  The manufacturer did not send the seeds that were released to the market  under the said batch in order to prove that the seeds were not  of inferior in quality.  It  did not even file the laboratory test reports  that were conducted before releasing the seeds to the market.      The questions in regard to  nature of land,  irrigation facilities etc  were of general nature.    As we have earlier pointed out  PW1 did not state that the lands were not suitable for raising chilly crop and there was any adverse climatic conditions.    The very fact  that in the neighbouring  lands  yield was good show that there was deficiency in the seeds manufactured by the respondent.   There could not have been total loss of crop for all these agriculturists had seeds been in conformity  with the specifications.    We have absolutely no hesitation  to hold that the crops were failed due to defective seeds.    The complainants have proved by leading both oral and irrefutable documentary evidence  that they have sustained loss in view of defect in the seeds.

19)               Coming to the quantum of compensation, it is not in dispute  that the complainants have raised the chilly crop  in an extent of land  as mentioned in the complaints.    If we take minimum 12 quintals per acre  as deposed by PW1  and computing @ Rs. 4,500/- per quintal  the loss would  come to Rs. 54,000/- per acre.    The complainants   would get the yield  after applying fertilizers and pesticides etc. All this  includes cost of the crop.  Therefore the complainants are  not entitled to value of the seeds, fertilizers, pesticides etc., separately.   PW1 in fact  deposed that  the expected yield would be 12 quintals per acre.    Since the manufacturer did not dispute the rate of chilly at Rs. 4,500/- per quintal, the complainants are entitled  to 12  quintals per acre  @  Rs. 4,500/-  per quintal together with compensation of Rs. 5,000/- each besides costs of Rs. 3,000/- each  as under :   

20)               In the result the appeals are allowed setting aside the order of the Dist. Forum.  Consequently the complaints are allowed  in part directing the  opposite parties to pay  Rs. 54,000/- per acre towards loss of yield as indicated above together with  compensation of Rs. 5,000/- each and costs of Rs. 3,000/- each.  Time for compliance four weeks.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  20. 12.  2010.

*pnr

“UP LOAD – O.K.”