STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 182 of 2013

M/s Kalash Seed Private Limited having its Regional Office at 102, Anand Dewki Sadan Apartment, Vir Shivaji Path, North S.K. Puri, District- Patna through Regional Manager, Sri S.K. Mishra, Son of Sri Jagat Narayan Mishra

                                                                                                                                                                                … Appellant

Versus

1.  Rajeev Kumar, Son of Shri Ishwar Prasad

2.  Pappu Kumar, Son Krishna Narayan Prasad

3.  Sukhu Prasad, Son of Late Gopali Mahto

4.  Rajesh Kumar, Son of Late Sita Sharan Prasad

5.  Anil Prasad, Son of Late Chandeshwar Prasad

6.  Shailendra Kumar Rahi, Son of Sri Krishna Prasad

7.  Satyendra Prasad, Son of Shyam Bihari Prasad

8. Janardan Prasad, Son of Rameshwar Prasad, All resident of Barhari, PS- Chabilapur, District- Nalanda

                                                                                                                                                       …. Respondents 1^st Party

9. Ravi Prasad, Proprietor, Ravi Seed Store, Bazar Samiti, Shop no. 89, Ram Chandrapur, Town- Biharsharif, District- Nalanda

10.  Ramchandra Prasad Sinha, Proprietor, Krishi Store, Rajgir, PO- Rajgir, District- Nalanda

11.  Dhananjay Prasad, Proprietor, Apna Beej Bhandar, Rajgir (Chabilapur Road), PO- Rajgir, District- Rajgir

                                                                                                                                                       …. Respondents 2^nd  Party

Counsel for the Appellant: Adv. Manish Kishore & Adv. Raju Kumar Singh

Counsel for the Respondent: Adv. Dilip Kumar, Adv. Kiran Kumari & Adv. Sanjay Kumar

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 17.08.2023

As per Sanjay Kumar, President.

O r d e r

1. Earlier against the order dated 21.03.2013 passed in Complaint case no. 27 of 2012 opposite party had preferred appeal no. 182 of 2013 before the State Commission and same was dismissed by order dated 05.07.2013 as time barred. The application for condonation of delay was rejected as no sufficient cause was shown by the appellant for condonation of delay in filing appeal.
2. Against order dated 05.07.2013 Revision petition No. 3326 of 2013 was filed by the appellant before the National Commission and by order dated 17.05.2018 order dated 05.07.2013 passed by State Commission was set aside and the case was remanded to the State Commission to be heard and decided on merit.
3. Present appeal has been filed by appellant/opposite party no. 2 (Kalash Seed Private Ltd.) for setting aside the judgment and order dated 21.03.2013 passed by Ld. District Consumer Forum, Nalanda passed in Complaint case no. 34 of 2012 whereby and whereunder the Ld. District Consumer Forum has directed appellant to pay Rs. 15,000/- per bigha as compensation to complainants for 60% loss of onion crops.
4. Briefly stated the facts of the case is that complainants are farmers in the District of Nalanda and use to cultivate onion crop every year. On 19.10.2011 a farmer fare was organized where opposite party no. 1 (wholesaler) put a stall and advertised and marketed seed products of opposite party no. 2 (producer of seeds) and convinced that seeds are certified, hybrid and of good quality which can yield 15-20 Mann (1 Mann=40 kg) per bigha.
5. Believing it to be true complainant no. 1, 2,3 & 7 purchased onion seeds from shop of opposite party no. 3 @1050/- per kg which was produced by opposite party no. 2 and which was purchased by opposite party no. 3 from opposite party no. 1. Complainant no. 4 and 5 purchased the onion seeds from the shop of opposite party no. 4 and complainant no. 6 & 8 purchased the onion seeds from shop of opposite party no. 5.
6. Complainant no. 1 to 8 purchased respectively 15 kg onion seeds for his 5 bighas land, 4 kg of onion seeds for 3 bighas 13 kathas of land, 2.77 kg onion seeds for 1 bigha of land, 3 kg onion seeds for 1 bigha of land, 10 kg onion seeds for 3 bighas 7 kathas of land, 10 kg onion seeds for 3 bighas 7 kathas of land, 3 kg 700gm onion seeds for 1 bigha 5 kathas of land & 9 kg onion seeds for 3 bighas of land and sowed onion seeds by preparing the field and irrigating and by use of fertilizers and pesticides in prescribed manner but in most of onion plants flowering developed and there was no growth of onion as such complainants suffered loss of Rs. 60,000/- per bigha, complainants lodged complaint before the block agriculture officer and block development officer who inspected the crops and found crops to be damaged but no compensation was granted as such complainants filed complaint case in the District Consumer Forum, Nalanda for grant of compensation and cost of litigation.
7. Complainants after preparing their land and irrigating it sowed onion seeds and used fertilizer and pesticides for proper growth of onion plant however, flowering developed in the onion plants and onion plants got damaged causing huge loss to the complainants on account of defective seeds and they approached the District consumer Forum for grant of compensation as well as cost of litigation.
8. Notices were issued to opposite parties and they appeared and filed their written statement.
9. Opposite party no. 1 and opposite party no. 5 appeared and filed their written statement stating therein that opposite party no. 1 is wholesaler of seeds whereas opposite party no. 5 is retailer. Opposite party no. 2 (Kalash Seeds Pvt. Ltd) is registered Private Ltd. company and producer of different variety of seeds from whom opposite party used to purchase seeds which are directly sold to the farmers. After farming season is over seeds which remained surplus is returned to O.P no. 1 who in turn returns it to O.P. no. 2 where it is destroyed.
10. In farming season of year 2011 opposite parties purchased onion seeds from opposite party no. 2 (Kalash Seeds Company) and sold to farmers, however, complainant with respect to inferior quality of seeds has been made only by complainants and no any other farmer has made any complaint. Answering opposite parties do not produce onion seeds and they purchase packed seeds and sell them to farmer as packed.
11. Opposite party no. 3 has filed written statement in which it has been stated that he is retailer of seeds and purchases seeds from O.P. no. 1 and sell it to farmers.
12. Opposite party no. 3 has sold onion seeds to complainant no. 1,2,3 & 7 and to other complainants who have also not produced any cash memo. No complaint was made to District Agricultural officer. Seeds were not sent to seed testing centre to judge the quality and purity of seeds.
13. Opposite party no. 2 (Kalash Seeds Company) in its written statement has denied all allegation with respect to sub standard quality of seeds. Onion seeds produced are tested by expert agriculture scientist and is prepared under their supervision and guidance and after testing its purity and quality it is sold in market. They are in this business for last more than 15 years but no complaint has been received. No case has been filed in any court of law.
14. Opposite party no. 2 has sold seeds to O.P. no. 1 who is registered license holder by Govt. of Bihar. Many farmers of village have given certificate that they also sowed seeds of company of O.P. no. 2 and yield was normal.
15. Packed seeds of year 2011 were properly tested under supervision of experts and was duly certified by competent authority as such its purity cannot be doubted.
16. Complainants have not given area of their land and title deeds and rent receipts with complaint petition. The claim is exaggerated . Present complaint has been filed at instigation of rival companies to harm the reputation of company. Packed seeds sent by the company in the year 2011 were tested and pure.

17. Complainants have not adopted correct method of seeding. Agriculture scientist are of the view that untimely flowering in onion crop can be due to various factors such as sowing of seeds before time, temperature dropping below 10 to 15 degree Celsius, lack of irrigation and shortage of fertilizer and pesticides.
18. In support of their claim complainant have enclosed evidence on affidavit, cash memo of purchase made from O.P. no. 1,3,4. Joint inspection report and other relevant documents.
19. The District Consumer Forum on the basis of materials available on record held that complainants are experienced and seasoned farmers and are engaged in onion farming for last many years as such the contention of opposite party no. 2 that complainants did not follow the proper method in seeding process is not acceptable. Opposite party no. 2 also did not adduce any material to show that there was any defect in farming.
20. On complaint made by farmers to the agriculture and horticulture department a team of expert was constituted who jointly inspected the onion crops and submitted a joint report assigning reasons for flowering and non growth of the onion and 60% of the onion crop were damaged and prime reason for such damage was defective seeds. The onion crop in the field were inspected by the technical team which found that 60% of the onion crop was damaged which caused huge loss to complainants.
21. The District Consumer Forum held that due to defective seeds complainants suffered 60% loss of onion crops for which opposite party no. 2 was responsible and accordingly, by order dated 21.03.2013 directed appellant to pay Rs. 15,000/- per bigha as compensation to complainants. Aggrieved by which present appeal has been filed by opposite party no. 2 on following grounds:

1. For that from the reports submitted by the competent authority it is proved that there was no deficiency in the seeds supplied to the complainants. The onion seeds supplied to the complainants were hybrids and were suitable having full yielding capacity which were supplied to the complainants, directing the complainants to comply the method of seeding but the complainants did not comply the same.
2. For that the complainants inspite of full direction of the seeding the onion seed did not care at the time of seedling onion nor they asked the opp. Party no. 2 in seeding onion seed and as such there was gross latches negligence on the part of the complainant and as such the Opp. Party (Appellant) are not responsible for their negligence and latches.
3. For that the District Consumer Disputes Redressal Forum  have also observed that the appellant/opposite party are not responsible for the same but the District Consumer Disputes Redressal Forum have illegally and arbitrarily directed the appellant to pay sum of Rs. 15,000/- per bigha to the complainants.

22. Heard the parties.
23. Appellants have not challenged the finding recorded by the District Consumer Forum that 60% of the onion crop was found damaged during inspection made by the team of expert who also submitted their joint inspection report in which various reasons has been assigned for damage of the onion crop which also included defective seeds. None of the parties have submitted inspection report before this Commission as such commission is relying on the finding recorded by District Consumer Forum on inspection report. Even otherwise, appellants have not challenged the findings of inspection report.
24. Appellants have contended that the damage to the onion crop was not on account of defective seeds but improper method of seeding adopted by the complainant.
25. It is well settled proposition of law that under section 13 of Consumer Protection Act, 1986, the burden to prove the deficiency is on the complainant.
26. Section 13(1)(c) provides that where a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Consumer Forum shall obtain a sample of the goods from the complainant, seal it and refer the sample so sealed to the appropriate laboratory for analysis or test.
27. In present case expert team of Agriculture and Horticulture scientists were constituted who inspected the onion field of complainants/farmers and found 60% of onion crop to be damaged and one of the reason for such damage was defective seeds as such onus shifted upon the producer of the seed (O.P. no. 2) to get the seed tested in seed testing centre in order to establish that seeds were quality seeds and not defective seeds. They did not take any steps for getting the seed tested in seeding lab as such they failed to discharge their burden in establishing that seeds were not defective and were quality seeds. Complainants did not retain seeds after sowing and left over seeds were returned to O.P. no. 2 after farming season is over as such seeds for testing remained with O.P. no. 2 and it was incumbent on opposite party no. 2 to get the seed tested in appropriate lab to establish that 60% damage to the onion crop was not on account of defective seeds but for other reasons.
28.  In case of E.I.D. Parry (I) Ltd. vs Gourishankar And Anr decided by National Consumer Disputes Redressal Commission since reported in 2006(4) CPJ (NC) 178 paragraph no. 3 of which reads as follows
                                      3. Submission advanced by Mr. Gireesh Kumar for petitioner is two fold : (i) In order to prove that the seed supplied was defective the respondent No. 1 did not send the sample thereof to the laboratory for testing and (ii) seed was not sown by respondent N0. 1 as per instructions of the petitioner. We were taken through the statements of respondent No. 1, Manik, Jagadish Gauda and Imtiaz Ahmad (copies at pages 31 to 45). Manik was examined as a witness by respondent No. 1 Jagadish Gauda was examined as witness by the petitioner while Imtiaz Ahmad by respondent No. 2. Submission at (i) above was also canvassed on behalf of the petitioner before the District Forum but was repelled relying on the decision in.N.S.C. Ltd. v. Guruswamy and Anr. I (2002) CPJ 13 (NC). Testimony of respondent No. 1 would show that whatever seed was purchased from respondent No. 2 was sown by him in the land. Thus, there was no occasion for respondent No. 1 to have sent the sample of seed for testing to the laboratory. It is in the deposition of Jagadish Gauda that after testing the seed the petitioner packed and sent it to the market. However, the testing report of the disputed seed has not been filed. Since petitioner company is engaged in business of sunflower seed on large scale, it must be having the seed of the lot which was sold to respondent No. 1. In order to prove that the seed sold to respondent No. 1 was not sub-standard/defective, the petitioner could have sent the sample for testing to the laboratory which it failed to do. Thus, no adverse inference can be drawn against respondent No. 1 on ground of his having not sent the sample of seed for testing to a laboratory.
29. For the reasons as stated above, this Commission is not inclined to interfere in the order passed by the District Consumer Forum, Nalanda. Accordingly, this appeal is dismissed.

(Ram Prawesh Das)                                                                           (Sanjay Kumar,J)

       Member                                                                                             President

Md. Fariduzzama