PER MR SUBHASH CHANDRA

1.     These revision petitions are filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assailing the orders of the State Consumer Dispute Redressal Commission, Karnataka, Bangalore (in short, ‘State Commission’) in Appeal Nos. 1886 of 2011 dated 07.02.2014, 3510 of 2011 dated 07.02.2014 and 3550 of 2011 dated 07.02.2014 filed against orders of the District Consumer Disputes Redressal Forum, Haveri (in short, ‘District Forum’) in consumer complaints no.2 of 2011 dated 16.05.2011, 17 of 2011 dated 09.09.2011 and 10 of 2011 dated 19.05.2011 respectively.

2.     The facts in the three petitions are identical inasmuch as they relate to alleged deficiency in quality of cotton seeds sold by the petitioner leading to poor yields resulting in complaints and appeals for compensation before the lower fora. For the sake of convenience, facts are taken from RP No. 2357 of 2014 based upon the State Commission’s order in Appeal No. 1886 of 2011.  

3.      In brief, the facts of the case are that respondent no. 1 sowed cotton seeds on his agricultural fields in village Hiremugadur of Savanur Taluk in 2010-2011. The seeds were procured from respondent no. 2, the authorized seller of cotton seeds manufactured by Rasi Seeds Pvt. Ltd, the petitioner. 7 bags of seeds of Rasi II Cotton at a cost of Rs.4550/- were purchased for planting in 7 acres of land. Due to poor growth of crop, at the request of the respondent, the crop was inspected by the staff of the Agriculture Department, Savanur taluk who advised that pesticide treatment be undertaken.  Accordingly, respondent no.2 sprinkled pesticide and removed the weeds in the cotton crop twice incurring a cost of Rs.14,000/-. At the time of sale of the cotton seeds, respondent nos.2 and 3 had informed the petitioner that from this seed would yield a minimum of 15 to 18 quintals of cotton crop per acre. However, due to the poor quality of seeds only 10-12 quintals of yield was harvested. The complainant sustained a loss of 5-6 quintals which was estimated at Rs.3,15,000/- on the basis of the market price. Respondent has therefore alleged deficiency inservice as per section 2 (1) (g) of the Consumer Protection Act, 1986.

4.     On 06.01.2011 the respondent no. 1 preferred a complaint before the District Forum which came to be dismissed on 16.05.2011 on the ground that deficiency on part of the petitioner was not proved since there was no evidence produced to the effect that pesticides/micronutrients and chemicals had been sprayed as advised by the Agriculture Officer, Hattimattur, and the test report produced by the petitioner from his own laboratory had indicated that the seeds were 99.9% of good quality. Respondent no. 1 then approached the State Commission in appeal on 20.06.2011. This appeal was allowed on 07.02.2014 with directions to pay Rs 1,50,000/- with interest at 8% per annum from the date of filing of complaint till realization and Rs.5,000/- as litigation expenses..

5.      The petitioner is before us impugning this order on the grounds that the State Commission erred in putting the onus on the petitioner to get the seeds tested and the burden of proof to prove that the seeds were not defective. It is urged that the State Commission erred in not accepting the report of the Agriculture Officer, Hattimattur, which had been accepted by the District Forum and the fact that the petitioner had proved on the basis of testing of the seeds in its laboratory that the seeds were not defective, since a negative cannot be proved in law. It is argued that the State Commission erred in determining the loss without there being any basis for it on record. It is also argued that the impugned order overlooked the fact that the Agriculture Officer, Hattimattur, had advised the respondent to undertake various chemical treatments and that the same had not been done. It is therefore prayed to set aside the impugned order of the State Commission with costs.

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

15.     …………The pleadings and oral evidence placed on record by the complainants discloses that, as per the advice of the Agricultural Officers, from time to time, they have supplied the manure and also pesticides to the cotton crop and twice they engaged the laborers for removal of the weed. Of course the complainants have not produced seeds test report obtained from the seed test laboratory. After careful analyzing the evidence and also by relying on the decisions of the Hon’ble National Commission, we find no farmers will preserve the sample of seeds anticipating the failure of crops due to supply of sub-standard seeds, to send the same to the Seeds to the Testing Laboratory. Therefore, the District Forum has rightly not accepted the submissions made by the appellants in both the cases. Therefore, the decisions rendered by the Hon’ble National Commission referred to above cannot be made applicable.

16.     It is seen from the order passed by the District Forum that the District Forum has accepted the contention of the complainants that the complainants can grow 10 quintals of cotton in an acre of land.  Likewise he assessed in total he could have raised 70 quintals of cotton. But after going through the records placed by the parties and more particularly the arguments advanced by the counsel for the OP, it cannot be said that the complainant might have put to that extent of loss while growing the cotton crop in his land. The District Forum in this regard ignored the report of the scientists of the Agricultural University regarding the quality of the seeds produced by the complainants. Therefore, in our view the compensation awarded by the District Forum in a sum of Rs.2,00,000/- is on the higher side and the same is liable to be reduced to a sum of Rs.1,50,000/-.

All the three appeals are allowed in part by modifying the order passed by the District Forum in the respective complaints.

The appellant/ OPs in appeal no. 1886 of 2011 are jointly and severally directed to pay Rs.1,50,000/- with interest at 8% per annum from the date of filing the complaint till realization and also to pay Rs.5,000/- towards litigation expenses.

The appellant/ OPs in appeal no. 3550 of 2011 are jointly and severally directed to pay Rs.4,75,000/- with interest at 8% per annum from the date of filing the complaint till realization and also to pay Rs.5,000/- towards litigation expenses. The compensation awarded by the District Forum in a sum of Rs.50,000/- is hereby set aside.

The order passed by the District Forum in complaint no.10/ 2011 is hereby set aside and the complaint filed by the complainants is allowed directing the respondents/ OPs in appeal no. 3510 of 2011 are jointly and severally directed to pay Rs.50,000/- with interest @ 8% per annum from the date of filing the complaint till realization and also to pay Rs.2000/- towards litigation expenses.

The amount in deposit made by the appellant/ OP 1 in appeal no. 1886 and 3550 of 2011 before the Commission shall be transferred to the District Forum to pay the same to the respective respondents/ complainants after due notice to them.

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

8.     Learned counsel for the petitioner has contended that the reliance of the State Commission on Maharashtra Hybrid Seeds Co. Ltd., vs Avalapati Chandra Reddy (1998) NCJ (SC) 464 is erroneous as there was no finding arrived at in the case. It has been argued that in various orders of this Commission it has been held that the reasons for poor yield of crops can be several and cannot necessarily be ascribed to only the poor quality of seeds. Reliance has been placed on the orders of this Commission in Hindustan Insecticide vs Kopulu Sambasiva Rao - IV (2005) CPJ 47 (NC) in support. It is argued that there was a responsibility on the respondent to take steps by way of spraying of pesticides, micronutrients and chemicals as advised which was not done since evidence of the same has not been brought on record.  Finally, it is argued that the fixation of the compensation amount by the State Commission is arbitrary and without any basis.

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

10.   From the foregoing it is apparent that there was a low crop yield in the cotton seeds sown by the respondent no. 1. The reasons for the same are, however, disputed with the respondent ascribing it to the poor quality of seeds sold by the petitioner and the petitioner contending that the quality of seeds was not in dispute but correct agricultural practices on the basis of technical inputs of agriculture department officers were not undertaken. In the absence of any sample of seeds from the lot sown being available with the respondent, the onus of proving that the quality of seeds was good has been argued by the respondent to have shifted to the petitioner. The test undertaken in its own laboratory by the petitioner cannot, however, be considered acceptable as per section 13 (i) (c) of the Act. Section 2 (1) (c) of the Act mandates that an ‘appropriate laboratory’ is either a laboratory of the Central or State government or one certified by it. In the absence of the sample of seeds being available or its test results being from an ‘appropriate laboratory’, an alternative method is the only option of testing the quality of seeds. By having approached the concerned technical experts of the agriculture department, the respondent can be considered to have discharged the primary onus cast upon him. From the available records, the basis for the petitioner’s contention that the advice of the officers of the Agriculture Department, was not followed by the respondent is not available on record. The fact that the order of the District Forum does not refer to it cannot be a cogent enough ground for this.  Nevertheless, it remains undisputed that the respondent approached the Agriculture Department on account of poor germination of the seeds sown which indicates that an assessment of low yield is not fallacious.

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

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

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

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

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

12.     From the above facts of this case and findings of the Hon’ble Supreme Court and this Commission it is clear that the onus to prove quality of seeds lies with the petitioner. Petitioner cannot take shelter under section 13 (1) (c) of the CP Act. Nothing stopped the petitioner from applying for the test and sending the sample on their own. No application was filed by the petitioner before the District Forum for laboratory test for assessment of the quality of their seeds of which they are confident. No request for a third party assessment of the quality of seeds was also made.

15.   For the reasons stated above, we find no merit in the revision petitions and disallow the same. The impugned orders of the State Commissions in RP nos. 2357, 2358 and 2359 of 2014 are hereby affirmed. Petitioner is directed to comply with the order of this Commission within three months from the date of pronouncement of this order, failing which an interest of 10% shall be payable.