State Consumer Disputes Redressal Commission
Mahyco Seeds Ltd., vs Subhash Shrihari Devkore And Others on 20 August, 2013
1 F.A.No. :541 to 571/2008
Date of filing:22.05.2008
Date of order:20.08.2013
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
F.A. NO.: 541 TO 571 OF 2008
IN COMPLAINT CASE NO. : 270 to 296/2007, 01 to 04/2008
DISTRICT FORUM : NANDED.
Mahyco Seeds Ltd.,
Post Box No.27,
Plot No.B-4, Industrial Estate,
Jalna - 431 203. ...APPELLANT
VERSUS
1. F.A.NO. : 541/2008 IN C.C.NO.270/2007
Subhash Shrihari Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
2. F.A.NO. : 542/2008 IN C.C.NO.271/2007
Maroti Ramji Kankdande,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
3. F.A.NO. : 543/2008 IN C.C.NO.272/2007
Vasant Mukund Moralwar,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
4. F.A.NO. : 544/2008 IN C.C.NO.273/2007
Bhanudas Madhavrao Karbhari,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
2 F.A.No. :541 to 571/2008
5. F.A.NO. : 545/2008 IN C.C.NO.274/2007
Sambhaji Babarao Gundale,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
6. F.A.NO. : 546/2008 IN C.C.NO.275/2007
Namdev Devrao Pandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
7. F.A.NO. : 547/2008 IN C.C.NO.276/2007
Govind Dhondiba Kandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
8. F.A.NO. : 548/2008 IN C.C.NO.277/2007
Subhash Ganapati Ramtirth,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
9. F.A.NO. : 549/2008 IN C.C.NO.278/2007
Bhimshankar Ganapati Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
10. F.A.NO. : 550/2008 IN C.C.NO.279/2007
Sheshrao Piraji Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
11. F.A.NO. : 551/2008 IN C.C.NO.280/2007
Namdev Dhondiba Kandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
12. F.A.NO. : 552/2008 IN C.C.NO.281/2007
Madhav Nagorao Pavale,
R/o Petwadaj,
3 F.A.No. :541 to 571/2008
Tq.Kandhar, Dist.Nanded.
13. F.A.NO. : 553/2008 IN C.C.NO.282/2007
Kondiba Rajaram Gondhale,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
14. F.A.NO. : 554/2008 IN C.C.NO.283/2007
Dhondiba Piraji Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
15. F.A.NO. : 555/2008 IN C.C.NO.284/2007
Jaiwanta Ganapati Devkhore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
16. F.A.NO. : 556/2008 IN C.C.NO.285/2007
Balasaheb Madhav Karlekar,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
17. F.A.NO. : 557/2008 IN C.C.NO.286/2007
Sakhahari Gangadhar Moralwar,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
18. F.A.NO. : 558/2008 IN C.C.NO.287/2007
Ramdas Dadarao Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
19. F.A.NO. : 559/2008 IN C.C.NO.288/2007
Laxman Munjaji Bhalerao,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
4 F.A.No. :541 to 571/2008
20. F.A.NO. : 560/2008 IN C.C.NO.289/2007
Sambhaji Raghunath Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
21. F.A.NO. : 561/2008 IN C.C.NO.290/2007
Vishwanath Vitthal Erkalwad,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
22. F.A.NO. : 562/2008 IN C.C.NO.291/2007
Pandurang Babarao Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
23. F.A.NO. : 563/2008 IN C.C.NO.292/2007
Mohammad Ali Bhahoddin Shaikh,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
24. F.A.NO. : 564/2008 IN C.C.NO.293/2007
Laxman Piraji Devkore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
25. F.A.NO. : 565/2008 IN C.C.NO.294/2007
Venkati Gunaji Wadje,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
26. F.A.NO. : 566/2008 IN C.C.NO.295/2007
Neelkanth Ramdas Kandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
5 F.A.No. :541 to 571/2008
27. F.A.NO. : 567/2008 IN C.C.NO.296/2007
Sainath Sakhahari Moralwar,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
28. F.A.NO. : 568/2008 IN C.C.NO.1/2008
Venkat Tukaram Pandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
29. F.A.NO. : 569/2008 IN C.C.NO.2/2008
Smt.Vatchalabai Nagorao Pandhare,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
30. F.A.NO. : 570/2008 IN C.C.NO.3/2008
Nagorao Vithal Devkhore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded.
31. F.A.NO. : 571/2008 IN C.C.NO.4/2008
Devidas Baburao Devkhore,
R/o Petwadaj,
Tq.Kandhar, Dist.Nanded. ...RESPONDENTS
(Org.Complainants)
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.N.K.Choudhary for appellant, Adv.Shri.S.N.Lavekar for respondents.
6 F.A.No. :541 to 571/2008O R A L JUDGMENT ( Delivered on 20.08.2013 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. All these appeals impugn the common judgment and order dated 12.3.2008 passed by District Consumer Forum, Nanded partly allowing consumer complaints of the respondents/complainants directing appellant/opponent-seeds manufacturing company to pay to the complainants compensation and cost of the proceedings etc. (For the sake of brevity appellant herein after referred as "opponent-seed company" and respondents as "the complainants")
2. Since the facts of all the complaints and also defense of the opponent- company are same, the District Consumer Forum disposed of the complaints by its common judgment. Therefore, though the opponent company has filed separate appeals we have decided to dispose of all these appeals by this common judgment.
3. Brief facts giving rise to these appeals are that:
Complainants who hail from village Pethwadaj Tq.Kandhar, Dist.Nanded are agriculturist by profession. They are having their own separate agriculture lands at village Pethwadaj. Opponent is a seeds manufacturing company. It manufactures foundation seeds and supply to the agriculturists. By separate agreement dt.19.12.2006 the complainants had taken the seeds producing program of Jawar-167. They purchased the foundation Jawar seeds from the opponent company and sown in their respective field as per the instructions of the opponent company and also under supervision of its representatives. They also 7 F.A.No. :541 to 571/2008 paid supervision charges. According to the complainants the opponent company had agreed to purchase the seeds produced by them if the same meet the minimum germination standard of 80% etc. However, Jawar crop was not grown as per the expectation. The male seed crop was grown up to 6 inches and female upto 3 inches only, as the seeds were defective. Therefore crop was also totally damaged. Therefore complainants made complaints with the opponent, but opponent did not take any cognizance. Therefore they made representation to the Tahasildar, Kandhar and also B.D.O. Panchayat Samiti, Kandhar. On the basis of their representation District Agriculture Officer on 31.3.2007 inspected their fields in presence of the panchas verified that seeds were defective. Accordingly panchanama was made. Thereafter on 12 Feb.2007 as per the direction of the Tahasildar, Kandhar, Revenue Circle Inspector also made visit to the fields and made panchanama in presence of panchas. But inspite of representation made with the opponent company claiming damages, no cognizance was taken by the opponent. Therefore alleging deficiency in service, complainants filed separate complaints before District Consumer Forum Nanded claiming damages and also compensation.
4. Opponent company resisted the complaints by its separate written version denying the claim in toto. It has also raised preliminary objection challenging maintainability of the complaints. It is specifically denied that seeds were defective as alleged by the complainants. It has denied that District Agriculture Officer as well as Revenue Circle Inspector visited the complainants field and verified that seeds were found defective and complainants sustained loss etc. It is submitted to dismiss the complaints.
5. On hearing both sides and considering evidence on record District Consumer Forum relying on the reports of District Agriculture Officer 8 F.A.No. :541 to 571/2008 and Revenue Circle Officer held that foundation seeds were defective and therefore there was no expected growth to the hybrid Jawar and thereby the complainants sustained loss. It is also held that opponent company committed deficiency in service by providing defective seeds to the complainants. In keeping with these findings District Consumer Forum partly allowed the complaints and directed opponent seed company to pay to the complainants compensation as well as damages and cost of the proceedings.
6. Feeling aggrieved by that judgment and order the opponent-seed company has preferred all these appeals.
7. We heard learned counsel for both sides at length and perused their written notes of argument and also the copy of impugned judgment and order. We have also perused the copies of complaints and written version, agreement, panchanamas prepared by District Agriculture Officer and Revenue Officer and other documents.
8. Almost all the facts except the quality of foundation seeds which was supplied by the opponent to the complainants and also the allegations of the complainants that foundation seed were defective, are not disputed. Opponent company challenged the maintainability of the complaints mainly on two grounds viz. i) Jurisdiction & ii) complainants are not consumers etc. Therefore, let us proceed to consider first these two preliminary objections raised by the opponent company. It is alleged by the opponent company that District Consumer Forum Nanded has no jurisdiction to entertain the consumer complaints on the ground that at the time of agreement it was agreed and clearly mentioned in the agreement that "subject to the jurisdiction of the court at Jalna". But it is settled law that by agreement the jurisdiction of any Forum or Court provided by the statute cannot over ride. The learned 9 F.A.No. :541 to 571/2008 counsel for the complainants also supported the legal position by relying on the decision of National Commission in the case of Neha Singhal -Vs- Unitech Ltd. II(2011) CPJ 38(NC) in which it is observed that agreements in between the parties by itself cannot over ride statutory right of appellant conferred by the provisions of Consumer Protection Act. That would defeat purpose and object of the Act. This legal position is also not disputed by learned counsel for the opponent/appellant and fairly conceded the legal position during the course of arguments.
9. As far as maintainability of the consumer complaints is concerned it is submitted by Shri.Choudhary learned counsel for the appellant/opponent-seed company that the agreements in question are being buy-back transactions were commercial transactions and therefore the complainants are not consumers and therefore consumer complaints are not maintainable. However, during the course of argument when the learned counsel for the complainants relying on the decision of Hon`ble Apex Court in case of National Seeds Corporation Ltd. -Vs- M.Madhusudan Reddy and other , 2012(2) Supreme Court Cases 506 pointed out that complainants are consumer and they had entered into agreements and thereby undertaken to produce the seeds for their livelihood etc. Learned counsel for the appellant/opponent-seed company fairly conceded that transactions are not commercial transactions as observed by Hon`ble Supreme court and did not press this point.
10. Before considering the merits of the matters we would like to decide the preliminary objection raised by the learned counsel for the respondents/complainants about maintainability of the appeals on the ground of limitation. It is submitted by Shri.Lavekar learned counsel for the complainants/respondents that though the appellant/opponent-seed company has received the copies of impugned judgment and order on 24.2.2008, appeals are filed after expiry of limitation period. But we find 10 F.A.No. :541 to 571/2008 no merit in this objection raised by learned counsel for the complainants. Because, impugned judgment and order is dated 12.3.2008 and the opponent received copies on 24.4.2008 and not on 24.2.2008 as averred by the complainants. After 24.4.2008 opponent- seed company has filed appeals on 19.5.2008 i.e. within 30 days which is within the stipulated period of limitation. During the course of argument Adv.Shri.Lavekar for the complainants has also fairly conceded that opponent-seed company has received the copies of the impugned judgment and order on 24.4.2008 and not 24.2.2008. Thus on any count the objections raised by him is being not sustainable, does not survive.
11. Now let us proceed to consider the merits of the appeals. Mr.N.K.Choudhary learned counsel for the appellant/opponent-seed company challenged the impugned judgment and order mainly on the grounds firstly that there is no expert report to hold that seeds were defective and secondly that panchanama made by District Agriculture Officer as well as Revenue Circle Inspector has no significance and thirdly that no notice was given to the opponent company before making this panchanama.
12. Let us proceed to consider the first ground i.e. expert report. Undisputedly, complainants have not got the seeds tested from any laboratory as required under the provisions of Section 13(1)(c) of the Consumer Protection At 1986. They have also not moved an application before concern authority for getting seeds tested from any laboratory. Therefore it is vehemently argued by Shri.N.K.Choudhary learned counsel for the opponent company that without expert report as required U/s 13(1)( C) of the Act no conclusion can be drawn that the seeds were defective. As against this arguments of learned counsel for the opponent company, Mr.Lavekar learned counsel for the 11 F.A.No. :541 to 571/2008 complainants submitted that when it is clear that there was no expected growth of Jawar crop as per the panchanamas drawn by District Agriculture Officer and Revenue Circle Inspector, expert evidence is not required. However, he has submitted that it is not expected from any agriculturists to preserve the sample of seeds for sending it to any laboratory. It is submitted that opponent company had supplied the foundation seeds to the complainants. There could not be any reason for the complainants to preserve the sample seeds. It was not expected by them that the foundation seeds would be defective. Therefore they have sown the entire seeds which were supplied by opponent company to them. It is submitted that when complainants have sown the entire seeds no expert opinion can be expected as sample seeds were not preserved though expert report is paramount in order to decide purity of the seeds. He has also supported his contention by relying on the decision of National Commission in case of "Bharat Seeds Company -Vs- Charanjit Singh and another", (1) 2012 CPJ 370(NC) and "PHI Seeds Limited and another -Vs- Raghunatha Reddy and another", II(2011) CPJ 13(NC). In both these cases Hon`ble National Commission observed that "it is not necessary for complainant to send seeds to appropriate laboratory for analysis, as agriculturists is not expected to conserve portion of seeds for such eventuality". Therefore the report of Senior Scientist from Agriculture Department has been rightly relied upon by the Fora below and held that seeds were defective. In view of these decisions of Hon`ble National Commission and undisputed facts that laboratory report is not obtained by complainants, the contention of the opponent company that expert evidence was necessary, cannot be sustained. However, above decisions of Hon`ble National Commission cannot be applicable to the present cases as there is no report of any scientist from Agriculture Department.
12 F.A.No. :541 to 571/200813. Report-cum-panchanama dated 31.3.2007 of Agriculture Development Officer, Z.P., Nanded and Quality Control Inspector from B.D.O., Panchayat Samiti, Kandhar is also not conclusive. Their report merely reflects that they have prepared panchanamas as per say of complainants/agriculturists without giving their findings or opinion about the quality of the disputed seeds. There is one more panchanama dated 12.4.2007 of Revenue Circle Inspector, Petwadaj, Tq.Kandhar. But it is also without any opinion and findings. Thus there is no report of scientist from Agriculture Department to hold that seeds in question were defective.
14. Now let us proceed to consider genuineness of panchanama dated 31.3.2007 prepared by Agriculture Development Officer and Quality Control Inspector and panchanama dated 12.4.2007 of Revenue Circle Inspector on which the District Consumer Forum relied on and came to the conclusion that seeds were defective. Mr.N.K.Choudhary learned counsel for the opponent company vehemently argued that both these panchanamas are not at all legal and authentic. He has challenged these panchanamas on two grounds viz. 1) authorities who prepared these panchanamas have no power to prepare such panchanamas and secondly these panchanamas are not prepared by these authorities visiting and inspecting Jawar crops from the fields of complainants, but these panchanamas are prepared as per the say of complainants and other villagers etc. According to Mr.Choudhary learned counsel for the appellant, Government of Maharashtra vide its circular dated 27.3.1992 has formed District Seeds Grievance Committee and specific guidelines are also provided for inspection report by said Committee and therefore no other officer is empowered to make inspection and verify the purity of seeds etc. Therefore according to Shri.N.K.Choudhary learned counsel for the opponent company the above panchanamas prepared by Agriculture Development Officer and Revenue Circle Inspector are not 13 F.A.No. :541 to 571/2008 legal and authentic etc. He has also produced copies of circular dated 27.3.1992 issued by Chief Agriculture Control Officer, Pune from Agriculture Department of Government of Maharashtra and also circular dated 26.10.1998 showing the members of the same Committee.
15. As per this circular, Agriculture Development Officer,Z.P. is the Chairman and Taluka Agriculture Officer, representative of seed company, District Seeds Certification Officer, representative of Agriculture University, Z.P. Member and Agriculture Development Officer, Z.P are the members of the said Committee. The guidelines for inspection and submission of report are also given in the earlier circular. These circulars are not disputed by learned counsel appearing for the complainants. But according to him when the complainants had made complaints with District and Taluka Agriculture Officer and B.D.O. Panchayat Samiti, Kandhar, it was for them to refer the complaints to the said Committee etc. He has further submitted that the complainants were not being aware of such circular and procedure, they should not suffer for such technical ground. True it is that, as per guidelines given in the circular dated 27.3.1992 it was for the B.D.O. to refer the complaints to Agriculture Development Officer, Z.P. and Agriculture Development Officer was required to refer the same complaints to the Committee. But in the present cases complaints were not referred to Committee. But Agriculture Development Officer himself along with Quality Control Inspector visited and made panchanamas dated 31.3.2007. Panchanama also does not reflect that any notice was given to the opponent seed company before visiting the village Petwadaj and making said panchanama. Therefore no weightage can be given to same panchanama as the same is prepared without jurisdiction and in the absence of any representative of the opponent company. Same is the position of panchanama dated 12.4.2007 prepared by Revenue Circle 14 F.A.No. :541 to 571/2008 Inspector, Petwadaj. Therefore we find much force in the submission of Mr.N.K.Choudhary learned counsel for the opponent company.
16. Apart from the above facts both the panchanamas appear to have been prepared as per the say of complainants and other villagers without visiting Jawar crop from the fields of the complainants. Because as pointed out by Shri.N.K.Choudhary learned counsel for the opponent company no survey numbers and also area of the Jawar crop from field of each complainants is shown in the panchanama. Moreover no time or period or period required for panchanama is also shown. Therefore it is contended by Mr.Choudhary learned counsel for the opponent company that though in the panchanama dated 31.3.2007 it is mentioned that the officer and panchas visited the fields of near about 40 agriculturists it could not be possible for them to visit and inspect 40 fields within a day. We find much force in the submission of Mr.Choudhary for the opponent company because it could not be possible for officers to visit all those fields within a day. On the contrary it appears from the record that panchanamas were prepared under pressure of villagers without inspecting Jawar crop from the fields of each complainants.
17. These panchanamas also does not reflect any specific opinion of officers about the purity of Jawar seeds. Both panchanamas appear that it were prepared as per say of the complainants. Moreover these panchanamas reflect that as per the say of the complainants the Jawar crops were affected by disease and therefore there was no expected growth. Panchanama dated 31.3.2007 reflects that when the complainants had contacted the representative of opponent company they were asked to spray Biozyme and D.A.P. pesticides. Further panchanama dated 12.4.2007 prepared by Revenue Circle Inspector, Petwadaj clearly reflects that Jawar crops were affected by a disease and accordingly he has mentioned that crops are affected by disease. Thus, 15 F.A.No. :541 to 571/2008 on any count both the panchanamas are not at all useful for the complainants. On the contrary, both these panchanamas falsify the contention of complainants that seeds were defective and opponent company has committed deficiency in service etc. But it appears from the impugned judgment and order that District Consumer Forum without appreciating all these facts jumped to the wrong conclusion that Jawar seeds which were supplied by opponent company to the complainants were defective and further opponent company committed deficiency in service. Such erroneous findings cannot be sustained.
18. Lastly, orally as well as by submitting additional written notes of arguments, Shri.Lavekar learned counsel for the complainants alternatively submitted to remand the matters back to the District Consumer Forum directing to decide afresh by obtaining expert evidence and giving opportunity of hearing to both sides. According to him as per the Government Circular the seed committee though required to inspect the field in presence of the representative of opponent company, the Guidelines given in the circular are not mandatory and therefore on such technical ground complainants should not suffer. But for the forgoing reasons that panchanamas prepared by Agriculture Development Officer and Seeds Quality Control Inspector as well as Revenue Circle Inspector are not legal, submission of Mr.Lavekar that complainant`s claim cannot be dismissed on technical ground, cannot be sustained. As far as his request for remanding of matter is concerned he has also tried to support his submission by relying on decision of National Commission in the case of J.K.Agri-Genetics & Ors. -Vs- Siddula Ramesh etc.", 2008(1) CPR 42(NC) and decision dated 23.2.2011 of this Commission in "M/s Nirmitee Biotech -Vs- Shri.Anandrao Namdev Patil". But with due respect both these citations of National Commission as well as this State Commission cannot be applicable to the present cases as the facts are quite different. In the present cases, as sample of disputed Jawar seeds 16 F.A.No. :541 to 571/2008 is not preserved, now it is not possible to obtain any expert report. Considering the facts of the present cases in our view it will be futile to remand back the matters to District Consumer Forum. Therefore submission of Mr.Lavekar learned counsel for the complainants to remand the matters cannot be considered.
For the forgoing reasons opponent company succeeds and all appeals deserve to be allowed.
O R D E R
1. All the appeals are allowed and impugned judgment and order is set aside.
2. Consumer complaints shall stand dismissed.
3. Having regard to the peculiar facts of the cases we direct parties to bear their own costs.
4. Copies of the order be sent to both the parties.
K.B.Gawali Uma S.Bora, S.M.Shembole, Member Member Presiding Judicial Member Mane