National Consumer Disputes Redressal
National Seeds Corporation Ltd. vs Malda @ Mal Krishan on 1 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2437 OF 2011 (Against the Order dated 19/04/2011 in Appeal No. 1081/2007 of the State Commission Haryana) 1. NATIONAL SEEDS CORPORATION LTD. Beej Bhawan, Pusa Complex, New Delhi ...........Petitioner(s) Versus 1. MALDA @ MAL KRISHAN S/o Sh Kalu Ram Goswami,
R/o Village& Post Office, Unchana Samana, Karnal Haryana ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER
For the Petitioner : For the Respondent :
Dated : 01 Apr 2015 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
Mr. Gaurav Bhardwaj, Advocate
For the Respondent
Mr. Jarnail Singh Saneta, Advocate
PRONOUNCED ON : 1st APRIL 2015
O R D E R
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 19.04.2011, passed by the Haryana State Consumer Disputes Redressal Commission Panchkula (hereinafter referred as 'the State Commission') in First Appeal No. 1081 of 2007, "National Seeds Corporation Ltd. vs. Malda @ Mal Krishan", vide which, while dismissing the appeal, the order dated 20.03.2007, passed by the District Consumer Disputes Redressal Forum, Karnal, in Consumer Complaint no. 545 of 2005 filed by the present respondent/complainant, allowing the said complaint, was upheld.
2. Briefly stated, the facts of the case are that the complainant/respondent, Malda @ Mal Krishan purchased 30 kgs of paddy seeds of Govind brand from the opposite party, National Seeds Corporation Ltd. (hereinafter referred as 'Corporation') at the rate of Rs. 13 per kg, vide cash memo no. 31323 dated 14.03.2005. He planted the said seeds in 6 acres of land, taken by the complainant on lease from Kalu Ram son of Khemchand at the rate of Rs. 18,000/- per acre. It has been alleged in the complaint that the said seeds of paddy were of mixed variety, grown out of poor quality and hence, mixed variety of paddy came up on the land in question. The complainant approached the opposite party with his complaint but the concerned officials expressed their inability to solve the matter. The complainant then lodged a complaint with Deputy Director, Agriculture, Karnal who constituted a committee of experts, consisting of the following persons:- (a) Dr. V. R. Singh, Sr. Scientist, KGK (HUA), Uchani, Karnal, (b) Sh. B. S. Dagar, SDAO, Karnal, O/.o DDA Karnal, (c) Sh. V. S. Nain, SMS (PP), O/o DDA Karnal, (d) Sh. Satbir Singh, MFA, Office of National Seeds Corporation Ltd., Karnal.
3. The Committee inspected the fields on 21.07.2005 and submitted its report to Dy. Director, Agriculture, Karnal with a copy to Director, Agriculture, Government of Haryana on 25.08.2005. The said Committee in their report stated as follows:-
(i) The complainant Sh. Malda alias Malkrishan had purchased 30 kg paddy seeds variety Govind form NSC Sale counter Karnal vide cash memo No. 21323 dated 14.3.2005.
(ii) The Committee observed that farmer had transplanted 6 acre of paddy crop from 30 kg paddy seed. There was approximately 42% mixing of other paddy variety like pusa no. 1 etc. This was observed by random sampling method using square meter technique.
(iii) Due to this mixture, there was difference in maturity period of main and mixed paddy crop (about 20-25 day) mixture crop was taller than main crop.
(iv) The above was also agreed by the complainant farmer. The crop condition was very poor from yield point of view.
4. It has been alleged in the consumer complaint that the net loss suffered by the complainant was Rs. 3,38,214/, which included loss due to poor quality of crop, the amount spent on fertilizers, pesticides, labour etc. and the lease amount paid to the owner of the land. The complainant demanded a sum of Rs. 3,38,214/- as compensation and in addition, Rs. 1 lakh for mental agony, tension etc. and Rs. 5,500/- as litigation expenses.
5. The complaint was resisted by the opposite party by filing reply before the District Forum in which they stated that the complainant had not complied with the mandatory provision of law, because under Section 13(1)(c) of the Act, he was bound to get the seeds tested from a Government laboratory in order to prove his allegations against the opposite party. The complainant had also failed to prove that he was a consumer of the opposite party. Moreover, the complainant had purchased only 30 kgs of seeds which was sufficient for 3 acres of land only, whereas he planted the seeds on 6 acres of land. The opposite party also stated that the yield of the crop depends on various factors like timely sowing, preparation of the fields, climate etc. The District Forum, after taking into account the plea taken by the parties, partly allowed the complaint vide its order dated 20.03.2007 and directed the opposite party to pay a sum of Rs. 1 lakh to the complainant on account of loss of his crop, expenses incurred by him and compensation for mental agony and harassment and cost of litigation etc. Being aggrieved by this order, the opposite party challenged the same before the State Commission, but the appeal was dismissed vide impugned order dated 19.04.2011 and the order of the District Forum was upheld. The present revision petition has been filed against this order of the State Commission. 6. At the time of hearing before us, the learned counsel for the National Seeds Corporation Ltd. stated that the orders passed by the Consumer Fora below was not in accordance with law because the complainant had not been able to prove his case by filing proper report of testing of seeds from a Government laboratory as per the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986. The order passed by the Consumer Fora below should therefore be set aside. In support of his arguments, the learned counsel has drawn our attention to the following orders/judgments made by the Hon'ble Surpeme Court of India and this Commission:-
(i) Banta Ram vs. Jai Bharat Beej Company & Anr., Revision Petition No. 506 of 2013, decided on 17.05.2013 by the National Commission.
(ii) Mahyco Seeds Ltd. Vs. Sharad Motirao Kankale & Anr., Revision Petition No. 4323 of 2007, decided on 23.03.2012 by the National Commission.
(iii) Shamsher Singh Vs. M/s. Bagri Beej Bhandar in Revision Petition No. 2597 of 2012, decided on 11.09.2013 by the National Commission.
(iv) Haryana Seeds Development Corporation Ltd. Vs. Sadhu & Anr. in Civil Appeal No. 1308 of 2005, decided on 18.02.2005 by the National Supreme Court of India.
7. The learned counsel for the respondent/complainant, however, stated that the orders passed by the Fora below were in accordance with law and should be upheld.
8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
9. The question that arises for consideration before us is whether the seeds purchased by the complainant farmer from the petitioner Corporation were defective and whether the complainant farmer has suffered loss due to the fault of the petitioner in supplying such defective seeds. A material factor involved in the present case is that when the farmer found that his crop was not growing well, he approached the concerned Government Authorities in the department of Agriculture with his complaint. The Dy. Director, Agriculture Karnal appointed a committee headed by Dr. V. R. Singh, Sr. Scientist and this Committee included a representative of the petitioner as well. The inspection report made by this Committee after inspection of the crop on 21.07.2005 has been signed by all four persons of the Committee including Satbir Singh, a representative of the petitioner Corporation. The Committee has categorically stated that there was 42% mixing of other varieties of paddy in the crop and the yield of the crop was also poor. It becomes very clear from the findings of this technical Committee that the farmer did suffer a loss as a result of supply of the seeds to the petitioner in which there was substantial mixing of other varieties of paddy. The petitioner has raised the contention that under Section 13(1)(c) of the Consumer Protection Act, it was the duty of the farmer to send a sample of the seeds and then he should have filed a report from some Government Laboratory after getting the seeds tested. We are, however, not able to agree with the plea taken by the petitioner because a farmer who has obtained land on rent from some other farmer, cannot be expected to retain sample of seeds after purchasing the same from a supplier and more so, when the supplier is a national level Government agency, engaged in the task of developing and supplying the seeds to the farmers through various agencies. This view has been expressed in no uncertain terms by Hon'ble Apex Court in a landmark judgment on the subject in the case National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, in which the Hon'ble Court stated as follows:-
"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."
10. The issue was examined extensively by the National Commission in a case recently decided, Ankur Seeds Pvt. Ltd. & Anr. Vs. Motilal & Anr. in Revision Petition No. 381 of 2012 in which the Hon'ble President of the National Commission, Mr. Justice D. K. Jain stated in his order dated 05.11.2014 as follows:-
"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.
11. A plain perusal of the above order made by the National Commission makes it clear that to meet the objectives of the Act for better protection of the Consumers, the Doctrine of Purposive Construction has to be applied in such cases. Once the complainant has been able to create a high degree of probability of deficiency on the part of the opposite party, the onus will shift on to the opposite party to discharge the onus to prove his denial. In the present case, once the complainant has lodged his grievance with the State Agriculture Department and a Committee of experts appointed by the State authorities have upheld that version given by the complainant, it can be safely presumed that the complainant had sufficiently discharged his onus to prove that the seeds in question were of defective quality. The National Commission have stated in no uncertain terms that the shifting of onus is a continuous process in the evaluation of evidence. It was, therefore, the duty of the petitioner, a national level body to discharge their part of onus to prove that the seeds of particular variety in question were free from the defects, as alleged by the complainant.
12. In the case Banta Ram Vs. Jai Bharat Beej Company & Anr. (supra) cited by the petitioner, the facts were different because no notice was sent to the respondent for associating them in the inspection as required by directions of the Directorate Agriculture, Haryana. In this case, the District Forum as well as the State Commission had given their finding against the complainant and the said finding was confirmed by the National Commission. In Mahyco SeedsLtd. vs. Sharad Motirao Kankale & Anr. (Supra), no expert evidence had been produced to support the contention in the complaint because the complainant lodged this complaint with the agriculture department for inspection of his crop only after the harvesting period was over. Therefore, the competent authority could not inspect the crops. In Shamsher Singh Vs. Bagri Beej Bhandar Anr. (Supra), the department of agriculture had not followed the instructions of the Government in constituting the inspection team. In this case, the State Commission had also passed their order against the complainant which was affirmed by the National Commission. In the case Haryana Seeds Development Corporation Ltd. Vs. Sadhu & Anr. (Supra), the expert Committee had stated that the variation in the condition of the crop could not be attributed to quality of seeds but to other factors.
13. It is evident from a reading of the judgments/orders quoted by the petitioner that the facts of the present case are different from the facts in the cases referred by the petitioner. As stated already, the expert Committee in the present case included the representative of the petitioner and the report has been duly signed by the said representative. The allegation of mixing of other varieties of seeds has been confirmed in the report of the expert committee and the petitioner has not been able to controvert the same.
14. Based on the discussion above, we do not find any illegality, irregularity or jurisdictional error in the orders passed by the Consumer Fora below, which may require any interference at the revisional stage. It may, further, be stated here that the Hon'ble Supreme Court of India in the case Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (2011) 11 SCC 269 stated in unequivocal terms that the concurrent findings of the lower court could be interfered only if there was a patent error of jurisdiction. In the present case, both the Consumer Fora below have given concurrent findings in favour of the complainants and no new material has been brought forward by the petitioner to take a view that there is any reason to modify the said findings.
15. 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 and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs.
......................J V.B. GUPTA PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER