State Consumer Disputes Redressal Commission
Mohinder Singh vs Pahu Mal Kharaiti Ram Sethi on 6 February, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.119 of 2009
Date of institution : 02.02.2009
Date of decision : 06.02.2013
Mohinder Singh son of Bachan Singh, resident of Village Wara Draka,
Tehsil and District Faridkot.
.......Complainant-Appellant
Versus
1. Pahu Mal Kharaiti Ram Sethi, Old Grain Market, Kotkapura,
Tehsil and District Faridkot through its Proprietor/Partner.
2. M/s Punjab Agro Seeds, 19, New Anaj Mandi, Sirsa (Haryana)
through its Authorized Signatory.
......OPs-respondents
First Appeal against the order dated
12.12.2008 of the District Consumer
Disputes Redressal Forum, Faridkot.
Before :-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri Vivek Goyal, Advocate.
For respondent No.1 : Shri Nakul Sharma, Advocate. For respondent No.2 : Shri Manvinder Singh Sidhu, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal by the appellant/complainant, Mohinder Singh, is directed against the order dated 12.12.2008 passed by the District Consumer Disputes Redressal Forum, Faridkot (in short "District Forum"), vide which the complaint filed against the respondents/OPs First Appeal No.119 of 2009. 2 for compensation of Rs.1,40,000/- and litigation expenses of Rs.11,000/- was dismissed.
2. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") claiming a compensation of Rs.90,000/- for selling him suspicious, inferior quality, misbranded and unapproved wheat seeds PBW-343 variety (hereinafter referred to as "the seeds"), a compensation of Rs.50,000/- for mental agony/tension and unauthorized harassment caused to him due to deficiency of service on the part of OPs. He averred therein that he is a small farmer and owns and possesses land measuring 6 acres in Village Wara Draka, Tehsil and District Faridkot and is engaged in the work of agriculture which is being done by him with the help of his son Sukhpal Singh. The OP No.1 is running the business of sale and purchase of seeds. On 23.10.2007, he and his son, on the recommendation and misrepresentation of OP No.1, purchased six packets of seeds each weighing 40 kilograms for Rs.3,600/- vide bill No.14918 dated 23.10.2007. The seeds were sown by them in the said land which was properly manured and irrigated. A sum of Rs.5,000/- per acre approximately was spent on account of labour charges and watering etc. during the first week of November, 2007. After some time, they noticed that the wheat crop was not properly grown up, was of low quantity and the plants have grown at rare places. They approached OP No.1 and disclosed that fact but nothing was done by it. They gave an application dated 11.12.2007 to First Appeal No.119 of 2009. 3 the Chief Agricultural Officer, Faridkot. Surjit Singh, Agriculture Development Officer inspected the wheat crop on 27.12.2007 and assessed the loss upto 50%. This loss is due to the inferior quality of seeds sold to them by OP No.1. He also came to know that the seeds being sold by it were not approved by the Government. On account of this act of OP No.1 he suffered a loss of 10 cwts. per acre and in all he suffered a loss of 60 cwts. of the crop and value thereof comes to Rs.60,000/-. He also suffered a loss of Rs.30,000/- on account of the labour charges and irrigation of the land. There is deficiency of service on the part of OPs and as such he is entitled to recover the sum of Rs.90,000/- from them. He is also entitled to compensation of Rs.50,000/- on account of illegal and unauthorized harassment. He claimed Rs.11,000/- as litigation expenses.
3. The complaint was contested by the OPs. OP No.1 in his reply admitted the sale of seeds to the complainant on 23.10.2007 but denied the other contentions made in the complaint. He inter alia pleaded that no proper procedure was adopted by the complainant at the time of sowing the seeds and further upto the harvesting of the crop. The officials of the Department of Agriculture including Surjit Singh are in the habit of preparing false reports in connivance with the farmers. Same quality of seeds were purchased by other farmers also but they have not received any complaint from the side of any of those farmers. Rather those farmers appreciated the supply of the quality of seeds and making a demand of more seeds. These seeds are being produced by First Appeal No.119 of 2009. 4 M/s Punjab Agro Seeds, Sirsa who is a reputed manufacturer and the seeds being sold after the same are got tested from the Government laboratories. Detailed facts are required to be enquired into before coming to the conclusion if there was any damage to the crops of the complainant and as such he should be directed to file suit before the civil court and the complaint is not maintainable before the District Forum. The sample of the seeds should have been demanded from the complainant and should have been got tested from some laboratory to reach a conclusion regarding the quality thereof. He prayed for the dismissal of the complaint.
4. OP No.2 in its reply denied the contentions of the complainant and pleaded that the seeds sold by it are of high quality and are certified seeds. Sample of each batch of the seed is sent to Haryana State Seed Certificate Agency for testing. Similarly the samples of the seeds of the said lot were sent for testing and as per the report of that agency these were pure seeds and the germination thereof was minimum 85%, which is as per the provisions of the Seeds Act, 1966. The germination of the seeds depend upon a number of factors such as proper sowing, irrigation, manuring and atmospheric conditions. Any negligence on the part of the grower of the crops may reduce the germination of the seed for which it is not liable. There is no soil testing of the complainant nor he produced the seed in question for analysis under Section 13(1)(c) of the Act nor he has produced any expert evidence for proving that inferior quality of seed was sold to First Appeal No.119 of 2009. 5 him. As per the provisions of the Seeds Act, 196, the complainant should have lodged the complaint with the Seed Inspector who is required to collect the seeds and to send the sample thereof to the Seed Analyst under Section 16 of that Act. After the receipt of the report the Seed Inspector is to file the complaint before the competent court of law. The complicated questions of facts and law are involved in the present complaint which requires voluminous documents and evidence for determination and it is not possible to determine the same by way of summary procedure as prescribed under the Act. No deficiency of service has been alleged against it nor any allegation has been leveled to that effect by the complainant. Surjit Singh, Agriculture Development Officer has not been appointed as Inspector under the Seeds Act, 1966 and as such his report cannot be considered as the report of the expert. It cannot be said with certainty from the contents of the complaint that the same seeds which were so purchased were sown by the complainant. It has also prayed for dismissal of the complaint.
5. Both the sides produced their evidence in support of their respective versions before the learned District Forum. After going through that evidence and after hearing the counsel for both the sides, learned District Forum dismissed the complaint vide, aforesaid order.
6. We have heard the learned counsel for the parties and have carefully gone through the record of the learned District Forum. First Appeal No.119 of 2009. 6
7. It has been submitted by the learned counsel for the complainant that the learned District Forum failed to appreciate the evidence produced by the complainant for proving that he suffered loss on account of the bad quality of seed supplied by OP No.1. It is very much clear from the report of the Agriculture Development Officer Ex.C-10 that the loss of crop was to the extent of 50%. That report itself and the other evidence produced by the complainant is sufficient for proving that he suffered the loss to the tune of Rs.90,000/- on account of the supply of defective seeds by OP No.1. That evidence was brushed aside by the learned District Forum on flimsy and imaginary grounds and it came to a wrong conclusion that there is no deficiency in service on the part of the OPs. The non-sending of the seeds to any recognized laboratory for test in order to determine the quality thereof is not fatal to the complainant and he could have proved that the seeds were of bad quality by producing other evidence which has been done by him in this case. Thus, the order of the learned District Forum is liable to be set aside and the complaint is to be allowed. He prayed that the appeal be accepted accordingly. He tried to support his submissions by judgment of Hon'ble Supreme Court reported in (2012) 2 Supreme Court Cases 506 (NATIONAL SEEDS CORPORATION LIMITED v. M. MADHUSUDHAN REDDY AND ANOTHER).
8. On the other hand, it has been submitted by the learned counsel for the OPs that this case cannot fall under "deficiency in service". First Appeal No.119 of 2009. 7 The complainant has come up with a plea that the seeds sold to him were not of good quality. Thus it is a case of defective goods. As per the procedure laid down in Section 13 (1)(c) of the Act, the sample of the seeds was required to be sent to the recognized laboratory for determining whether the seeds were not of good quality. The omission on the part of the complainant to resort to that procedure is fatal to him. On the basis of the evidence so produced by the complainant it cannot be said that he suffered loss on account of the bad quality of seeds sold to him by OP No.1. The germination of the seed depends upon a number of factors and the quality of seed is only one of the factors. There can be less production on account of the bad quality of soil, non-manuring of the land, no or less irrigation and other atmospheric conditions. It could have been proved only by some expert witness that there was proper sowing, proper irrigation, proper manuring and that there was no adverse atmospheric conditions at the relevant time. No such evidence has been produced by the complainant. Therefore, on the basis of the evidence produced by the complainant, it cannot be held that the seeds supplied by the OPs were defective or of not of the quality so represented. The case of the complainant is of defective goods and in the absence of any report of the recognized laboratory, no finding can be recorded in his favour.
9. It is very much clear from the averments made in the complaint that the case so put forward by the complainant is not a case of deficiency in service and it is only case of defective/sub-standard First Appeal No.119 of 2009. 8 goods. Can it be said that the fact that the seeds so sold to the complainant by OP No.1 were defective or sub-standard be proved only by way of analysis or test as per Section 13(1)(c) of the Act? Similar question came up for consideration before the Hon'ble Supreme Court in M. Madhusudhan Reddy's case (supra). In that case, the District Forum had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit reports about the status of the crops. In one or two cases, the Court appointed the Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports, the District Forums felt satisfied that the seeds were defective and this was the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. It was held by the Hon'ble Supreme Court that the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Protection Act had not been followed.
10. It was observed in that case as under:-
First Appeal No.119 of 2009. 9
"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 First Appeal No.119 of 2009. 10 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."
11. In view of the ratio of this judgment and the observations made by their Lordships it cannot be held that non-resorting to the provisions of Section 13(1)(c) of the Act is fatal to the complainant or that in the absence of such a procedure the other evidence produced by him cannot be looked into.
12. The next question to be determined is, whether on the basis of the evidence produced by the complainant can it be said whether the seeds supplied by OP No.1 were defective or sub-standard?
13. The complainant has tried to rely upon his own affidavit and the report of the Agricultural Development Officer for proving the fact that the seeds supplied by the OP were sub-standard resulting in loss of his crops. He tried to substantiate his averments made in the complaint by means of his affidavit Ex.C-1. He also proved the affidavit of Surjit Singh Sandhu, Agricultural Development Officer as Ex.C-11. That ADO deposed in his affidavit that on the application of the complainant he visited the spot on 27.12.2007 and inspected the wheat crop. He prepared his report after that inspection and assessed the less growth of the wheat crop. There was less growth and there was loss of 50% to the complainant. The report has been proved on the record as Ex.C-10.
First Appeal No.119 of 2009. 11
14. In that report, it is mentioned that the wheat crop was found to have grown up in 43% of the total six acres of land and the loss was about 50%. Nothing has been said in the report about the quality of the seeds used by the complainant and nothing has been said about the germination or non-germination of the seeds sown in this land. It is not in the affidavit of the complainant that the seed was sown in each and every part of his land. In these circumstances it cannot be held that the seeds supplied to the complainant by the OP were sub- standard or were not of that quality of which the same were required to be. Germination of the seed is a must for the growth of a plant and the complainant was required to prove that the non-growth of the wheat crop was on account of non-germination of the seed itself.
15. On the other hand, the OP tendered in evidence affidavit of Ashok Kumar, Partner, Ex.R-1 in which he deposed that the seeds were purchased by them from Punjab Agro Seeds, Sirsa and that fact was within the knowledge of the complainant. That fact has been supported by the bill issued by the Punjab Agro Seeds Ex.R-3. Affidavit of one Hemant Goyal, who is the authorized agent of Punjab Agro Seeds, Ex.R-4 was also tendered in evidence. He has categorically deposed in that affidavit that the seeds are being sold by them after those are tested for germination and certified by Haryana State Seeds Certification Agency. From the evidence produced by the OP No.1, it stands proved that the duly certified seeds were purchased by him from Punjab Agro Seeds and those were further sold to the First Appeal No.119 of 2009. 12 complainant. The complainant failed to prove that the seeds so supplied were defective in any respect. The complaint was correctly dismissed by the learned District Forum. We do not find any infirmity or illegality in the order so passed by it. The appeal is dismissed accordingly.
16. The arguments in this case were heard on 29.1.2013 and the order was reserved. Now, the order be communicated to the parties.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
February 06, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER