National Consumer Disputes Redressal
Ganga Reddy vs Hu Gugle Bio-Tech Pvt. Ltd. on 19 December, 2025
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
AT NEW DELHI
FIRST APPEAL NO. 609 OF 2022
(Against order dated 28.06.2022 in CC No. 481/2015
of the State Consumer Disputes Redressal Commission, Karnataka)
WITH
IA NO. 7693 OF 2022
(STAY)
HU GUGLE BIO-TECH
PRIVATE LIMITED
SR. (SY.) NO. 23, P.O. Box No.-14,
Binnanmangala Village,
Devanahalli Taluk,
Bangalore (R) District-562 110 ... APPELLANT
Versus
SRI GANGA REDDY
S/o Venkataravanappa
Bychapaura Village,
Chikkanahalli Post,
Holabanahalli Hobli,
Koratagere Taluk,
Tumkur District - 572 12 ... RESPONDENT
FIRST APPEAL NO. 115 OF 2023
(Against order dated 28.06.2022 in CC No. 481/2015
of the State Consumer Disputes Redressal Commission, Karnataka)
WITH
IA NO. 943 OF 2023
(CONDONATION OF DELAY)
SRI GANGA REDDY
S/o Venkataravanappa
Bychapaura Village,
Chikkanahalli Post,
Holabanahalli Hobli,
Koratagere Taluk,
Tumkur District - 572 12 ... APPELLANT
Versus
HU GUGLE BIO-TECH
PRIVATE LIMITED
SR. (SY.) NO. 23, P.O. Box No.-14,
Binnanmangala Village,
Devanahalli Taluk,
Bangalore (R) District-562 110 ... RESPONDENT
BEFORE:
HON'BLE MR. JUSTICE A. P. SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
1
Appeared at the time of Arguments
For HU Gugle Biotech Pvt. Ltd. : Mr. Akshay Goel, Advocate
Mr. Binwant Singh, Advocate
For Ganga Reddy : Mr. Ashwin V. Kotemath, Advocate
PRONOUNCED ON 19th DECEMBER, 2025
ORDER
A. P. SAHI, J (PRESIDENT)
1. The State Consumer Disputes Redressal Commission, Karnataka vide Order dated 28.06.2022 has allowed the Complaint filed by the Complainant being Consumer Complaint No. 481 of 2015 compensating the Complainant with a sum of Rs.12,14,000/- together with litigation cost of Rs.25,000/- and Rs.1,00,000/- for mental agony.
2. The Complainant is a farmer and he had, after seeing the brochures and photographs of the Appellant Company, purchased 6000 Elakki Banana plants, the saplings whereof were a product of Tissue culture promising a very high yield of 15 kgs of banana per plant that would in turn yield an approximate annual income as promised therein @ 600 per plant. According to the Complainant the 6000 plants were to be cultivated on the land of the Complainant over an approximate area of 3 acres and 14 guntas.
3. According to the Complainant since the seedlings itself were genetically deficient and defective the same did not flower nor the expected yield was received and in addition thereto the crop suffered loss due to rainy storms with strong winds which also destroyed the plants. The 2 Complainant therefore filed the Complaint against the Opposite Party / Appellant Company M/s HU Gugle Biotech Private Limited claiming compensation. A field visit report dated 07.10.2014 was furnished by the Krishi Vigyan Kendra (KVK), ICAR, Indian Institute of Horticulture that was supported by an affidavit of one specialist of plant protection Mr. Hanumantegowda, B. from the Krishi Vigyan Kendra, Hirehalli. The report was submitted to the Assistant Registrar of Horticulture and during the course of the trial certain interrogatories were issued that led to an assessment by the State Commission concluding that 60% of the crops were lost due to defective seedlings. The State Commission accordingly attributed 40% of the loss due to the stormy weather and rains with regard to which compensation was claimed before the State Government and the farmer seems to have been compensated for the same. The Complaint was therefore allowed after assessing the loss towards the expenditure incurred as alleged by the Complainant to the tune of Rs.20,23,400/-. Accordingly the State Commission split the loss into 60% and 40% computing the loss against the Appellant company to the tune of Rs.12,14,000/- due to supply of defective seedlings. The Complaint was accordingly allowed on the basis of the material that was there before the State Commission.
4. Two Appeals have been preferred one by the Company being First Appeal No. 609 of 2022 challenging the order of the State Commission 3 and questioning the legality of the findings arrived at on the ground that the reports relied on are untenable and inconclusive and therefore to construe that the seedlings were defective is absolutely wrong and against record. The Appellant Company had also relied on the certification of Virus indexing of the plant tissue to urge that the seedlings were duly approved scientifically and hence there were no defective seedlings so as to infer any deficiency or unfair trade practice on the part of the Company.
5. The Complainant has filed a First Appeal No. 115 of 2023 to urge that the compensation awarded has been erroneously split up and reduced by the State Commission without any interest thereon and in the absence of any justification to split the calculated loss incurred by the Complainant the entire amount ought to have been awarded apart from the expected future losses suffered by the Complainant. This Appeal was reported to be delayed by 166 days and Application No. 943 of 2023 has been filed praying for condoning the delay.
6. We have heard the learned Counsel for the Parties on the delay condonation matter and in the background in which the two Appeals have proceeded with, we find sufficient cause having been shown to condone the delay in the filing of the Appeal. Accordingly IA No. 943 of 2023 is allowed and the delay in filing of the Appeal by the Complainant is condoned. We have accordingly proceeded to hear both the Appeals 4 as they arise out of a common order of the State Commission impugned herein.
7. When the Appeals were initially taken up notices were issued to both the Parties and Mr. Akshay Goel, learned Counsel has appeared on behalf of the Company and Mr. Kotemath has appeared for the Complainant in both the Appeals. Learned Counsel for both the Parties have also exchanged pleadings in both the matters.
8. The Appeals were taken up on 16.05.2024 and the following Order was passed as the Commission felt that an expert opinion was necessary. The same is extracted herein under:
"These are two appeals, arising out of the same order of the Karnataka State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission), whereby the claim of the complainant has been partly allowed in respect of a deficiency in service alleged against the supplier company for supplying defective Banana Tissue Culture saplings.
The company which supplied the saplings has come up in appeal questioning the correctness of the findings and order of the State Commission whereas the farmer whose claim has been partially allowed has come up for enhancement of the amount as awarded not being satisfied with the quantum awarded by the State Commission.5
The dispute centres around the supply of 6000 Elakki Banana poly bag saplings coupled with 500 Banana G9 saplings that were purchased by the complainant from the supplier through the invoice dated 31.07.2014.
The complainant farmer states that these saplings were planted between August, 2014 to 3rd September, 2014 over a farm area that measures 3 acres and 14 guntas of land in a particular village in Karnataka. The invoice of purchase is on record certifying the said transaction and is accompanied by a recital of the standard terms and conditions. The said terms and conditions are extracted hereunder:-
"1) Goods under this Invoice are dispatched on your account and risk.
2) Plants once sold will not be taken back or exchanged.
3) The Company accepts no liability on account of the plants after they are sold.
4) The company will not be held responsible for the loss of goods in transit.
5) Request for free replacement of plants is not entertained once the plants are dispatched from the premises and for damages happened during transit or death of plants in the 6 farmer's field due to lateral entry of diseases or by various other reasons.
6) Subject to Bangalore Jurisdiction only.
7) For further Terms & Conditions refer (Quality Disclaimer
Policy).
H.U. GUGLE BIOTECH'S - QUALITY DISCLAIMER POLICY:
H.U. Gugle Biotech Pvt. Ltd., a DBT certified and ISO certified Co. is committed to produce the quality tissue culture plants as per NCS - TCP norms laid by Department of Biotechnology (DBT). Virus Indexing and Genetic Fidelity tests are conducted regularly for both stock cultures and for batchwise release of plants. Only those batches which pass Virus indexing and Genetic fidelity tests are released for sale.
Through every care has been taken to provide the elite, pest and disease free planting material, around 5% to 15% variations are generally observed as off-types depending on the varieties which are beyond the control of the producer. (In case of Banana AAA group varieties like Dwarf Cavendish, Robusta, Grand naine and Williams about 5% off-type and for other groups say, AB, ABB, AAB etc., 10% off types and non- flowering is permissible as per our observation.) The performance and yield of the tissue culture plants are depending upon various natural factors like soil condition, water availability, irrigation pattern and availability of suitable nutrients with sufficient quantity in the soil and application during cropping period. The climatic conditions like temperature, moisture, air and soil borne diseases and their control during the cropping period decides the yield both in terms of quality and quantity.
The performance of banana plants will vary both in terms of crop duration and yield if they are grown under shade, hence not advisable to grow where light penetration is less. Growing intercrops in between banana plants is also not advisable as they act as competitors and host for many insect pests which are virus carriers and also cause for many diseases 7 and ultimately affect banana crop. Hence growing inter-crop is not advisable. Crops like potato, chilly, capsicum, brinjal, tomato (crops of solonaceae family), cabbage, cauliflower, carrot and crops belonging to cucurbitaceous family like pumpkin, cucumber, melon, etc. are strictly now advised to grow as intercrop in between banana plants.
From the studies it is reported that the number of hands, fingers and bunch size are depending on the initiation of female flowers which happens during 3rd to 6th month after planting (critical phase). The climate like temperature and humidity, availability of all nutrients in adequate quantities, particularly available potash, Zink and Boron to the plant in this period influence and decide the bunch size. Planting material alone does not decide the quality like number of hands, number of fruits and the bunch weight. (Reference: Banana, by V N MadhavaRao, Formerly Dean, TNAU, Published by ICAR).
Hence, No Guarantee can be given on the yield as various natural factors influences apart from the planting material alone. Further, in the event of the non- performance of the plant due to reasons attributable solely to the planting material, then the liability of the producer is restricted to replace the planting material or cost of the planting material only and no other claims in this regard shall be entertained."
According to the standard terms and conditions, there is a declaration therein by the company that virus indexing and genetic fidelity tests are conducted regularly for both stock cultures and for batch-wise release of plants. Only those batches which pass virus indexing and genetic fidelity tests are released for sale. According to the company, the virus indexing was carried out and a report dated 13.08.2014 was filed on record, according to the company, as Annexure-B to the written version, which has also been reiterated in the evidence affidavit.8
However, the said annexure was not filed along with the pleadings before this Commission. Nonetheless, learned counsel for the company has produced its photocopy stating that it is the same annexure which was filed before the State Commission.
The same is extracted hereunder:
DEPARTMENT OF PLANT PATHOLOGY Date: 13/08/2014 UNIVERSITY OF AGRICULTURAL XXX SCIENCES Regd. No. 469a GKVK, BENGALURU-560065 (TL2007/A006/2) VIRUS INTEXING REPORT FOR PLANT TISSUE/STOCK CULTURE(S)
1. Name and Address of Tissue Culture H.U. Gugle Biotech Pvt. Ltd.
Production Facility No. 23, P.O Box No. 14,
Binnamangala,
Devanahalli Taluk,
Bangalore Rural District
2. Plant species tested: Banana (Grand Naine) (Elakki)
3. Total Number of samples: 30 (102814MY,102914JL,301714JN)
4. Particulars of testing Viruses Tested Sample Registration number (20 digits) Testing Protocol ELISA PCR Name of virus Name of Virus BBrMV CMV BBTV BSV 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 01-05 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 06-10 Negative Negative Negative Negative 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 11-15 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 16-20 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 21-25 0 9 9 0 7 G N 0 5 0 8 0 8 1 4 1 2 0 26-30 Remarks, if any, Sd/- .
(Sign/Name of Scientist (Virology)/date) Sd/-
(Signature of the Head of ATL/date) There is no Genetic Fidelity test report or document either on record or even pleaded in the written version or the evidence affidavit of the company. Thus there is no evidence of a genetic fidelity test having been conducted before the supply and release of the saplings to the complainant.
9 It appears that the progress of the plantations was being observed by the company and field visits were carried out on 07.10.2014, 08.11.2014 and 03.04.2015.
It also appears from the pleadings that a storm occurred on 13.04.2015, almost 8½ - 9 months after the saplings were planted, that is reported in the newspaper on 14.04.2015. The newspaper cutting has been placed on record which also mentions the name of the complainant as the farmer whose banana crops were affected in the storm.
On 02.06.2015 and 07.06.2015 two other field visits were made by the company officials about the status of the growth and development of the plants and the deficiencies therein.
The complainant was not satisfied with the growth and development of the plants and foreseeing a deficit result in the harvest of the bananas, he issued a legal notice to the company on 08.06.2015. It seems that another visit was conducted by the company officials on 21.06.2015, where-after the complainant not being satisfied approached the Additional Director of Horticulture who constituted a joint inspection team at the local level of three persons for conducting a survey and reporting the matter. The said inspection seems to have been conducted on 13.07.2015, the report whereof 10 was tendered to the Additional Director of Horticulture through a letter dated 31.07.2015. The report categorically states that the inspection was carried out on 13.07.2015. The said report is extracted hereunder:-
"Report of the Joint Inspection Team on visit to problematic tissue culture banana field As per the request made by the ADH, Department of Horticulture Koratagere taluk. (Ref: Sum. Sa. To- Ni/Ko/Tasa/48/2015-16, 01.07.2015) a field visit was made on 13.07.2015 to tissue culture banana plot (Variety Yellakki bale) of Shri. Ganagareddy farmer of village Baichapura, Holavanahalli hobli. Koratagere taluk.
The joint Inspection Team consisting of the following members visited during 13.07.2015
1. Sri. Prasanth JM, SMS, Horticulture, KVK Hirehalli
2. Sri. B. Hanumantegowda, SMS, Plant Protection, KVK, Hirehalli
3. Sri. Shashidhar, AHO, Department of Horticulture, koratagere taluk After seeing the field of tissue culture banana plants of Yellakki bale variety the facts of the case are that they had a very low bunch yield and majority of plants had no inflorescence.
Farmer had purchased 6000 tissue culture banana seedlings from private company for planting the same in his land (survey No. 32/2) of Baichapura village, Holavanahalli hobli of koratagere taluk, Tumkur district. As per the farmers feed back, he planted the seedlings during the month of August 2014, almost at the age was 11-12 months old and nurtured the plants as per suggestions given by the company which supplied tissue culture plants. He took due precaution to use the correct pesticides, manures and fertilizers for optimum results and to prevent diseases. We observed the plants with siagatoka leaf spot disease. However, we found that most of the seedlings failed to reach flowering. The plant growth was good and eventually the bunches were 11 very small, some were dried up and even majority of plants exhibited no inflorescence.
Inspection confirmed that majority of the plants had failed because of varied saplings. It was also noted that the 60% did not yield any flower nor any banana bunches. Hence, the loss suffered by the farmer may be due to defective seedlings.
Conclusion:
The growth of the plantation was good. The majority of bananas plants did not bear flowers and some plants bore bunches, that too very small and low weight and some of the plants were affected by panama wilt disease. Therefore, in our view the failure of Banana Plantation might be due to the defect and variation in the seedlings.
Sd/- Sd/-
SMS Plant Protection SMK - Horticulture
KVK, Hirehalli KVK, Hirehalli
Sd/-
Programme Coordinator
KVK, Hirehalli"
The company on 20.09.2015 responded to the legal notice and before that certain information was sought by the company under the Right to Information Act from the Additional Director of Horticulture that was supplied on 13.08.2015.
It is on the basis of the said material that was available that the complainant approached the State Commission by filing Complaint No.481/2015 which after exchange of affidavits and 12 evidence has been allowed on 28.06.2022, the order impugned in these two appeals.
The State Commission heavily relying on the joint inspection report as well as the other evidence on record came to the conclusion that the loss had been caused on account of the reasons spelt out therein and had accordingly awarded the amount which in its discretion was found to be feasible.
It is assailing the said order that both these appeals have been filed.
Learned counsel for the company has urged that the joint inspection report dated 13.07.2015 was prepared behind the back of the company without its participation and with no notice about the same. He therefore submits that in view of the legal propositions that have been propounded by this Commission on similar issues the said report could not have been relied upon by the State Commission. Reliance has been placed on the order of this Commission in Syngenta India Ltd. Vs. P. Chowdaiah, 2013 SCC OnLine NCDRC 658.
He further submits that there were other deficiencies, including the fact that the plantations had been made on a high density ratio basis over an area of 3 acres and 5 guntas of 6500 plants, which according to norms ought to have been 13 accommodated in an area of 5 acres and 14 guntas. Thus on account of this high density plantation, the development and growth of the saplings have been affected resulting in the reduced output as against what was expected. This lapse of dense planting on the part of the complainant has been taken to be a ground in the written version contending that the high density ratio has resulted in the deficiency which cannot be attributed to the company.
It is then urged that during the field visits that were made before and after the storm it was pointed out that the plants were suffering from nutritional deficiencies as well. Over and above this, moisture stress was also being experienced by the plants. Literature to support the same has also been filed on record to substantiate the said submissions. Further, the disease of siagatoka leaf spots according to the company occurred on account of the deficiencies which have been pointed out and for which also some literature has been relied on. The saplings according to the company were neither defective nor was there any variation in them and it was on account of the circumstances narrated in the written version in detail that the plantations suffered in their yield due to lack of appropriate steps that had to be taken by the farmer himself.
14
It is urged that the report dated 13.07.2015 refers to a term "varied saplings" and then in its conclusion "defect and variation in the saplings". It is submitted that this conclusion as urged above was drawn behind the back of the company or its officials without their participation or notice to them and therefore such a report obtained violates the principles of natural justice and could not have been read into evidence by the State Commission. The submission in short is that reliance placed, if any, on the said report is misplaced and consequently the same not having been verified by any scientific methods, the conclusion drawn of varied saplings that has been affirmed in the impugned order of the State Commission is incorrect.
Learned counsel submits that the company had taken all due care to supply genuine saplings to the farmer and their growth and development for several months was observed that registered a healthy growth but at the same time there were certain deficiencies that had been pointed out regarding the nutritional requirements as well as the factors leading to moisture stress and also the deficiencies on account of the Potassium and Sodium resulting in the disease of siagatoka leaf spots. The complainant had been time and again cautioned for taking such steps in order to meet the said exigencies but according to the 15 learned counsel, having not done so, the same does not in any way indicate a genetic deficiency as alleged.
Learned counsel for the complainant however submitted that the variation in the sizes of the fruits some being longer and some being shorter is an indicator of the genetic variance in the plants and all measures to maintain the plantation, including irrigation, fertilizers and minerals, were promptly taken by the complainant from time to time to ensure that the plants are secured in getting the nutrition that is required by them according to the standards fixed. The submission is that inspite of having taken all such precautions, firstly the complainant's crop was hit by the storm on 13.04.2015 but the damage was in effect on account of the genetically different variety of the saplings which were not genuine and uniform of the quality that ought to have been supplied by the company. It is for this reason that the joint inspection report after physical inspection on the spot came to the conclusion that there was a variation in the variety of the plants that had directly affected the flowering and the fruition thereof resulting in a reduced yield of the Banana plantations. The contention is that genetically the plants being defective, the allegations about malnutrition or any such other deficiencies by the company is ill-founded. 16
Learned counsel urged that in view of this deficiency of the variety, evidence was led, and during the course of evidence one of the members of the inspection team was put to interrogatories and those interrogatories were answered by him on the queries raised on behalf of the company which indicate that he had categorically opined that such deficiency is on account of the variety in the seedlings which were observed by them on their experience, as it is a biological process.
The contention therefore is that even in the oral evidence that was conducted and where the person concerned was examined, the same clearly establishes towards the deficiency in the variation of the saplings, hence the plea taken by the company is unfounded.
In rejoinder, learned counsel for the company has urged that the interrogatories, which have been answered by the witness of the complainant, particularly with regard to the answers given to questions no. 17, 18, 23 and 24, leave no room for doubt that the said witness was not sure about his own conclusions.
Learned counsel for the complainant has urged that if there was any doubt about the correctness of the opinion of the said witness, it was open to the company to have confronted him with 17 any document or evidence relating to the issue of genetics for rebutting the same but that was not done and hence the conclusion drawn by the State Commission cannot be faulted with.
At the admission stage itself, having heard learned counsel for the parties, I find it imperative to investigate into the correctness or otherwise of the genetic status of the saplings supplied by the company because of the fact that the terms and conditions of the invoice, under which the supply of the saplings had been made, mandates the availability of two tests before release of the saplings, namely, the virus indexing test and secondly the genetic fidelity test. It is evident from the record that so far as the virus indexing test is concerned, the same has been filed by the company but there is no evidence nor any document that seems to have been filed before the State Commission for an assessment regarding the status of the genetic fidelity test. No such query also seems to have been raised in this regard from the officials who deposed in support of the joint inspection dated 13.07.2015.
Accordingly the impact of non-availability of a genetic fidelity test or otherwise requires to be assessed with the 18 opinion of an independent expert in order to arrive at the conclusion as to whether there was such a genetic deficit in the saplings and on the other hand also an assessment regarding the deficiencies pointed out by the company regarding malnutrition, moisture stress etc. narrated above. Consequently, in my opinion, the entire matter should be referred to a scientist of calibre and eminence who can assess the said contentions regarding the impact or otherwise of the defects that have been pointed out by either side in these appeals.
In order to ascertain this, National Bureau of Plant Genetic Resources, a premier organization of the country, is available in New Delhi and therefore a request is made to the learned Director Dr. G.P. Singh to help the Commission with an expert report in the above context. The email address of Dr. G.P. Singh is [email protected]/[email protected].
The Registry is directed to compile these documents with the help of learned counsel for the parties which they have filed in support of their contentions before the State Commission and are available in these appeals and to transmit the same to the learned Director as indicated above for appointing an expert or 19 conducting an examination of the issues indicated above for a comprehensive report to enable this Commission to arrive at the conclusion as to the defects, if any, and to what extent the same has affected the plantations and its yield as alleged by the complainant and the liability thereof.
Let this expert opinion be preferably given within a period of three months from today. The documents along with a copy of this order shall be dispatched to the mail address as indicated above and a physical copy of it shall be sent by post as well. The compilation shall also be accompanied by a copy of the impugned order dated 28.06.2022.
The company M/s Hu Gugle Bio-Tech Pvt. Ltd. shall hand over a demand draft of Rs.25,000/- as honorarium for the learned expert to whom this task is entrusted by the Director. The learned Director shall exercise his sole discretion in this regard.
In case the expert requires any further information, the same may be called for from either of the parties to assist them in forming their opinion.
Let both these appeals be listed on 22.10.2024."
9. We record our appreciation of the learned Director of ICAR, National Bureau of Plant Genetic Resources, Pusa, New Delhi who very promptly 20 assigned the investigation of the matter to an expert Senior Scientist, Dr. Vartika Srivastava who prepared a detailed report dated 07.08.2024 that was received by this Commission through the letter of the Director dated 09.08.2024. A copy of the said report was directed to be supplied to the learned Counsel for the Parties to file their comments or objections, if any. Learned Counsel for the Complainant has urged that the report favours the Complainant and confirms the conclusions drawn by the State Commission whereas Mr. Akshay Goel, learned Counsel for the Company has questioned its correctness through IA No. 12314of 2025 and has advanced his submissions accordingly.
10. We had exercised our powers in terms of Section 38 of the Consumer Protection Act, 2019 which procedure is also available in respect of receiving of any evidence or any expert opinion as such powers are co- extensively available to the Appellate Forum as well. Accordingly the report has been received as referred to herein above and the same has been taken on record after inviting objections by either side. We may point out that the expert report was obtained in view of the orders passed by us on 16.05.2024 and the Appellant Company had also tendered an amount of Rs.25,000/- that was directed to be paid as an honorarium for the expert opinion as desired. The opinion of the expert is therefore a document that has been received by us and is accepted on record as evidence to enable us to adjudicate the controversy 21 effectively to which objections have been filed by the Appellant Company that shall be considered hereinafter.
11. The background in which the necessity for obtaining this report arose was in the light of the facts giving rise to the controversy that had already been recorded in the order dated 16.05.2024 quoted herein above. The documents including the report of the joint inspection committee have already been quoted in the said order and therefore are not being reproduced. In continuation of the same we may also put on record the above mentioned report of the expert dated 07.08.2024 received by us on record. The same is extracted herein under :
"Report on Case received from Hon'ble National Consumer Disputes Redressal Commission New Delhi through the Director ICAR-NBPGR, New Delhi Ref.: Case file no. 13649 dated 26.07.2024 Case analysis The case documents with respect to the matter between the company HU GUGLE BIO- TECH PVT. LTD. and Mr. Ganga Reddy were thoroughly studied. The case was analysed as per the request received by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, for certain technical issues. Some major points that need to be explained in this case are analysed in detail as follows:
1. Effect of cultural practices, nutritional deficiencies, irrigation, and spacing on banana yield:
Cultural practices, spacing, nutritional deficiencies, and irrigation all have significant effects on the flowering and yield of banana plants. The interplay of these factors determines the overall health and productivity in banana. Optimal cultural practices, proper spacing, adequate 22 nutrition, and appropriate irrigation collectively create a favorable environment for the plants to thrive, ensuring timely flowering and high yields. Neglecting any of these factors can lead to stress, reduced flowering, and diminished yields.
In case of banana, irrigation is very important as spells of drought may lead to huge yield losses, however, this was taken care by the farmer. All documents of the case indicate that the field was well maintained, plant growth was good and drip irrigation was provided to the plantation of banana. The farmer also followed measures to overcome nutritional deficiency including all standard practices as advised by the company representatives.
High Density Planting (HDP) i.e. growing plants at a closer spacing, may reduce the bunch size, however, due to increased number of plants per unit area, the total number of bunches in HDP increases and thus, overall yield increases with recommended cultural practices. Therefore, HDP may not be the reason of non-flowering Elakki bananas in the farmer's field. It is also to note that if the farmer was growing more plants per unit area, this was not pointed out in any of the field visits by the company representatives.
2. Effect of rainy storm on flowering and yield:
Heavy rain and strong winds can damage banana plantations, leading to leaf damage and pseudostem breakage. In severe cases, strong winds can uproot banana plants due to their shallow root systems. Replanted plants often suffer from transplant shock, which may delay flowering in some cases. Those plants with broken pseudostems cannot be planted again and hence, side suckers are allowed to grow which may take another year to come to bearing (flowering). According to a newspaper report dated April 14, 2015, Mr. Ganga Reddy's field was damaged by heavy rains and a storm. This storm likely damaged the 23 banana plants, with some potentially being uprooted by the high wind speeds and some permanently damaged due to breakage of the pseudostem. As the storm coincided with the flowering stage of banana, this could have resulted in, differences in plant growth, delayed flowering or irregular bunch size and weight of the hands. The actual crop loss assessment report would provide a clearer indication of the stress levels faced by the banana plants in the field. Mr. Ganga Reddy may be asked to provide valid documents so as to quantify the crop loss due to the storm.
3. Somaclonal variation in Banana tissue culture:
Being clonally propagated, tissue-cultured banana plants are preferred choice for farmers due to their ability to produce uniform plantlets with uniform bunch size, uniform weight and quality which ensure consistent yields. However, there is possibility of production of off-type plants due to somaclonal variations. Somaclonal variation, governed either through genetic or epigenetic factors, are common in tissue cultured banana plantlets and they produce phenotypic variations (off-types) in the plants including predominance of non-flowering plantlets. Somaclonal variation may result from pre-existing genetic variation within the explant (as some varieties are more prone) or may be induced during the tissue culture cycle due to many factors including the use of high levels of growth regulators or increased subculture cycles. These plants do not resemble the mother plant and can be identified due to their altered morphology, and in some cases, non-flowering characteristics. These traits are primarily governed genetically and can result in significantly reduced yields.
The KVK, Hirehalli scientists reported in their joint inspection that the growth of the plantation was good, however, majority of banana plants did not bear flowers and plants showed variation. They observed 24 variation in plants and also in bunch size and weight. If the cultural practices and irrigation were inadequate, the plants may not have showed optimal growth. An expert (in this case experts from KVK) can identify morphological variations in non-uniform plantlets, and can also distinguish between variations caused by nutritional deficiencies and those due to genetic factors. However, a genetic fidelity test might have provided a more precise confirmation of these observations. In absence of the test, any quantifiable field data, photograph (coloured) or assessment record may be presented by the joint inspection team of KVK to validate their observations.
4. Genetic fidelity of tissue cultured plants:
Tissue cultured plantlets are considered as quality planting material. The term quality planting material includes two major requirements a) Disease free and b) True-to-type (genetically identical). Supply of disease-free material to farmers is important to avoid any spread or outbreak of serious diseases in the field. Genetically identical planting material is uniform in morphology, growth and eventually yield. Therefore, these two are the basic requirements for certification under NCS TCP through DBT. Under this, the company has to restrict the number of subculture cycles (in case of banana it is a maximum of 8 passages of shoot multiplication) after initiating the cultures due to the increased probability of off-types with each successive subculture. However, if the company go for more subculture cycles, they should conduct Genetic fidelity test using DNA markers of each batch of plants before supply to ensure that the saplings are not showing any deviation from the mother plant. The problem of somaclonal variation (off- type) in tissue cultured Banana is high as compared to other plants, and therefore, the guidelines of NCS TCP mentions that "In case of banana 25 under no circumstances shoot should be subcultured for more than 8 passages"
(Ref. Appendix-I: https://www.dbtncstcp.nic.in/tcs/Banana.pdf). It is therefore mandatory guideline under NCS TCP that the information pertaining to the variety identification, date of initiation, origin and testing results from accredited laboratory must be maintained in the company records. Test for viral diseases (Banana bunchy top virus, cucumber mosaic virus, banana bract mosaic virus, banana streak virus) and other endophytic or epiphytic bacterial and fungi must be carried out and well documented. This test remain valid until the cultures of that particular batch are under production (until a maximum of 8 passages). Before dispatch to the farmers, the tissue cultured plants should be tested for absence of diseases and clonal fidelity. If found infected or not genetically uniform, the planting material must not be dispatched and such batch should be destroyed.
5. What if the genetic fidelity test is not conducted?
The documents provided by the company lacks a mandatory genetic fidelity test report from an accredited lab. The KVK joint inspection team's report is also concluded with visual observations without conducting this test. Since flowering, fruiting, and yield in bananas are influenced by both genotype and environmental conditions, a valid confirmation of the non-uniformity of tissue-cultured Elakki banana plantlets can only be achieved through a Genetic Fidelity test using DNA markers. Usually, after reaching 8th passage of plantlet multiplication in a tissue culture system, fresh explants from the field needs to be introduced to start the multiplication cycle in banana. This is necessary to reduce the chance of any off-type or somaclonal variation in the multiplied plantlets. Therefore, in the absence of genetic fidelity test document, the origin of the supplied batch of Elakki banana may be 26 referenced from the subculture cycle. A batch of plantlets derived from a subculture cycle higher than 8th passage may indicate the probability of increased number of off-types in the banana batch supplied to the farmer.
In addition, consulting other farmers who purchased the same batch of Elakki banana plantlets from the company can help confirm the success of the crop and verify the absence of genetic variation among the supplied plantlets. For this assessment, yield records, number of bearing plants, number of hands per plant, number of fingers per hand, and the total revenue generated by the farmers can be used as reference points.
6. Assessment of the damage:
The details of the actual crop loss incurred can be requested from the farmer, Mr. Ganga Reddy, to estimate the level of stress imposed on the banana plants due to the rainy storm. In absence of a genetic fidelity test for the variety in question, the company may be asked to provide all relevant documents related to the culture initiation and subculture cycle of the Elakki banana batch sold to the farmer, Mr. Ganga Reddy. Additionally, they may be asked to provide information on the performance of the crop in the fields of other farmers who purchased the same batch of Elakki banana for further analysis and to draw conclusions. The KVK scientists who conducted the joint inspection may be asked to elaborate in detail the types of variations they observed, point by point, that led to their conclusion of "defective seedlings." Supporting documents such as actual photographs of the field, banana plants showing variation, non-uniformity in finger size, bunches and inflorescence etc. taken on the day of the visit and data to substantiate the variations should also be provided. Summary:27
The yield of a banana plantation is governed by both genotype as well as environmental conditions. Concerning the problem of plants displaying sparse or no flowering and low bunch weight, it should be noted that flowering in banana is primarily governed by the genotype. While climatic factors and cultural practices can delay flowering, they do not control it. Overall, in this case, the yield loss due to predominance of non-flowering plants appears to be primarily due to genetic factors, though the influence of climatic stresses (in this case rainy storm), should not be disregarded completely. Without a genetic fidelity test and adequate morphological data, it is challenging to conclude that there was a genetic deficiency in the saplings. The observed issues might instead be attributed to the stormy conditions that occurred during the flowering phase of the plantlets. Therefore, it is important to assess both the potential deficiencies in the company's micropropagation practices, and the actual impact of the stormy weather on the Elakki banana plantation to arrive a conclusion. Dr Vartika Srivastava Senior Scientist, Division of Germplasm Conservation ICAR-NBPGR, New Delhi "
12. It is to this report that the Appellant Company has filed its objections through IA No. 12314 of 2025 which is an application praying for condoning the delay in the filing of the objections. Having heard the learned Counsel for the Parties we condone the delay and accept the objections on record. The objections which have been taken are contained in Paragraph No. 6 - 31 which are extracted herein under: 28
"PRELIMINARY SUBMISSIONS
6. That at the very outset, it is clear from a bare perusal of the Report that even the independent expert has rightly supported the submission of the Appellant that the admitted storm which hit the Respondent's field in April, 2015 could have material impact on his crops and the issues observed in such crops could very well be attributed to the same.
7. That the above, coupled with the fact that the Respondent conveniently skipped out on disclosing the factum of such storm during the alleged visit unilateral of the representatives of Krishi Vigyan Kendra ("KVK"), establishes that the report of KVK as regards the impugned crops suffers from material ignorance and omission and as such, the impugned order passed placing heavy reliance on such report merits being set aside.
8. That the Report further supports the contention that plant traits like flowering and bunch weight are influenced by a multitude of factors beyond genetic fidelity. Environmental conditions, such as soil quality, water availability, light exposure, and temperature, play significant roles in plant development and productivity.29
9. That the same, read with the judgment in Haryana Seeds Development Corporation Ltd. v. Sadhu & Anr., [(2005) 3 SCC 1987, establishes that the alleged deficiencies in the saplings may be attributed to agronomic factors such as malnutrition, moisture stress, and other environmental conditions.
10. That the Report further shows that there are several material evidence which are required in order to prove any deficiency attributable to the Appellant, which were never placed on record before the Ld. State Commission. As such, the impugned order has evidently been passed without the Respondent establishing his case against the Appellant and hence, the same merits being set aside.
SECTION WISE SUBMISSIONS Effect of cultural practices, nutritional deficiencies, irrigation, and spacing on banana yield
11. That the observation of independent expert under this head may be summarised as follows:
a. Cultural practices, nutritional deficiencies, irrigation, and spacing jointly and severally have direct impact on the flowering and yield banana plants.
The aforesaid is in line with the submissions of the Appellant and goes onto prove that there can be several factors 30 attributable to the Respondent which could have caused the alleged issues with his crops. As such, the same never having been examined prior to the passing of the impugned order, makes the impugned order liable to be set aside. Pertinently, the any unilateral observation contained in the report of KVK in this regard holds no evidentiary value since their alleged inspection was conducted without notice to the Appellant in violation of natural justice.
b. In case of banana, irrigation is very important as spells of drought may lead to huge yield losses.
The documents and evidence placed by the Appellant shows the since the storm of April, 2015, the Respondent had been consistently careless about the maintenance of his crops. Furthermore, the Appellant has maintained the stance that on account of high-density planting by the Respondent, their ought to have been a deficiency of water and other resources in his crops. This observation of the independent expert also supports such submissions of the Appellant. c. High Density Planting ("HDP") may reduce bunch size, however due to increase number of plants per area the total number of bunches in HDP increases and thus, overall yield increases with recommended cultural practices. 31 It is submitted that the above observation, assuming without conceding the correctness of the same, has no bearing on the present case since it is the submission of the Appellant that the Respondent failed to follow even the recommended cultural practices.
12. That apart from the foregoing, the independent expert appears to have made certain factual observations based solely on submission of the Respondent and as such, the same are liable to be disregarded.
Effect on rainy storm on flowering and yield
13. The independent expert observes that the storm of April, 2015 likely damaged the Respondent crops which some potentially being uprooted and some permanently damaged due to breakage of pseudostem. She further suggests that the same coinciding with the flowering stage of banana could have led to difference in plant growth, delayed flowering, irregular bunch size and weight of hands. A perusal of Report further shows that the documents placed by the Respondent are clearly insufficient to assess the impact of the said storm on the crops.
14. That the aforesaid supports the contention of the Appellant that the Respondent has failed to establish that his alleged losses 32 were solely attributable to the Appellant. It is further clear from the foregoing that the admitted non-disclosure of the factum of such storm has tainted the unilateral report of KVK, and in turn, the impugned order.
Somaclonal variation in banana tissue culture
15. That under the present head, the independent expert suggests somaclonal variation as one of the possibilities for reduced yields. However, it is pertinent to note that such purported non-flowering characteristics are admittedly not universal and are caused only in some cases.
16. That the Report goes onto suggest, firstly, that a precise confirmation regarding the same required a genetic fidelity test OR quantifiable field data, photographs or assessment record by KVK.
17. The deliberate absence of any of the above, coupled with the unilateral nature of inspection by KVK would nullify the evidentiary value of its report, if any. Therefore, the impugned order passed placing sole reliance on such report is liable to be set aside.
Genetic Fidelity of Tissue Cultured Plants
18. That the observation of independent expert under this head may be summarised as follows:
33
a. Tissue Cultured Plantlets are considered quality planting material on account of them being disease free, true-to-type, which are the basic requirement for National Certification System for Tissue Culture Plants ("NCS-TCP") through DBT.
b. It is a mandatory guideline under NCS-TCP that the information pertaining to the variety identification, date of initiation, origin and testing results from accredited laboratory must be maintained in company records and that before dispatch, the tissue cultured plants should be tested for absence of diseases and clonal fidelities.
19. That the Appellant has received a certificate of recognition from NCS-TCF for the relevant period i.e. 07.05.2014 to 06.05.2016 (annexed as Annexure A/3 @ Page 50 of the Appeal). In fact, the Appellant enjoys suc accreditation from 2012 till date. Therefore, in the absence of any submission/ evidence to the contrary, it can be concluded that the Appellant is duly compliant with all the aforesaid requirements with of NCS-TCP.
Data, present on the website of NCS-TCP, showing the registration of the Appellant since 2012, is annexed herewith and marked as Annexure D. 34
20. That the above shows that the Appellant has adhered to the guidelines and protocols established by the NCS-TCP, as follows:
Quality Assurance: The Appellant's tissue cultured plantlets are certified under the NCS-TCP, confirming their status as quality planting material free from viruses and genetically uniform.
Compliance with Standards: The Appellant has complied with all necessary guidelines and protocols set forth by the NCS-TCP, ensuring the high quality of the supplied plantlets.
Recognition of Certification: The registration under NCS-
TCP serves as a valid proof of the quality and reliability of the tissue cultured plantlets supplied by the Appellant.
21. That in the absence of any contention questioning the conduct of genetic fidelity test and/ or any cogent evidence casting doubt on the genetic fidelity of the saplings supplied by the Appellant before the Ld. State Commission, the Appellant had no occasion to produce the genetic fidelity test in the original complaint. By the time, a query regarding the same came to be raised by this Hon'ble Commission in the hearing dated 14.05.2024, 10 years had lapsed since the supply to the 35 Respondent and as such, the Appellant was unable to trace the genetic fidelity test report for the relevant batch of saplings. It is pertinent to note that during the period to which the present matter pertains to, the reports were maintained in physical form and were yet to be digitized. As such, while the subsequent reports since digitization can be duly produced, the Appellant is unable to produce the same for the time relevant for the case at hand. It is further submitted that in a complete bona fide manner, the Appellant also approached the relevant authority for requisitioning the relevant reports, but the same were not available even with the authority. It is therefore submitted that in view of the foregoing, no adverse inference be drawn against the Appellant for not being able to produce the genetic fidelity report.
22. That in any event the onus of proof to establish the deficiency of service which has undoubtedly not been fulfilled. A mere absence of a record at by the Appellant lay on the Respondent before the Ld. State Commission, the end of the Appellant especially when the same was not brought into question in the original proceedings, is not enough to uphold an otherwise erroneous impugned order.
What if the genetic fidelity test is not conducted 36
23. The independent expert observes that since flowering, fruiting, and yield in bananas are influenced by both genotype and environmental conditions, a valid confirmation of the non-uniformity of tissue cultured Elakki banana plantiets can only be achieved through genetic fidelity test using DNA markers.
24. In the case at hand, the unilateral report of KVK was admittedly based solely on visual observations. As such, going by the Report of the independent expert, it is clear that the evidence on record is highly insufficient to confirm that the alleged issues with the Respondent crops are attributable to the Appellant.
25. The submissions of the Appellant are further supported by the judgment in Mahyco Seeds Ltd. v. G. Venkata Subba Reddy & Ors., [2011 SCC OnLine NCDRC 710], wherein it has been observed that genetic defects in seeds cannot be detected through visual inspections and would require scientific laboratory testing and that the onus to prove defects lies with the Complainant, and in the absence of such evidence, claims regarding genetic deficiencies cannot be upheld.
26. The impugned order, passed in material ignorance of such lack of evidence therefore merit being set aside. 37
27. That without prejudice to the foregoing, it is noted that the following alternate means of determination have been recommended by the Expert to ascertain the quality of the banana saplings supplied by the Appellant:
a. Origin of the saplings to ascertain whether the limit of 8 subculture cycles have been met: The Appellant places reference on the Stock Statement/ Progress Report of the relevant period in question to prove that such limit of 8 subculture cycles has been duly adhered to by the Appellant. It is submitted that prior to the Expert Report, there was no occasion for the Appellant to place such documents on record before the Ld. State Commission or this Hon'ble Commission. Even so, it is pointed out that the certifications from NCS-TCP since 2012 till date evidences the adherence by the Appellant to the said requirement.
Copies of the Stock Statement/ Progress Report from October, 2013 till August, 2014 are annexed herewith and marked as Annexure E. b. Consulting other farmers who purchased the same batch of plants: Reviews have been obtained from such other 38 farmers who were supplied the same batch of plants along with their names and phone numbers.
Copies of reviews obtained from similarly placed farmers are annexed herewith and marked as Annexure F. Assessment of Damage
28. That it is clear from the suggestion of the independent expert under this head that the documents already available on record are not nearly sufficient to assess the damage caused to the crop of the Respondent of account of environmental factors including the storm of April, 2015 or to assess whether any damage at all has been caused on account of factors attributable to Appellant.
29. It is therefore clear that the Respondent has failed to dispose of the onus of proof as would have been required for a legally tenable finding against the Appellant. Hence, the impugned order, passed in ignorance of foregoing is liable to be set aside. Summary
30. That the summary of the Report also supports the contention of the Appellant that the evidence of the Respondent is not nearly sufficient to rule out the environmental factors and their role in the issues caused to the Respondent's crops.
31. That the Appellant therefore prays that basis the submissions and documents already placed on record, which are largely being 39 supported by even the present Report, the present Appeal be allowed and the impugned order be set aside."
13. We have considered the submissions in detail and the core challenge raised by Mr. Goel, learned Counsel for the Appellant is that the report dated 07.10.2014 and 13.07.2015 had been issued without conducting any analytical test and therefore, the said report through the Kisan Vikas Kendra cannot be relied on more so in view of the observations made in the report that has now been received from the ICAR experts dated 07.08.2024 already quoted herein above. Mr. Goel submits that prior to the said expert report, the Appellant had no occasion to tender any Evidence regarding the Genetic Fidelity test as this issue came to be raised for the first time before this Commission during the hearing dated 16.05.2024. The plea taken is that 10 years had lapsed since the supply of the plants to the Respondent/Complainant and therefore, the Appellant was unable to trace the test report for the relevant batch of saplings.
14. Mr. Goel has also urged that the earlier report that has been relied on by the learned State Commission was unilateral and from a perusal of the facts in both the reports as well as the admitted case of the Respondent, the loss suffered by the Respondent was due to adverse weather conditions which was an environmental impact and had got nothing to do with any genetic defect in the seedlings. 40
15. It is further pointed out that the reports submitted by the Scientist from the Indian Council for Agricultural Research supports the contention of the Appellant that the flowering and bunch weight of the fruits are influenced by environmental conditions, soil quality, water availability, light exposure and temperature, which play significant roles in plants development and productivity and therefore, to attribute the loss only to a doubt about the Genetic Fidelity would be inappropriate.
16. Mr. Goel further submits that as noted above, the Respondent/Complainant on account of the losses due to the adverse weather conditions had already been compensated by the State Government and it is for this reason that the State Commission had reduced 40% of the claimed loss treating it to be a loss due to environmental conditions.
17. Mr. Goel submits that the plants had suffered malnutrition moisture stress and there was a carelessness that was noticed regarding the maintenance of the crops. These factors have also attributed to the loss in yield coupled with the fact that the Complainant had knowingly increased the number of plants, the density whereof was against norms which has also resulted in reduction of yield.
18. Mr. Goel further contends that the expert report also suggests that the season of flowering also coincided with the storm in April, 2015 which could have led to difference in plant growth and delayed flowering that 41 resulted in irregular bunch sizes of fruits with lesser weight. This impact was also not assessed by the State Commission.
19. Learned Counsel for the Respondent/Complainant has countered these submissions urging that the State Commission had erroneously reduced the claim of losses by 40% and it is for the said reason that the Complainant has filed the cross Appeal No.115/2023. He further submits that the expert report tendered by the Senior Scientist of the National Bureau of Plant Genetics under the Indian Council of Agricultural Research has clearly assessed the damage and has also indicated that the same can be finally assessed after details of actual crop loss incurred are obtained from the Complainant. The Company may be asked to provide all relevant documents related to culture initiation and other processes relating to the batch sold to the farmer in order to assess the nature of damage for a final assessment. It is, however, submitted that it has been opined that flowering in banana plants is primarily governed by its genetics apart from its climatic factors, but they do not control it. Nonetheless, without the Genetic Fidelity test and the data which was not provided by the Appellant, an adverse inference deserves to be drawn against the Appellant.
20. Having assessed the respective submissions, the documents on record and the objections raised by the Appellant to the expert report dated 07.08.2024 as well as the earlier report of the KVK dated 07.10.2014 42 and also the report dated 13.07.2015 carried out by the three officials of the joint inspection team quoted hereinabove, there is no dispute that the Respondent/Complainant has suffered a loss. There is also no dispute that the loss due to environmental conditions seems to have been taken care of and the farmer compensated by the State Government.
21. The only dispute which needs to be assessed is regarding the defect alleged by the Complainant in the seedlings supplied by the Appellant. It is evident from the KVK report dated 13.07.2015 that there was a variation in the saplings and according to their assessment, more than half of the saplings did not yield any flower or banana bunches. The report infers the supply of defective seedlings.
22. The scientific analysis of the quality of the seedlings seems to be dependent upon tests that are to be conducted regularly for all stocks. This is categorically stated in the terms and conditions of the voucher/invoice dated 31.07.2014 extracted herein above. It recites that Virus Indexing and Genetic Fidelity tests are conducted regularly and it is only those batches which pass these tests are released for sale. We had examined this very aspect on 16.05.2024 while sending the matter for an expert opinion and we had clearly observed that even though there was a proof of a Virus Indexing test, the Genetic Fidelity test was absent, the Appellant has produced the Virus Indexing test and 43 we have already extracted it in our Order dated 16.05.2024 that has been reproduced herein above. The Genetic Fidelity test report was not produced by the Appellant and the explanation given is that it is not possible to produce it now when the issue has been raised during these proceedings due to lapse of time and is unavailable.
23. We reject this explanation which in our opinion is an excuse to withhold the test report. If the Appellant could produce the Virus Index Report, of the same batch, that was supplied to the Complainant, there seems to be no cogent reason with any valid explanation as to why the Appellant could not obtain or had not retained one of the most vital tests that was necessary to certify the seedling. Secondly, the excuse that it is unavailable after 10 years is also unsound in as much as the Appellant could have tendered it before the Committee constituted by the KVK that tendered its report on 13.07.2015 to substantiate their stand. Apart from this, they could have produced the report even during the proceedings before the State Commission or stated about its availability or non-availability. The Appellant, therefore, seems to have withheld this information and there is every valid reason for us to presume that this relevant evidence of the Genetic Fidelity test report has either been deliberately withheld or the saplings were supplied without any such confirmatory test having been carried out. The Appellant has failed to produce any evidence and admittedly, they did 44 not tender it before the expert Committee or even before this Commission and have taken an excuse in their objections that they could not produce it as this issue was not raised before and was unavailable now. In our opinion, the core issue of the genetic defect of the saplings was at the forefront right of the beginning and the Genetic Fidelity test report could have been the best piece of evidence as a defence for the Appellant about which no mention has been made and therefore, we are justified in drawing an adverse inference on that count against the Appellant.
24. The expert Scientist has also opined in Clause-IV of the test that this is a major requirement to be observed while supplying each batch of plants to ensure that the saplings do not show any deviation from the mother plant. The same has been described as Somaclonal variations and a Genetic Fidelity test could have provided a precise confirmation in this regard.
25. There is one very important observation made in the report of the joint inspection that was carried out on 13.07.2015 by the KVK, the growth of the plants had not been found to be defective and was good but majority of the banana plants did not bear flowers and plants showed variations including the size of the bunch of fruits and their weight. It was, therefore, inferred that the environmental impact would have a uniform effect but the nature of the variations indicated genetic factors. 45
26. We are, therefore, of the view, that the Appellant was clearly deficient in supplying the tissue culture banana saplings without the mandatory Genetic Fidelity test having certified the same. We, therefore, to this extent, agree with the conclusion of the State Commission that there was deficiency in service of the Appellant, but after having received the expert report and having examined all the facts, we find the above mentioned reason to be the basis of our judicial approximation. The Appellant having failed to provide any proof of Genetic Fidelity test has been unable to discharge his burden and therefore, the inferences drawn in the scientific reports both by the KVK in the report dated 13.07.2015 and by the National Bureau of Plant Genetics/ICAR dated 07.08.2024 leave no room for doubt that the plants seem to have been suffering from a genetic defect that resulted in loss of yield apart from other environmental conditions.
27. We, therefore, also find that the State Commission rightly segregated the loss due to environmental conditions as well as due to defective seedlings.
28. However, the ratio thereof has been measured to the extent of 40% and 60% has been attributed to the genetic defect. To rationalize the same and keeping in view the expert opinion that the impact of environment cannot be ruled out, attributing a total loss as alleged to a genetic defect is not correct.
46
29. The Respondent/Complainant has filed a FA/115/2023 praying for enhancing the claim and has questioned this distribution of ratio urging that the entire loss as claimed was due to a genetic defect.
30. From the facts of record, it is not decipherable as to the extent of impact of such a defect to the yield. On the basis of the material and the assumptions, it can be reasonably presumed to attribute an approximate 50% loss due to environmental conditions on the equitable side. Coming to the issue of loss of the balance of 50% of the crop, it would also not be safe to attribute a total contribution of the genetic defect in the background of certain other short comings like the plantation having been made on a high density ratio where more than 6000 plants were accommodated over an area of 3 acres and 5 guntas whereas the said plants had to be accommodated over an area of 5 acres and 14 guntas. This aspect seems to have been touched upon in the expert's report but no effective reply has been given by the Appellant. The report dated 07.08.2024 records that growing plants at a closer spacing can reduce the bunch size, but the total number of bunches correspondingly increases and therefore, on overall yield increase can be observed.
31. This may, therefore, not be a mitigating factor and even otherwise, the Appellant does not seem to have taken any objection to this aspect or 47 pointed it out during the field inspection when the report dated 13.07.2015 was prepared.
32. Thus, it was also the impact of Genetic Fidelity defect that ultimately affected the yield and we, therefore, find that on an over all consideration, the State Commission seems to have taken a balanced view of the matter. The deficiency is clearly established. We, therefore, do not find any reason to enhance the compensation but we also do not find any compelling reason so as to reduce the compensation as granted by the State Commission.
33. Both the appeals, therefore, lack merit for all the reasons stated herein above and are accordingly dismissed.
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(A.P. SAHI, J.) PRESIDENT .........................................
(BHARATKUMAR PANDYA) MEMBER Mss/AS/CM-VM/C-1/Reserved matter 48