State Consumer Disputes Redressal Commission
Mahyco Vegetable Seeds Limited, vs Shri.Ishwarbhai Baburao Thakare, on 10 August, 2012
1 F.A.No.:895/2007
Date of filing :30.08.2007
Date of order :10.08.2012
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :895 OF 2007
IN COMPLAINT CASE NO.: 37 OF 2006
DISTRICT CONSUMER FORUM : NANDURBAR.
Mahyco Vegetable Seeds Limited,
4th floor, Resham Bhavan,
78 Veer Nariman Road,
Mumbai - 20.
(Now amalgamated with Mahyco seeds Ltd.) ...APPELLANT
(Org.Opponent No.2)
VERSUS
1. Shri.Ishwarbhai Baburao Thakare,
R/o Ghuli, Tq.Nandurbar,
Dist.Nandurbar.
2. Shri.Baburao Vitthal Thakare,
R/o Ghuli, Tq.Nandurbar,
Dist.Nandurbar.
3. M/s Jain Agro Agency,
Nagar Parishad Building,
Shop No.3, Nandurbar,
Dist.Nandurbar. ...RESPONDENTS
(No.1 & 2-Org.Comps,
No.3-org.Opp.No.1)
CORAM : Mr.B.A.Shaikh, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.K.B.Kachhawa for appellant, Adv.Shri.P.N.Deshpande for respondent No.1 & 2, None for respondent No.3.
2 F.A.No.:895/2007O R A L O R D E R Per Mr.K.B.Gawali, Hon`ble Member.
1. This appeal is filed by Mahyco Vegetable Seeds Company which was original opponent No.2 against the judgment and order dated 2.8.2007 passed by District Forum, Nandurbar in C.C. No.133/05 holding the appellant company jointly and severally liable along with present respondent No.3 to pay compensation of Rs.5 lakhs to respondent No.1 & 2/original complainants within 30 days, else interest @ 18% p.a. from 2.8.2007 till realisation of the entire amount was ordered to be paid. Respondent No.1 & 2 are the original complainants(herein after termed as 'complainants') and respondent No.3 is the original opponent No.1( herein after termed as 'dealer').
2. The brief facts leading to the present complaint are as under.
That, complainant No.1 is a son of complainant No.2. Both are the farmers. Complainant No.1 is having land admeasuring 1 hector 3R from Gut No.166 whereas complainant No.2 is having land of 1 hector 18R from Gut No.169 of village Ghuli, Tq.& Dist.Nandurbar. There is a pakka well for irrigation in Gut NO.166. It is the case of the complainant that with the intention to take crop of lady finger(Bhendi) when he enquired about the seeds in the market the respondent No.3 i.e. the "dealer" recommended Bhendi-10 variety of seeds as manufactured by present appellant and that he also stated that he was authorised dealer. Hence firstly on 8.4.2005 complainant purchased 16 packets "Bhendi-10" seeds each containing 250 gms and later on 13.4.2005 further 4 packets each having the same quantity were purchased at rate of Rs.220/- per packet, the total cost of seeds being of Rs.4400/-. Seeds purchased belonged to Lot No.255191. It was further contended that these seeds except small portion from 1 packet were sown on 16.4.2005 in 1 hector land from 3 F.A.No.:895/2007 Gut No.166 and 0.60 hector land from gut No.169 i.e. total 3.20 acres. That the said balance portion of seeds from 1 packet was handed over to the Agriculture Officer for testing at the time of inspection. It was further contended that inspite of taking all necessary measures such as using sufficient manures, fertilisers, pesticides and giving proper irrigation and inspite of maturity period had reached which is 100 - 110 days although there was good growth of plants with average 5 ft., but there was no flowering and bearing of fruits except some sporadic plants which had fruit to some extent. Therefore complainants filed complaint dated 11.7.2005 with the Development Officer of Panchayat Samiti, Nandurbar with copies thereof to District Agriculture Officer, Z.P.Nandurbar and Agriculture Officer, Panchayat Samiti, Nandurbar.
Accordingly, District Seeds Grievance Redressal Committee visited the complainant`s field on 15.7.2005, prepared panchanama and report. There were 8 members of the Committee present for inspection. That, as per Committee`s report 90% plants were found sterile and 30% were affected by Mosaic disease(Haladya). It was averred that they had to bear heavy financial loss of Rs.12 lakhs considering 200 quintals of Bhendi yield per acre and area under the said crop at 3.20 acres. That, the income received from the said crop was only Rs.15,095/-. Complainant therefore alleged that seed of Bhendi-10 variety which was sold to them was bogus and hence both the appellant seed company as well as dealer had indulged in unfair trade practice and also have committed deficiency in service. With these allegations the legal notice dated 12.8.2008 was sent to the appellant as well as present respondent No.3 i.e. dealer demanding compensatory amount of Rs.12,56,715/-. The appellant seed company replied to the said notice rejecting the claim of the complainants, however the dealer did not reply. Therefore complainant filed consumer complaint with the District Forum, Nandurbar giving directions against the appellant as well as dealer to pay them total 4 F.A.No.:895/2007 compensation of Rs.12,56,715/- which consisted amount of loss of Rs.12 lakhs and Rs.56,715/-towards other expenses.
3. Appellant as well as dealer appeared before the Forum and resisted the claim. Dealer vide his affidavit dated 25.11.2005 denied that he recommended the said variety of Bhendi seeds to the complainant. He admitted the fact of sale of 20 packets of said variety of seeds to the complainant. Rest of the allegations were denied especially that the seeds were defective and thus stated that the complaint being false be dismissed with cost of Rs.10,000/-.
4. Appellant seed company i.e. original opponent No.2 also filed the written version on 8.12.2005 and submitted that complainants are not their consumers as complainants have not purchased said seeds from authorised dealer. He specifically denied that opponent No.1 was their authorised dealer. It was further contended that seeds were purchased for commercial purpose as the same is evident from the amount of compensation claimed at Rs.12,56,715/-. It was also contended that said seed purchase receipt is in the name of complainant No.1 and hence complainant No.2 has no locus-standi to file the complaint. It is also the averment of the appellant seed company that seeds purchased have not been tested from any authorised laboratory as required U/s 13(1)( C) of the 'Consumer Protection Act' and hence only on the basis of District Seeds Grievance Committee`s report it cannot be concluded that seeds were defective. It was also contended that seeds before marketed were tested in their laboratory as on 28.12.2004 in which germination was found 88%. That genetic purity was also tested on 23.3.2005, which was found to be at 90%. That, there are no complaints about this seed from other farmers. That area sown of Bhendi crop as per 7/12 extract also appears to be false because considering area sown under cotton crop, there remains no balance area as per total area of said Gut. The findings of the District Seed Committee were also not accepted as the 5 F.A.No.:895/2007 total percentage of sterility at 90% and Mosaic affected plants @ 30% gives total of 120%. Financial loss of Rs.12 lakhs as alleged due to loss in yield was also contended to be baseless. It was specifically contended that, as per company`s recommendation, 3 Kg of seeds per acre was required to be sown. However 5 Kg of seeds were stated to have been sown in 3.20 acres. Secondly, it was stated that temperature in summer season is about 35 degree centigrade which is not favourable to the said crop. Space between plants to plant was also not maintained as per recommendation. Thus it was contended that all these facts contributed for so called loss in yield and not the seeds. It was therefore contended that there was no deficiency on the part of appellant and hence complaint be dismissed.
5. Appellant seed company aggrieved by the said impugned judgment and order filed present appeal in this Commission. Appeal was registered and notices were served on the respondents. Appeal was finally heard on 19.7.2012. Adv.K.B.Kachhawa was present for appellant seed company whereas Adv.Shri.P.N.Deshpande was present for respondent/original complainant.
6. Learned counsel Shri.Kachhawa submitted that bills of purchased seed are in the name of complainant No.1 and hence complainant No.2 has no authority to file the complaint as he is not a consumer. Secondly, he pointed out that as admitted by complainants themselves that there was a very good growth of crop up to 5 ft. but no fruit bearing and hence as there was proper germination, seeds cannot be said as defective. He further stated that even area sown under Bhendi crop in 7/12 record of both Gut numbers appears to be doubtful as area shown under cotton crop if added to the crop under Bhendi, total area as comprised by this Gut number exceeds the area as given in 7/12 record. He further contended that soil required for Bhendi-10 variety of crop is "fairly light" and "well drained". However, soil under Gut number is black as 6 F.A.No.:895/2007 stated by complainants in their complaint. He also contended that complainants have not followed guidelines given in the brochure for sowing Bhendi seeds such as quantity of seeds to be sown per acre is 3 Kg whereas complainants have sown 5 Kg. in 3.20 acres. He therefore averred that they cannot expect yield as claimed in the complaint. He further pointed out that laboratory analysis report of the seeds which were sent to the laboratory by the complainants through Agriculture Officer has not been received. Secondly, District Seeds Grievance Committee visited the field after first harvesting period i.e. 45 days and total period of crop is 100 - 110 days. The District Committee`s report is also not as per guidelines given in the Government Circular as it has arrived at vague conclusion of 90% plants were sterile and 30% were affected by "Haladya", total of which exceeds 100%. Learned counsel Shri.Kachhawa also contended that complainants have wrongly presumed the expected yield at 200 quintal per acre which is in fact " per hector". He however averred that compensation towards loss of yield as worked out by District Forum is vague and arbitrary without having any base. Hence he finally contended that complainants have not proved any deficiency or unfair trade practice against the appellant. Therefore the impugned judgment and order as passed by District Forum below be quashed and set aside. In support of his abovesaid contention the learned counsel for the appellant relied upon the following citations.
i) 'Maharashtra Hybrid Seeds Company Ltd. - V/s-
Mahboob Baig' decided by Hon`ble National Commission in F.A.No.477/1995 on 3.4.2003.
ii) Indo-American Hybrid Seeds & Anr. -Vs- Vijaykumar Shankarrao & Anr., II(2007) CPJ 148(NC),
iii) Sonekaran Gladioli Growers -Vs- Babu Ram, II(2005) CPJ 94(NC), 7 F.A.No.:895/2007
iv) Maharashtra Hybrid Seeds Co.Ltd. -Vs- Gowri Peddanna & Ors, I(2007) CPJ 266(NC),
v) Hindustan Insecticides Ltd. -Vs- Kopolu Sambasiva Rao & Ors., IV(2005) CPJ 47(NC),
vi) Haryana Seeds Development Corpn. Ltd. -Vs- Sadhu & Anr., II(2005) CPJ 13(NC),
vii) Khamgaon Taluka Bagayatdar Shetkari and Fale(Fruits) Vikri Sahakari Sanstha Khamgaon, III(2006) CPJ 269,
viii) Judgment and order passed by this Bench in F.A.No.1932/1999 in case Maharashtra Hybrid Seeds Co.Ltd.(MAHYCO) -Vs- Laxman Wagh decided on 02.07.2007.
ix) Mahyco Seeds Ltd. -Vs- G.Venkata Subha Reddy & Ors., III(2011) CPJ 99(NC)
x) Gujrat State Co.Op.Mktg. Fed.Ltd. -Vs- Ghanshyambhai Fulabhai Patel, III(2011) CPJ 433(NC).
xi) Jain Irrigation System Ltd. -Vs- M.B.Mali Patil & Anr., III(2011) CPJ 210(NC),
xii) Mahyco Seeds Ltd. -Vs- Kallappa & Ors, decided by National Commission in Revision petition No.88/2006.
7. On the other hand, learned counsel Shri.Deshpande for the respondent No.1 submitted that complainant No.2 is the father of complainant No.1 hence even though the bills of seeds are in the name of complainant No.1, as a beneficiary complainant No.2 is also a consumer of appellant as well as of the dealer and that he is also authorised to file complaint. As regards per acre seeds to be sown, he submitted that although 5 Kg of seeds sown in 3.20 acres, loss as per District Committee`s report 90% plants were found sterile and 30% affected by Mosaic disease, it does not affect the expected loss of yield as claimed by the complainant. Learned counsel further contended that crop of Bhendi is taken in summer season. Hence point of 8 F.A.No.:895/2007 temperature is not material and even it is presumed that it affects the fruit bearing, the existing temperature was not more than 35 degree as contended by the appellant seed company. That, the crop of the Bhendi as taken cannot be treated as for commercial purpose as it was grown to earn for livelihood of family of complainant by way of self-employment. He further contended that as per District Seed Committee`s report 90% of the plants of Bhendi did not bear fruits as they found to be sterile and 30% out of 90% plants were affected by said disease. He also submitted that although some balance seeds(not 250 gms) were sent for lab test through Agriculture Officer but no report was received. Therefore complainants cannot be held responsible. He finally contended that as per District Committee`s report it is crystal clear that 90% of the plants were sterile. Therefore complainant could get yield of only about Rs.15,000/- and had to bear the considerable loss. He draw our attention to the calculation of loss of yield as worked out by the complainant at 350 quintals and by taking rate of 100 quintals per acre and price at Rs.2000/- per quintals at Rs.7 lakhs. He further requested to dismiss the appeal and confirm the order passed by Dist.Forum. To substantiate his abovesaid contention the learned counsel for the complainants relied on the following judgments and orders.
i) Maharashtra Hybrid Seeds Co.Ltd. -Vs- Dyanadev Kerba Khadke & Ors, IV(2003) CPJ 461,
ii) National Seeds Corporation Ltd. -Vs- Nemmipati Nagi Reddy I(2003) CPJ 241(NC),
iii) A.P.State Seeds Development Corp.Ltd. -Vs- D.Prakash Rai, IV(2003) CPJ 183,
iv) National Seeds Corporation -Vs- Ram Kumar, I(2005) CPJ 414,
v) National Seeds Corp.Ltd. -Vs- Mr.Madhusudan Reddy, CPJ 122(NC), 9 F.A.No.:895/2007
vi) Maharashtra Hybrid Seed Co.Ltd. -Vs- Gowri Peddanna, III(2003) CPJ 151,
vii) M/s Sakthi Engineering Works & Others -Vs- M/s Shri Krishna Coir Rope Industries,(NC)
viii) Ajeet Seeds Ltd. -Vs- Trimbak Bala Saheb,
ix) New India Assurance Co.Ltd. -Vs- Patel Kanjibhai & Atmaram, III(2001) CPJ 21(NC).
8. We have carefully gone through record before us as well as have given anxious thoughts to the oral submissions as put forth by learned counsels for both the parties. We have 4 major points before us for our consideration and decision.
i) Whether complainants are consumers?
ii) Whether complainants have proved that appellant and
dealer have committed deficiency in service and whether they have indulged in unfair trade practice?
iii) Whether the amount of compensation awarded by Dist.Forum is proper?
iv) Whether both appellant as well as dealer are liable to pay compensation as held by Dist.Forum?
9. As regards point No.1, appellant has challenged the complaint on the ground that receipt of seeds purchased is in the name of complainant No.1 and hence complainant No.2 has no locus-standi to file complaint and subsequently seeds purchased are of commercial purpose and hence they are not consumer. Both these contentions are not acceptable. Complainant No.1 & 2 as mentioned are son and father and hence complainant No.2 in the capacity of beneficiary is 'consumers'. Secondly, seeds purchased cannot be said as commercial because as per explanation given U/s 2(d)(ii) if the goods are purchased for earning livelihood by means of self-employment, it 10 F.A.No.:895/2007 cannot be treated as commercial purpose. In the instant case, it is not proved by appellant that complainants have not cultivated the said Bhendi crops by self-employment. Hence, both the complainants are consumers as held by the Dist.Forum
10. (i) As regards second point we have to see documentary evidence on record on the basis of which Dist.Forum has held both the appellant as well as dealer to have committed deficiency in service. The only evidence in this regard is District Seeds Committee`s report. The said report concluded that 90% of the plants were found to be sterile, 30% plants were affected by disease "Haldya". This report has however not clarified that the sterility of the plants was only due to defective seeds. As per brochure placed on record it is seen that the soil required for the Bhendi-10 variety is "fairly light" and "well drained". But as stated in the complaint the soil of the land is black soil. It is further observed from the said brochure that the plants which were affected by disease of "Yellow Vein Mosaic" were required to be removed so as to protect other plants from the said disease. However it is clear from the District Seeds Committee`s report that the plants which were affected by the said disease were not removed but found in existing condition at the time of Committee`s inspection.
(ii) Now as regards said District Commttee`s report the same appears to have not been made as per guidelines given by Government vide circular dated 27.3.1992 which is produced on record by appellant. As per point No.8( c) of the said circular the conclusion of the Committee as regards to the defectiveness of the seeds should be self explanatory without any ambiguity. However in the present case as contended by learned counsel the Committee`s report as to the defectiveness of the seeds is not clear. The Hon`ble National Commission has also held the same view in citation Nos.2, 3 & 7 as 11 F.A.No.:895/2007 relied on by learned counsel of the appellant that the Committee`s report has not given clear finding in respect of defectiveness of the seeds. It is also worth to be noted that when the complainants had noticed that there was no proper fruit bearing to the plants they should have firstly approached to the dealer and also to the appellant seed company. But complainants have directly filed complaint to the Dist.Forum that too after period of 3 months i.e. 90 days. Actual total period of this crop is only 100 -110 days. If the complainants had brought the fact of non-flowering of plants to the notice of appellant seed company and dealer, appellant company could have suggested certain way out in that regard. In view of these observations that sterility of the plants can not be attributed only to the defectiveness of the seeds but other factors also. However since the defectiveness of the seeds is one of the factors for the failure of crop of Bhendi the deficiency in service and unfair trade practice is proved partially against the appellant seed company only.
11. We now consider whether "dealer" can be held liable. From the complaint it is clear that complainant had purchased seeds in the form of sealed packet and hence dealer has directly sold these packet manufactured by appellant seed company. Therefore he cannot be held liable but only the appellant seed company.
12. As regards point No. (iv) it is observed that Dist.Forum while granting compensation of Rs.5 lakhs has not given any proper reasoning. The amount of compensation is awarded just arbitrarily and without any basis. Complainants have claimed loss of yield at 600 quintals and considering market rate of Rs.2000/- per quintal have claimed financial loss of Rs.12 lakhs(600X2000). In fact learned counsel for the appellant submitted that yield of 200 quintal is for 1 hector and not per acre. Learned counsel Adv.Deshpande has 12 F.A.No.:895/2007 considered 100 quintals per acre. However considering expected yield @200 quintals per hector, the per acre yield works out only 80 quintals. This yield of 80 quintals per acre can be expected only in the ideal situation as given in the brochure by appellant seed company. However as against norms of sowing 3 Kg per acre, the complainants have sown 5 Kg of seeds in 3.20 acres. Hence we are of view to work out the expected yield on the basis of quantity of seeds sown. If 3 Kg are sown in 1 acre the expected yield is 80 quintals. This can be put in other way i.e. 3 Kg of seeds can give the yield of 80 Kg. Complainant No.1 & 2 have sown 5 Kg of seeds. Therefore the expected yield would be 135 quintals. This yield is expected when all the guidelines given by the seed company have followed. However in the instant case kind of soil, where seeds were sown is black and not as expected. Secondly the crop is taken in pick summary season and therefore as per the guidelines given in the brochure the spraying of Acaricides was necessary as per "note" given below in the brochure which does not appear to have been done. The next important aspect is that 30% of plants which were affected by "Haladya" disease were not removed. Therefore we cannot expect normal yield of 135 per quintal and have to allow deduction at 30% of disease affected plants and 10% for the factors of black soil and lack of spraying Acaricides i.e. total 40%. Hence by deducting 40% of 135 quintals i.e. 54 quintals, the expected loss of yield is worked out to 81 quintals say 80 quintals(135-54). The loss of yield in terms of money @ Rs.2000/- per quintal as considered by complainant works out to Rs.1,60,000/- (80X2000). From this expected loss we have to deduct income of Rs.15,095/- which is already received by the complainants. Hence net loss of income works out to Rs.1,44,995/- say Rs.1,45,000/- ( 1,60,000-15,095) for which complainants are liable to receive the compensation towards loss of yield. Dist.Forum vide Clause No.3 of the operative order has directed to pay interest @ 18% on the amount of compensation if not paid within 30 days which appears to be on higher side and hence unreasonable.
13 F.A.No.:895/200713. Considering the aforesaid facts and observations we have therefore to modify the impugned judgment and order by partly allowing the appeal. Hence the following order.
O R D E R 1. Appeal is partly allowed.
2. Appellant seed company is directed to pay Rs.1,45,000/- instead of Rs.5 lakhs to the complainant as compensation towards loss of yield within a period of 30 days. Failing which, said amount shall carry interest @ 9% p.a. instead of 18% till realisation of the entire amount.
3. No order as to cost.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, B.A.Shaikh Member Presiding Judicial Member Mane