State Consumer Disputes Redressal Commission
Mahyco Seeds Ltd.,Resham Bhavan,78, ... vs Shri.Babasaheb Asaram Shejul, on 16 August, 2012
1 F.A.No.:607-2007
Date of filing :07.07.2007
Date of order :16.08.2012
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :607 OF 2007
IN COMPLAINT CASE NO.: 458 OF 2006
DISTRICT CONSUMER FORUM : AURANGABAD.
Mahyco Seeds Ltd.,
Resham Bhavan,
78, Veer Nariman Road,
Mumbai - 20. ...APPELLANT
(Org.Opponent No.2)
VERSUS
1. Shri.Babasaheb Asaram Shejul,
R/o Lasurgaon, Tq.Vaijapur,
Dist. Aurangabad.
2. M/s Yogesh Krishi Seva Kendra,
Prop.Sudhakar Shekuji Rahat,
R/o Lasurgaon, TQ.Vaijapur,
Dist.Aurangabad. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-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.S.G.Chavan for respondent No.1, None for respondent No.2.
O R A L O R D E R Per Mr.K.B.Gawali, Hon`ble Member.
1. Present appeal is preferred by appellant Mahyco Seeds Ltd. which was original opponent No.2 against the judgment and order dated 24.5.2007 passed by Dist.Forum Aurangabad in 2 F.A.No.:607-2007 C.C.NO.458/2005 directing appellant seed company to pay compensation of Rs.25,000/- to respondent No.1/original complainant. Present respondent No.2 is original opponent No.1 and is dealer of appellant seed company.
2. The background of this appeal is briefed as under.
That, present respondent No.1/original complainant No.1 namely Shri.Babasaheb S/o Asaram Shejul and the original complainant No.2 namely Jankabai W/o Asaram Shejul are the son and mother by relation. It was submitted that both the complainants are farmers having agriculture land admeasuring 1 hector 32 R(as per 7/12 extract 2 Hector 32R) from Gut No.108 of village Lasur, Tq.Vaijapur, Dist.Aurangabad. It was contended that although in 7/12 record the different area is shown in the name of both these complainants, the actual cultivation of both the land was being done by complainant No.1. It was further contended that respondent No.1 i.e original complainant had purchased from respondent No.2 one packet of cotton seeds of the variety " Bambino Mahyco Seed BG-II"
having Lot No.MRC-7626(as per bill 7326) and it was sown in their above said land admeasuring 2 acres out of total land. Thereafter he took proper care and tilling of the crop and also by applying fertilizers as well as pesticides for which he spent Rs.10,000/-. It was contended that in the first week of August 2006 all of sudden the plants of cotton started fading away. Therefore he made complaint to the Block Development Officer on 14.8.2006 with copies thereof to various Revenue and Z.P. officers. Accordingly on 20.8.2006 Seed Inspector from Panchayat Samiti Vaijapur visited the field and submitted primary enquiry report. Thereafter District Seeds Committee visited the field on 24.8.2006 and prepared panchanama. As per the said report about 50% of plants were affected and therefore roots were being rotten due to bogus and adulterated seeds which were purchased from respondent No.2 as produced by appellant seed 3 F.A.No.:607-2007 company. However on the basis of said report when compensation was claimed from the appellant company it was neglected. Therefore a legal notice dated 11.09.2006 was given to respondent No.2 i.e. dealer as well as to the appellant seed company. Both the respondents and appellant seed company replied to the notice denying claim of complainant. He therefore again made complaint to the Taluka Krishi Adhikari , Panchayat Samiti and therefore District Seed committee again visited the field as on 4.10.2006 and prepared report in which it was clearly reported that seeds purchased from appellant seed company at 25.8% had adulterated. It was further contended by way of affidavit dated 26.3.2007 that due to the bogus/adulterated seeds he could receive only 9 quintals of cotton against expected yield of 33 quintals i.e. 17 quintals per acre. He claimed financial loss @ Rs.2500/- per quintal for the remaining 24 quintals of the expected yield at Rs.57,600/-(Calculation comes to Rs.60,000/-) and Rs.10,000/- towards expenditure incurred on fertilizer, pesticides etc and thus claimed loss of Rs.70,000/-.
3. The complainant with the above said allegations against appellant seed company filed complaint before the Dist.Forum seeking direction against the appellant seed company and also the dealer to pay him Rs.70,000/- along with interest @ 12% p.a. from the date of filing of complaint till realisation of the entire amount.
4. Respondent No.1 i.e. dealer appeared before the Forum and denied the claim. He submitted that seeds sold to the complainants were in a packed condition. They were produced by appellant seed company and hence he was not responsible for the claim made by complainant. He had therefore requested to dismiss the complaint against him.
5. Respondent No.2 also appeared before the Forum and resisted the claim. It was contended that seeds were purchased for commercial 4 F.A.No.:607-2007 purpose and hence he is not consumer as per definition given under Section 2(1)(d) of 'Consumer Protection Act'. It was also contended that complainant No.2 in the original complaint namely Smt.Janakabai Shejul was not a consumer since the seeds purchased were by complainant No.1 namely Babasaheb Shejul. It was also averred that the seeds purchased were only 450 gms which are required for half acre of the land. However complainant i.e. respondent No.1 had claimed to have sown the seeds in 2 acres of land. Therefore he cannot expect the yield for 2 acres of land. As regards the Dist.Seeds Committee`s report it was contended that no particular was given by Seed Inspector on 20.8.2006 to remain present. It reveals from Seed Inspector`s report that germination and growth of plants are good. However 50% of the plants were dried. But again started emergence of new flash and which clearly showed that there was no defect in the seeds. It was further contended that as per report of Dist.Seed committee dated 24.8.2006 it was observed that crop was affected by "MULKUJ MACROFOMINA FUNGUS DISEASE"
However District Committee again on 4.10.2006 submitted it`s another report showing adulteration in the seeds. Therefore report dated 4.10.2006 was not valid. It was specifically pointed out by the appellant seed company that complainant had not taken steps for testing the seeds purchased by him from Government Laboratory as per Section 13(1)(C) of 'Consumer Protection Act' and therefore claim made by respondent No.1 in his complaint was being false and baseless, same was required to be dismissed.
6. District Forum after going through the papers and hearing the parties has held appellant seed company is liable due to adulteration of seeds and awarded compensation as mentioned above.
7. Aggrieved by the said judgment and order appellant Seed Company filed the present appeal in this Commission.
5 F.A.No.:607-20078. Notice was served on the respondent. The case was posted for final hearing on 24.7.2012. Adv.Shri.K.B.Kachhawa was present for appellant whereas Adv.Shri.S.G.Chavan was present for respondent No.1. None was present for respondent No.2. We heard both the counsels at length and appeal was closed for orders.
9. Learned counsel Shri.Kachhawa for the appellant submitted that complainant has purchased 450 gms of cotton seeds on 15.6.2006 which was sown only for half acre of land. However he had claimed to have sown in two acres of land. Hence he contended that complainant cannot claim the yield for two acres of land. He further contended that complainant has already received 9 quintals of yield as admitted by him in his affidavit. He also pointed out that complainant has given different areas to have been under cotton crop in his complaint. He has mentioned the area as two acres whereas by Seed Inspector in his report dated 20.8.2006 mentioned as 1 hector under "Bambino Mahyco Seed BG-II" seed and in 1 hector another Banni 145 VT seed. It was specifically contended that after inspection report dated 24.8.2006 by District Seed Committee complainant had gone on hunger strike before the office of Sub-Divisional Officer and therefore again District Committee visited the field on 4.10.2012 and concluded that seeds purchased from appellant seed company were adulterated by 25.8%. He submitted that in it`s earlier report the Committee had not mentioned about adulteration. However in the later report i.e. 4.10.2006 observation regarding adulteration were made and hence the same cannot be taken into consideration. He also submitted that appellant seed company had tested the seeds before they were marketed on 23.5.2006. Those reports are on record. As per the said report the seeds from the same lot had genetic purity of 98.96% and germination at 91%. Therefore there was no adulteration in the seeds. He therefore contended that Dist.Forum neglecting written version filed by appellant seed company and passed the impugned judgment and order and directed to pay amount of Rs.25,000/- to the 6 F.A.No.:607-2007 complainant without any basis. Hence he requested to quash and set aside the said judgment and order by allowing appeal. In support of above said contention he relied on the following judgment and order.
i) Haryana Seeds Development Co.op.Ltd. -Vs- Sadhu & Anr., II(2005) CPJ 13(SC),
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),
iv) Khamgaon Taluka Bagayatdar Shetkari and Fale(Fruits) Vikri Sahakari Sanstha Khamgaon -Vs- Babu Kutti Daniel, III(2006) CPJ 269,
v) Maharashtra Hybrid Seed Co.Ltd., -Vs- Shri.Maruti Pandurang Jadhav, decided by State Commission, Mumbai in F.A. No.1641/1998 on 18.12.2006.
vi) Mahyco Seeds Ltd. -Vs- C.Venkata Subha Reddy & Ors., III(2011) CPJ 99(NC),
10. We have carefully gone through the papers before us and as well as gave our anxious thoughts to the arguments advanced by both the parties. Complaint filed before Dist.Forum appears to be only in respect of cotton seeds of the variety of "Bambino Mahyco Seed BG-II"
from Lot No.MRC 7326, quantity of which as purchased by original complainant No.1 i.e. present respondent No.1 is 450 gms from respondent No.2 as manufactured by appellant seed company. However in the application dated 14.8.2006 filed before Block Development Officer, Panchayat Samiti, Vaijapur, complainant NO.1 had also made complaint about other variety of the seed i.e. NCS-145 VT of Nuziveedu company. Therefore the report of Seed Inspector and also District Seed Grievance Committee consist of observations of both varieties of the seeds. But consumer complaint is only in respect of "Bambino Mahyco Seed BG-II" variety of seed. We have therefore the 7 F.A.No.:607-2007 major point for our consideration is whether there is deficiency in service or unfair trade practice on the part of appellant seed company. On the basis of complaint filed by respondent No.1 to BDO Panchayat Samiti, Vaijapur there are 3 reports regarding inspection of said crop. First report dated 20.8.2006 made by Seed Inspector, Panchayat Samiti, Vaijapur in which it is mentioned that area sown under disputed variety of seeds i.e. "Bambino Mahyco Seed BG-II" is one hector and observation regarding condition of crop is given as 50% of plant in good condition and rest of 50% has affected. Their roots were found rotten. Second report is dated 24.8.2006 made by "District Seeds Dispute Grievance Committee" in which it is observed that cotton crop found affected by disease " MULKUJ MACROFOMINA FUNGUS DISEASE" and was suggested to apply 3 gm of Copper Oxychloride in per litre of water. The 3 rd report is dated 4.10.2006 made by said committee as complainant has objected second report. In this report observations and conclusion of District Committee is that the variety of "Bambino Mahyco Seed BG-II" seeds had 25.8% adulteration of other variety of cotton seeds.
11. Contention of appellant seed company that there is no lab testing report of seeds as per Section 13(1)( C) of 'Consumer Protection Act' which was responsibility of complainant to supply seeds for testing. However the ratio given by Hon`ble National Commission in "South Eastern Seeds Corporation -Vs- R.Shekhar Shridhar' reported in I(2008) CPJ 158(NC) that " farmers cannot be expected to retain any part of seeds of high value seeds to get it tested in case of in unforeseen and that the seeds purchaser has some of quantity of seed left which they could have got tested seed company`s failure to perform, is to be held against them". Thus in view of ratio in this case appellant seed company`s above said contention is not acceptable. Another contention of appellant is that the seeds were purchased for commercial purpose and hence not consumer, cannot also be accepted because as per complaint the said crop is cultivated through 8 F.A.No.:607-2007 self-employment and area of said crop is also limited i.e. only 2 acres. Therefore purpose of taking said crop can be treated as for earning his family livelihood. As per District Seed Committee`s report dated 4.10.2006 it is observed that complaint pertains to "Bambino Mahyco Seed BG-II" variety had adulterated of 25.8%. Hence it`s finding have to be taken into consideration. The citations as relied on by the learned counsel of the appellant do not support his case as the circumstances prevailing in those cases differ from the existing case. We therefore hold that by selling such adulterated seeds appellant company has committed deficiency in service as well as unfair trade practice.
12. Now as regards quantum of compensation as awarded @ Rs.25,000/- by Dist.Forum the appellant has contended that same is awarded on advoc basis without any proper reasoning. It is also the contention of appellant that seeds purchased by respondent No.1/org.complainant No.1 is only 450 gms which is sufficient for half acre of land. Complainant has claimed to have sown the said seed in 2 acres. Hence it cannot expect the yield of 2 acres. Complainant in his affidavit dated 26.3.2007 has admitted to have received yield of 9 quintals as against 32 quintals i.e. 17 quintals per acre. He has thus submitted that there was loss of 24 quintals(33.9) of expected yield and financial loss at Rs.2500/- per quintal was Rs.57,500/- which actual comes to Rs.60,000/- and adding Rs.10,000/- towards expenditure he has claimed compensation of Rs.70,000/-.
13. It is however revealed from the report dated 24.8.2006 of District Seed Company that the crop was affected by " MULKUJ MACROFOMINA FUNGUS DISEASE". Even the complainant in his complaint has claimed 50% of plant were affected as they were getting fade away and the roots were found rotten. Seed Inspector has also given percentage @ 50% affected plants. Hence the entire expected loss of Rs.60,000/- cannot be attributed to the adulteration 9 F.A.No.:607-2007 in the seeds which is found at 25.8%. The 50% of loss can be attributed to the said fungus disease due to adulteration as concluded by District Seed Committee. The loss is only of getting less market rate. We therefore find that expected financial loss to the complainant could be only in proportionate of adulteration. As mentioned above financial loss as claimed by complainant towards loss of yield Rs.60,000/- hence the loss due to adulteration can be 25.8% of Rs.60,000/- which worked out to Rs.15,480/- say Rs.15,000/- for which complainant can be entitled.
14. Dist.Forum as contended by appellant has awarded compensation of Rs.25,000/- arbitrarily without giving any base. It is also to be noted that percentage of adulteration as pointed out by Dist.Forum in the impugned judgment and order at 3.33% & 6% does not at all pertain to the case of present complainant`s crop but to his neighbouring farmer`s crop. Hence the impugned judgment and order of the Dist.Forum needs to be modified to the extent of amount as mentioned above. We therefore passed the following order.
O R D E R 1. Appeal is partly allowed.
2. Appellant seed company is directed to pay to the complainant compensation of Rs.15,000/- instead of Rs.25,000/- within a period of six weeks from the knowledge of this order.
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