State Consumer Disputes Redressal Commission
Nareshbhai K Panchasar vs Shri Ram Bioseed Jentics (E) Ltd on 6 August, 2021
Details DD MM YY
Date of Judgment 06 08 2021
Date of filling 24 04 2014
Duration 13 03 07
IN THE CONSUMER DISPUTES REDRESSAL
COMMISSION, GUJARAT STATE AT AHMEDABAD.
Court-2
APPEAL NO. 775 of 2014
Nareshbhai Kalubhai Panchasara.
Changvada,
Ta:Vadgam,
Dist:Banaskantha ...Appellant
Vs.
1. Shri Ram Bioseeds Genetics India Limited
JubliHill, Road No.14, Haydarabad
2. Proprietor of Ratna Agro Industries
Mr. B.K.Patel
Rashana Nana, Disa-Palanpur,
National Highway No.14
Ta:Disa,Dist:Banaskantha.
3. Proprietor of Darshan Agro/
Partner, Agent of Ratna Agro
Shri Nareshbhai Ganeshbhai Gami,
Agent of Ratna Agro Industries
Rasana Nana,Disa-Palanpur
National Highway No.14
Ta:Disa,Dist:Banaskantha. ...Respondents
Appearance: Mr.K.R.Saksena
Ld. Advocate for the Appellant
Mr.Anil I. Surti
Ld. Advocate for the Respondent
Coram : Shri M.J.Mehta Judicial Member
Order by Shri M.J.Mehta, Judicial Member
1. Being aggrieved and dissatisfied with the judgment and order dated 26.03.2014 passed by the Learned District Forum, Palanpur in Complaint No. 100 of 2013.
B.H.Gadhavi A-14-775 Page 1 of 312. The appellant has preferred instant appeal on the grounds that the impugned order is arbitrary, perverse and is bad in law.
3. The brief facts of the case are as under: the complainant is a farmer and he was purchasing seeds, farming equipment's etc. from the respondents.
4. Respondent No. 1 is a Private Limited Company and doing the business of seed and conduct the program for the farmers, under that program the seeds was particularly K-2875 and the program was carried out by the dealer of the company and payment were made under the agreement.
5. Respondent No.2 dealer of Respondent No.1 Shriram Biotics Genetics India Limited the respondent No.3 gave information about the program to the respondent No.2.
6. According to the complainant case respondent No.3 has informed about respondent No.1 seeds K-2875 is to be purchased and reproduced and deposit with the company
7. According to that condition two samples were collected one is to kept with the complainant and second sample the dealer himself send to the respondent No.1, further the seeds in question to be tested and if the test report is 70% germination than company will buy fixed the rate of the seeds is Rs.430/- per Kg for cotton seeds B.H.Gadhavi A-14-775 Page 2 of 31 and the remaining cotton fibers will be purchased at the rate of Rs.140/-
8. According to this complainant has taken part and purchased the cotton seeds K-2875 of respondent No.1 company from the respondent No.3 and that's why complainant become the consumer and after reproducing the said seeds on 31.01.2012 stock of the product deposited with the respondent No.3 who is agent of Respondent No.2, the receipt was given accordingly and it was Weighted 1319.500 Kg. and after the deduction the Weight was 804.450 Kg. calculated.
9. Ultimately sample were not pass up to 70% germination that's why the as per the agreement decided price will not be paid instead of that Rs.300/- are taken the price and Rs. 2,41,335/- paid to the complainant by respondent.
10. According to the complainant case Rs. 1,04,578.50(one lakh four thousand five hundred seventy eight rupees and fifty paisa)/- are less paid by the respondent for the cotton seeds and Rs. 21,901.40(twenty one thousand nine hundred one rupees and forty paisa )/- are less paid for the cotton fiber.
11. Complainant has filed the said complaint that Rs. 1,26,479.90(one lakh twentysix thousand four seventynine rupees ninety paisa)/- is less paid which is required to be recovered from the respondents with interest.
B.H.Gadhavi A-14-775 Page 3 of 3112. On the other-hand respondent case are as under, the case is not covered within the purview of the Consumer Protection Act 1986, as there is no Privity of Contract that the consumer directly has no contact with the respondent company.
13. It is case that the questioned cotton seeds are purchased only with the tested quality up to the 70% germination respondent no.1 company has not any direct contact with the complainant that's why consumer court is not empower to conduct the matter.
14. It is the case of the respondent No.1 that out of reproduced cotton seeds complainant is provided with two samples form the respondent and if the analysis report is not satisfactory than complainant may go for further analysis of the sample with the seeds kept with the complainant the said process were has carried out by the complainant. The very sample were tested as requested from the complainant and even though it was not found standard of the quality.
15. Thereby the payment was made to the complainant by the company accordingly result of the questioned cotton standard, payment are made and whichever is according to the standard so part payment is made out to the complainant and remaining amount of the sub-substandard quality were not paid up to the complainant.
16. It is a case respondent that the question sample were send for germination retest and the B.H.Gadhavi A-14-775 Page 4 of 31 report sub-standard i.e. 56% and 42% are came out ant that's why the final result is stand fail, and therefore whichever the amount is paid to the complainant is according to retest the less amount are paid.
17. Therefore, here in the appeal main question is required to be dealt with that whether the complainant come within the purview of the consumer or not? The second thing is that the questioned sample of cotton seeds were reported sub-standard i.e fail is it properly analysis and supported sufficient evidence by the respondent?
18. Further it is also question to dealt with that complainant has prayed for difference of amount of the payment made by the respondent No.1 has come within the purview of the consumer protection act remedies or not?
19. Learned advocate for the appellant Mr. Saxsena has submitted before me that the article in question the scope of the seeds are analysis only reported by way of statement i.e. fail at page No.72 and chronological item No.8 and 9 in last shows result fail.
20. Learned advocate for the appellant Saxena submitted that company has get the questioned cotton seeds tested and it is sub-standard and not up to the 70% germination find out and for that purpose nothing to show on documentary proof that where the cotton seeds in question B.H.Gadhavi A-14-775 Page 5 of 31 were tested? Which was the procedure adopted by the laboratory? and which laboratory has tested ? is not brought on record or documentary proof produced on behalf of the respondent side and that is why the result narrated by the respondent that it is sub-standard not up to the 70% germination questioned seeds cannot be taken as a conclusive proof.
21. Moreover, the learned advocate for the appellant Mr. saxena has submitted before me that the affidavit filed by the respondent is at page no 47,49 and 51 where the lab testing is carried out is not established on record than the affidavit for the same cannot be looked into.
22. Further, learned advocate for the appellant submitted before me that lab authority must have to examine before the forum or opportunity in cross examination given to the complainant for the concern of the lab testing of the cotton seeds.
23. Further learned advocate for the appellant Mr. Saxena has submitted before me that part payment made by the company and but company is liable for full payment and therefore the full payment is required to be paid up to the complainant and so complaint is tenable in eye of law.
24. Further here in the case learned advocate for the appellant Mr. Saxena submitted before me that as per the facts of the case the results B.H.Gadhavi A-14-775 Page 6 of 31 are only shown on record by way of E-mail only and E-mail cannot be conclusively accepted as evidence because there is to show that from which source the result are shown in the E-mail but it should be supported by conclusive evidence and thereby simple E-mail to show the result of the questioned seeds sub-standard cannot be looked into.
25. On the other hand, learned Advocate for the respondent Mr. Mihir Surti has submitted that the complaint is not tenable under the consumer protection act because of the case of the complainant as prayed for recovery of differed amount of questioned cotton seeds price.
26. learned Advocate for the respondent Mr. Surti further add in his submission that the questioned production were produced by the respondent No.1 company respondent No.2 is a dealer and respondent No.3 is the agent of respondent No.2 and that's why respondent No.1 and complainant have not any direct relation to the consumer and thereby complainant is not entitled to any relief from the respondent No.1 under this complaint.
27. Further learned Advocate Mr. Mihir surti submitted before me that the questioned article of cotton seeds was sub-standard on laboratory test and it is produced on record with e-mail the very e-mail is produced by the complainant than it is admitted evidence that questioned B.H.Gadhavi A-14-775 Page 7 of 31 documents is to be accepted and read in the complaint for the decision of the complaint.
28. Here it is very well established the question sample of the cotton seeds were sub- standard. i.e. 56% and 42% only, it should be 70% germination, thereby the less payment made by respondent No.3 to the complainant.
29. If the complainant is not satisfied with the testing report about the cotton seed in question was sub-standard in that case the complainant is having one sample with his possession. According to rules and regulation if he is not agreed and not satisfied with the company obtain test report that is sub-standard than second sample is to be send by the complainant to his own choice laboratory for the testing. And which- ever the result came out can be looked into at the time of assessing the payment to the complainant.
30. Here complainant fails to comply with the provision of legal aspect than he has no right to raise any question about the sub-standard came out and result of the analysis carried out by the company.
31. Moreover, the complainant has obtained the payment according to the standard of the questioned cotton seeds, and thereby there is nothing more payment can be done by the respondent No.2.
B.H.Gadhavi A-14-775 Page 8 of 3132. Moreover, learned Advocate for the respondent Mr. Mihir Surati has drawn my attention to page No.21 and 22 which are the documents to established that question seeds were sub-standard and the very document are produced by the complainant himself and that is why it should be accepted as earlier submitted by learned advocate for the respondent.
33. learned advocate for the respondent Mr.Mihir Surti has submitted before me that the questioned seed were re-analyses on request of the complainant however it was found out sub- standard only and that facts were submitted through affidavit by the respondent side and same facts were not challenged by the complainant than, at this juncture it is not permissible to raise the issue regarding the question seed were found out the sub-standard.
34. learned advocate for the respondent Mr. Mihir Surti has submitted before me that complaint itself is not maintainable because complainant has submitted the rate of the cotton seeds from which source they came to conclusion that it was a rate of cotton seeds was Rs.430/- for the cotton seed and Rs. 130/-for cotton fiber.
35. Thereby adjudication of the rate cannot be within the purview of the consumer court, consumer court has to dealt with the issue regarding deficiency in service or any kind of negligence of the respondent, here the question B.H.Gadhavi A-14-775 Page 9 of 31 of assessment of loss cause to the complaint as alleged by the complainant, than complainant must have to go before the appropriate forum and consumer court is not having jurisdiction to dealt with the said issue ,ultimately by way of this complaint complainant came before the consumer court to adjudicate the issue of the lesser payment made by the respondent.
36. Considering both the side argument according to my view one question is very much clear that respondent has to produced documentary proof and about the assessment of the standard question seeds were sub-standard and found 56% and 42% germination only. that's why less payment made to the complainant accordingly, and that is why the question actually is to be dealt with is difference in payment according to the complainant case.
37. So far as jurisdiction is concern the learned advocate for the complainant Mr. Saxsena has submitted before me that the consumer court has a jurisdiction to entertain the complaint of the seed grower who came into agreement with respondent No.2 through respondent No.3 and thereby ultimate respondent No.1 is a company who deliver the seeds in question. and ultimately grown production of seeds would be purchased by the respondent No.1.
38. Thereby the complainant is having right to file the complaint against the respondent no. 2 and B.H.Gadhavi A-14-775 Page 10 of 31 3 as the transaction has come in existence in between Respondent no. 2 and 3.
39. Respondent No.1 ultimately producer of questioned article i.e. seeds which are going to reproduced by complainant and purchased by the respondent no.1 company
40. Company is dealt with about the quality of the seeds which is purchased from the complainant and through the laboratory test is resulted fail as per the case of the respondent No.1 company.
41. Thereby, the complainant become beneficiary status and have a cause of action if any grievances as discussed herein above arisen to the complainant as the questioned seeds are notified by the respondent No.1 that it is fail.
42. Therefore only in this question is having jurisdiction to entertain by the consumer court are decided by the Hon'ble Supreme court of India division bench in the case of "National Seeds Corporation Ltd. Vs. M Madhusudan Reddy And Another" reads as Under.
43. In the above cited case he decision was dated at 16.01.2012 Citation: 2012 Law Suit (SC) Page No.37 where in it is held that any attempt to exclude farmers from ambit of Consumer Act by implication will make that Act vulnerable to attack of unconstitutionality on ground of discrimination, thus, even if there is no provision in that act and Rules framed there under for compensating farmers and therefore B.H.Gadhavi A-14-775 Page 11 of 31 the complainant would certainly fall within ambit of Sec 2(d)(i) of Consumer Act no reason to deny remedies which are available to other consumer of goods and services- growers cannot be excluded from definition of term "consumer" merely on ground that foundation seeds were supplied to growers for commercial purpose and hence, growers either seed reference to arbitrator or file complaint under consumer Act.
44. Further Hon'ble supreme court has viewed that under the provision if any agreement of arbitration is there than even though there is a choice of complainant to go for arbitration or come before Consumer Forum and that's why Learned advocate for the complainant/appellant Mr. Saxsena has submitted before me that Consumer Forum is having jurisdiction to entertain the case of the complainant.
45. More over the argument for the consumer purpose cannot be stand because of complainant is small farmer by getting purchase the seeds and re-grows the seeds out of the purchased seeds from the respondent No.2 and 3. And it is agreement there that the grown seeds would be purchased by respondent No.1compnay through respondent No.2 and therefore such activities carried out by the complainant for his livelihood in small base it is not huge large plant to grow a seeds in question the small quantity are there. that's why stand B.H.Gadhavi A-14-775 Page 12 of 31 taken by the argument of the commercial purpose does not stand over here in the case.
46. According to my view and decision delivered by the supreme court that the remedy under the Consumer Protection Act as it is an additional remedy other than the special remedy is under any other law or rules.
47. Than complainant have choice to come before the Consumer Forum by way of additional remedy and it can be chosen by complainant itself there should not be barred to entertain the complaint here under the Consumer Protection Act, unless it is clearly barred by any other laws but here in this scenario there is no bar suggested in course of argument or proceedings.
48. Under such circumstances complaint entered in the agreement with the respondent No.2 through the respondent No.3 ultimately seeds grown by complainant/appellant on the pretext that same were not fit for certification as standard that is 70% germination should be there as per the laboratory test report.
49. Therefore I am of the opinion that the theme behind the consumer protection act to provide the protection for ethical conduct for those engaged in the production and distribution of goods and services to the consumer and just to assist the abusive business serving by all enterprisers and facilitate to the consumers to protect their lives. And thereby consumer have a right to be informed about the quality and B.H.Gadhavi A-14-775 Page 13 of 31 quantity etc. at the time or non-delivering of the amount of the agreement in question.
50. This point of view will be looked here after and therefore the complainant/appellant alleges the defect in the goods which cannot be determined without proper analysis of the test of the goods and thereby very well this important issue is involve in the present complaint and defects of the goods as alleged by the respondent company No.1 with the questioned seeds were not 70% germination but it was germinated 56% and 42%.
51. Here the question before me to dealt with that how the company came to conclusion that with the sub-standard of seeds, in which laboratory the test was carried out and it is not produced on record that's why adjudication of the issue is well within the purview of the Consumer Protection Act and it is no doubt the complainant is a consumer of the article i.e. seeds to grow and reproduce seed which were repurchased by respondent no.1 through respondent no.2 dealer and respondent no.3 agent.
52. Thereby it is well within Enlighted the Consumer Protection Act have a right to entertain such complaint. Therefore I am of the opinion that on the point jurisdiction of Consumer Forum should not be and would not be curtail unless there is a express provision prohibiting the Consumer Forum to make up the matter which force within the jurisdiction of the civil court or any other forum.
B.H.Gadhavi A-14-775 Page 14 of 3153. As established under some enactment the court has gone the extent to saying that if the two different forum have a jurisdiction to entertain the dispute in regard to saying that the same subject to jurisdiction of consumer forum would not be barred and same power as of Consumer Forum adjudicate upon the dispute would not be negated.
54. Further it should be noted it is not only purchase of goods or higher services but even those who use goods or who are the beneficiary of the services with approval, the persons who purchase the goods and thereby the law has taken precautions not only to define the consumer but matter even mention a detail what would be amount of unfair trade practice by giving elaborate definition, and also define defect and deficiency. And when defect and deficiency in service it either may removed and compensated for the said in convincing cost to the consumer, and commission is a competent to compensated by award of just equivalent of the value of damages or gross.
55. Thereby the farmer or growers who purchases the seeds by paying a price to the respondent they would certainly paying price to the company of respondent No.1 ,2 and 3 would certainly fall within the ambit of section 2(d)(i) of Consumer Protection Act there is no reason to deny that remedies which are available to the consumer's goods and services and benefits.
B.H.Gadhavi A-14-775 Page 15 of 3156. Therefore, it is view that, it is clear that the legislature intended to provide a remedy in addition to the consistent other remedies enforce under the act civil Action in a suit under the provision of the Code of Civil Procedure Code, thereby it is not creating any embargo of the exercise of the power by the judicial authority under the act, and it is a matter of desecration.
57. Here I would like to observe that complainant has purchased seeds from the respondents not for resale but it was a purpose of re-growing the seeds which is as per the agreement in the question with the respondent No.2 and 3 is not meaning of the expression of the commercial purpose itself.
58. It is clear that the respondent No.2 has given promise to purchase the regrown seeds form the complainant.
59. But here in the question in this case whether the questioned seeds were below standard or not? or how the company came to conclusion that questioned seeds were below standard is to be brought on record conclusively with reliable, acceptable, just and fair evidence and thereby the issue is to be dealt with.
60. I held that the complainant has produced disputed seeds with view to using such seeds for carrying on activity for his livelihood, hence complainant is entitled to have compensation as prayed for.
B.H.Gadhavi A-14-775 Page 16 of 3161. Therefore, it is held in the citation cited by the learned advocate for the complainant/appellant Mr. Saxena that the questioned seeds quality can be decided on testing. That if the seeds would be defective it would be called upon to prove the same through laboratory testing. therefore, I am of the opinion that the consumer court is empower to dealt with issue with reading the decision cited by the learned advocate for the appellant.
62. Against this Learned advocate for the respondent Mr. Surti has submitted before me that the complaint is not maintainable before the Consumer Trial Forum and thereby he relied upon the citation a judgement of revision petition No.2379/08 NCDRC, on dated 07.03.2008 wherein it is decided the issue of payment of cheque to the third party and it was handed over to the respondent and thereby complainant have not impleaded them as parties, that's why person cannot be consider as consumer that's why complaint should not be maintainable before the Consumer Forum.
63. The loss of money of the complainant which was passed on the petitioner through that the M/s. P.S. Enterprise in the facts of the case, wherein it is also held that it was nowhere established as to how the petitioners indulged any unfair trade practice or shown any clear terms that the said money was handed over for the starting of the commercial activity and hence the complainant does not fall within the definition of the consumer.
B.H.Gadhavi A-14-775 Page 17 of 3164. Moreover, learned advocate for the respondent Mr. Surti has relied upon the judgment delivered in Consumer Complaint 141/09 where in questioned transaction were held for commercial purpose and that's why complainant does not fall within the purview of the consumer under the Consumer Protection Act and thereby the complaint were not maintainable
65. Learned advocate for the respondent Mr. Surti has further relied upon judgement 2013(1) CPR page no.167(T.N.) decision delivered by Tamil Nadu state commission where in a matter of breach of contract not come within the purview of the consumer protection Act that's why complaint is not maintainable before the consumer forum.
66. Learned advocate for the respondent Mr. Surti has also relied upon the NCDRC judgement 2018 law suit (CO) at page no.1121 wherein it is held that the complainant was not consumer thereby the complaint would not be maintainable before the Consumer Forum and the grievances to the complainant being redressed by approaching Civil Court, looking to the facts and circumstances of the judgement delivered as cited by the learned advocate for the respondent is not relevant in this case before me.
B.H.Gadhavi A-14-775 Page 18 of 3167. As Learned Advocate for the Appellant Mr. Saxena cited judgement "National Seeds Corporation Ltd. Vs. M Madhusudan Reddy And Another" the dated at 16.01.2012 Citation:
2012 Law Suit (SC) Page No.37 of the supreme court here and above discussed at length and judgement of the supreme court prevail over the judgement of all authorities.
68. The above cited judgement by the Supreme Court is applicable in the present case Supreme Court has very well held that the seeds grower purchased seeds from the company and resale to the company. It is a transaction for the livelihood not for the commercial purpose for the complainant and that's why complainant become a consumer and consumer have a right and thereby the consumer forum have a jurisdiction to entertain the complaint and allegation made by the complainant in the complaint.
69. Further, I would like to come to conclusion that the Learned Trial Forum has not properly decided the case in the purview of the citation of the Supreme Court judgement as discussed here in above.
70. Moreover law of precedent is such that the higher forum judgement is prevail over to the lower forum decision, there by supreme court judgement is binding to all authority. And thereby it is applicable and binding to dealt with the issue before me that the complainant is a B.H.Gadhavi A-14-775 Page 19 of 31 consumer within the purview of the Consumer Protection Act provision under section 2(d)(i) in the definition moreover even though the complainant has a right to go before the civil court than the remedy under the Consumer Protection Act is additional remedy and complainant have a right to choose the forum where the case be adjudicated.
71. Thereby the prayer of the compensation of the differences of the payment by the respondent can be adjudicated and calculated by surrounding circumstances of the case and factual aspect of the case where in a difference of the payment can be dealt with and thereby the consumer protection act authority has a right to adjudicate the issue between the parties in the complaint.
72. Now second question raised by the learned advocate for the appellant Mr. Saxsena that the seeds of the complainant was fail in laboratory testing on that ground Learned Trial Forum has dismissed the complaint now on that point as per the record of the complaint that agreement of seeds on production was produced vide page 115 and the clause of the payment no.3 (a) it is clearly mention that (a)Final payment after adjusting the ad-hoc payment shall be made after within 90 days from the date of the delivery of the seeds at company's proceedings plant located at survey no. 65, Gundiya, Pochampally,Medchal Mandal, R.R. District B.H.Gadhavi A-14-775 Page 20 of 31 501401. such payment will be made by only respect of such quantity of seeds which pass the germination test as well as grow out the test as per the result page no.72 germination failed in the test and clause of the payment is amount of Rs.00(Zero) and mentioned but respondents paid Rs.2,41,335/- to the complainant and that fact has not denied by the complainant side once a part payment is already made up from the respondent to the complainant as regarded.
73. Further it is submitted before me that the respondent no.2 averred that "It is pertinent to mention at this stage that as seeds were not confirming to the standard prescribed under law, the complainant is not entitled to any payment so far as payment Rs. 2,41,335/- (Rupees Two Lac FortyOne Thousands Three Hundred Thirty Five)/- is concern same is being made respondent no.3 form his own pocket. Which Respondent no. 1 and 2 are list concern as per the result of the payment is Rs.00/- and it is further defense taken of the opponent that germination test of the seeds of the complainant was fail, if the test was failed than why respondent no.3 paid Rs. 2,41,335/- to the complainant. Hence defense of the respondent are not agreeable and maintainable under the law.
74. Further it is submitted by the learned advocate for the complainant Mr. Saxena that opponent produced result of the seeds production instead of the report of the germination test of the seeds B.H.Gadhavi A-14-775 Page 21 of 31 at page no. 72 and the support of said result they filed an affidavit of the Mr. Amrtbhai Ujabhai Gami and Rameshbhai Kanjibhai Gami, and Kantibhai Shankarbhai Patel three affidavit in support of result of the said project but all the three were not member of the lab testing team. Hence the affidavit of the said person is not maintainable in eye of law to support result of the seeds in question.
75. Further it is submitted before me that opponent never produced certificate of the lab testing report and subject to the seeds of the complainant and without considering the same Learned District Commission has dismissed the complaint and held that seeds of the complainant was failed in laboratory testing so the finding of judgement is not tenable in law.
76. Therefore considering this argument advance on behalf of the learned Advocate Mr. Saxena the question is mainly dealt with that how questioned seed sample is fail in laboratory test. Nowhere laboratory test report are produced on record by the respondent only at the page no.72 is mere statement wherein it is recognize as result shit where in the item no.8 and 9 disclosed result fail of the particular disputed seeds.
77. Respondent rely upon affidavit that is page no.47,49 and 51 they simply farmers they have nothing concern or role about the testing of the B.H.Gadhavi A-14-775 Page 22 of 31 seeds in question so according real requirement of the proof the relevant facts must prove by acceptable lawful evidence mere affidavit about anything cannot be accepted as evidence in absence of the lab testing report here in the case further a laboratory expert report is require to be examine, and thereby in absence of all this evidence learned trial forum has relied upon the result seeds at page no.72 only is not acceptable evidence.
78. On other hand learned advocate for the respondent Mr. Surthi has submitted before me that if the complainant are not satisfied with the result seed i.e. page no.72 than complainant was empower and entitled to re-examination of the sample which was in possession of the complainant himself and it may be send to the laboratory test for the finding of the truth about the standard of seeds.
79. The argument on behalf of the respondent side cannot be accepted first of all the burden of proof is on the respondent that the questioned seeds were found fail and for that the conclusive legal evidence is to be brought on record. The result seeds at page no.72 is not a conclusive evidence and there must be a corroborative evidence is required, and for the corroboration of the statement at page no.72 is to be corroborated by testing report of the laboratory.
80. Any analysis of the article is to be supported by legal evidence, in which manner the test were B.H.Gadhavi A-14-775 Page 23 of 31 carried out, by whom it was carried out and where it was carried out whether the articles of the seeds were in a position to examine or not in laboratory test is to be endorse by the concern expert who tested the questioned seeds in the laboratory, nothing is brought on record that's why the mere seeds doesn't treated exact proof of the failure of the seeds in question.
81. Moreover learned advocate for the appellant Mr. Saxena submitted that complainant got the emails, and no any documentary proof of result is there, so only email cannot be accepted as a proof.
82. According to my view this submission is not tenable in eye of law the complainant come with a case that the particular emails suggest that the article of the seeds were found fail.
83. The onus of proof is burden on respondent to establish on record that such laboratory report conclude that seeds were below standard as provided.
84. As we have discussed the question of the failure of the standard i.e. not germination of 70% is to be establish by respondent side because of they have carried out test it is surprising to me why respondent company does not disclose the factual aspect about the testing of the seeds in question if it is really tested than definitely report must have to be in possession of the company.
B.H.Gadhavi A-14-775 Page 24 of 3185. And they have not produced the testing report by the company, here adverse inference can be drawn at the statement made by respondent that questioned article where seeds were not up to the mark and for that payment are not made cannot stand.
86. Thereby I would like to come to conclusion that the Learned Trial Forum has not appreciated the evidence in a manner which it should be to establish the facts by the respondent side.
87. Only the page no.72 result seed cannot be considered as conclusive find out the truth, and it demand further corroboration to support with the conclusive evidence.
88. Here in the case absent of conclusive evidence of laboratory test report of this particular questioned seeds were examine by the laboratory hence decision were not carried out properly by the trial forum in this case.
89. Moreover learned advocate Mr. Surti on behalf of the respondent side submitted before me that there is large production other than the neighbour of the complainant and thereby there must be some presumption that there must be something added in the questioned article of the seeds.
90. It is different question that lower production of the complainant growing the seeds and it cannot become a question to decide about the B.H.Gadhavi A-14-775 Page 25 of 31 standard of the seeds in question without corroborative evidence as discussed here in above test report must be on record in absence of no presumption can be drawn that the result narrated by the company is truth and correct.
91. Further learned advocate of the respondent Mr. Surti has submitted before me that the reanalysis of the seeds were carried out but I would like to note that even the questioned seeds were re-analysed even then it is not supported how and where the examination of the laboratory? No any report are produce on record and that's why counter affidavit filed by the complainant and facts is not challenged by the complainant it can be goes against the complainant no doubt but surrounding and cumulative factual aspect and discussion and evidence on record leads to me that the Learned Trial Forum has committed error in coming to the conclusion that the questioned seeds were fail, so the argument is not acceptable as submitted.
92. Further I would like to note and observe that the Learned Trial Forum has not given any single line for his conclusion that the article seeds were found fail, the judgement of the Learned Trial Forum is non speaking judgement hence it cannot be tenable in eye of law, as the judgment or any conclusion of the Trial Forum is to be reasoned should be best on legal aspect and every point of view should be examination B.H.Gadhavi A-14-775 Page 26 of 31 and appreciation of all the evidence before forum.
93. The learned trial forum is fail to appreciate the evidence without appropriate reasoning how forum simply straight way came to conclusion without even discussing evidence is not tenable in eye of law and that's why I would like to interfere with the judgment given by the learned trial forum in the complaint.
94. Further learned advocate for the respondent Mr. Surti has submitted before me about the maintainability of the complaint because there is issue of the standard of the seeds are in dispute and further the complainant has raised issue about the lesser payment. Further all this issue can be dealt with by the Consumer Forum in summery proceedings and therefore the prayer of the complaint is to be treated as a recovery of the suit and therefore he submitted on the ground that complaint is not maintainable.
95. According to my view with this point is very well dealt with in the decision cited by learned advocate Mr. Saxena i.e.Supreme court judgment "National Seeds Corporation Ltd. Vs. M Madhusudan Reddy And Another"Citation 2012 law suit (37), where in it is very well clear that any relief can be adjudicated by civil court then and there is no any embargo for a file a consumer complaint than the complainant have a right to choose the forum whether he may go for the civil court or either before the consumer forum as per the definition of the consumer as B.H.Gadhavi A-14-775 Page 27 of 31 per the consumer protection act and also decide by the supreme court in the said judgment therefore the argument advance on ground of the maintainability of the complainant is not acceptable and I am not agree with the submission that complaint must have to be go before the civil court only and complaint cannot be filed before the consumer protection act.
96. And hereby the decision delivered by learned trial forum in brief is non speaking order about the questioned seeds were tested in laboratory and fail.
97. The learned trial forum has came to conclusion about the testing fail but where is the documentary proof of laboratory testing it is nowhere supported and produced by the respondent before the trial forum and thereby argument advanced and complaint disclosed the facts about the laboratory testing is not examine by the Learned Trial Forum and appreciated the evidence properly.
98. That's why I am of the opinion that respondent are fail to establish on record, why not producing reliable evidence as testing report of question seeds hence, part payment are made by the respondent no.3 as advance on behalf of the respondent side respondent no.3 is agent of respondent no. 2.
99. That's why I am of the opinion that I relied upon the question hence part payment are made by the respondent No.3 advanced on behalf of the respondent side. Respondent no.3 is a agent of respondent no.2 after cumulative facts and B.H.Gadhavi A-14-775 Page 28 of 31 evidence before me that respondent No.3 is agent of respondent No.2 dealer have ultimately held master transaction transmitted to the respondent no. 1 company so complainant has become beneficiary of transaction carried out in the case as it is also facts that the questioned seeds were purchased by the company as per the argument so which ever transaction no doubt in the case through respondent no.3 and respondent no.2 ultimately working for the respondent no.1 and therefore the principle of master in agent act are liable to which ever so, ultimately according to my view complainant is beneficiary of the absence and scheme carried out by company respondent no.1.
100. And thereby the argument advanced on behalf of the respondent no 1 that the questioned payment of Rs. 2,41,335/-were paid up by respondent no.3 agent hence respondent no.1 company is not concerned with the paid payment as earlier we have discussed that complainant is beneficiary of the transaction and scheme carried out by respondent through respondent no,2 and 3 and therefore the facts should be taken conclusively considered that when complainant have obtained part payment from the respondent no.3 so remaining amount is to be recovered from all the respondents hence complainant is entitled to recovery of the remaining amount.
101. As per the submission of learned advocate for the complainant that there was a price of Rs. 430/-of seeds were fixed and Rs.140/- of the B.H.Gadhavi A-14-775 Page 29 of 31 cotton fiber were fixed out of that on grown seeds calculated 1319.500 kg and after the deduction the weight of the product was 804.405 kg that's why because of that the respondent have paid up as germination of the sample were not found 70% that's why the seeds price were considered Rs.300/- and paid of 804.450 kg of the seeds and ultimately Rs. 2,41,335/- are paid up through the cheque.
102. Further learned advocate Mr. Saxena has submitted Rs.1,04,578.50/- are lesser paid upon cotton seed by the respondent side moreover cotton fiber price were also given less on this which is Rs.21,901.40/- are calculated for the payment of compensation.
103. According to my view and legal decision respondent no.1 is a master of all the transaction as there are proceeding questioned seeds and organized the scheme in question i.e. regrown seeds and purchased by respondent no.1 company through the respondent no.2 and 3.
104. Further transaction is conclusively carried out by the respondent no.1,2 and 3, all the three respondent are liable to deficit payment of the complainant i.e. Rs. 1,26,479.9/- (one lac twenty six thousand four hundred and seventy nine rupees and nine paisa) in total is to be paid to the complainant with 7% interest from the date of filing the complaint. That's why present appeal is allowed.
FINAL ORDER B.H.Gadhavi A-14-775 Page 30 of 31
i) Appeal No. 775 of 2014 is allowed.
ii) The judgment and order dated judgment and order dated 26.03.2014 passed by the Learned District Forum, Palanpur in Complaint No. 100 of 2013 is quashed and set aside.
iii) Hereby, Respondents are directed to pay amount Rs. 1,26,479.9/- (one lac twentysix thousand four hundred and seventynine rupees and nine paisa) with 7% of interest to the complainant/Appellant.
iv) No order as to costs.
v) Copy of the judgment be provided to the parties free of charge.
vi) Registry is directed to send copy of this judgment to the parties. Registry is directed to send a copy this judgment to the District Commission Palanpur through E-mail in PDF format for taking necessary action.
Pronounced in the open court on 6th August, 2021.
M.J.Mehta Judicial Member B.H.Gadhavi A-14-775 Page 31 of 31