State Consumer Disputes Redressal Commission
Pritam Singh vs Zimidara Agro on 29 December, 2011
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.59 of 2009
Date of institution: 15.01.2009
Date of decision : 29.12.2011
Pritam Singh s/o Arjan Singh resident of village Chatteana, Tehsil Gidderbaha,
District Muktsar.
.....Appellant
Versus
1. Zimindara Agro Centre, Gandhi Chowk Gidderbaha through its
partner/Proprietor.
2. Amar Biotech Ltd. (Manufacturer of SD 1368 Seeds) Head Office, 6-2-
913/914, First Floor, Progressive Tower Khairatabad (Hyderabad) -
500034.
.....Respondents
First Appeal against the order dated 06.05.2008
passed by the District Consumer Disputes
Redressal Forum, Muktsar.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mr.Baldev Singh Sekhon, Member
Present:-
For the appellant : Sh.K.S.Sekhon, Advocate
For the respondents : Sh.N.K.Manchanda, Advocate
JUSTICE S.N.AGGARWAL, PRESIDENT
VERSION OF THE APPELLANT
The Appellant was an agriculturist. He owned the land in village Chatteana, Tehsil Gidderbaha, District Muktsar. He had 24 kanals (3 acres) of land in that village.
2. It was further pleaded that the appellant had purchased the BT cotton seed named SD 1368 BT from respondent No.1 vide bill No.1640 dated 23.5.2007 for an amount of Rs.2250/-. It was manufactured by respondent No.2.
3. It was further pleaded that respondent No.1 had made tall claims that BT cotton seed sold by him was best quality of seed and it would give high First Appeal No.59 of 2009 2 quantity of yield. The rate of cotton in those days was Rs.2000/- to Rs.2500/- per quintal.
4. It was further pleaded that the appellant had prepared the land and had irrigated the same and had spent about Rs.30,250/- for different components like cultivation, irrigation, fertilisers, labour charges etc. The said seed was sown as per the instructions given by respondent No.1. However, the BT cotton seed failed to grow properly.
5. It was further pleaded that the appellant made a request to the Agriculture Department on 5.9.2007 to inspect the fields and to verify that the BT cotton seed has not grown up. Accordingly, the concerned Agricultural Officer visited the fields of the appellant on 11.9.2007. He also submitted his report and reported that the seed was of low quality. It was duplicate. It was not, as per the standard fixed for such seed and the loss was caused due to inferior quality of seed. It was also reported that if the seed had been of original quality, the yield would have been 22 to 25 quintals per acre but at the spot, there was no fruit upon 60% of the plants of cotton crop. 10% plants were having only 5 to 10 tindas (cotton fruit per plant). These plants were also destroyed and their colour had changed. The height of the plant was also much less than required. The fields adjoining to the field of the appellant had given much produce. Therefore, the appellant had suffered the loss to the tune of 95%.
6. It was further pleaded that the appellant contacted the respondents and also requested respondent No.1 to compensate the appellant for supplying the inferior quality of seed and for the loss suffered by the appellant. He also sought the compensation for the cost incurred by the appellant in preparing the land. The total loss of the appellant came to Rs.1,34,250/- but the respondents refused to do so. Hence, the complaint for recovery of the financial loss of Rs.1,34,250/-. Compensation and costs were also prayed.
First Appeal No.59 of 2009 3VERSION OF RESPONDENT NO.1
7. Respondent No.1 filed the written reply. The preliminary objections were pleaded that respondent No.1 was the authorised dealer of respondent No.2. The BT cotton seed was in packed and sealed condition. Respondent No.1 had sold the seed to the appellant in the same form in which he had taken it from respondent No.2 who were the manufacturers. Therefore, respondent No.1 was not liable.
8. It was also pleaded that respondent No.1 only sells the superior quality of seed. The appellant had specifically demanded this seed. Before selling the seed, respondent No.1 had explained the terms and conditions to the appellant for sowing the seed. These terms and conditions were also printed on the packets of the seed. The bill was issued to the appellant. The terms and conditions were also printed on the backside of the bill. After accepting all the terms and conditions, the appellant had purchased the seed under the terms and conditions from the respondents. Respondent No.1 is absolved from any liability as the specifications and the guidelines were explained to the appellant but these were not followed by him while sowing the seed.
9. It was further pleaded that the seed was not got tested from the Laboratory as required under Section 13(1)(c) of the Consumer Protection Act. It was denied if the seed was of inferior quality or if it was duplicate. The productivity of the crop dependent upon various factors like fertilisers, pesticides used by the appellant, rain fall etc. The seed was not sown by the appellant as per the specifications and the guidelines. The report issued by the Assistant Cotton Extension Officer was procured by the appellant and it was not in accordance with the actual position existing in the fields. This complaint has been filed by the appellant to harass respondent No.1.
10. It was further pleaded that the BT cotton seed was of superior quality. The reasons for the less production could be the climatic condition or the First Appeal No.59 of 2009 4 soil born disease but no fault is attributable to the respondents nor there is any negligence on their part. The appellant has no cause of action. The complaint was false and frivolous.
11. On merits, it was denied for want of knowledge if the appellant was resident of village Chatteana or if he owned 24 kanals of land. It was admitted that the appellant had purchased the seed from respondent No.1. It was denied if the appellant had sown the seed as per the specifications/literature provided by the respondents. It was highly improbable and unbelieveable if the appellant had spent an amount of Rs.30,250/- for irrigating the land and for spray purposes etc. but it was specifically denied if the seed was of low standard or of duplicate quality. It was also pleaded that no notice was given to respondent No.1 by the Agricultural Officer before inspecting the fields nor the report has been given by the authorised/competent person. The alleged report has been prepared by the Agricultural Officer in connivance with the appellant. It was denied if there was any deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.
VERSION OF RESPONDENT NO.2
12. Respondent No.2 also filed the written reply. It was almost identically on the same lines as per the stand taken by respondent No.1 in the written statement.
PROCEEDINGS BEFORE THE DISTRICT FORUM
13. Pritam Singh appellant has appeared as witness. He produced his affidavit Ex.CW1 and the bill dated 23.5.2007 as Ex.CW2. He also produced the documents Ex.CW3 to Ex.CW5. The technical report of the Assistant Cotton Extension Officer, Gidderbaha was proved as Ex.CW1/C. Darshan Singh, Assistant Cotton Extension Officer, Gidderbaha had also tendered himself for cross-examination and he was cross-examined at length. On the other hand, Hans Raj Kataria Proprietor of Zimidara Agro Centre Gandhi Chowk, Gidderbaha proved his affidavit Ex.OP1/A while V.M.Vijay Kumar, authorised representatie First Appeal No.59 of 2009 5 of Amar Biotech Limited filed his affidavit Ex.OP2/A. The respondents also proved documents Ex.OP1 to Ex.OP9.
14. The learned District Forum dismissed the complaint vide majority judgment dated 6.5.2008.
15. Hence, this appeal.
DISCUSSION :
16. The submission of the learned counsel for the appellant was that this case is covered by the judgment of this Commission dated 9.11.2009 passed in First Appeal No.602 of 2008 (Zimidara Agro Centre and others v. Angrez Singh) and another judgment dated 9.11.2009 passed in First Appeal No.695 of 2008 (Jaswinder Singh v. Bambhia Pesticides and others). Hence, it was prayed that this appeal be accepted and adequate compensation be awarded to the appellant.
17. On the other hand, the learned counsel for the respondents relied upon the judgment of the Hon'ble National Commission dated 26.5.2011 passed in Revision Petition No.705 of 2008 (Gujarat State Coop. Mktg. Federatoin Ltd. v. Ghanshyambhai Fulabhai Patel) and the judgment dated 11.7.2011 passed in Revision Petition No.932 of 2007 (Jain Irrigation Systems Ltd. v. M.B.Malipatil & anr.). The judgment of the Hon'ble State Consumer Disputes Redressal Commission, Haryana in case reported as Narender Kumar v. M/s Arora Trading Company and others, 2007 (2) CLT 683 and the judgment dated 23.05.2011 passed in First Appeals No.343, 344 and 345 of 2007 (M/s New Mehta Beej Bhandar and others v. Om Parkash) were also relied upon. The judgment of this Commission dated 16.2.2011 passed in First Appeal No.1649 of 2005 (Harjinder Singh v. Handa Seeds Fertilizers) was also relied upon by the learned counsel for the respondents.
18. Record has been perused. Submissions have been considered.
19. The admitted facts are that the appellant is an agriculturist. He owns 24 kanals of land. He has also produced a copy of the Jamabandi Ex.CW3 in which he has been shown to be a co-owner. Obviously, the appellant was an First Appeal No.59 of 2009 6 agriculturist and it was for this reason that he had purchased the seed from respondent No.1. Had he not been the owner of the land either himself or if he had not taken the land on lease from others, then there was no necessity for him to purchase the seed for sowing in the fields.
20. It is pleaded by the appellant that he had purchased the BT Cotton seed SD 1368 from respondent No.1 on 23.5.2007 for Rs.2250/-. This fact is admitted by respondent No.1. The appellant has also proved the bill issued by respondent No.1 on 23.5.2007 as Ex.CW2, according to which, he purchased the BT cotton seed SD 1368. It means, therefore, that the appellant is proved to be the agriculturist and he had purchased the seed from respondent No.1 for sowing the same in his fields.
21. It is also proved that the appellant had filed an application to the Block Agriculture Officer, Gidderbaha on 5.9.2007 Ex.CW4 in which he had stated that he had sown SD 1368 BT cotton seed in 24 kanals (3 acres) of land. He had purchased the seed from respondent No.1 vide bill No.1640 dated 23.5.2007. The seed was defective and the cotton crop was totally damaged. He also requested the Block Agriculture Officer to depute somebody to inspect the fields and to get him compensated. The appellant has also filed his affidavit Ex.CW5. The fields were inspected and report Ex.CW1/C was submitted. As per this report, fields of the appellant were inspected on 11.9.2007. It is stated in the report of Ex.CW1/C that as per the version of the appellant, he had sown the seed OM 1368 BT in 24 kanals of land. After inspecting the fields, the Inspecting Officer, Gidderbaha deposed that 60% of the crop had only 20 to 25 tindas (cotton fruit) while 40% of the crop did not have the cotton fruit. The height of the plant was also short which was much less than expected and the tindas (cotton fruit) was 5 to 10 tindas per plant. There was attack of virus by which the plants were damaged. He also reported that in the adjoining fields, the cotton crop was standing very well and the possible yield from those fields was 22 to 23 maunds (about 10 quintals). The Agriculture Officer also reported that the expected yield of the First Appeal No.59 of 2009 7 cotton crop from these plants was 3 to 4 maunds per acre which was much less than the yield in the adjoining fields.
22. Darshan Singh, Assistant Cotton Extension Officer also appeared as a witness. He proved his report Ex.CW1/C. The application of the appellant has been proved as Ex.C1 and the affidavit of the appellant has been proved as Ex.CW1/B. In his cross-examination, Darshan Singh deposed that he was B.Sc. (Honours) in the plant protection. The report Ex.CW1/C was given by Ram Lal, Agriculture Sub Inspector. He had inspected the spot. Thereafter, he (Darshan Singh) also inspected the fields and he counter signed the report Ex.CW1/C. He also reported that on 11.9.2007, he did not visit the spot and his counter signature do not bear any date. He also deposed that Ram Lal had initially joined the Department as Beldar and after 20 years, he was promoted as Agriculture Sub Inspector. He also stated that Ram Lal was not having a diploma and certificate but having 20 years of experience in the department. He (Darshan Singh) had visited the fields after 2-3 days after from the visit of Ram Lal. He himself had not taken any sample from the field. He had mentioned about his visit in his tour diary but the diary was not brought by him on the day of his statement. The appellant was in his fields when he visited his fields. The other farmers were also there. No separate inspection report was prepared.
23. He also admitted that the crop of the appellant was affected by the Leaf Curl and Bacterial Leaf blight but it was not affected by Milibug. All susceptible crops could be affected with the disease of Leaf Curl as well as Bacterial Leaf blight. He also told that he was not diploma holder. No person was called from the University. It was admitted that OM 333/1368 was BT highbred cotton seed was approved by the Government.
24. The next submission of the learned counsel for the appellants was that the seed was not got tested by the respondent from the Laboratory as per the provisions of Section 13 of the Consumer Protection Act or as per the provisions of the Seeds Act. Therefore, the defect in the seed is not proved. First Appeal No.59 of 2009 8
25. Similar argument was considered by this Commission in the judgment dated 29.09.2008 passed in First Appeal No.1435 of 2005 (M/s Pagia Enterprises C-1-6 v. Paramjit Singh and others) and it was held as under : -
"27. The submission of the learned counsel for the appellants was that the seed was not got tested by respondent No.1 from the laboratory as per the provisions of Section 13 of the CP Act or as per the provisions of Seeds Act. Therefore, no case was made out against the appellants. In this context, reliance was placed by the learned counsel for the appellants on the judgment of Hon'ble National Commission reported as "Consumer Protection and Guidance Society v. National Seeds Corporation" 2008(1) CPC 615 (NC) in which it was held that when the seed was not got tested from the laboratory as required by Section 13 of the CP Act, no relief can be granted to the respondent complainant."
26. It was also observed by this Commission as under : -
31. So far as the testing of seed in the laboratory is concerned the seed purchased by respondent No.1 was already sown and no part of it was available with the farmer, namely, respondent No.1. Therefore, the seed could not be sent by respondent No.1 to the Seed Testing Laboratory for obtaining expert opinion. In the judgment in Consumer Protection and Guidance Society's case (supra) relied upon by the learned counsel for the appellants the facts were different. In that case the complainant had not come present nor he had filed his affidavit. The complaint was filed by First Appeal No.59 of 2009 9 the Society for 8 farmers and the affidavit of the President of the Society was disbelieved by the Hon'ble National Commission. It was observed by the Hon'ble National Commission as under:-
"5. On all these points the learned counsel was unable to satisfy us as to how President of the Society could file an affidavit about the purchase of seed, the quality of seed etc. when he was not on the scene at all. What he produced before the District Forum would at best be a hearsay. Why primary evidence was withheld has not been explained. To not to produce such evidence, when it was available, has to be held against the petitioner/complainant. This point has not been discussed in the order of the District Forum.
6. There cannot be any dispute on the question of fact and law that the onus of proof lies with the farmers in this case to prove their case. This could have been done either by getting the seed tested from a 'Seed Testing Laboratory' or by obtaining an 'Expert Opinion' of an agricultural scientist or a qualified Agricultural Officer. Nothing to this effect has been done by the complainant to prove the case about the substandard supply of material."
32. Therefore, the facts of the reported case clearly proved that the said judgment is not applicable to the facts of the present case where the complainant has himself filed the complaint. He has also filed his affidavit and has proved documents to prove that he had purchased the seed, he owns land, he had sown First Appeal No.59 of 2009 10 paddy crop and that his crop was inspected by the Agricultural Development Officer who is an expert witness.
33. Moreover to the contrary is the judgment of the Hon'ble National Commission reported as "National Seeds Corpn. Ltd. v. M. Madhusudan Reddy"
2004(2) CLT 301 in which Hon'ble National Commission has been pleased to hold that even if the seed is not got tested in the laboratory, as it was not possible, relief cannot be denied to the poor farmer. It was held as under:-
"10. In view of the above discussion on the two points raised by the learned counsel for the petitioner our clear view is that it is only under Consumer Protection Act, 1986 that remedy lies for the farmer to be compensated for defective seeds as also the fact that when the provision of Section 13(1)(c) becomes unimplementable then one has to resort to alternative methods, which in this case was the report of Commissioner who was a retired Assistant Director of Agriculture. It cannot be the case of the petitioner to implement an unimplementable proposition, it is not the case of the petitioner that either under the Seeds Act or on the label of the product or under any other provisions of law, that the farmer is expected to conserve certain portion of seed to meet the ludicrous expectation of the petitioner, for the farmer to produce some seeds from somewhere to get it tested to meet the requirement of Section 13(1)(c)."First Appeal No.59 of 2009 11
34. The same view of law has been adopted by the Hon'ble National Commission in R. Shekhar @ Sirdhar's case (supra) relied upon by learned counsel for respondent No.1 in which the Hon'ble National Commission has been pleased to hold as under:-
"A very untenable plea has been taken before us by the learned Counsel for the petitioner that the procedure under Section 13 of the Consumer Protection Act, has not been adopted by the lower Fora in getting the seeds tested. We have held in catena of judgments that, a farmer cannot be expected to retain any part of high value seed to get it tested in case of unforeseen contingency like the one we are facing in the case."
35. Reference can also be made to the latest judgment of the Hon'ble National Commission reported as "INDIA SEED HOUSE v. RAMJILAL SHARMA & ANR." III(2008) CPJ 96 (NC) in which it was held as under:-
"Secondly, it is not expected from every buyer of the seeds to set apart some quantity of seeds for testing on the presumption that seeds would be defective and he would be called upon to prove the same through laboratory testing. On the other hand, a senior officer of the Government had visited the field and inspected the crop and given report under his hand and seal, clearly certifying that the seeds were defective."
27. Similar submission was advanced before the Hon'ble National Commission in the judgment reported as "National Seeds Corpn. Ltd. v. First Appeal No.59 of 2009 12 P.V.Krishna Reddy and others, 2009 CTJ 522 (CP) (NCDRC)" and it was held by the Hon'ble National Commission as under : -
"21. Another contention raised by the learned Counsel appearing for the petitioner was that the consumers-respondents failed to produce any expert opinion and analysis by invoking Section 13 of the Consumer Protection Act, 1986. Similar contention has already been rejected by the Supreme Court of India and the National Consumer Disputes Redressal Commission in Maharashtra Hybrid Seeds Co. Ltd. v. Alavalapati Chandra Reddy & others 1998 CTJ 561 (SC) (CP) = (1998) 6 SCC 738 (see paragraphs 2 & 4 pl. g), H.N. Shankara Shastri v. Asstt. Director of Agriculture, Karnataka, (2004) 6 SCC 230 (see paragraph 5 pl. g-h), The Managing Director, A.P. Seeds Development Corporation Ltd. v. Seelam Rama Mohan & anr., III (1996) CPJ 435 (see paragraph 9) and M. Madhusudan Reddy case (supra)."
28. The next submission of the learned counsel for the appellants was that Killa Numbers and Khasra Numbers were not given by the Assistant Cotton Extension Officer in his report Ex.CW1. This report cannot be made the basis of a judgment. Reliance was placed on the judgment of the Hon'ble Haryana State Consumer Disputes Redressal Commission, Panchkula reported as "Narender Kumar v. M/s Arora Trading Company and others, 2007 (2) CLT, 683".
29. Similar argument had come up for consideration before this Commission in First Appeal No.1435 of 2005 (M/s Pagia Enterprises C-1-6 v. Paramjit Singh and others) (supra) and it was observed as under : -
"Reliance was also placed on the judgment of Haryana State Consumer Disputes Redressal Commission First Appeal No.59 of 2009 13 reported as "Narender Kumar v. M/s Arora Trading Company and others" 2007 (2) CLT 683 in which it was held that when killa number and khasra number were not given by the Agriculture Development Officer who inspected the land, the report cannot be made the basis for granting relief.
28. On the other hand, the learned counsel for respondent No.1 placed reliance on the judgment of Hon'ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai reported as "Maharashtra Hybrid Seeds Co. Ltd. v. Dyandev Kerba Khadke and others" 2004(1) CLT 31 as also on the judgment of the Hon'ble National Commission reported as "South Eastern Seeds Corporation v. R. Shekhar @ Sirdhar" I(2008) CPJ 158 (NC).
29. Submissions have been considered.
30. In the present case, the Agriculture Development Officer has specifically reported that he had visited the fields of respondent No.1. Therefore, there was no ambiguity about the fields which were inspected by the Agriculture Development Officer even if killa number or khasra number of the agricultural land of respondent No.1 are not given. In the judgment in Narender Kumar's case (supra), it was not stated by the Agriculture Development Officer if he had inspected the agricultural land of the complainant of that case and he had also not given killa number and khasra number of the land which he had inspected. In these circumstances, Haryana State First Appeal No.59 of 2009 14 Consumer Disputes Redressal Commission was pleased to hold that the identity of the land was not established. But, as discussed above, in the facts of the present case it has been specified by the Agriculture Development Officer that he had inspected the agricultural land of respondent No.1. Therefore, even if killa number and khasra number was not specifically given in the report that does not affect the identity of the land which has been otherwise proved."
30. It was further submitted by the learned counsel for the appellants that so many factors are responsible for less production of the crop namely violations of the instructions in the sowing of the seed, lack of attention in maintaining the plants, lack of fertilizers, inadequate rain fall or irrigation, poor quality or inadequacy or over dose of pesticides/insecticides. Hence, it was submitted that it was not only the inferior quality of seed which could lead to less production of the crop.
31. This submission has been considered.
32. It has no merits. It was not the question of germination and non- germination of the seed. In the present case, the situation was that the plant had grown but the size of the plants was lesser in height than the normal size. There was no fruit in 90% of the plants and 5-6 fruits (Tindas) in 10% plants. Fruits (Tindas) were small in size and yellow in colour which were likely to fall without blossoming. Therefore, bad quality of seed on the face of it stands proved. If the others factors had been responsible, the seed could not have germinated or the plant could have died down in the bud stage.
33. Moreover, the respondent has proved the report of the Ram Lal, Agriculture Sub Inspector duly counter signed by Darshan Singh, Assistant Cotton Extension Officer in which it is clearly reported that the loss of production was First Appeal No.59 of 2009 15 attributable only to the inferior quality of the seed. The Agriculture Sub Inspector had visited the fields himself on 11.9.2007 and after 2-3 days, the fields were also inspected by Darshan Singh, Assistant Cotton Extension Officer and he endorsed the report of Ram Lal, Agriculture Sub Inspector.
34. It means, therefore, that the fields of the appellant were inspected by the Agricultural Officers. Ram Lal may have joined as Beldar but after 20 years experience, he was promoted as Agriculture Sub Inspector. Therefore, he was an agriculturist Sub Inspector when he visited the fields of the appellant. Not only he, even Darshan Singh Assistant Cotton Extension Officer saw the fields and found the report to be correct. The crop was also affected by the disease of Leaf Curl as well as Bacterial Leaf blight but it was clearly proved that while adjoining fields had the yield of 22 to 23 maunds per acre. The average production of the crop by the fields of the appellant was only 3 to 4 maunds. It means, therefore, that the appellant had only about 1/5th or 1/6th of agricultural produce, which he would have got, had the seed not been defective or had the crop of the appellant not been affected by the disease. It means that the average loss of the field of the appellant would be 18 maunds per acre.
35. Darshan Singh has not reported if the loss to the cotton crop of the appellant was only because of Leaf Curl disease or bacterial leaf but the condition of the crop revealed that there was defect in the quality of seed also. He has reported that the rate of the cotton crop in those days was Rs.2000/- to Rs.2500/- per quintal. Therefore, there being no specific evidence, the rate of the cotton crop is taken to be Rs.2000/- per quintal.
36. If the average loss of produce per acre is 18 maunds (22 maunds - 4 maunds), therefore, the total loss of agriculture produce in the fields (3 acres) of the appellant comes to 54 maunds i.e. about 21 quintals and if the value of per quintal was Rs.2000/-, the total loss comes to Rs.42,000 (21 x 2000). If 50% of the loss is attributed to the Curl disease, the loss attributable to the defective quality of seed comes to Rs.21,000/-.
First Appeal No.59 of 2009 16
37. Therefore, the appellant is held entitled to the compensation amount of Rs.21,000/-
38. In view of the discussions held above, this appeal is accepted with costs of Rs.5000/- in the manner stated above.
39. If this amount is recovered from respondent No.1, the same shall be recoverable by respondent No.1 from respondent No.2 who was the manufacturer of the seed.
40. If the amount is not paid to the appellant within two months after the receipt of a copy of this order, the respondents would be liable to pay interest @ 9% per annum with effect from today.
41. The arguments in this appeal were heard on 15.12.2011 and the order was reserved. Now the order be communicated to the parties.
42. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(BALDEV SINGH SEKHON)
MEMBER
December 29, 2011.
Paritosh