State Consumer Disputes Redressal Commission
Shaktivardhak Hybrid Seeds vs Karnail Singh on 1 June, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 123 of 2018
Date of Institution : 08.03.2018
Date of Reserve : 14.05.2018
Date of Decision : 01.06.2018
M/s Shakti Vardhak Hybrid Seeds Pvt. Ltd., New Rishi Nagar,
Hisar through one of its Director Ved Parkash.
....Appellant/Op No.2
Versus
1. Karnail Singh aged about 65 years son of Munshi Singh,
Resident of Village Samagh, Tehsil Gidderbaha, District Muktsar
Sahib.
2. Balwinder Singh @ Binder Singh aged about 62 years son of
Buggar Singh, Resident of Village Samagh, Tehsil Gidderbaha,
District Muktsar Sahib.
....Respondents No.1&2/Complainants
3. M/s Singla and Sons having their Shop No. 94, New Grain
Market, Malout, Distt. Muktsar Sahib through its Sole
Proprietor/Partner/Authorised Signatory.
...Respondent No.3/Op No.1
First Appeal against the order dated
14.12.2017 of the District Consumer
Disputes Redressal Forum, Sri Muktsar
Sahib
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
First Appeal No. 123 of 2018 2
Present:-
For the appellant : Sh. P.K. Chugh, Advocate
For respondents No.1&2: Sh. Baljinder Singh, Advocate
For respondent No.3 : Dispensed with.
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/Op No.2 (hereinafter referred as Op No.2) has filed the present appeal against the order dated 14.12.2017 passed in consumer complaint No. 26 dated 20.3.2017 by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (hereinafter referred as the District Forum) vide which the complaint filed by the complainants was accepted and Ops were directed to pay jointly and severally Rs. 1,87,600/- alongwith interest @ 7.5% p.a. from the date of purchase of seeds i.e. 30.4.2016, till the date of payment and also pay Rs. 10,000/- as cost of litigation.
2. Complaint was filed by the complainants under the Consumer Protection Act, 1986 (in short 'the Act') against the Ops on the averments that the complainants are jointly doing their agricultural work in Khewat No. 166, Khatauni No. 314 having 47/166 share from total land 223 kanals 18 marlas. Op No. 1 is Dealer / Distributor of various seeds including cotton seed i.e. SV-
385. Complainant No. 1 visited Op No. 1 for purchasing the seed in the abovesaid land 32 Kanals 0 Marlas with the consent of Balwinder Singh co-sharers and he represented that the seeds of cotton are of very best quality and will give produce about 10 First Appeal No. 123 of 2018 3 quintals per acre. Accordingly, complainant No. 1 purchased the seed of 8 Kg having 8 packets of 1 Kg each with lot No. 130147 for Rs. 2800/- from Op No. 1 vide bill No. 387 dated 30.4.2016. Complainants had sown the abovesaid seeds in their 4 acres of land and take care of the crop and used recommended fertilizers/pesticides as recommended. Even on the directions of the Ops, they sprayed the crop as per their instructions but the complainant suffered a great mental humiliation and harassment when they noticed that the cotton crop has failed to give any produce, which was totally against the assurance given by the Ops. Aggrieved from the results of the produce on 6.10.2016, son of the complainant Joginder Singh gave one application to Chief Agricultural Officer, Sri Muktsar Sahib regarding selling of duplicate / sub standard seeds of cotton crop and less produce of their cotton crop. The application was marked to the Chief Agricultural Officer, Kotli Ablu and the concerned Agricultural Development Officer visited the spot accompanied by Sh. Bhagat Singh, Agriculture Sub Inspector and they conducted the survey and at that time the farmers of the village, namely, Dilbag Singh, Nazar Singh son of Hazara Singh were also present there. They noted that the crop did not have Tinda (Cotton Bowls) on the cotton sticks in the entire field of 4 acres of land. The Dealer of the Op also contacted and his representative Rajiv Kumar also came at the spot on 1.9.2016 and asked the complainant to go for spray of Polytheora of Odama Company but even on the spray of abovesaid pesticide, the crop did not give any produce. On First Appeal No. 123 of 2018 4 24.10.2016, ADO Kotli Ablu gave its detailed report and noticed the loss upto 80 to 85% whereas the market rate of the cotton is Rs. 4500/- to Rs. 5000/- per quintal. The Op supplied sub standard seed, which resulted in no produce after the ripening of the crop. Accordingly, this complaint was filed by the complainant against Ops for seeking claim of Rs. 2,00,000/- as loss to the crop, Rs. 50,000/- for mental tension and harassment, Rs. 10,000/- as litigation expenses.
3. Upon notice, Ops appeared and filed their written version taking preliminary objections that the complainants had sown the crop for commercial purposes as the complainant did not fall under the definition of the consumer; the complainant has concealed the material fact; there is no defect in the seed. The inspection report does not mention date and time, if any, prepared by the officials of the Agricultural Department. On the basis of this report, it cannot be proved that the seeds are defective. On merits, the selling of the seeds by Op No. 1 is a matter of record. However, it was denied that these were of sub-standard quality. No assurance/guarantee was given by the Op with regard to the produce as alleged in the complaint. It was also denied that they stated that these seeds will give produce upto 10 quintal per acre. In fact the complainant himself was negligent as he did not spray pesticides in first week of July. He should have sprayed pesticides Delta Mathreen 160 ml per acre whether or not any disease affected the crop and the next spray Tresser 70 ml per acre after 8-10 days but the complainant did not do so. No intimation or First Appeal No. 123 of 2018 5 complaint was given by the complainant to the Op. They have no knowledge about any application given to the Agricultural Officer. The report of the Agricultural Officer, if any, is not legal and genuine report, therefore, is no unfair trade practice or any deficiency in service on their part. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence documents Ex. C-1 to C-27. On the other hand, Op No. 2 had tendered into evidence Ex. Op-1 to Op-34.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/Op No.2 has filed the present appeal.
8. We have heard the learned counsel for the appellant/Op No. 2 and learned counsel for respondents No.1&2 and have carefully gone through the record of the case.
9. It was argued by the counsel for the appellant/Op No. 2 that the order passed by the District Forum is against the facts on record, therefore, it is liable to be set-aside on the ground that the District Forum did not appreciate that the complainant did not produce any evidence to show that the complainant had sown the same seed in the field. In para No. 1, he has referred that the complainants are joint owners in Khewat No. 166, Khatoni No. First Appeal No. 123 of 2018 6 314, having 47/166 share in total land of 223 kanals 18 marlas. From the abovesaid land, ownership and possession of complainant No. 1 has been in land measuring 32 Kanals having Rect. No. 97 Killa No. 12(1-8), 13(4-10), 19(4-0), 22(6-0), 23(0-10) 24 (2-16), Rect. No. 98 Killa No. 2(3-0) 3(3-0) 9/1(6-16) situated in the area of Village Samagh, District Sri Muktsar Sahib and that he had purchased 8 Kilograms seed having Lot No. 130147 for a sum of Rs. 2800/- and have sown in the said 4 acres of land. With regard to purchase of the seed from Op No. 1 by the complainant, there is no dispute that the complainant has share of 4 acres of land in Khewat No. 166, Khatoni No. 314 as per jamabandi for the year 2012-2013. The counsel for the Op has not produced on the record any evidence that the complainant has any other land in which the seed so purchased by the complainant was sown. Otherwise, this plea was not taken by the Op in this written reply. In case such a plea was not taken in the written reply then such a plea for the first time cannot be taken in the grounds of appeal.
10. It has been further contended by the counsel for the appellant that the complainant did not follow the guidelines issued by the Op as well as by the University for Sowing the field. In case we go through the allegations in the complaint, there is no problem with regard to the germination of the seeds, therefore, there cannot be any defect in sowing of the seeds. The problem is with regard to giving fruits by the plants after the given time. Although no plea with regard to the pesticides has been taken in the grounds of appeal but in the written reply, it has been stated that First Appeal No. 123 of 2018 7 the complainant was required to spray pesticides Delta Mathreen 160 ml per acre in the first week of July and Tresser 70 ml per acre after 8-10 days of the first spray. However, the Ops have not placed on the record such directions, got printed on the bill or separately supplied to the complainant. In the report of the Agricultural Development Officer Ex. C-2, it has been stated that notice was given to Op No. 1 and his official Rajiv Kumar came on 1.9.2016 and he had stated that they should spray Plethora of Odama Company and they had used that spray. They again contacted Manager of the Company Satish Kataria and then their official had brought the spray and after spray even then there was no fruit upon the cotton crop. Therefore, we do not agree with the plea raised by the counsel for the appellant/Op that the complainant did not follow the guidelines issued by the appellant.
11. Another plea has been taken that no procedure as prescribed under Section 13(1)(c) of the Act has been followed. As per the version of the complainant, he had sprayed 8 Kg. seeds and all the seeds were sown by him and there was nothing with him. The Ops are Dealer and Distributor of the Seed and as and when they had put their appearance before the District Forum, similar application could be moved by them to send the seeds of Brand SV-385 to the accredited laboratory. In this regard, we want to refer to the judgment of the Hon'ble Supreme Court in the case of "National Seeds Corpn. Ltd. versus M. Madhusudan Reddy"
2012 (2) SCC 506 wherein the Hon'ble Court stated as follows:-First Appeal No. 123 of 2018 8
"Majority of the farmers in the country remain illiterate throughout their life because they do not have access to the system of education. They have no idea about the Seeds Act and the Rules framed there under and other legislations, like, Protection of Plant Varieties and Farmers' Rights Act, 2001. They mainly rely on the information supplied by the Agricultural Department and Government agencies, like the appellant. Ordinarily, nobody would tell a farmer that after purchasing the seeds for sowing, he should retain a sample thereof so that in the event of loss of crop or less yield on account of defect in the seeds, he may claim compensation from the seller/supplier. In the normal course, a farmer would use the entire quantity of seeds purchased by him for the purpose of sowing and by the time he discovers that the crop has failed because the seeds purchased by him were defective nothing remains with him which could be tested in a laboratory. In some of the cases, the respondents had categorically stated that they had sown the entire quantity of seeds purchased from the appellant. Therefore, it is naive to blame the District Forum for not having called upon the respondents to provide the samples of seeds and send them for analysis or test in the laboratory."
In view of these findings of the Hon'ble Apex Court when majority of the farmers are illiterate and normally whatever seeds they purchased they sown it and the seed does not remain with them, in those circumstances, in case the Ops wanted the compliance of Section 13(1)(c) of the CP Act, they could also move the application but it was not done by them. There is another judgment First Appeal No. 123 of 2018 9 of the Hon'ble National Commission II (2017) CPJ 549 (NC) "Kanta Kantha Rao versus Y. Surya Narayana, C. Jeekar Hussain & Parnapalle Jakeer, P. Vanakata Ramana". In that case also, it was observed that the petitioner herein did not file any application under Section 13(1)(c) to send the seeds to an appropriate laboratory for testing. Onus passes on the petitioner to prove that seeds, which were used, were not defective, which he had failed to do so and compensation was awarded.
12. It has been further contended that the District Forum has failed to take stock of the report of the State Food Laboratory, Karnal dated 12.4.2016. The said report has been placed on the record as Ex. Op-8. This report is with regard to the purity, other crop seed and germination. However, there is no column with regard to the fruits to be borne by these trees. In this context, the counsel for the appellant/Op has referred to the judgment Revision Petition No. 2354 of 2016 "Zimidara Agro Center versus Sukhdev Singh & Anr." wherein it has been observed that the inspection report cannot be preferred over the accredited laboratory report but at the same time the Hon'ble National Commission in other judgment IV (2015) CPJ 54 (NC) "National Seeds Corporation Ltd. Versus Malda @ Mal Krishan" has observed that once the complainant has alleged his grievance with the State Agricultural Department and Committee of Experts appointed by the State Authorities have upheld the version given by the complainant, it can be safely presumed that the complainant had sufficiently discharged his onus to prove that First Appeal No. 123 of 2018 10 seeds in question were of defective quality. Then it was for the Ops to prove that the seeds were not sub-standard. Another judgment on the same point can be referred II (2017) CPJ 93 (NC) "Western Agri Seeds Ltd. versus Ramesh Shyamraoji Dhote & Anr." In that case, the Agricultural Officer stated that there were very less fruits and despite the mandatory duration being over, the fruits were in primary condition and not a single fruit was matured, which indicated failure in variety of seeds. It was further observed that the Ops/petitioner could very well examine any technical expert to prove that there was nothing wrong with quality of seeds. There is another judgment of Hon'ble National Commission reported as II (2009) CPJ 386 (NC) "Hameed & Co. versus Basvarajappa & Ors.". In that case, field was inspected by Assistant Agricultural Officer. 80% of expected yield found. The complainant could not get regular yield because of defect in seed proved by report of Assistant Agricultural Officer. Complaint was allowed and Dealer and Manufacturer were guilty, liable to pay compensation. In this case also, the complainant had moved an application to the Chief Agricultural Officer, Sri Muktsar Sahib on 6.10.2016 Ex. C-3 and accordingly, Agricultural Development Officer, Kotli Ablu alongwith Sh. Bhagat Singh, Sub Inspector Agricultural had inspected the fields has referred that the farmer suffered loss to the extent of 80 to 85% on account of sub- standard seeds. Cross examination of this witness was conducted by the counsel for the Ops and in the cross-examination, it has been stated by this witness that the pesticide was regularly First Appeal No. 123 of 2018 11 sprayed as recommended. Normally age of the cotton crop is 150 days and when he visited the crop, there age was of 173 days but at that time there were no fruits. Therefore, from the cross examination also nothing favourable to the Ops has come in his cross-examination. The report of this Agricultural Development Officer further clarifies the notice given to the Ops and their representative had come and had recommended the specific pesticides, which was used by the farmer. When Ops of their own could get the report of their Technical Officer but no such report was taken by them, therefore, the report of the accredited laboratory, which does not say anything about the fruits to the crop could not be accepted as it is when we have first hand report of Agricultural Development Officer, who are expert in this field and in view of the judgments referred above when positive evidence of any technical expert has come then onus had shifted upon the Ops why there is no yield, which they failed to discharge. Therefore, it cannot be said that the District Forum has not properly appreciated the evidence on the record and that a wrong version given that the seeds supplied by the Ops are of a sub- standard variety.
13. Another plea has been taken that the District Forum did not consider that the complainant purchased the seed for commercial purposes. As already stated that the complainants had just 4 acres land and the complainants themselves were doing the agricultural work, therefore, agriculture on a small holding of 4 First Appeal No. 123 of 2018 12 acres is certainly to earn livelihood by way of self employment and in any circumstances, it cannot be said for commercial purposes.
14. No other point was argued.
15. Sequel to the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
16. The appellant had deposited an amount of Rs.
25,000/- and Rs. 1,00,000/- with this Commission in the appeal. These amounts along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
17. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER June 01, 2018.
as