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1. In all 79 Revision Petitions were filed, arising from the order of Andhra Pradesh Consumer Disputes Redressal Commission made on 1.5.2014. The State Commission has dismissed 79 appeals filed by two producers of hybrid cotton seed, Fortune Hybrid Seeds Ltd., Yaganti Seeds Pvt. Ltd. and Nuziveedu Seeds Pvt. Ltd., together with their dealers who marketed it in Andhra Pradesh in 2010.
2. As seen from the record, two of these Companies are sister concerns. Interestingly, the very first page of the Revision Petition shows that on 25.9.2009 the application of OP-2 for commercial release of this seed in the markets of Andhra Pradesh, Karnataka and Tamilnadu was considered by Government of India and on 7.4.2010 the production certificate of the seed was released by OP-2, which claimed 97.95% genetic purity, 82% germination and 100% BT- gene. This certificate was valid for a period of nine months. The seed packets were sold to the complainants on 16.6.2010. What comes out from these dates is that 2010 would have been the very first crop year for marketing of LAYA BT-2 Cotton Seeds by the OPs in Andhra Pradesh.
3. As per the Consumer Complaints filed before the District Forum Warangal, the Complainant had purchased three packets of LAYA (PT-2) variety of cotton seeds for kharif crop of 2010. Before the purchase, he had been assured by the dealer that the seed was genuine and pure and resistant to different insects, including green leaf hopper (Jassid). Contrary to these assurances, germination of the seeds itself was about 40% with poor formation of flower and boll. (Bolls are rounded seed capsules of plants like cotton and flax.) Immediately after noticing this, the OPs were informed, but they rendered no support or guidance to the complainants. Consequently, against assurance of 15 to 20 quintals yield per acre, the crop harvested yielded less than a quintal per acre. The complaint petition emphasises that farmers, who had sown other varieties of cotton seeds such as, Neerja, Dr. Brunt and Mahyco, got very good crop, despite heavy rains and Jassid infestation. The complaint petition has specifically claimed that:- The complainant used insecticides fungicides and fertilisers as and when it is required and also the complainant as adopted modern agricultural forming, though having sufficient water the yield is poor and scanty the complainant has used insecticides and pesticides for a tune of not more than 20,000/- per acre. If the crop is normal the complainant could have got a minimum yield of 15 quintals for per acre i.e., in the form of amounts Rs.60,000/- per acre i.e., Rs.4,000/- per quintal (15 x Rs.4,000). As the opposite parties have supplied sub-standard seed to the villagers including the complainant jointly got issued legal notice on 18-2-2011 to the both the opposite parties. After receipt of the said legal notice the opposite parties gave evasive reply on 4-3-2011.
4. In response, the stand of the OPs in the written version filed before the District Forum, was that there was no defect in the seeds sold to the complainants. The OPs denied that any assurance was given about the seeds supplied being resistant to different insects, including Jassid. The allegations of 40% seeds germination and poor formation of flowers and boll, as well as any assurance about yield of 15 -20 quintals per acre, were also denied. -15-
5. It will be seen from the following averments in the written statement that the OPs have sought to rely very heavily on the report of Dr. M.Gopinath, the then Principal Scientist (Cotton Breeding) RARS, Warangal in support of their claim that the cause of damage to the crop was continuous rainfall in October, 2010 and heavy attack of Jassid
It is further submitted that the report dt. 10-11-2010 of Dr. M. Gopinath, the Principal Scientist (Cotton Breeding) RARS, Warangal clearly reveals that the genetic purity was observed to be 95-98% irrespective of the Hybrid and Seed Company. It was further stated that there was a total rain fall of 731.8 mm. was received in 46 rainy days from July to October 2010 and that almost every alternative day it was raining which resulted in continuous wet soil conditions. He further reported that the incidence of Jassids (Green Leaf Hopper) was unabated occurring above economic threshold level in several broods (generations). He further stated that sucking pests have developed resistance to imidaclocrid pesticide and that the farmer could spray only 2-3 times to control Jassids, which was insufficient. He further reported that to control over lapping broods of Jassids 6-8 rounds of Spray was necessitated during 2010-2011 season. He also stated that the efficacy of the spray fluid was reduced due to intermittent rains and subsequent wash off of the insecticide before it was absorbed by the plant and become effective. Continuous wet soil conditions resulted in shedding of floral parts and tender bolls which was aggregated heavy incidence of sucking pests, particularly jassids, above ETL in over lapping broods. As a result the crop growth has been stunted, all the leaves became thick, leathery, downward curling into an inverted cup-shape, yellowing and turning into brick red with severe jassids injury. The shedding off squares, flower and tender bolls have resulted in barren plants with 5-10 bolls/plant only. Thus from the above report of Dr. M. Gopinath, there was no defect in the seed and on the other hand, the genetic purity of the seed was 95-98%.6. The substance of the findings arrived at by the District Forum is that:- (a) The contention of the OPs that no inference could have been drawn without getting the seeds tested, as per requirement of Section 13 Consumer Protection Act. 1986, has been rejected by the District Forum. In this context, relying upon the decision of the Honble Supreme Court of India in itNational Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy, 2012 (2) SCC 506, has observed that the farmer cannot be expected to preserve a portion of the seeds for testing under Section 13. Therefore, in the present revision petitions, nothing stopped the OPs from applying for the test and analysis and sending the requisite sample on their own. But, no application was made before the District Forum for such a test. (b) The claim of the OPs that they could not send the seeds for testing as the validity period of certification of the seeds had already expired before issue of notice by the District Forum, has been rejected. District Forum has noted that under the Seeds Act, 1966, the OPs could have sought extension of the period of validity by six months. (c) The claim of the OPs that they had inserted multi-lingual literature in the seeds pouches sold to the complainants, instructing the farmer on cultivation and protection measures, has been rejected. The District Forum has held that no such literature was placed before it by the OPs. -16- Therefore, the District Forum concluded that This would go to show that it would be due to defect in seed resulting in flower shedding and less bolls and also according to Ex. A-39 and XIV in C.C.120/2011 dated 30-06-2010 Office Memorandum i.e. recommendation of the Standing Committee for BT II cotton hybrids for commercially release in the South Zone wherein in Col. No.20 of Nuziveedu Seeds Pvt. Ltd., the said seed variety of NCS 861 BT II was not seen, even though the opposite parties released the same for commercial purpose in the market, without knowing this the complainant purchased the seed and sustained huge loss, by which it seems that the opposite parties are in a position to gain more and more profits but not the welfare and fate of gullible farmers after using their seeds. By this we can say that there is a clear deficiency of service on the part of opposite parties by supplying defective seeds by the opposite parties. The main contention of opposite parties is that the complainant did not follow the proper management of crop field and due to heavy rainfall estimated yield was low but not due to defective seeds supplied by opposite parties. We do not find any force in their contention on the ground that there is no documentary evidence adduced on behalf of their plea and it is also improbable that all the farmers affected by low yield because of usage of said seed would not have adopted proper crop management practices. As per Ex. B-1
i.e, the Collectors Pamphlet issued in the month of July, 2010 for proper crop management, the issue deserves to be considered from another angle, majority of farmers in our country remain illiterate throughout their life because they do not have access to the system of education, they mainly rely on the information supplied by Agriculture Development and Government Agencies like the opposite parties, in the normal course they are professionally farmers, their lives depend upon cultivating their fields, therefore they were very much aware to crop management with their vast experience certainly they follow the crop management to get good yield. Hence, the contention of the opposite parties is unsustainable.
7. All appeals filed by the OPs, against the above order of the District Forum, have been dismissed by AP State Consumer Disputes Redressal Commission in a common order passed on 1.5.2014. Commenting on the report of Dr. Gopinath, on which the defence of the OPs had substantially been founded, the State Commission has observed that it is neither helpful to the complainant nor to the opposite parties as it has not specifically mentioned whether the loss of yield was on account of defective seeds or other measures that were required to be taken by the complainant. The State Commission has also rejected the certification of genetic purity of the order of 95-98%. In the report of Dr. Gopinath as it does not give the basis how it is arrived at. The State Commission relied upon decision of the Honble Supreme Court mentioned earlier in this order to hold that the farmer alone could not be held liable to prove that the seed was defective. Nothing prevented the OP-2 from producing the same before the District Forum, for quality testing. The complainants could establish that there was loss of recovery in the crop. Therefore, the onus was on the OPs to prove that the seed used in production of the crop did not suffer from any defect, especially when other variety of seeds supplied by other companies in the same region could fetch good yields.
8. Therefore, the impugned order says -17- The complainants have proved their cases beyond doubt by filing the report of Scientist and Dhruveekarana Patram and Pattadar Pass books to show that they sustained loss due to defective seeds supplied by the appellants. It is not the case of the appellants that the farmers in the neighbouring fields by using the same variety of hybrid cotton seeds had obtained the same quantity of yield as expected and as stated by the appellants. The loss of crop in the fields of complainants is an undisputed fact. The only question is whether the loss of crop is attributable to defective seeds supplied by the Opposite Parties/appellants. The complainants could establish that there was crop loss but the appellants/Opposite Parties failed rebut the evidence by showing the data of yield obtained by other farmers who had used the same variety of hybrid seed during the said season. The onus is on the appellants to prove that the seeds supplied by them do not suffer from any defect especially when other varieties of seeds of other companies could fetch good yield in the same region relating to same crop season. The manufacturer did not send the seeds that were released to the market under the said batch in order to prove that the seeds were not of inferior in quality. It did not even file the government recognized laboratory test reports that were conducted before releasing The question in regard to nature of land, irrigation facilities etc.,the seeds to the market. were of general nature. The Scientist did not state that the lands were not suitable for raising cotton crop. The very fact that when other companies hybrid cotton seeds are highly resistant to pests as observed by the Scientist, an adverse inference can be drawn that there was deficiency in the seeds supplied by the appellants. There could not have been total loss of crop for all these agriculturists had seeds been in conformity with the specifications. We have absolutely no hesitation to hold that the crops were failed due to defective seeds. The complainants have proved by leading irrefutable documentary evidence that they have sustained loss in view of defect in the seeds.
9. We have carefully considered the records as submitted in these Revision Petitions. Delay of 16 days in filing these petitions is cononded. Mrs. Radha Rao Advocate has been heard on behalf of the Revision Petitioners and Mr. Suyodhan Byrapaneni, Advocate on behalf of the Respondents/Complainants. In three cases, Respondents/Complainants reportedly died during the pendency of their proceedings. Their Legal Representatives have been permitted to be brought on record. Further, in order to avoid continued harassment of very small farmers, this Commission consciously decided not to issue notices to Respondents/Complainants who had sown the crop in less than one acre and had been awarded compensation below Rs.30,000/-. Thus, 31 RPs have been dismissed without notice. The remaining 48 are decided in this order.
10. One of the first grounds raised is that when the genetic purity of the seed was of the order of 95-98%, fora below could not have held it to be an inferior quality of seed. According to the Petitioner, under the notification of Ministry of Agriculture dated 28.12.1993 genetic purity of 90% would be considered sufficient. The Revision Petition does not explain why actual germination was only about of 40%, if the genetic purity was as high as claimed. While, no acceptable explanation has been offered on behalf of the Petitioners, learned counsel for the Respondents/Complainants explained that the claim of genetic purity itself emanates from self certification by OP-2. He also referred to the relevant provisions in the Andhra Pradesh Act, No.29 of 2007, which deals with regulation of supply, distribution, sale and price of cotton seed. Section 6 therein clearly lays down that the testing should be done in a notified State Seeds Testing Laboratory or any other notified government/non-government -18- laboratory. The RPs/OPs have not pointed to any test report of an independent testing agency which gave them certification of 95-98% seed purity.
11. Revision Petitioners have also argued that having observed that the report of Dr. Gopinath did not help the case of either sides, the State Commission should have remanded the matter to the District Forum or sought specific opinion from Dr. Gopinath. This argument appears to have been raised for its own sake. It is clear from the orders of the fora below that the District Forum and State Commission have both reached their findings independently of report of Dr. Gopinath. We also find it necessary to observe that this expert report suffers from very clear flaws. It makes repeated claims about genetic purity of 95-98% without clarifying the source of such test and certification. The report does not explain why the actual germination was only 40% as against the certified germination level of 85%. Reliance is primarily placed on damage to the crops by heavy rainfall of July, August and September and the resultant infestation of Jassid. Dr. Gopinath, being an Agricultural Scientist should have appreciated that in the same year and under the same weather conditions crop raised with other varieties of cotton seeds such as Neeraja, Dr. Brunt and Mahyco have reportedly given good yields. His study and report should therefore, have gone deeper into the reasons for failure of the crop raised with LAYA variety in the fields of the complainant. Blaming the crop failure on the srain conditions and pest attack, coming as it does from an agricultural scientist, cannot be accepted. We therefore, find ourselves in complete agreement with the fora below on the merits of the report of Dr Gopinath.
12. The Revision Petitions contend that six to eight rounds of pesticides spray were required, while the complainants had sprayed only two to three times. But, there is no explanation whether six to eight sprays were recommended by the OPs while selling the seeds, as they were well aware that this seed was being used in the State for the first time. The District Forum has categorically observed that no evidence was placed before it to show that the complainants were so advised by the OPs. The Revision Petitions too do not bring out any evidence to the contrary. This claim is therefore rejected.
13. It was further argued on behalf of the Revision Petitioners that the finding of failure of seed has been reached by the fora below without obtaining independent assessment as per the requirement of Section 13 of the Consumer Protection Act. On this issue, earlier in this order, we have referred to the decision of the Honble Supreme Court of India in National Seeds it was observed that theCorporation Ltd. Vs. M. Madhusudhan Reddy, 2012 (2) SCC 506, farmer cannot be expected to preserve a portion of the seeds for testing under Section 13. We may note that, even prior to this decision, the National Commission had in National Seeds expressed a veryCorporation Ltd. Vs. Guruswamy and anr., 2001 CTJ 733 (CP) (NCDRC) similar sentiment. It had observed that:-
If the Petitioner Company was little more sensitive or alert to the complaint of the Respondent/Complainant, this situation might not have arisen. Petitioner has to pay for his insensitivity. The Respondent/Complainant led evidence of States agricultural authorities in support who made their statements after seeing the crop in the filed. The onus passes on to the Petitioner to prove that the crop which grew in the field of the complainant was of Arkajyothi of which the seed was sold and not of sugar Baby, as alleged. He cannot take shelter under Section 13(c) of the CP Act.-19- Similarly, in the present revision petitions, nothing prevented the OPs from applying for the test and analysis and sending the requisite sample on their own. But, no application was made before the District Forum for such a test. We therefore find ourselves in complete agreement with the fora below that nothing prevented the RPs/OPs from making such a prayer before the District Forum and seeking independent third party assessment of the quality of their seed. This argument is consequently rejected.
14. Earlier in this order, we have noted that LAYA BT-2 variety of cotton seed received certification for commercial marketing on 7.4.2010.Therefore, 2010 would have been the very first year of its commercial marketing. It is impossible to believe that, as a new product, it could have entered the market without promises of genetic superiority and higher yields. Yet, when the problem arose in the form of poor germination, scanty flowering and formation of bolls, the OPs responded in a shocking manner. Their response was of total denial of everything. Certainly, it was not their case that there was no problem as they have themselves produced a copy of the notification of the Collector & District Magistrate, Warangal in which cotton farmers were advised on remedial measures. But, even while referring to the District Collectors notification, the RPs/OPs make no mention of the help, guidance or support, if any, rendered by them to the buyers of their own cotton seed. We are appalled to find that all that they have chosen to say on the matter is For that the ld District Collector, Warangal has issued a general information to the farmers stating that because of heavy rain in the area, the cotton crop of all varieties was very much affected and attacked with sucking pests like green leaf hopper, white fly etc. and advised the farmers to apply proper pesticides to control the same. No evidence has been produced by the complainant to show that he has approached the concerned agriculture officer or to the petitioners for taking effective measures to control the jassid.
15. In conclusion, we find no merit in these revision petitions. Consequently, they are dismissed and the common order of the AP State Consumer Disputes Redressal Commission in Fist Appeal Nos.1120-1198 of 2013 is confirmed. However, before parting with the matter we deem it necessary to observe that the dismissal of these revision petitions will not result in closure of a much larger issue involved therein. Even after the complainant farmers have received the compensation awarded in these proceedings, the need to protect them and other similarly placed farmers, from such risk in the future, shall continue to be an area requiring serious concern, attention and action. We therefore direct that a copy of this order should be sent to the Chief Secretary, Government of Telangana to initiate preventive measures. ......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER ...................... M. SHREESHA -20- MEMBER -21-
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