Pronounced on 5 January, 2016th ORDER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by petitioner against order dated 10.8.2012 passed by State Commission in First Appeal No. 895 of 2007- Mahyco Vegetable Seeds Limited Vs. .; by which appeal was partly allowed.Ishwarbhai Baburao Thakare & Ors Brief facts of the case are that complainants/ respondent No. 1 & 2 being father & son purchased seeds of lady finger (bhindi) from opposite party No. 1/ respondent No. 3-manufactured by O.P. No. 1/petitioner for taking crop in their fields. It was further submitted that on 8.4.2005, they purchased 10 packets of seeds containing 250 gm and on 13.4.2005 purchased 4 packets @ Rs. 220/- per packet and seeds Lot number was 255191. Seeds were sown in 3.20 acres land and balance portion of seeds from 1 packet was handed over to the Agriculture Officer for testing at the time of inspection. It was further contended that in spite of taking all necessary measures such as using sufficient manures, fertilizers, pesticides and giving proper irrigation and in spite of maturity period had reached which is 100- 110 days, although there was good growth of plants with average 5 ft., but there was no flowering and bearing of fruits except some sporadic plants which had fruit to some extent. Therefore complainants filed complaint dated 11.7.2005 with the Development Officer of Panchayat Samiti, Nandurbar with copies thereof to District Agriculture Officer, Z.P. Nandurbar and Agriculture Officer, Panchayat Samiti, Nandurbar. Accordingly, District Seeds Grievance Redressal Committee visited the complainants field on 15.7.2005, prepared panchanama and report. There were 8 members of the Committee present for inspection. As per Committees report 90% plants were found sterile and 30% were affected by Mosaic disease (Haladya). It was averred that they had to bear heavy financial loss of Rs. 12 lakhs considering 200 quintals of Bhindi yield per acre and area under the said crop at 3.20 acres and the income received from the said crop was only Rs. 15,095/-. Alleging deficiency on the part of opposite parties, complainant filed complaint before District Forum. Opposite party No. 1 admitted sale of 20 packets and prayed for dismissal of complaint. Opposite Party No. 1 denied that he recommended aforesaid variety of bhindi seeds to the complainants. Opposite party No. 2 resisted complaint and submitted that complainants are not their consumers as complainants have not purchased said seeds from authorized dealer. He specifically denied that opponent No. 1 was their authorized dealer. It was further contended that seeds were purchased for commercial purpose as the same is evident from the amount of compensation claimed at Rs. 12,56,715/-. It was also contended that said seed purchase receipt is in the name of complainant No. 1 and hence complainant No. 2 has no locus-standi to file the complaint. It was also the averment of the appellant seed company that seeds purchased have not been tested from any authorized laboratory as required U/s 13 (1) ( C) of the Consumer Protection Act and hence only on the basis of District Seeds Grievance Committees report, it cannot be concluded that seeds were defective. It was also contended that seeds before marketed were tested in their laboratory as on 28.12.2004 in which germination was found 88%. Genetic purity was also tested on 23.3.2005, which was found to be at 90% and there are no complaints about this seed from other farmers. Area sown of bhindi crop as per 7/12 extract also appears to be false because considering area sown under cotton crop, there remains no balance area as per total area of said Gut. The findings of the District Seed Committee were also not accepted as the total percentage of sterility at 90% and Mosaic affected plants @ 30% gives total of 120%. Financial loss of Rs. 12 lakhs as alleged due to loss in yield was also contended to be baseless. It was specifically contended that, as per companys recommendation, 3 kg of seeds per acre was required to be sown. However, 5 kg of seeds were stated to have been sown in 3.20 acres. It was, further, stated that temperature in summer season is about 35 degree centigrade which is not favourable to the said crop. Space between plants to plant was also not maintained as per recommendation. Thus it was contended that all these facts contributed for so called loss in yield and not the seeds. It was therefore contended that there was no deficiency on the part of opposite party, hence, complaint be dismissed. Learned District Forum after hearing both the parties allowed complaint and directed opposite parties to pay Rs. 5.00 lakhs as compensation. Opposite party No. 2 filed appeal and Learned State Commission vide impugned order allowed appeal partly and exonerated opposite party No. 1 and reduced compensation from Rs. 5.00 lakhs to Rs. 1,45,000/- against which this revision petition has been filed. Heard Learned Counsel for the parties and perused record. Learned Counsel for petitioner submitted that in spite of no defect in seeds, Learned Commission committed error in allowing appeal only partly, hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. Learned Counsel for respondent No. 3 also supported petitioner. On the other hand, Learned Counsel for respondent No. 1 & 2 submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed. The core question to be decided in this case is whether seeds of lady finger (bhindi) manufactured by petitioner were deficient? Except evidence of District Seeds Committee report, there is no other report to suggest that seeds were defective. Aforesaid report concluded that 90% of the plants were found to be sterile, 30% of the plants were affected by disease (Haladya) but this report has nowhere mentioned that sterility of plants was due to defective seeds or seeds were defective in any manner. Learned Counsel for petitioner has drawn my attention towards brochure which required soil for the Bhindi-10 variety is fairly light and well drained but as per complainant, complainants soil was heavily black and complainant had taken crop of cotton in previous two seasons. As per brochure, plants affected by disease of Yellow Vein Mosaic were required to be removed to protect other plants from aforesaid disease but as per District Seeds Committee report, aforesaid plants were not removed. Learned State Commission rightly observed that District Seeds Committee report has not given clear findings in respect of defectiveness of seeds and in the absence of such report and without any other evidence, suggesting defectiveness of seeds, compensation should not have been awarded on account of defective seeds. Learned Counsel for petitioner further submitted that total period of crop is between 100 to

110 days whereas complainant filed complaint in 90 days which is re-mature complaint. Only after passing of 110 days if crop was in-sufficient, he should have filed complaint. Learned State commission observed that sterility of plants cannot be attributed only to the defectiveness of seeds but defectiveness of seeds is one of the factors which amounts to deficiency and unfair trade practice. When there was no evidence on record to such defectiveness of seeds and admittedly complainant has not used required quantity of seeds and quality of land, there was no occasion for State Commission to award compensation on the basis of alleged defective seeds by reducing to Rs. 1,45,000/-. Learned Counsel for petitioner has placed reliance on judgment of this Commission in II (2007) CPJ 148 (NC)- Indo American Hybrid Seeds & Anr. VS. Vijayakumar Shankarao & Anr.; in which while allowing appeal, it was observed as under

We are still more surprised that since this team comprised the District Seeds Certification Officer and the Quality Control Inspector, yet not a word has been stated against or about the quality of seeds supplied. The variation in yield could be on account of preparation of land and care, use of pesticides, insecticides, fertilisers, climate, temperature and the like. Those are external consideration. We have to fix the responsibilities of the appellant only with regard to the quality of seed supplied on which there is no evidence brought on record by the complainants in support of the contention that the seeds supplied were of standard or non-standard quality. We are unable to appreciate the conclusion reached by the State Commission that sale of defective seed was a case of unfair trade practice by O.P.

He also placed reliance on judgment of this Commission in RP No. 2300 of 2010 Mahyco in which it was held that onus toVegetable Seeds Ltd. VS. Pasam Lakshmi Narayana & Ors.; prove that seeds are defective is on the complainant and complaint was dismissed as complainants did not adopt the practice recommended in the literature and failed to establish that there was defect in the quality of the seeds or the seeds are of sub-standard quality. He also placed reliance on judgment of Honble Apex Court in Civil Appeal No. 2428 of 2008- Mahyco Seeds Company in which appeal was allowed and observed asLtd. VS. Basappa Channappa Mooki & Ors; under:- In view of the decision of this Court in Haryana Seeds Development Corporation Ltd. Versus N.S. Sadhu and another reported in 2005 (3) SCC 198, it is established that the variation in condition of crop is not and cannot be attributed to quality of seeds but to other factors. Inferior quality of seeds is not a factor. But the Report, which has been given by the Agricultural Officer on the Chamatkar Cotton seeds crop condition, no mention has been made about the inferior quality of seeds. In view of that, the complaint cannot be sustained. The appeal is accordingly allowed. On the other hand, Learned Counsel for respondent placed reliance on judgment of Honble Apex Court in Civil Appeal No. 4704 of 2009- National Seeds Corporation Ltd. Vs. M. Madhusudhan in which it was observed that where farmers do not retain any portion of seed,Reddy & Anr; District Forum should have asked opposite party to provide samples of seeds and sent them for analysis for test in the laboratory. It was further, observed that officers of opposite party who also inspected filed should have collected samples and got them tested in the laboratory and on account of these omissions, it was observed that seeds sold/ supplied by opposite party were defective. This judgment is not applicable to the facts and circumstances of presence case because in the case in hand, as per complainant himself, complainant handed over remaining seeds to Agricultural Officer for testing. Not only this, samples were sent for testing but report was not received and Learned District Forum allowed complaint observing seeds as defective. Learned District Forum ought to have waited for the report and if report was received in favour of complainant, then only compensation should have been allowed on the ground of defective seeds. When seeds had already been sent for test, opposite party was not required to provide seeds of that lot for testing. Learned Counsel for respondent could not draw my attention to any order by which Fora below asked opposite party to supply seeds and opposite party failed to supply. In such circumstances, in the absence of any definite report about defective seeds, Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in allowing appeal partly and complaint is liable to be dismissed in the absence of cogent evidence about defectiveness of seeds. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 10.8.2012 passed by Learned State Commission in First Appeal No. 895 of 2007- Mahyco and order of District ForumVegetable Seeds Limited Vs. Ishwarbhai Baburao Thakare & Ors; dated 2.8.2007 passed in Complaint No. 37 of 2006- Ishwarbhai Baburao Thakare & Anr. VS. is set aside and complaint stands dismissed.M/s. Jain Agro Agency & Anr.; Parties to bear their own cost. -sd/- ......................J K.S. CHAUDHARI PRESIDING MEMBER