Western Agri Seeds Limited v. Ramesh Shyamraoji Dhote

APPEARED AT THE TIME OF ARGUMENTS For the Petitioner : Mr. Neelmani Pant, Advocate PRONOUNCED ON: 19 SEPTEMBER 2016th ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 09.02.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nagpur in two appeals, FA/13/45, Western Agri Seeds Ltd. vs. Sh. Ramesh Shyamraoji Dhote & Anr. and FA/14/57, M/s. Sriram Agro Centre vs. Ramesh Shyamraoji Dhote, vide which, while dismissing both the appeals, the order dated 19.11.2013, passed by the District Consumer Disputes Redressal Forum, Wardha in Consumer Complaint no. 108/2011, filed by respondent no. 1, Ramesh Shyamraoji Dhote against the two petitioners, allowing the said complaint, was upheld.

2. The factual matrix of the case says that the complainant/respondent no. 1, Ramesh Shyamraoji Dhote stated in his consumer complaint that he was a small farmer at village Maoji Taroda, Tehsil Karanja, District Wardha, having 7 acres of agricultural farm in his name, which was the means of livelihood for him. During Rabi season 2011, he had sown groundnut seeds of Western 51 variety, produced by the petitioner/OP-2, Western Agro Seeds Ltd. and purchased from the dealer petitioner/OP-1 Sriram Agro Centre by paying Rs. 14,760/- for nine bags of 20 kg seeds each. He sowed the seeds on 13.01.2011 in 3 acres of land, after preparing the same as per the usual package of practices, including application of fertilizers, weedicides, micro-nutrients and water etc. On 16.05.2011, after the maturity duration of the crop was over, he found that seed pods were grown in very less number for the crop. The complainant made a complaint dated 16.05.2011 to the OP-1, dealer and also to the agriculture officer, Panchayat Samiti Karanja. The agriculture officer visited the farm of the complainant and submitted his preliminary report to the District Level Seed Complaint Redressal Committee Vardha for further inquiry. The District Seeds Grievance Redressal Committee, Vardha paid visit to his farm on 31.05.2011, and had drawn the following conclusion:-

Conclusion The farmer has cultivated ground nut crops of the western-51 variety. Its growth has been satisfactory. But the vegetative growth of the plants is more than the proportion. While looking at the number of randomly taken fruits in the plants, six fruits on average are seen as filled up and therefore, it has led to financial losses on the part of the farmer, the committee feels.

3. Since as per the report of the District Committee, there was financial loss to the farmer, he sent a legal notice to OP-1 and OP-2, demanding compensation for the loss. It was stated that he had obtained yield of 20 quintals against the expected yield of 90 quintals. He also stated that taking the current market rate of groundnut as Rs. 4100-Rs. 4300 per quintal, the estimate of loss to the complainant was around Rs. 2.45 lakhs to Rs. 2.58 lakhs. The OPs, however, rejected the plea taken by the complainant. The consumer complaint in question was then filed, seeking directions to the OPs to compensate for the loss to the extent of Rs. 2.46 lakhs alongwith 10% interest per annum. The complainant also demanded a compensation of Rs. 25,000/- and Rs. 7,500/- as litigation cost from the OPs. In reply filed before the District Forum by the petitioner/OP-2 manufacturer, it was stated that the complainant had failed to follow the directions of the Company for taking necessary steps to ensure good production from the said seeds. The factors like the type of soil, weather, humidity, temperature, proper use of fertilizers, medicines, water etc. also mattered. The petitioner/OP-2 admitted that the complainant had purchased nine bags of 20 kg each for seeds for groundnut western-51 variety from OP-1 and sown them on 3-acre farm. The OP, further, stated that the complainant was engaged in commercial production and hence, he was not covered under the definition of consumer. The OP-2 stated that a copy of the report of the District Committee had not been given to them. In nutshell, the OP-2 stated that there was no defect in the seeds, but the production depended on several other factors.

4. Before the District Forum, the OP-1 dealer did not appear and hence, was proceeded against ex-parte. The District Forum, after taking into account the averments made by the complainant and OP-2, allowed the consumer complaint and directed both the parties, jointly and severally, to pay compensation of Rs. 2,46,000/- to the complainant with interest @ 8% per annum from 21.10.2011 onwards. The District Forum also directed payment of compensation of Rs. 10,000/- and litigation cost of Rs. 3,000/-. Being aggrieved against the said order of the District Forum, both the parties challenged the same by way of two separate appeals before the State Commission and the said appeals having been dismissed vide impugned order, the OP-2, Western Agro Seeds Ltd. is before this Commission by way of the present revision petition.

5. It was observed by the State Commission in their order that the District Seeds Grievance Committee carried out the spot inspection in the presence of the representative of OP-1. It was also observed that since intimation had been given to the authorized dealer of OP-2 Producer, the OP-2 could not have raised the plea that inspection was carried out behind his back. The State Commission, while passing the impugned order, relied upon the judgment made by the Honble Supreme Court in National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC).

6. During hearing before this Commission, the learned counsel for the petitioner vehemently argued that the consumer fora below had merely relied on the report made by the District Level Grievances Committee of the Department of Agriculture, rather than obtaining report about the quality of seeds from some testing laboratory. He also stated that the report made by the Agriculture Officers had been done at the back of the petitioners and hence, could not be relied upon. The learned counsel stated that the germination of seeds had been proper, but the growth of plants did not depend only on the quality of seeds, but upon several other factors as well.

7. On being pointedly asked, whether the petitioner, as producer of the said seeds, had produced or was prepared to submit any technical report in support of their claim that there was no defect in the said seeds, the learned counsel replied that it was the duty of the complainant only to provide the necessary proof in this regard under the provisions of the Consumer Protection Act, 1986.

8. I have examined the entire material available on record and given a thoughtful consideration to the arguments presented before me.

9. The issue in dispute in the present case has been the subject matter of discussion in various similar matters decided by the Honble Apex Court and this Commission as well. In a recent judgment delivered by this Commission in Revision Petition No. 381/2002 on 05.11.2014, , it has been stated in the order recorded by theAnkur Seeds Pvt. Ltd. Anr. vs. Motilal & Ors. Honble President of the Commission, as follows:- The main thrust of the arguments of the Ld. Counsel is that: (i) the report submitted by the Senior Agriculture Development Officer cannot be relied upon against the Petitioners as the fields were inspected without notice to them, (ii) even otherwise the report does not indicate that the seeds supplied by the Petitioners were of substandard quality or genetically defective and (iii) the Complainant having failed to obtain any report about the quality of the seeds from a recognized Laboratory, has failed to discharge the onus to prove that the seeds, produced and marketed by the Petitioners, were in any way defective resulting in low yield of the cucumber crop.

9. I am unable to persuade myself to agree with the Learned Counsel. It is cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction between the phrase burden of proof and onus of proof. Explaining the said distinction, in AIR 1964 SC 136, aA. Raghavamma & Anr. Vs. A. Chenchamma & Anr. three Judge Bench of the Honble Supreme Court held that: there is essential distinction between burden of proof and onus of proof: burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was further stated in the said order as follows:-

13. In my view therefore, to give effect to the Objective of the Act, its provisions have to be construed by resorting to Considered fromthe Doctrine of Purposive Construction. that perspective, in my opinion, if a Complainant is able to create a high degree of probability of deficiency on the part of the Opposite Party, the onus would shift on to the Opposite Party (the defendant) to discharge the onus to prove his denial.

10. The National Commission in the order quoted above has relied upon the order made by the Honble Supreme Court in National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & in which it has been stated as follows:-Anr. (supra), In some of these cases, the District Forums had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit report about the status of the crops. In one or two cases the Court appointed the Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports the District Forums felt satisfied that the seeds were defective and this is the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. In our view, the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Consumer Protection Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Protection Act had not been followed.

11. The facts and circumstances of the present case reveal in no uncertain terms that the orders passed by the consumer fora below are based upon the inspection report of the District Level Grievance Redressal Committee. A perusal of report made by the Committee reveals that four members carried out the spot inspection on 31.05.2001 on the fields of the complainant. The complainant farmer as well as the proprietor of the dealer, respondent no. 1, Ramesh Shyamraoji Dhote were also present at the time of the said inspection. It was clearly revealed that the fruits of the plant were not as per the expected yield. Before inspection made by this Committee, the Agriculture Officer Karanja visited the spot on 25.01.2011 and stated in his report 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 fault in the variety of the seeds.

12. It is very clear from the reports made by the agricultural experts that the complainant has been able to create a high degree of probability of deficiency on the part of the OPs. As held in the case, , the onus of proof shifted toAnkur Seeds Pvt. Ltd. & Anr. vs. Motilal & Ors. (supra) the OPs to prove that the seeds manufactured by them were free from any defect. In the entire material on record and even during the arguments before this Commission, there has been no attempt on the part of the petitioner to discharge that onus and even when specifically asked to do so, they simply stated that it was the duty of the complainant to prove that the seeds were defective. It is very clear, therefore, that the petitioners have not been able to explain that the seeds produced and supplied by them to the farmers were of sound technical quality. The petitioners could have very well produced their own technical experts to prove that there was nothing wrong with the quality of seeds produced by them. On their failure to do so, there is no alternative, but to rely upon the report presented by the agricultural experts of the District Committee and pass award in favour of the complainant. It is evident, therefore, that there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below, which may necessitate any interference in the exercise of the revisional jurisdiction.

13. It may further be stated that the Honble Supreme Court, in their judgment in Ruby have stated that the(Chandra) Dutta vs. United India Insurance Co. Ltd., (2011) 11 SCC 269, powers in the exercise of revisional jurisdiction should be used only if there is an error of jurisdiction or miscarriage of justice, otherwise the concurrent findings passed by the fora below should not be interfered. Based on the discussion above, it is held that there is no merit in this revision petition and the same is ordered to be dismissed in limine, with no order as to costs. The impugned order is upheld. ...................... DR. B.C. GUPTA PRESIDING MEMBER