Anupam Dasgupta:— This appeal challenges the order dated 15.04.2005 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in complaint case no. 2 of 2001. By the said order, the State Commission partly allowed the complaint and directed all the opposite parties Novartis India Ltd. (Seeds Sector), Pune, Balakrishna Distributing Company, Khammam and Rama Hybrid Seeds Corporation, Khammam) guilty of deficiency in service in supplying Roshni chilli seeds to the complainant and awarded a compensation of Rs. 4,50,000/- towards expenses and crop loss along with cost of Rs. 5,000/-, payable within six weeks from the date of the order, with the further stipulation that failure to do so would entitle the complainant to interest on the said amount @ 9% per annum till payment. Aggrieved by this order, Syngenta India Limited (successor-in-interest of Novartis India Ltd.) has filed the present appeal.

2. We have heard Mr. Vikram Dhokalia, learned counsel for the appellant but did not have the opportunity of hearing the respondents (particularly respondent no. 1, the complainant before the State Commission) as none was present on behalf of respondent no. 1 on the date of hearing despite notice. In fact, by this Commission's order dated 28.11.2006, respondents no. 2 and 3 were directed to be proceeded against ex parte. Still, a second opportunity was given to respondent no. 3 by our order dated 04.11.2009 and the notices for both respondents no. 1 and 3 were handed over to the appellant's counsel for effecting service and also sent by registered post. Notices sent by registered post were not returned unserved and hence service would have to be presumed.

3. The facts leading to the complaint have been recorded in detail by the State Commission in its impugned order and need not be recapitulated here. However, we may notice that the finding of the State Commission holding the opposite parties guilty of deficiency in service in respect of the Roshni variety of chilli seeds produced and marketed by the appellant and bought by the complainant from the dealers (opposite parties no. 2 and 3) was based entirely on a field visit report dated 17.01.2001 of one Mr. J.N Bavaji, Senior Scientist, (Chillies) and Dr. Khalid Ahmed, Senior Scientist (Entomology) Regional Agricultural Research Station (RARS), Lam, Guntur. According to this report, the two scientists had visited the farms of the complainant as well as some other farmers in Khammam Rural Mandal and Bonakal Mandal. In respect of the field of the complainant, the following observations were made in the report:

“The farmer Sri Velaga Narasimha Rao planted “Roshini” chilli hybrid of Novartis in 15 Ac. during 1st week of August 2K. The farmer informed that there was no problem upto October and he harvested 25 Q of green pod from 15 Ac. At present the crop is in ripening stage, 4-5 Q of ripe pod/Ac is expected. 4-5% plants are affected with fruit rot and die back symptoms and 3-4% virus affected plants are also seen. In a particular patch of 2 Ac which is uneven and low lying most of the plants are affected with virus (80-85%). No flowering and fruiting is seen in this patch. The farmer informed that he left the crop without plant protection since one month, as it is not economical.

“In general, in no mandal the crop failed completely due to pests and diseases. The crop is in harvesting stage. 3-4% incidence of fruit rot and die back virus incidence is seen in all the mandals as the crop is in senescence stage. Average yield of 5-6 Q/Ac is expected. The farmers are very much disappointed with chilli hybrid Roshini. The performance of this variety in the villages seen is average. In no mandal the Roshini hybrid exhibited high vigour to get 30 Q/Ac as advertised by the company people. Maximum it may yield 10-12 Q/Ac in the villages seen.” [Emphasis supplied]

4. In this context, some points need to be noticed at the outset. Initially, the State Commission had directed the Senior Scientist (Chillies), RARS Lam, Guntur to depute a seed inspector to ascertain whether the seeds (Roshini brand chilli) produced and marketed by opposite party no. 1 (appellant here) and sold by the opposite parties no. 2 and 3 were affected by pest/disease. The Commission gave an option to the complainant to produce a sample of the seed which was used by him for raising the crop. In response to this direction, the Senior Scientist (Chillies) stated in his report dated 04.06.2001 as under:

“As per the directions of A.P State Consumer Disputes Redressal Commission, Hyderabad and as per the orders of Associate Director of Research, RARS, Lam (C1/135/2001 dated 14.5.2001), I have proceeded to Khammam on 2.5.2001 and met the farmer Sri Velaga Narasimha Rao and Sri K. Srikanth Babu of Novartis India Ltd. at DAATTC office, Agricultural Market yard, Khammam. The farmer Sri Velaga Narasimha Rao informed me that he has ploughed the chilli field and only stubbles were left over here and there. I have visited the chilli field of Sri V. Narasimha Rao in the village of Yedulapalem on the same day at 11 a.m along with the farmer Sri V. Narasimha Rao and Srikanth Babu of Novartis Company. I have seen that the field was ploughed and only stubbles were left over here and there. The farmer informed me that he has sown all the seed of 1 ½ kg. which was purchased from Novartis Company. No seed was left over to conduct any test.

Since it is not possible to examine whether the crop is infested with the pest or disease by seeing the stubbles, I request the Associate Director of Research to send a copy of my earlier report on the filed inspection of chilli crop in Khammam Rural and Urban mandals surveyed by me and Dr. Khalid Ahmed, Senior Scientist (Entomology) on 16.01.2001 along with the offices of Department of Agriculture. During that day we happened to visit the chilli filed of Sri Velaga Narasimha Rao, Yedulapalem village, Khammam (Dist.), to give some idea about the chilli crop.”

It is this report of 16/17.01.2001 that the State Commission relied upon, as noticed above.

5. The impugned order of the State Commission has also noted that after complaints of the complainant, opposite party no. 3 had deputed its Field Assistant to inspect the field of the complainant and collect samples of the plants (grown with the seeds in question) for necessary analysis and remedial measures. It is further noticed that the samples of the plants were sent to the National Bureau of Plant Genetic Resources, Regional Station, Rajendra Nagar and it was found that the virus which had infected the crop was Cucumber Mosaic Virus (CMV) but not Tobacco Mosaic Virus (TMV) or Potato Virus Yellow (PVY).

6. Learned counsel for the appellant has vehemently argued that the above-mentioned report dated 17.01.2001 cannot be read to conclude that the seeds of Roshni chillies manufactured/supplied by the appellant were in any way defective or ab initio virus-infected. He has drawn our attention to the fact that 4-5% plants affected by fruit rot and die back symptoms and 3-4% plants affected by virus were clearly the result of the complainant not following any of the recommended agricultural practices, including use of appropriate pesticides, in raising the crop. According to the learned counsel, this was borne out by the last sentence of the report, “The farmer informed that he left the crop without plant protection since one month, as it is not economical”. He further argued that as submitted before the State Commission, the complaint's chilli crop had been affected by aphids which caused the CMV that damaged the crop; the CMV was not a seed-borne virus but transmitted by the vector aphids from other (virus-affected) plants. He has further pointed out that no where in the brochure advertising the various types of chilli seeds produced and marketed by the appellant was it mentioned that the seeds of Roshni chilli were resistant to CMV; all that was claimed was that these seeds were tolerant to TMV and PVY. Further, the appellant company did not claim anywhere that the Roshni seeds would yield chilli crop of 30 quintals per acre under all circumstances and thus the observation in the report dated 17.01.2001 in this context was not warranted. Finally, he has argued that the State Commission had held the opposite parties, including the appellant, guilty of “deficiency in service”. However, no instance of any deficiency in service on the part of the appellant had been substantiated by the complainant nor was this finding of the State Commission based on any cogent evidence produced before it.

7. After careful perusal of the pleadings, evidence and documents brought on record, we are inclined to agree with the learned counsel for the appellant. First, the seeds purchased by the complainant were produced and marketed by the appellant which was not the direct seller of the seeds to the complainant. The latter purchased the seeds from the dealers, i.e, respondents (opposite parties) no. 2 and 3. Secondly, there is nothing on record, much less any finding of a competent technical laboratory, to show that the said seeds sold to the complainant by opposite parties no. 2 and 3 suffered from any quality defect or did not meet the standards prescribed for such seeds. In fact, the RARS scientists deputed by the State Commission were unable to test the seeds because the complainant did not preserve any samples thereof. Thirdly, there is no evidence on record that the appellant had advertised these seeds as possessing virus-resistant/tolerant qualities which in reality the seeds did not possess. Fourthly, there is nothing show that the appellant had claimed that farmers could get yields of 30 quintals per acre by merely using this variety of chilli seeds, irrespective of the agricultural practices actually adopted by them. Finally, the alleged liability of the appellant to provide any “service” to the complainant (which could only be in terms of some form of advisory service in the process of sowing these seeds and tending the resultant crop to ultimately ensure the alleged high yield) is also not supported by any evidence/document. In fact, a plain reading of the allegations in the complaint, duly summarised in the impugned order, would show that the complainant's main grievances were against the officers/scientists of the RARS, Lam because, according to the complainant, they did not help and the poor yield obtained by the complainant was on account of plants getting affected by virus, as opined by an officer of the Directorate of Agriculture who came to inspect the complainant's farm on his complaint. Hence there was no question of any deficiency in service on the part of the appellant (or, for that matter, the dealers/other respondents) in the absence of any evidence that they individually or severally also assured plant protection services in raising the said chilli crop, using the Roshni variety of chilli seeds. It is a bit of a mystery indeed how, only on the basis of the above-mentioned report of the two RARS Scientists, the State Commission came to the finding of deficiency in service, in the following words, “Taking into consideration the fact of low yield and also that the seed is effected (sic) by virus we are of the considered opinion that there is deficiency of (sic) service on the part of the opposite party”. The impugned order contains no discussion of the “service” that the State commission had in mind, far less of the “deficiency” therein. It is also not that the State Commission could come to a finding of “defective” seeds, for there was no possibility of such a finding in the absence of proper testing of the seeds and the seeds in question were certainly not tested at any stage. Finally, while the use of the singular number in the words “opposite party” cannot be missed, the order went on to fasten the liability of paying the awarded compensation on all the three opposite parties. Thus, the order is wholly erroneous and can simply not be sustained.

8. As a result, the appeal is allowed and the State Commission's order qua the appellant is set aside. With that, the complaint is also deemed to have been dismissed. The appellant's deposits with this Commission during these proceedings and the accrued interest, if any, thereon may be refunded by the Registry.