Ankur Seeds Pvt. Ltd... v. Ankur Seeds Pvt. Ltd...

D.K Jain, J. President:— This Revision Petition, by the producer of seeds, calls in question the correctness and legality of order dated 05.11.2011 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for short “the State Commission”) in cross Appeals No. 1164 of 2010 (Motilal v. Ankur Seeds Pvt. Ltd.) and Appeal No. 1695/2010 (Ankur Seeds Pvt. Ltd. v. Motilal). The State Commission has dismissed both the appeals and has affirmed order dated 25.03.2010 made by the District Consumer Disputes Redressal Forum, Badwani in Consumer Complaint No. 02 of 2006.

2. The material facts, necessary for disposal of the case are that: on 26.05.2005, the Complainant/Respondent No. 1 (Moti Lal) purchased from Respondent No. 2, a dealer of the Petitioners, 20 packets, weighing 50 grams each, of cucumber seeds for 9,000/- for sowing in 10 acres of land. According to the Complainant the fruit ripened early, mostly disfigured and small in size. According to him, as against the expected yield of 50 quintals per acre, the actual yield of the crop was only 10 quintals and thus, he suffered a loss of 490 quintals of fruit valued at 1,47,000/-. As according to the Complainant low yield was because of poor quality of the seeds, he lodged a complaint with the Senior Agriculture Development Officer and Garden Superintendent of the Block concerned. The fields were inspected on 02.09.2005 The material portion of the Inspection report prepared by the Sr. Agriculture Development Officer, dated 02.09.2005, reads as follows:

“On inspecting the crop yield, it is found that the size of fruits (cucumber) was irregular and less than the standard claimed by the Company and the cucumbers were found irregular in shape not uniform and colour was not also green and the flowers also groomed less. The agriculturists uptill now got 10 to 15% yield.”

3. On receipt of the said report, the Complainant issued a notice to the Petitioners demanding compensation for the loss suffered by him on account of poor quality of the seeds produced by them. Having failed to elicit any response, the Complainant filed the complaint inter alia praying for award of compensation of sum of 1,96,000/- along interest @ 12% p.a, etc. The Complaint was resisted by the Petitioners, mainly, on the grounds that: (i) the seeds having been purchased for commercial purpose, the Complainant could not be treated as a “consumer”, within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, “the Act”); (ii) there was no assurance by the Petitioners that the yield would be 50 quintals per acre and (iii) before inspection, no notice was received by the Petitioners from the Agriculture Department and therefore, the said report, having been prepared at its back, could not be relied upon by the Fora below to hold that the seeds supplied were defective or of inferior quality.

4. The District Forum rejected the preliminary objection by observing that the Complainant was carrying agricultural operations on his own land as well as on lands taken on rent, for his livelihood by self-employment and not for any commercial purpose. Finally, concluding that the seeds produced by the Petitioners were defective and of substandard quality, the District Forum directed the Petitioners to pay to the Complainant a sum of 9,000/- as cost of the seeds; 10,000/- for preparation of the land; 10,000/- as loss of crop; 5,000/- for deficiency in service and 1,000/- as litigation cost (totaling 35,000/-). The Appeals filed by both the parties were dismissed by the State Commission. Hence the present Revision Petition.

5. The Revision Petition was heard by a Bench comprising Mr. Justice K.S Chaudhari (Judicial Member) and Dr. B.C Gupta (non-Judicial Member). Referring to the decision of the Supreme Court in Haryana Seeds Development Corporation Limited v. Sadhu (2005) 3 SCC 198 and some decisions of this Commission, the Ld. Judicial Member came to the conclusion that the Complainant had failed to prove that the seeds produced by the Petitioners were of substandard quality, which caused loss to him and therefore, the District Forum committed an error in allowing the complaint. The Learned non-Judicial Member, however, held that immediately on noticing that the crop of cucumber was not coming out properly, the Complainant lodged a complaint with Agricultural Experts of the State Government, who opined that the size of the fruit was irregular and less than the standard claimed by the Petitioners. According to the Ld. Member, the Complainant had sufficiently discharged the onus to prove the allegation that the seeds were substandard and the scope of interference in Revisional Jurisdiction being limited, the Revision Petition deserved to be dismissed.

6. As there was difference of opinion amongst the Ld. Members, the Bench made a reference under Section 20(1A)(iii) of the Act, formulating the following question for the opinion of the third member:—

“From the inspection report made by independent, Government agricultural experts, at the initiative of the complainant, whether the complainant has been able to prove that the seeds in question were sub-standard or of bad quality?”

7. That is how the matter has now come up before me.

8. I have heard Mr. Abhishek Bhoot, Ld. Counsel appearing for the Petitioners. The Respondents are ex parte. 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 A. Raghavamma v. A. Chenchamma AIR 1964 SC 136, a three Judge Bench of the Hon'ble 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.

10. It is manifest from the statement of Objects and Reasons and the scheme of the Act that its main objective is to provide for better protection of the interests of the consumer. To achieve that purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act, by establishing quasi-judicial forums at the District, State and National level, with vide range of powers vested in them. The rigors of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 are not applicable to the proceedings before these quasi-judicial bodies. Undoubtedly, the Principles of natural justice are required to be observed.

11. Having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given Purposive, Broad and Positive construction, more so, when the remedy under the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. (See: Section 3). The doctrine of purposive construction was lucidly explained in Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661 by S.R Das, Agt. CJI (as his Lordship then was), in his majority opinion, as follows:

“It is a sound rule of construction of a statute firmly established in England as far back as 1584 when - ‘Heydon's case’, (1584) 3 Co Rep 7a (V) was decided that—

“……… for the sure and true interpretation of all Statues in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1 What was the common law before the making of the Act,

2 What was the mischief and defect for which the common law did not provide,

3 What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and

4 The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and ‘pro private comodo’, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, ‘pro bono public.’”

12. In New India Assurance Company Ltd. v. Nusli Neville Wadia and New India Assurance Company Ltd. v. KLM Engineering Company (P) Ltd. (2008) 3 SCC 279, invoking the rule of ‘Purposive Construction’, while interpreting section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 S.B Sinha J. opined as follows:

“……….. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations.”

13. In my view therefore, to give effect to the Objective of the Act, its provisions have to be construed by resorting to the doctrine of ‘Purposive Construction’. Considered from 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.

14. In National Seeds Corporation Limited v. M. Madhusudhan Reddy (2012) 2 SCC 506, analysing the provisions of the Seeds Act, 1966, particularly with reference to Section 13(1)(c) of the Act, which confers power on Consumer Fora to obtain test report from an appropriate laboratory with a view to finding out whether the goods in question suffer from any defect alleged in the complaint, the Supreme Court observed as follows:

“We shall now deal with the question whether the District Forum committed a jurisdictional error by awarding compensation to the respondents without complying with the procedure prescribed under Section 13(1)(c). A reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect.

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.

The issue deserves to be considered from another angle. 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 thereunder and other legislations, like, the 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 naïve 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.

It may also be mentioned that there was abject failure on the appellant's part to assist the District Forum by providing samples of the varieties of seeds sold to the respondents. Rule 13(3) casts a duty on every person selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of notified kind or variety to keep over a period of three years a complete record of each lot of seeds sold except that any seed sample may be discarded one year after the entire lot represented by such sample has been disposed off. The sample of seed kept as part of the complete record has got to be of similar size and if required to be tested, the same shall be tested for determining the purity. The appellant is a large supplier of seeds to the farmers/growers and growers. Therefore, it was expected to keep the samples of the varieties of seeds sold/supplied to the respondents. Such samples could have been easily made available to the District Forums for being sent to an appropriate laboratory for the purpose of analysis or test. Why the appellant did not adopt that course has not been explained.”

15. In this behalf, the following observations of the Hon'ble Supreme Court in Maharashtra Hybrid Seeds Co. Ltd. v. Alavalapati Chandra Reddy (1998) 6 SCC 738 are also apposite:—

“……….. Moreover, if the opposite parties have disputed that the seeds were not defective they would have applied to the District Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstance that it has not on its own accord sent the seeds for analysis by an appropriate laboratory.”

16. In the present case, as noted above, noticing that cucumber fruit was deformed and the yield was less than the expected, the Complainant lodged complaint with the Senior Agriculture Development Officer. The said officer found that fruits (cucumber) was irregular in shape; less than the standard claimed by the Company; flowering was less; the fruit was not greener and the agriculturists were getting less yield. In my view, even if the report does not comment on the quality of the seeds, it did raise a strong presumption in favour of the Complainant that defective seeds were the cause for low yield and deformed cucumber crop. As observed by the Supreme Court, it was not expected that the Complainant/farmer should have retained a sample of the seeds, so that in the event of less yield on account of defect in the seeds, he could have got it tested in a laboratory to prove that it was defective or of inferior quality. On the contrary, after the filing of the complaint for compensation, nothing prevented the Petitioners, from tracing out the samples from the batch of the seeds and getting it tested for its quality on their own accord or move an application before the District Forum for sending the sample of the seeds, which ought to have been available with them, for analysis by an appropriate laboratory. Having failed to do so, the Petitioners cannot be heard to say that from the report of the Agriculture Officer no adverse inference regarding quality of the seeds could be drawn on the ground that the Complainant had failed to send the sample of seeds to a laboratory for testing. In my opinion, by placing on record the report of the Agriculture Officer, the Complainant had discharged the initial onus to prove that the seeds in question were sub-standard or defective. In light of the said report, onus shifted on to the Petitioners to prove that the seeds were not defective, as alleged.

17. For the aforegoing reasons, the question referred is answered in the affirmative. The Revision Petition shall now be placed before the Bench, comprising members who had heard the case, for pronouncing the final order in accordance with the opinion of the majority of the members.

18. Reference is answered accordingly.