5. All the contentions raised by the learned counsel for the petitioner have been dealt with and discussed in detail by the Fora below and a concurrent finding of fact has been returned in favour of the complainants. The said finding of fact cannot be interfered by this Commission in exercise of its revisional jurisdiction unless it is shown to be perverse in the sense that no reasonable person acting on the basis of the material available on record could have taken such a view. No such perversity in the orders passed by the Fora below has been shown.

6. It is submitted by the learned counsel for the petitioner that as per the report only the field of complainant No.1 - Bharat Kumar was inspected whereas the field admeasuring 45 acres belonged to as many as six complainants which would indicate that only the portion of Bharat Kumar was inspected. I, however, find no merit in the submission for the simple reason that the report clearly shows that the area of the field inspected by the officer was 45 acres. It was described as the land of complainant No.1 but that would be immaterial when the area inspected by the officer was given.

7. It is true that fields were not inspected by the Seeds Inspector but were inspected by the ADO. In my view, the complainants cannot be penalized on account of the agriculture department having deputed ADO instead of Seeds Inspector to inspect the field. The complainants being farmers were not expected to do more than what they have done. They having approached the concerned department, it was for the concerned department to depute a person deemed appropriate by them for the purpose. What is more important is that there is no expert evidence produced by the manufacturer or by the petitioner to rebut the report of the ADO. The manufacturer is expected to retain the sample of the lot sold by him. Nothing therefore prevented the manufacturer from sending the sample of that particular lot to a laboratory through the process of the District Forum in order to obtain an expert opinion. That having not been done, the report of the ADO remains practically unrebutted. The complainants having sown the seeds in the field could not have sent any sample to a laboratory, they having not retained any portion of the seeds purchased by them. Before sowing seeds they could not have suspected any defect in the field and therefore, were not expected to retain any sample of the seeds.

8. The petitioner and the manufacturer made unsubstantiated allegation that the complainants may not possibly have used the pesticides and fertilizers in required quantity or may not have irrigated the fields properly but there is no evidence to prove such unsubstantial allegations. The case of the complainants is that they had used the requisite pesticides and fertilizers and had also given adequate irrigation to the crop. Therefore, the plea taken in this regard by the petitioner cannot be accepted.

9. It is submitted by the learned counsel for the petitioner that the farmers did not approach them before going to the agriculture department. This is contrary to the stand taken by the complainants but in any case it would be of no consequence since the farmers could not expect any compensation from a dealer or a manufacturer who is not willing to pay compensation despite both the Fora below having ruled in favour of the complainants and have decided to approach this Commission by way of a revision petition.

10. The issues involved in this petition came up for consideration in RP/1033/2015 - Reliance Life Sciences Pvt. Ltd. Vs. Umesh Singh Chandan Singh Saddiwal & Anr. & connected matters decided on 14.01.2016 and the following view was taken:-

3

"17. It was contended by the learned Senior Counsel for the petitioner that the complainants did not request the District Forum to send the samples of the seeds purchased by them to a laboratory, in terms of Section 13(1)(c) of the Consumer Protection Act, and in the absence of analysis by an appropriate laboratory, as defined in Section 2(1)(iii) of the Consumer Protection Act, the District Forum and the State Commission were not justified in holding that the seeds purchased by the complainants were defective. We however, find no merit in the contention. A farmer purchases the seeds for the purpose of using them in his fields and while sowing the seeds, he has no reason to suspect that the seeds purchased by him may turn out to be defective or sub- standard. Therefore, he would have no reason to retain a part of the seeds purchased by him. Consequently, he is not in a position to offer the sample of the seeds for analysis by an appropriate laboratory. The manufacturer / supplier of the seeds on the other hand, may possibly have the samples of such seeds available with him, even at the time notices of a consumer complaint is received by him. Therefore, if he seeks to dispute the allegation of the seeds being defective or sub-standard, he must necessarily offer the sample available with him to the District Forum for sending the same to an appropriate laboratory for carrying out an analysis to determine whether the said seeds suffer from a defect alleged in the complaint or from any other defect or not. Admittedly, no such endeavour was made, either by the petitioner or by its dealer, when they appeared before the District Forum.

18. A similar issue arose before this Commission in Revision Petition No. 381 of 2012 Ankur Seeds Pvt. Ltd. Vs. Motilal & Anr. In that case, a complaint alleging poor quality of the seed was lodged by the farmer with the Senior Agriculture Development Officer and Garden Superintendent of the concerned Block. The fields were then inspected by the Senior Agriculture Development Officer, who reported that the size was irregular and less than the standard claimed by the company. It was also found that the cucumbers were irregular in shape, their colour was not green and there was less grooming of flowers. The District Forum and the State Commission, having ruled in favour of the complainants, the matter was agitated before this Commission by way of a revision petition, which was heard by a Bench of two-Members. Since there was a difference of opinion in the aforesaid Bench, the reference to the Hon'ble President of this Commission was made under Section 20(1A)(iii) of the Consumer Protection Act. It was inter-alia contended on behalf of the petitioners that the report of the Senior Agriculture Development Officer could not be relied upon as the fields were inspected without notice to them and the complainants had failed to obtain any reports about the quality of the seeds from a recognized laboratory. Rejecting the contention, the Hon'ble President who along with one of the Hon'ble Members constituted majority in the Bench, inter-alia held as under:

"14. In National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (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:

4

"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

5

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. Vs. Alavalapati Chandra Reddy& Ors. (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

6

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".

20. In these cases inspection was carried out by a committee, consisting of Agriculture Development Officer, Taluka Agriculture Officer, District Seed Certification Officer, District Parishad Member, Operation Member, representative of Mahabeej and representative of the Agricultural University. The aforesaid committee found the seeds sown by the complainants to be defective. No evidence was produced by the petitioners to rebut the aforesaid report of the committee. In the absence of any such rebuttal, the fora below, in our view, were justified in accepting the aforesaid report and concluding that the seeds purchased by the complainants were defective.

The learned counsel for the petitioners assailed the report of the committee on the ground that the prior notice of the inspection was not served upon the petitioner, the notice having been sent by ordinary post on 27.05.2008 and since the inspection was carried out on 31.5.2008, the said notice was not even received by the petitioner. The report was also assailed on the ground that it had not been signed by all the members of the committee. As noted earlier, the failure to follow the procedure prescribed under the circulars issued by the Government of Maharashtra will not be fatal to the complainants in a consumer complaint, if he is otherwise able to prove that the seeds purchased by him were defective. Therefore, even the inspection carried out in the absence of the representative of the petitioner committee could be taken into consideration by the fora below though it can hardly be disputed that the inspection report would have been considered to be more authentic, had the representative of the petitioner company been present at the time of inspection.

11. For the reasons stated hereinabove, the revision petition is hereby dismissed with no order as to cost.

......................J

V.K. JAIN

PRESIDING MEMBER

7