ANKUR SEEDS P LTD vs KONDABROLU HASEN RAO

AGGRIEVED by the order of the District Forum, Guntur in C. D. No. 137/1999 opposite party No. 2 preferred this appeal.

THE brief facts as set out in the complaint are that the complainant is a small farmer and purchased 20 bags of Ankur Hybrid chili seeds from opposite party No. 1 by paying 3,600 on 22. 6. 1998 for raising chili crop in his Ac. 2. 00 of land. Opposite party No. 2 is the manufacturer of the said chili seeds and the complainant submits that at the time of purchase, the opposite parties have given assurance about 90% germination and also the yield and purity of the seeds. The complainant submitted that he had taken all necessary precautions and transplanted the seedlings after 30-45 days and the complainant used fertilizers and pesticides but there was no proper yield. He informed the defective growth of the plants to the opposite parties and to the Agricultural Department. The Horticultural Officer visited his field and filed a report and the opposite parties promised to compensate the loss. As per the promise and information given by the opposite parties, the yield of the chili crop would be between 30-35 quintals per acre but was only 5-6 quintals per acre and the complainant submitted that he spent Rs. 35,000 per acre for cultivating the crop. The complainant submitted that due to supply of defective and spurious seeds, he sustained financial loss. Hence the complaint seeking a direction to the opposite parties to pay Rs. 3,600 towards cost of seeds, Rs. 20,000 towards cultivation expenses, Rs. 1,80,000 towards crop loss together with compensation and costs. Opposite party No. 1 filed written version denying that they promised 90% germination of seeds and submits that opposite party No. 2 markets the seed only after satisfactory results of required quality and parameters. The seed in question which is Ankur-228 Hybrid chilis was already tested in the Quality Control Lab before marketing. They further contended that second opposite party supplied the seeds to other distributors and dealers and they supplied the same seeds to other farmers and did not receive any complaint. They contended that it is the method of agricultural operation which was defective and not the seeds. They also stated in their counter that the low yield may be due to environmental reasons which requires lot of technical consideration and should be referred to Civil Court.

Opposite party No. 2 filed counter stating that when there is no expert opinion to show that the seeds supplied are defective, there is no question of promising the complainant to compensate the loss. They deny that the complainant obtained only 5-6 quintals per acre and submitted that the seed bags preserved by the complainant were not produced and that there is nothing on record to state that the seeds were defective.

THE District Forum based on the evidence adduced i. e. Exs. A1 and A2 and the pleadings put forward allowed the complaint directing the opposite parties to pay Rs. 53,600 to the complainant with interest at 9% p. a. from the date of complaint i. e. 23. 4. 1999 till the date of realization together with costs of Rs. 1,000. Aggrieved by the said order, opposite party No. 2 preferred this appeal. The learned Counsel for the appellant submitted that the respondent/complainant cannot be called a ''consumer'' because he was harvesting the cash crop like chili and that too on a large scale and further contended that the respondent/complainant was expecting an amount of Rs. 2,04,600 within a span of six months which is cultivation on a large scale and therefore is commercial. He further submitted that the Horticulture Officer inspected the crop only after 7 months and as such the inspection was conducted after the age of the crop. The stage of flowering comes after 60 days and the complaint for flower drop was made only after age i. e. 200 days. The learned Counsel also contended that the Horticulture Officer in his report mentioned the date of transplantation as in the month of August, 1998 and thereafter observed that the seed was sown in the last week of August. This contradiction on the part of the Horticulture Officer is material and the cross-examination of the Officer on this point is very important which was omitted to be considered by the District Forum. He also stated that the seed cannot be preserved for more than six months to one year and this complaint was filed after one year and hence the appellant could not send that seed for testing and also submitted written arguments. The learned Counsel for the appellant filed written arguments and submitted that the respondent/complainant did not disclose on what date the seeds are sown but from the information gathered from the farmers by Horticulture Officer, it revealed that they raised nurseries in the months of June and July, 1998 and transplanted the same in the month of August, 1998 and as on the date of inspection of the crop by the Horticulture Officer, the age of the crop is 6 months and is at dwindling stage and hence could not have ascertain the actual harvest and only on the strength of hearsay she could not say that the farmer harvested only 2 quintals and therefore no importance could be given to the report of Horticultural Officer. He further submitted that the finding of the District Forum in para 14 of the order that the seeds are defective is not on scientific masons but based on the report given by the Horticultural Officer i. e. Ex. A2 and submitted that the inspection was at the fag end of the crop and serves no useful purpose and he submitted that no notice was given by the Horticulture Officer to them at the time of inspection of crop and it was done on their back and therefore Section 13 (1) (c) of C. P. Act procedure was not followed. The learned Counsel for the appellant has relied on several judgments of Maharashtra State Commission, West Bengal State Commission, Madhya Pradesh State Commission and this Commission wherein it was held that the defect in the seeds can be proved by adhering to Section 13 (1) (c) of the Act and wherever samples have not ''been sent for examination, deficiency cannot be proved and relied on the following judgments:

II (1994) CPJ 127 in Rajinder Singh v. Varinder, wherein it was held that: "consumer Protection Act, 1986 Section 13 (1) (c)-''sample Analysis''-seeds purchased by complainant-alleged to be sub-standard quality when germinated-complaint filed-sample not analyzed-District Forum dismissed the complaint-whether the order of District Forum was correct as it took the view that provisions of Section 13 (1) (c) of the Act are mandatory? (Yes)" Iii (2003) CPJ page 628 in Bejo Sheetal Seeds Pvt. Ltd. and Anr. v. Shivaji Anaji Ghole, wherein the Maharashtra State Commission held that: "consumer Protection Act, 1986 Section 15-Seeds-Defective-Absence of expert report in support of contention-party claiming damages has to prove the same with all requisite particulars-no evidence produced by the complainant-Forum erred in allowing claim-order set aside in appeal. " Ii (2002) CPJ page 343 in Smt. Mukti Ghosh v. Nagarjuna Fertilizer and Chemicals, wherein the West Bengal State Commission held that: "consumer Protection Act, 1986 Section 14 (1) (d)-compensation-poor quality of seeds-failure of crop-No evidence produced to establish the allegation-Report of Principal Agricultural Officer not produced on record-Failure of crop due to sub- standard quality of seeds, not established-complaint dismissed by Forum-Order upheld in appeal".

I (2001) CPJ page 368 in Aziz v. Egale Seeds Development Corporation and Ors. , wherein the Madhya Pradesh State Commission held that: "consumer Protection Act, 1986, Section 2 (1) (g)-Seeds-Deficiency in service -substandard quality-Sample not sent for examination by Seeds Analyst-Absence of legal evidence-Deficiency in service not proved-complaint is dismissed by Forum-Order upheld in appeal. "

I (2000) CPJ page 43 in Gangaram v. Manager, M. P. Rajya Tilhan Sangh, wherein the Madhya Pradesh State Commission held that: "consumer Protection Act, 1986, Section 15-Appeal-Seeds-sub-standard quality-not proved-seeds purchased-only few sprouted-Crop damaged-compensation claimed-Laboratory report of seeds not produced-sub-standard quality seeds supplied not proved-complainant not entitled to compensation. " I (2000) CPJ page 439 in Kesari Venkata Reddy v. Anaparthy Venkata Chalapathi Rao and Anr. , wherein the A. P. State Commission held that: "consumer Protection Act, 1986, Section 14 (1) (d)-compensation-defective seeds-entire crop damaged-compensation claimed-seeds certified by recognized agency-good-germination-loss of crop due to virus disease-necessary precautions to prevent spreading of disease not taken-other farmers planted same seeds in same area, yield in their lands very good-complainant failed to prove loss of crop due to defective seeds-not entitled to compensation. "

Copy of judgment of F. A. No. 304/1994 of State Commission, Haryana, Chandigarh in M/s. Maharashtra Hybrid Seeds Co. Ltd. v. Hazari Lal @ Hazari Singh and Another, wherein it was held that "consumer Protection Act, 1986 ''section 13 (1) (c) of C. P. Act deserved to be accepted as analysis of the sample was mandatory requirement for granting compensation on the ground of sub-standard seed"

I (1992) CPJ 279 (NC) in M/s. E. I. D. Parry (India) Ltd. v. Baby Benjamin Thushara, wherein the National Commission held that: "consumer Protection Act, 1986-Sections 2 (d) (f) and 13 (1) (o) and 13 (2)-Manufacturing ''defect'' Laboratory Examination-complaint before State Commission that when complainant used European style closet installed in her house manufactured by appellant it crumbled into numerous pieces resulting in multiple injuries and disabilities to the complainant-allegation that collapse of the closet was due to manufacturing defect was upheld by the State Commission and it awarded compensation to the complainant-appeal against the order of State Commission-Broken pieces of closet not sent to laboratory for examination-whether finding that closet suffered from manufacturing defect correct? (No ). "

THE learned Counsel for the appellant also relied on the judgment of the Apex Court in II (2005) CPJ 13 (SC)=ii (2005) SLT 569=2005 CTJ 345 (SC) in Haryana Seeds Development Corporation Ltd. v. Sadhu and Another, wherein the Supreme Court held that: "the expert committee constituted by the appellant undertook the exercise of inspection of seeds sold to the farmers, conducted field inspection and prepared a detailed report-It observed that crop condition varied from ''satisfactory to excellent''-lt also observed that the reason for variation was other than the quality of seeds-contention of the respondents that some insertion got made in the report either to favour the appellant corporation or to cause prejudice to farmers not accepted-Therefore, held that the National Commission was not right in observing that at the most, the report could be said to be ambiguous-Further held that it was neither ambiguous nor vague but was clear, definite and specific-That being so, held in the light of the Expert Committee''s report the complaint was liable to be dismissed and the Commission committed an error of law and of jurisdiction in allowing the same-Appeal accordingly allowed, the orders passed by the District Forum, the State Commission and the National Commission set aside and the complaint dismissed. "

The facts of the above case are that the inspection report stated the reason for variation was other than the quality of the seeds and therefore it was held that the complaint was liable to be dismissed. Whereas in the instant case, the Horticultural Officer''s report states that all crop management practices have been adhered to and the plants are stunted in growth and both flowering and fruiting is less and therefore the Horticultural Officer''s report can be relied upon to prove deficiency. The learned Counsel for the respondent submitted that the district Guntur is known for chilis and climatic conditions are conducive for the growth of chilis and that the seed was purchased in June and the entire crop was harvested by January. The first complaint was made in March and the Horticultural Officer visited the crop and filed report recommending compensation which itself proves that the seed is defective.

WE have gone through the material on record. The facts not in dispute are that the appellant is the manufacturer of the chili seeds which were distributed through the respondent/opposite party No. 1 and in turn respondent/opposite party No. 1 sold the seeds to the respondent/complainant and other farmers. The first contention of the appellant is that the respondent/complainant is not a ''consumer'' since he has grown the chili seeds on a large scale for commercial purpose. We do not find any force in this contention since agriculture cannot be termed as commercial and to substantiate this observation, we rely on the judgment of the National Commission in I (1995) CPJ 45 (NC) in Laxmi Agriculture Seed Store v. Dhoop Singh and Ors. , in which the National Commission held that: "agriculture is a genus distinct from ''commerce'' and consequently "commercial purpose" and ''agricultural'' purpose are genetically different. The core issue is whether a plainly agricultural purpose can be labelled as a ''commercial'' one? In our view, it cannot be so. "

The second contention of the appellant is that the chillie seeds were properly tested as per the expected standards in the Quality Control laboratory but they did not choose to file such report in support of their contention. They further contended that the respondent/complainant did not establish that the seeds were defective by sending them for testing. We rely on the judgments of the National Commission and Apex Court since the facts of the instant case are more relevant and the Apex Court in III (1998) CPJ 8 (SC)=viii (1998) SLT 317 in M/s. Maharashtra Hybrid Seeds Co. Ltd. v. Alavalapati Chandra Reddy and Ors. , observed that: "it is probable that the complainants have sown all the seeds purchased by them and they would not be in a position to send the seeds for analysis. Under these circumstances the order of the District Forum is not vitiated by the circumstances that it has not on its accord sent the seeds for analysis to an appropriate laboratory. The opposite parties have not chosen to file any application for sending the seeds to any laboratory. "

IT is also reported in I (2004) CPJ 122 (NC) in National Seeds Corpn. Ltd. v. M. Madhusudan Reddy that: "burden to prove defect not discharged by complainant-contention not accepted-farmer not expected to conserve certain portion of seeds and get it tested to meet requirement under Section 13 (1) (c ). "

WHENEVER Section 13 (l) (c) becomes unimplementable as per the judgment reported in I (1994) CPJ 80 (NC)=1994 (1) CPR 747 (NC) in The Malaprabha Neerwari Balakedarara (Irrigation Consumer) Co-operative Sangha Ltd. v. The State of Karnataka, Department of Agriculture and Ors. , that: "a Commissioner''s report can be accepted by the Consumer Forum/commission with respect to defective seeds when opposite party has not sought for seed certification and Section13 (1) (c) becomes unimplementable. "

We can rely on the alternative report which in the instant case is Horticulture Officer''s report. The Horticulture Officer in his report has stated as follows: (i) Age of the crop is 6 months since it was sown during the last week of August. (ii) 3-4 different types of plants were observed. Some plants are 5 ft. and some are 3-4 ft some plants are even one ft. and less. (iii) 50% of the total area is with-4ft. height plants. The plants are luxurious in vegetative growth but flowering and fruiting is very less. (iv) 25% of the area is with 3-4 ft. height plants. The plants are having good vegetative growth and flowering and fruiting is also good. (v) 20% of the area is with 1 ft. height plants. The plants are stunted in growth flowering and fruiting is very less. Some of the plants are affected with virus resulted to death of the plants. (vi) They have harvested 2 quintals per acre, so far, and the expected yield is another 2 quintals as the crop is almost in completion stage".

It is evident from the Horticulture Officer''s report that the respondent/complainant''s field was inspected and they have used fertilizers at 18 bags per acre and pesticides before the seedling stage and observed all proper crop management practices. The height of the plant varies and some of the plants are stunted with less fruits and expected yield is only 5 quintals per acre as against the average yield of 15-20 quintals. It is also clear that the respondent/complainant in spite of observing all crop management practices has not been able to get the expected yield. We also do not find any force in the contention of the appellant that the atmospheric conditions could be responsible for the poor yield of chili since these chili crops were grown in Guntur District where the climatic conditions are conducive and the District is known for the growth of chili crop.

The District Forum based on the wholesale rates of chili on that date, calculated the average rate at Rs. 2,500 per quintal and since the Horticulture Officer''s report states that the expected yield is 15-20 quintals, the District Forum has averaged at 10 quintals per acre, and awarded Rs. 25,000 per acre i. e. Rs. 50,000 for two acres and the cost of the seeds being Rs. 3,600 totally awarded Rs. 53,600. We do not see any reason to interfere with the well considered order of the District Forum.

IN the result, this appeal fails and is accordingly dismissed. Time for compliance six weeks. F. A. Nos. 1244/2005 to 1246/2005: for the same reasons as stated in F. A. No. 1243/2005, these appeals also fail and they are accordingly dismissed. Time for compliance six weeks. Appeals dismissed.