C.P.BELLIAPPA vs INDO AMERICAN HYBRID SEEDS

THIS is a complaint filed by P.C. Belliappa of Athur, under Section 12 read with Section 17 of the C.P. Act, 1986 (for short ''the Act''), alleging deficiency of service on the part of the opposite party-M/s. Indo-American Hybrid Seeds, Bangalore. The facts of the case as stated by the complainant are as follow : The complainant purchased 2000 tissue culture cardamom plants from the opposite party in February, 1994 for a sum of Rs. 10,000/- @ Rs. 5/- per plant and incurred initial cultivation cost of a further sum of Rs. 20,000/- to raise the plantlets in his plantation. It is the case of the complainant that despite the glossy advertisement that tissue culture seedings are high-yielding and classy, the plantlets failed to yield promised output. It was observed during the two years gestation period, i.e., from 1994 to 1996 that the plantlets were small and sickly, while the plants raised by the complainant in his own nursing were twice the size of the tissue culture plants and in fine fettle. THIS being a cause for anxiety, the complainant wrote to the opposite party to send an expert to inspect the plant and to tender advise, but despite several correspondence in succession, the opposite party failed to respond. It was only when the complainant asked the opposite party to pay back the sum of Rs. 30,000/- spent on the project that a representative of the opposite party visited the complainant''s estate on 5.4.1997. However, a report on the investigations made was never made available by the opposite party despite many reminders and hence, aggrieved by such indifference, a legal notice was issued on 14.4.1998. Even this notice, it is stated, failed to invoke any positive response.

ACCORDING to the complainant the tissue culture cardamom seedlings supplied by the opposite party had physical variation, were not true to type and lacked uniformity. One Dr. V.H. Pattanashetti, a Cardamom Expert, who visited the estate in March, 1997 found that while some plants had their crop-bearing panicles upright, some were unusually prostrate. The opposite party in their brochure had claimed that the seedlings were raised from high yielding clones and hence there would be multifold increase in unit productivity. All these flattering claims, it is averred, proved totally false, as the complainant ended up with a barren plantation in the second year of cultivation. This was evident from the fact that the plants raised by the complainant in his own nursery showed robust growth while those raised from tissue culture plants were frail and weak. In fact, in the third year of cultivation, the crop from the tissue culture plantlets was only 40% of the yield raised by the complainant per plant from the plantlets grown in his own nursery. Moreover, the cardamom pods in the plantlets supplied by the opposite party were found to be smaller and weak compared to the yield from the complainant''s own plantlets. The claim of the opposite party that the tissue culture plants are more vigorous than conventional seedlings and start yielding much earlier is also proved to be a tall claim since, despite intensive labour input, the yield was effete and highly discouraging and by extention the loss incurred was substantial. In 1997 the yield from tissue culture plants was only 92.80 kgs. whereas home-grown plantlets yielded as much as 489.00 kgs. Taking into account the prevailing rate for cardamom, the complainant estimates that he has suffered a loss of Rs. 64,430/- in 1996. On this basis, the loss incurred in 1997 is calculated at Rs. 1,01,300/-. It is the case of the complainant that the opposite party despite its high profile in the field has not bothered to accept its responsibility towards a consumer, but had come up with false promises to foist defective goods on the unsuspecting complainant. The fact that the opposite party has wound up this project hastily only lends support to the contention that the opposite party took the buyers for a ride till the project lasted. According to the complainant this is deficiency of service in its naked form which calls for a direction to the opposite party to pay a compensation of Rs. 5,32,480/- to the complainant towards business loss over a period of seven years.

The opposite party however came up with the following defence vis-a-vis the allegation of the complainant. (1) The complainant is not a consumer as defined in Section 2(1)(d) of the C.P. Act, since he has purchased the cardamom plantlets for commercial purpose. (2) The complainant has not produced any document to prove that he has spent Rs. 20,000/- to raise the cultivation.

(3) The tissue culture plants are always small and to make them sturdy they are to be nursed in the secondary nursery in the first instance properly. If there were any indication that the plants were sickly, it was open to the complainant to bring it to the notice of the opposite party at the stage of buying and not several years later.

(4) Tissue culture cardamom plantlets called for intensive cultivation by strictly following the cultural practices prescribed by the opposite party right from sowing time and any lapse in replanting, weeding, fertiliser and pesticide application is bound to diminish the output considerably.

(5) Only those plantlets which pass the stipulated level of performance are sold by the opposite party which has reputation for excellence. It is a sensitive crop which brooks no inept handling at any stage of cultivation and the crop is liable to fail if the parameters set by opposite party are not scrupulously followed. Factors like soil, climates, diseases and the agronomic practices adopted also have a big say in the output.

(6) The complainant has chosen to mix two crops in cultivation, namely cardamom and coffee, the crop-husbandry requirements of which are diametrically opposed to each other. Cardamom, a herbaceous perennial, is not compatible with woody perennials like coffee and mixing them is bound to effect the output. Cardamom prefers shade and humidity of higher intensity compared to coffee. Cardamom has a shade regulation which aims at providing filtered lights through small openings in the umbrella-like canopy of evergreen deep-rooted trees. Coffee prefers more explosive to sunlight from the wider openings. While regulating the shade for coffee, minimum canopy from maximum number of accomodatable trees of columnar habit of growth is provided. This important point has been told to the complainant who has not chosen to follow it. Nowhere in our Brochure we have indicated a mixed crop cultivation. It is a decision of the complainant to mix the two crops and having opted for it and failed, he cannot accused the opposite party of deficiency of service.

(7) It was the inept handlings of the process of cultivation that failed to yield results for the complainant. Because of his failure, additional plants were demanded, which were supplied to him. (8) The compensation claimed is highly exaggerated and has no pretentions to reality.

FOR these and other reasons set out in its defence, the opposite party prayed that the complaint be dismissed with exemplary costs. The complainant has filed his affidavit. The opposite party has filed its version on payment of cost for delay and has also filed affidavit-evidence as directed by the Commission. No oral evidence has however been adduced by either party.

WE have heard Mrs. Preeth Somana, learned Counsel for the complainant and Mr. Kashinath, learned Counsel for the opposite party. WE have also gone through the records between the lines. Mrs. Preeth Somana, learned Counsel lead us through the facts of the case in minute detail, contending that about th of the plantlets supplied by the opposite parties were of substandard quality which is evident from the fact that the native variety planted by the complainant simultaneously grew double the size and yielded healthy output. The learned Counsel pointed out that the opposite party deliberately went slow-motion on after-sale service, despite several letters and entreaties to come and inspect the crop so that the opposite party could see for themselves the type of yield their much hyped-about tissue culture plantlets are coming out with. For three long years the opposite party delayed the much awaited crop-inspection, knowing fully well that this variety yielded about only 40% of the normal yield of the native variety and at last when an inspection was made, the inspection report was never given to the complainant. This only showed, in no uncertain terms that, having sold sub-standard plantlet, the opposite party was trying to cover its tracks by not divulging the defects in the goods sold by them. The learned Counsel brought to our notice the contents of the letter dated 20.11.1996 wherein the opposite party has in fact owned its lapses in the following words : "We are extremely sorry for the lapse which normally does not take place. However, we will be deputing our field personnel to your estate in the near future, with a prior intimation to you. Kindly bear with us till such time."

The learned Counsel also brought to our notice that opposite party has in a similar circumstance compensated one Rajiv Ganapathy, who also had bought tissue culture plantlets from the opposite party, but in the case of the complainant a different stand has been taken for no apparent justification. The learned Counsel stated that despite following all the parameters prescribed by the opposite party in the cultivation process, the yield was not only low but also lighter in terms of weight which fetched lesser value. In fact, Dr. V.S. Korikanthimath, Head of IISR Cardamom Research Centre, Appangala had opined that perennial plantation crops like cardamom and other compatible crops like coffee, pepper, palm etc., having similar requirement of soil and climate is committed to the yield with compatibility and not competition and hence it was pointed out, the contention of the opposite party that it was the crop-mix that yielded poor results stood falsified. The learned Counsel also invited our attention to an Article titled "Comparative Field Performance of Micropropagated Plants of Cardamom (Elettaria Cardomum)" co-authored by Dr. Korikanthimath in the Indian Journal of Agricultural Sciences, wherein among other things, it has been observed that though the tissue culture plants, suckers and seedlings showed significant differences in some of the vegetative characters, they did not do so in yield. The learned Counsel pointed out that this observation had come true in the instant case. The learned Counsel also invited our attention to an Article titled "12 year research gives new hope to "Queen of spices" by K. Jeevan Chengappa in "The Hindu" wherein, among other things, it has been observed that cardamom was a highly eco-friendly crop that could co-exist with compatible companion-crops such as coffee, arecanut and coconut. It was argued that the opposite party was not right in harping on a monocrop system of cultivation which only exposed their naivety in no small measure vis-a-vis the views of acknowledged Authorities like Dr. Korikanthimath on the subject. Hence it was contended that the opposite party was only trying to seep its failings under the carpet, knowing fully well that it has caused substantial loss to the complainant in terms of money, not to speak of the waste of sweat on the project. Summing her submissions on these lines, the learned Counsel prayed that the complaint be allowed in the interest of justice.

MR. Kashinath, learned Counsel on the other hand submitted that the complainant is not a consumer at all and the fact that he has not chosen to mention his profession in the complaint only supports this fact. Moreover, the complainant has also not taken a plea that the transaction in question was for earning his livelihood by means of self-employment. In the circumstances, it is argued, the complaint is liable to be thrown out at the threshold on this preliminary issue alone. Further, inviting our reference to the averment of the complainant that the tissue culture variety is not suited to Coorg area, the learned Counsel expressed his wonder why the complainant then purchased the plantlets. Certainly the opposite party has not coerced the complainant nor did they mention in the Brochure that the variety is suited to conditions in Coorg. The learned Counsel also submitted that the Articles published in journals and the news items published in news papers and periodicals have no evidentiary value as observed in the decision in AIR 1961 Mysore 106, and it is only heresay evidence as observed in the decision in AIR 1961 Mysore 215. The complainant has not produced any evidence in support of his contention that the plantlets were substandard and shortfall in the yield is directly attributable to the quality of the plantlets bought by him. Moreover, the complainant has also not chosen to examine Dr. Korikanthimath on whose views the complainant places implicit faith nor has he come up with any additional evidence to support his stand when the points made out by him have been effectively controverted by the opposite party. The learned Counsel argued that the complainant has not come up with any evidence much less any acceptable evidence to support the allegation of deficiency of service on the part of the opposite party and having failed in it he fails on merits as well. It was, therefore, prayed that the complaint be dismissed with costs.

ONE singular point on which the learned Counsel for the opposite party has laid considerable emphasis before us relates to the credential of the complainant to a consumer-tag and this point we would like to examine preparatory to framing issues. This is also a point on which the complainant has come out with the minimum pleadings. A reading of the complaint will show that the complainant has not said anything about the nature and extent of his profession, whether it is a large-scale commercial venture or an attempt in self-employment to earn a livelihood. It has not been denied by the complainant that growing cardamom in tissue culture system is a commercial crop cultivation and the yield is meant to be sold in domestic and global markets. By his own admission, he also grows cardamom in the conventional native system. The material placed on record shows that he also grows coffee alongwith cardamom as a mixed-crop and coffee, like cardamom or pepper is grown for commercial sale. Explanation below Section 2(1)(d) of the Consumer Protection Act, 1986 (for short ''the Act'') gives an insight into the type of commercial activity which does not preclude a person from retaining a consumer-tag. The said Explanation reads as follows : "Explanation-For the purpose of Sub-section (1), ''Commercial purpose'' does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment."

In Synco Textiles Pvt. Ltd. v. Greaves Cotton and Co., reported in 1991 (1) CPR 615 (NC), the National Commission has held that for the excluding clause to apply, it is necessary that there should be close nexus between the transaction of purchase of goods and large scale activity carried on for earning profit. The complainant in the instant case has not come up with a plea that his activities are small-scale in which he himself is personally engaged to earn a livelihood. Onus probandi lies heavily on the complainant to substantiate his contention that he answered the description of a ''consumer'' in the Act and the purpose for which he bought the 2000 plantlets from the opposite party was not for commercial purpose but for self-support. This burden assumes importance in view of the decision of the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in II (1995) CPJ 1 (SC)=AIR 1995 Supreme Court 1428, wherein the scope of the Explanation alluded to above has been explained in detail. A portion of para-12 of the judgment reads as follows : "...The National Commission appears to have been taking a consistent view that where a person purchases goods ''with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit'', he will not be a consumer within the meaning of Section 2(d)(i) of the Act. Boardly affirming the said view and more particularly with a view to obviate any confusion the expression ''large scale'' is not a very precise expression the Parliament stepped in and added the Explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The Explanation excludes certain purposes from the purview of the expression commercial purpose a case of exception to an exception. Let us elaborate a person who buys a typewriter or a car and used them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The Explanation however, clarifies that in certain situations purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment such purchaser of goods is yet a consumer. In the illustration given above if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods used them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The Explanation reduces the question, what is a commercial purpose, to a question of fact to the decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods brought are put to. The several words employed in the Explanation, viz., "uses them by himself", exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustration would serve to emphasis what we say. A person who purchases an autorickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (in the above illustration if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this a person who purchases an autorickshaw, a car or a lathe machine or other machines to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him" and "by means of self-employment" in the Explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words."

THE intention is abundantly clear that when a person employs himself in a venture even with assistance of one or two persons for the purpose of earning his livelihood, he does not step out of the definition of a consumer. It is also clear that the goods bought must be used by the buyer by employing himself for earning his livelihood. THE complainant in the instant case has not averred even remotely that he is employed in the cultivation by himself or with the assistance of one or two persons or he is using the produce for self-consumption. THE fact that he has bought 2000 plantlets from the opposite party lends support to the presumption that his labour input is high, not to speak of the fact that the product is not for self-consumption. THE over-all picture that freezes out of the materials placed on record is that of a person who grows cardamom on a large scale, with considerable labour input, which he disposes of commercially for profit. By the standards set by the Hon''ble Supreme Court, he is certainly not a ''consumer'' within the meaning of that expression under the Act. His activity falls squarely within the ambit of a commercial venture and he produces cardamom on a large scale, not so much for his own use or for earning his bare livelihood but for commercial purpose to earn profit. It is relevant in this context to take note of the fact that raising commercial crops will be as much for a commercial purpose, as the very terminology suggests, as a venture for industrial production. In fact, on account of the phenominal advancement in technology, large scale production is no longer for self-consumption, but for making profits in internal and global markets. On the same analogy, large scale venture in commercial crops also cannot be construed as for self-employment, except where it is proved otherwise by acceptable evidence.

IN the instant case, according to para-18 of the complaint, the value of the crops the complainant would have realised is stated to be of the order of Rs. 7,33,500/-. By no stretch of imagination such an amount could be construed as emerging out of a scheme for the purpose of earning livelihood by means of self-employment. There is no scope whatsoever to say that growing commercial crops like cardamom, pepper, coffee etc., is for self-employment, particularly when the labour in-put is large and the returns expected are high. It has to be said that any scheme of better farming is clearly for a commercial purpose, since the intention behind advanced farming is necessarily to earn big profits. The complainant, in the instant case, had evidently bought tissue culture cardamom plantlets from the opposite party for the purpose of better cultivation and better profits and hence, we are constrained to hold that he had bought them for commercial purpose. If that be so, the inevitable conclusion that presents itself is that the complainant cannot be a consumer and consequently he has no credentials to maintain a complaint against the opposite party under the Act. He may have a remedy in an appropriate Forum, but not before a Forum or Commission constituted under the Act. In this view of the matter, it is not necessary for us to go into the merits of the case or to examine any other issue raised by either party during the course of their pleadings. We, therefore, hold that the complaint spends itself out on the aforesaid preliminary issue alone at the threshold itself. In the circumstance, we make the following : Order The complaint is dismissed as not maintainable. No costs. Complaint dismissed.