M. Shreesha ORDER
1. Challenge in these Revision Petitions bearing RP Nos. 279 to 290 of 2018 under Section 21 of the Consumer Protection Act, 1986 (for short the "Act") is to the common impugned order dated 26.04.2017 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench Nashik (for short "the State Commission.") in First Appeals No. 955 to 960 and First Appeals No. 985 to 990 of 2014 u/s. 21(b) of the Consumer Protection Act (for short "the Act"). By the impugned order, the State Commission has confirmed the orders of the District Consumer Disputes Redressal Forum, Nashik (for short "the District Forum") after observing thus:-
"We thus heard both the counsel and perused the record. It is an admitted fact that all the complainants had purchased onion seeds manufactured by the appellant. It is seen from the record that as there was bolting in the onion & joint onions, therefore complainants approached to Seeds Grievance Committee. Said committee visited the field and issued its report. As per said report due to defective seeds/adulterated seeds, complainants will suffer 50 to 55% of loss. Therefore complainants approached to Forum. It is also on record that at the time of panchanamas conducted by Seed Grievance Committee representative of appellant company was present. But he did not challenge the said report before higher authorities. In our view, therefore said report remains unchallenged. Though it was directed by State Commission Mumbai to file the affidavits of the officers who conducted the Panchanama, it is difficult for layman to contact the said officers and pursue them to file the affidavits. In our opinion failure of the officers of Seed Grievance Committee to submit the affidavit is not fatal to the case of complainant. In our view, it is for the appellant manufacturing company to prove that seeds manufactured by them were not of defective quality. In our view, the authorities cited Supra by the respondent/complainants are squarely applicable to the facts in the present cases. In our view, therefore there is no merit in the appeals filed by the Horticultural Insurance Company. We are of the view that Dist. Consumer Forum thoroughly studied all the complaints and decided the complaints after appreciation of all the facts and evidence. Hence no interference is required in the orders passed by the Dist. Consumer Forum."
2. The facts in brief are that the Complainants, who are farmers, purchased onion seeds from the Opposite Parties (hereinafter referred to as the "Horticultural Foundation"), and sown the same in their fields; that even after due care, the growth of the onion crop was not satisfactory and the same was informed by the Complainants to the Horticultural Foundation and a formal Complaint was also lodged; an Enquiry Committee visited the fields of the Complainants and made a detailed Inspection Report observing that the crop failure was on account of inferior quality of seeds. The Complainants averred that they have also informed the Agricultural Officer, Agricultural Department, Zilla Parishad and a Panchanama was prepared after due inspection. Despite sending a notice to the Horticultural Foundation on 03.05.2007, there was no response. Hence, the Complainants approached the District Forum seeking direction to pay the expenses incurred towards the failure of the crop together with compensation and costs.
3. The Horticultural Foundation filed their Written Version stating therein that it is a Registered Society working on a no-profit-no-loss basis; that proper testing of the seeds was done as per the Seeds Act 1966; that the Complainants did not submit the samples of seeds before the District Forum; that the growth of the onion crop depends upon the soil preparation, usage of fertilizers, timing of sowing and other crop management practices; during the crop period there was excessive rainfall in Nashik District; the crop was affected due to adverse climatic condition and therefore, there is no defect in the seeds supplied by them and that the report of the Enquiry Committee was faulty.
4. The District Forum based on the evidence adduced allowed a few of the Complaints directing the Horticultural Foundation to pay the following amounts:-
5. Apart from the afore-noted amounts, the District Forum also directed the Horticultural Foundation to pay a sum of 15,000/- towards compensation and 5000/- towards costs. It is relevant to note that the District Forum has rejected Complaint Nos. 120/2007, 121/2007, 122/2007, 123/2007, 124/2007, 168/2007 & 169/2007 on the ground that in the Committee Inspection Report, it was stated that the crop was harvested on 06.01.2007 and on 20.05.2007 and, therefore, it was doubtful whether the crop was standing in the field or not at the time of inspection
6. Aggrieved by the said order, the Horticultural Foundation preferred the afore-noted Appeals before the State Commission. It is observed from the record that this is a second round of litigation and in the initial round the State Commission had remanded the matter to the District Forum affording an opportunity to the Complainant to submit the affidavits of the officers who conducted the Panchanama. However, the Complainants could not file the affidavits of the said officers as they were not available in the year 2014, during the final hearing of the Complaints. After hearing all the parties afresh, the District Forum after thoroughly considering the facts and evidence, dismissed some of the Complaints where no evidence was produced, but allowed Complaints bearing No. 20/2007, 22/2007, 125/2007, 157/2007, 158/2007, 148/2008, 182/2008, 204/2009, 138/2009, 102/2009, 17/2010 and 18/2010 to the extent indicated in para 5.
7. The State Commission based on the Panchnama and the Enquiry Report confirmed the order of the District Forum observing that though it was directed by the State Commission to file the Affidavits of the Officers who conducted the Panchnama, merely because the Complainant could not produce the same on account of time lapsed it cannot be considered to be fatal to the case of the Complainants.
8. Ld. Counsel appearing for the Revision Petitioner submitted that the State Commission had erred in not appreciating that the germination of seeds and the bulb development depends upon the environmental factors and crop management practices such as the climate, the moisture content, the temperature, usage of fertilizers and water supply; that the Complainants did not approach the Appropriate Authority i.e. Assistant Director of Agriculture appointed by State Government as Seed Inspector under Section 13 of the Seeds Act, 1966 instead approached the District Agriculture Officer behind their back; that the findings of the Committee cannot be relied upon as it is not supported by the Affidavit of the Members who conducted the Panchnama and that no samples of seeds were sent for analysis as mandated by the Section 13(1)(c) of the Act.
9. For better understanding of the case the Inspection Report of the Enquiry Committee is reproduced as hereunder:-
" District Level Onion complaint enquiry committee visit report. (12/4/2007)
1. Name and address of the farmer: Sahebrao Jibhau Deore, R/o Adhar Khurd.
2. S. No./Gat No. 166, crop - Onion, area 0.40
3. Variety of land - Medium
4. Particulars of seed used is as follows:
5. Name and address of seller: NHRDF Kanda Batata Bhavan Nashik
6. Bill No. and date: 93100, 3/10/06
7. Crop and variety: Onion ALR
8. Manufacturing company: NHRDF Nashik
9. Lot No. 26-18-53
10. Expiry Date: September 2013
11. Totalf seed purchased : 2 Kg.
12. Total seed used - 2 kg.
13. Documents available with farmer:
14. Bill, B) Lebal, C) Empty bag, Pocket, D) Information Sheet.
15. Whether the onion is germinated personally or through labour - self.
16. Whether the bag is stitched from Bottom side without removing stitching or label - Yes.
17. At the time of purchase have the bag/pocket was found open? No.
18. Crop in last two seasons: 1)Nagli, 2)Nagli.
19. Prior cultivation: Ploughing-1, harrowing -1.
20. Date of germination: 25/10/06, Replantation date: 16/9/06.
21. Type of germination (How the germination is done) - By bed system
22. Distance in germination: 4 x 4"
23. Manures used: dung, compost, fertilizers, micronutron, crop revitalizer.
1. Internal cultivation: Grubbing, Weeding, grass destroyer, spraying etc.
1. Crop protection:
1. Spray pump used for showering: sprinkler pipe
Whether the spray pump was used before for showering? No.
Whether showering is made by farmer himself or through labourer or other?
Self.
2. A) Type of sprinkler: Electric Motor.
3. Source of watering: Well.
4. Water period: once in 8 to 9 times.
5. Other information:
At the time of inspection no affection of disease found over the onion crop, growth of crop was good. It was found in onion area there was bolted, doubling, yellow and white onion. So also in the presence of farmers committee has taken inspection at 3 different places by random system in 1 x 1 size plot and it was found that (1)34% doubled onion, 2) Bolted onion 2% 3)yellow onion 20% and white onion 25% and quality onion 9% found in the said inspection. As per the opinion of committee this thing was happened because of inferior quality onion seed and the farmers have suffered 91% loss in income.
6. Mohan R. Wagh
7. Mr. Dhole
8. Mr. S.S. Kendhe
9. Mr. Sahebrao"
10. It is relevant to note that it is not only a second round of litigation but also that the District Forum carefully considered all the facts and circumstances, the Inspection Report of the Enquiry Committee and allowed only a few Complaints while dismissing most of them. In National Seeds Cooperation Ltd. v. M. Madhusudhan Reddy & Anr. MANU/SC/0038/2012 : (2012) 2 SCC 506 and Maharashtra Hybrid Seeds Co. Ltd. v. Alavalapati Chandra Reddy & Ors. MANU/SC/1132/1998 : (1998) 6 SCC 738 it has been clearly laid down by the Hon'ble Supreme Court that the onus to prove that the seeds manufactured by them are of good quality, shifts on the Manufacturer of the seeds as the Complainants who are farmers are not expected to store some of the seeds for future testing. In fact as per the Seeds Act the Manufacturer is supposed to keep a small sample of each batch of seeds for a minimum period of time depending upon the nature of the seeds and, therefore, it is not understood as to why the Horticultural Foundation herein had not adhered to the provisions of Section 13(1)(c) of the Act which stipulates that the seeds be sent to a laboratory for testing.
11. It is observed from the record that there was no Interim Application filed by the Horticultural Foundation to send the relevant seeds for testing and, therefore, their contention that the Complainants have to adhere to the provisions of the said Section is totally unsustainable specially keeping in view the afore-noted Supreme Court Judgements. Moreover, these Complaints are of the year 2007 and more than 11 years have elapsed and almost all of amounts awarded are less than 1,00,000/-. Regarding the contention of the Revision Petitioners that the Affidavits of the persons who conducted the Panchnama were not filed, suffice to mention that a considerable time has lapsed from the date the Panchnama was prepared and the date of the order of the State Commission remanding the matter for filing the concerned Affidavits and there is every possibility that such persons may not be available and, therefore, no adverse inference can be drawn from this. Further, keeping in view the Inspection Report of the Enquiry Committee we do not find it a fit case to interfere with the well-reasoned orders of the Fora below. Hence these Revision Petitions are dismissed accordingly. No order as to costs.
12. These Revision Petitions are also barred by Limitation as they have been filed with a delay of 188 days as per Office Report. But the Petitioner contends that the delay is of 88 days. In the Application seeking condonation of delay it has been stated that the certified copy of the impugned order was issued on 31.10.2017 and if the time is counted from the date of order i.e. 26.04.2017, there is a delay of 88 days. Apart from this single line there are absolutely no other reasons given for condoning the delay. The order of the State Commission is dated 26.04.2017 and as can be seen from the stamp the free true copy was given on 28.08.2017. There is no whisper about the date of receipt of the true copy and there is only one statement made by the Revision Petitioner stating that the certified copy was received on 31.10.2017 and, therefore, the delay is only of 88 days. Even this period of 88 days was not explained. We place reliance on the decision of the Hon'ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority MANU/SC/1668/2011 : (2011) 14 SCC 578 wherein it has been held that the delay has to be satisfactorily explained, but in the instant case, no reasons explaining the delay of 88 days, even if it is calculated from the date of receipt of certified copy have been given.
13. For all these reasons we are of the considered view that these Revision Petitions be dismissed both on delay as well as on merits. No order as to costs.
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