Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by original opposite party (for short O.P.) No.1, producer of the seeds feeling aggrieved by the order dated 30/03/3005 passed by the District Consumer Forum, Yavatmal in complaint case No.282/2004 filed by the respondent Nos.1 and 2 herein, by which the complaint has been partly allowed.
2. The case of the original complainant Nos.1 and 2/respondent Nos.1 and 2 herein as set out by them in their consumer complaint, in brief is as under.
The O.P.1/appellant is the producer of soyabeen seeds and O.P.No.2/respondent No.3 herein is the authorized dealer of the O.P.No.1. Both the original complainants had purchased soyabeen seeds from the O.P.No.2 for the price as specified in detail in the complaint and they had sown those seeds in their respective agriculture land. However out of the soyabeen seeds of 20 bags sown by the original complainant No.1 in his land, only seeds of five bags were germinated and out of the 18 bags of soyabeen sown by the complainant No.2 in his agriculture land, only seeds of two bags were germinated, though the complainants had properly sown the seeds and there was proper raining. Therefore they had made complaint to the Taluka Development Officer, Pandharkawada. He sent Taluka Agriculture Officer for inspection of the land of both complainants. The said officer inspected the land of both the complainants and issued a letter dated 09/08/2004 to them stating that the seeds produced by the O.P.No.1 are defective and their germination capacity is also defective. Thereafter both the complainants paid visit to the O.P.Nos.2 and made the complaint. Shri Amol Pande, one of the representative of the O.P.Nos.1 and 2 also inspected the land of both the complainants and he also issued a letter that the seeds sown in their lands are not germinated. Both the aforesaid letters are filed by the complainants alongwith the complaint. It is thus alleged by the complainants that due to non germination of the soyabeen seeds they suffered loss. They therefore filed a common consumer complaint before the District Forum claiming from O.P.Nos.1 and 2 compensation of Rs.1,75,000 for complainant No.1 and compensation of Rs.2,25,000/- for complainant No.2. They also claimed litigation cost from O.P.No.1 and 2.
3. O.P.Nos.1 and 2 appeared before the District Forum and filed their independent reply and thereby resisted the complaint. The O.P.No.2/producer of the soyabeen seeds denied that the seeds produced by it were defective and therefore they were not germinated as sown by the complainants in their respective lands. It is the case of the O.P.No.1 in brief that the seeds produced by it are duly certified by seeds certifying agency and testing report No.117/2004 dated 05/01/2004 has been also issued showing that the germination capacity of the seeds is 84%. Ten bags of the same seeds were also sold to other agriculturist, out of those seeds of eight bags were found to have been germinated. Thus denying its liability, the O.P.No.1 had prayed that complaint may be dismissed.
4. The O.P.No.2 admitted in its reply that it had sold the bags of soyabeen seeds in bags to the respective complainants as stated in the complaint. It is the case of O.P.No.2/dealer in brief that after receiving complaint from both the complainants about non germination of the soyabeen seeds, it had written a letter dated 20/06/2004 to Vidharbha Agency Yavatmal and on the same date it gave additional 14 bags and 13 bags of soyabeen seeds of another company namely Eagal Company JS-335 to the complainant Nos. 1 and 2 respectively. Therefore no deficiency in service can be attributed to it and therefore it prayed that complaint may be dismissed.
5. The Forum after considering evidence brought on record and hearing both parties, passed the impugned order and thereby partly allowed the complaint. The Forum accepted the case of both the complainants and disbelieved the case of O.P.No.1 that seeds were not defective. The Forum therefore assessed the compensation due to loss caused to both the complainants due to non germination of the seeds. The Forum then directed the O.P.No.1 to pay to the complainant Nos.1 and 2, respectively Rs.36000/- and 33,600/- within 30 days of receipt of copy of that order and in case of default the said amount would be payable with interest @ 9% p.a. till their full payment to them. The Forum also directed O.P.No.1 to pay to each of the complainant cost of Rs.1000/-.
6. As observed above feeling aggrieved by the said order, the original O.P. 1 has filed this appeal. We have heard learned Advocate Mr.J.Vora appearing for the appellant/original O.P.No.1. None appeared for original complainant Nos.1 and 2/respondent Nos.1 and 2 herein for making oral submission. However we considered the written notes of argument filed on record by the learned advocate of the appellant and learned advocate of respondent Nos.1 and 2. None appeared for respondent No.3 for final hearing.
7. The main submission of the learned advocate of the appellant is that the District Forum did not consider the release order dated 23/02/2004 filed on record by the appellant before the Forum to prove that the seeds are 99.9% pure and their germination capacity is 84%. He also submitted that there was no reason to disbelieve the said documents and therefore it can not be said that seeds were defective. He further submitted that the compensation for alleged loss assessed by the District Forum is also not just and proper. He also contented that the testing laboratory of Akola bearing No.1.4/04 shows that seeds were not defective and they are in accordance with the standards of seeds. He also submitted that various parameters are involved in the germination of seeds which were not considered by the Forum and Forum erroneously held that the seeds were defective. He also submitted that in the absence of the cogent evidence on record about defective seeds, grant of compensation is uncalled for. He also alternatively submitted that joint complaint filed by the original complainant No.1 and 2 is not maintainable before the Forum. He therefore requested that impugned order may be set aside on all these grounds.
8. He relied on the observations made in the case of Mahyco Seeds Ltd……V/s…..Sharad Motirao Kankale & other, II (2012) CPJ 373 (NC). It is observed in the said case that crop can fail because of several reasons including not following correct agricultural practices and not taking proper pest control measures. In that case the complainant on whom there was onus to prove that the seeds were defective, did not prove the same by adducing evidence. Hence order of the Forum by which the complaint was allowed was set aside.
9. On the other hand, the learned advocate of the original complainant Nos.1 and 2/respondent Nos.1 and 2 herein supported the impugned order in his written notes of argument and submitted that the appeal may be dismissed.
10. It is pertinent to note that though the impugned order shows that original complainants had produced various documents in support of the complaint before the Forum, they are not filed alongwith the appeal by the appellant and no explanation for non production of the same is given by the appellants. The appellant produced copy of release order dated 24/024/2004 and copy of news paper cutting. The release order is signed by Shri D.O.Kakade, Agriculture Officer of Shiv Agro Seeds Processing Plant, Waknar. In our view the said certificate though shows that the germination capacity of the soyabeen seeds was 84% and they were pure up to 99.9%, but that certificate is not sufficient to prove that the seeds sold to the complainants were of the same lot as mentioned in the said certificate. The appellant produced the copy of bill issued to complainants, but they do not show that the seeds sold to the complainants were of the same lot number as stated in the aforesaid release order. It is also pertinent to note that Taluka Agriculture Officer had paid visit to the lands of the complainants and on due inspection he had issued a letter dated 09/08/2004 stating therein that the seeds were not germinated and they were defective. Moreover the representative of the O.P.No.2/dealer had also paid visit to the said lands of the complainants and issued letter that seeds were not germinated. Both the said letters filed before the Forum and referred to impugned order are also not produced by the appellant in appeal. There is no reason to disbelieve both the said letters which prove that the seeds in question were defective.
11. It is also pertinent to note that the O.P.No.2/dealer has admitted in its reply that he had given additional bags of seeds of other producer to the complainants after receiving complaint from them about non-germination of seeds sold to them by it. This also gives inference that seeds sold by O.P.No.2 and produced by O.P.No.1/appellant were defective. The O.P.No.1/appellant in its reply (in para No.20) also admitted that out of the ten bags of same seeds sold to other agriculturist, the bags of eight seeds only were germinated. This also supports the case of the complainants that maximum quantity of the seeds as specified in complaint as purchased from O.P.No.2 were not germinated.
12. Thus we are of the considered view that the District Forum has rightly come to the conclusion that the seeds produced by the O.P.No.1/appellant were defective and therefore the complainants sustained loss. The District Forum has also properly assessed the compensation considering the loss sustained by each of the complainant.
13. Moreover, we also find that as both the complainants had common interest in the case and as no plea was raised before the Forum by the O.P.No.1 that joint complaint is not maintainable, no such new plea can be raised in appeal for the first time by the appellant about non maintainability of joint complaint. Thus we are of the considered view that the decision relied on by the learned advocate of the appellant is not applicable to the facts and circumstances of the present case as they are totally different from those of the said case. In the result appeal deserves to be dismissed.
// ORDER //
- The appeal is dismissed.
- No order as to cost in appeal.
- Copy of the order be provided to both the parties free of cost.
