IMPORTANT POINT
It is responsibility of complainant to prove failure of seeds by examining experts.

S.K. Kulshreshtha, President—The appellant has filed this appeal assailing the order dated 18.1.2008 passed in complaint case No.71/2007 by the District Forum, Mandleshwar. It is stated in the order that complainant was not entitled to any compensation as he did not fall within the definition of “consumer” contained in Section 2 (1)(d) as the transaction was commercial.

2. In short the case of the appellant was that on 8.1.2007 he had approached the respondent No.1 for purchasing seeds of cowpeas (lobia) for growing the crop and in January itself the seeds were sown. Though the seeds germinated, according to the complainant, the crop did not give any peas, with the result he had to sustain loss not only on account of the price paid for the seeds, but also on account of manure. Though it is not mentioned in the complaint, learned counsel submits that the seeds were sown in 1.5 acre. He therefore, claimed a sum of Rs.1,50,000 as compensation. The respondent No.1 traversed the allegations contained in the claim and stated that the complainant was engaged in commercial activity and, therefore, not entitled to approach the Forum for any relief as per the definition contained in Section 2 (1)(d) of the Consumer Protection Act, 1986. It was also pointed out that in the complaint there was no recital to the effect that the seeds were purchased for earning his livelihood by way of self-employment. It was also stated that complainant did not produce any evidence to show that the seed was not effective. The complainant did not complain about the non-germination of the seeds and peas having not bloomed. It was also stated that the complainant filed the complaint after six months of the crop when the seeds were not in existence.

3. Coming to the first objection of the learned counsel that there was no recital to the effect that he had purchased the seeds for earning his own livelihood and used the same exclusively for the purpose of earning his livelihood by means of self-employment. Nothing has been brought on record or in rebuttal to show that the complainant was using the seeds for commercial purpose. It was clear that in the absence of the evidence to the effect that he was exploiting the crop for commercial purposes by employing others, it cannot be said that the complainant was exploiting the crop for commercial purpose. Learned counsel has in this behalf referred to the judgment of this Commission reported in I (1992) CPJ 1731, which relates to the period prior to the Amendment to Section 2 (1)(d). It is observed in this judgment that when the produce in huge quantities was not for domestic use or consumption, such a consumer in the facts and circumstances clearly indicate that the alleged yield was to be resold on a commercial basis. We have already pointed out that this judgment was regarding period prior to the amendment in Section 2 (1)(d) by Amendment Act, 2002. Learned counsel for the respondent has also referred to the decision of the Karnataka State Consumer Disputes Redressal Commission, Bangalore rendered in C.P. Belliappa v. Indo Americal Hybrid Seeds2 to emphasize that in respect of plea that the activities of a person are small scale in which he himself is personally engaged to earn his livelihood, onus probandi lies heavily on the complainant to substantiate his contention. It has further been observed that the complainant in that case had 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 said case also relates to the period prior to the amendment in Section 2 (1)(d). A reference has also been made to the decision of the National Commission in Consumer Protection and Guidance Society v. National Seeds Corporation3, wherein it has been observed that there cannot be any dispute on the question of fact and law that the onus of proof lies with the framers in this case to prove their case.