Consumer Protection Act, 1986 – Deficiency in service – Onus of proof – Complainant engaged the appellant, a testing, inspection and certification company, for inspection of groundnut procured by the complainant for exporting to Greece and Netherlands – Dispute with regard to shipment in Greece and Netherlands was w.r.t the size/count of Java peanuts and content of Aflatoxin being more than what was specified, respectively – Commission found the appellant to be deficient in service – On appeal, held: Initial burden of proof of deficiency in service was on the complainant – Having failed to prove that the result of the sample retained by the appellant at the time of consignment was materially different than what was certified by it, the burden of proof would not shift on the appellant – Complainant has not produced best evidence in respect of the test results of the samples sent by the appellant to the port of destination – There is no proof of negligence on the part of appellant at the time of loading of the consignment – Thus, it cannot be held responsible if at the port of destination, the products specifications were not the same as certified by it at the time of loading of consignment – Order passed by the Commission set aside – Complaint dismissed.
Allowing the appeal, the Court
HELD: 1.1. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. The Commission has referred to the samples collected at the time of dispatch of consignments to Netherlands but the report of such samples has not been produced by the appellant to hold that the appellant is deficient in providing services therefore, drawn adverse inference against the appellant. The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant, but having failed to prove that the result of the sample retained by the appellant at the time of consignment was materially different than what was certified by the appellant, the burden of proof would not shift on the appellant. Thus, the Commission has erred in law to draw adverse inference against the appellant. [Paras 19, 21 and 22][704-B-C; 705-B-E] Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. (2000) 1 SCC 66 : [1999] 4 Suppl. SCR 320 – relied on.
1.2 The orders on the appellant to quality check the groundnuts do not indicate that there was any obligation on the part of the appellant to ensure that the requirements as specified at the port of loading should also be met at the port of destination. The appellant has certified the weight, packing, quality and quantity of the consignment at the port of loading. There is no allegation that there was any deficiency either in respect of weight, packing, quality or quantity against the appellant. There is even no allegation that the directions regarding containers or packing were not complied with. Once there was a direction that after fumigation the tapes should be removed, then it cannot be said that the appellant was duty bound to send in air-tight containers. The two things do not reconcile. The certificates issued by the appellant had a disclaimer that “no responsibility can be accepted for the possible consequences of further development of Aflatoxin producing moulds dependent upon condition of storage and/or transportation nor for differences arising from varying methods applied”. Thus, the appellant cannot be held responsible for the excess content of Aflatoxin for the reason that the result was a variance with the results in the certificates given by the appellant. Still further, there was no obligation upon the appellant to ensure that the consignment would have the same product specification at the port of destination which were at the port of loading. The complainant has not produced best evidence which they were expected to produce in respect of the test results of the samples sent by the appellant to the port of destination. There could be a deficiency of service only if the complainant was able to prove that the certificate issued by the appellant at the time of dispatch and the samples sent to the complainant or his agents is materially different. In the absence of any such proof, the appellant cannot be held deficient in service. Therefore, in the absence of any proof of negligence on the part of the appellant at the time of loading of the consignment, the appellant cannot be held responsible if at the port of destination, the products specifications were not the same as certified by the appellant at the time of loading of consignment. In the absence of any clause in the contract to ensure that the goods consigned has to meet the products specifications at the time of loading of consignment, the appellant cannot be held liable for change in specifications of the agricultural produce at the destination port after being in transit for two months on the high seas. The order of the Commission holding the appellant as deficient in service is not sustainable in the absence of any clause in the work order that the specifications should remain the same even at the port of destination. The order passed by the Commission is thus set aside and the complaint is dismissed. [Paras 23-26][705-E-H; 706-A-E]
Indigo Airlines v. Kalpana Rani Debbarma & Ors. (2020) 9 SCC 424 : [2020] 3 SCR 389 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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