M/S. Sea View Prawn Hatcheries (P) Ltd vs K. Karthyani & Ors

These revision petitions have been filed by the petitioner M/s. Sea View Prawn Hatcheries (P) Ltd. against the order dated 23.2.2011 of the State Consumer Disputes Redressal Commission, Kerala, (in short 'the State Commission') passed in Appeal Nos.916/01,917/01, 918/01 & 919/01.

Brief facts of the case are that the respondents/complainants are traditional agriculturists engaged in prawn farming for their livelihood. They had availed the Janakeeya Matsya Krishi Scheme launched by the Government of Kerala.They approached the Government agency Brackish Water Fish Farmers Development Agency (hereinafter to be referred as BWFFDA) Kannur and were asked to undergo 10 days training.The seeds were to be supplied from approved private hatcheries as per the indent of BWFFDA. The complainants approached the opposite parties located at Thalikulam, Thrissur District.The seeds were supplied by the above hatchery. According to the complainants, the complainant in OP No.318/98 obtained 11400 P. Monodon seeds.The complainant in OP No.319/98 also obtained 11400 prawn seeds from the above hatchery.The complainant in OP No.320/98 also obtained 11400 prawn seeds.The complainant in OP No.9/99 obtained 3426 seeds.All of them released the prawn seeds in the ponds specially prepared.It is alleged by the complainants that the opposite party collected excess amount also.The main allegation is that they had spent considerable amounts for preparation of the ponds and feeding of the prawn seeds.Expecting a good crop the officers of BWFFDA visited their farms on 08-05-1998 and found that the seeds supplied by the opposite party were not of P. Monodon variety but were P. Semisulcactus seeds which were not suitable for growing in the area and would be having less growth and weight.A large quantity of the seeds supplied also perished.The average weight of the survived prawns was just 4 gm as against 40 gm that P.Monodon prawn would have weighed.Further 80% of the P.Monodon seeds would have survived.The complainant in OP No.318/98 only got 32.280 kg of prawn worth Rs.2,023/- whereas had it been P.Monodon prawns 322.8 kg of prawns worth Rs.1,29,120/- would have been obtained.As suggested by the BWFFDA officials the yield was taken as it was stated that there will be no further growth.It is stated that the complainant in OP No.318/1998 has spent a sum of Rs.83,935/- on preparing the farm and feeding and maintenance.The complainants are from poor families and resorted to the prawn cultivation availing loans.The complainant in OP No.318/98 has claimed a sum of Rs.1,77,088 as compensation.The other complainants in the other OPs have also sought for similar compensation.The opposite party in the version filed has disputed the jurisdiction of the Forum contending that the opposite party hatchery is situated at Thrissur District from where the seeds were purchased by the complainants.It was also contended that there is no evidence that the complainants have properly maintained the farm and started cultivation after destroying unwanted water organisms.It was pointed out that the complainants ought to have immediately notified the relevant agency of Government if it was found that seeds supplied were not of the particular variety which they could have identified in the beginning itself.The opposite party denied that they had supplied P.Semisulcactus (flower prawn seeds).

The District Consumer Disputes Redressal Forum, Kannur, (in short 'the District Forum')allowed all the four complaints bearing No.318/98,319/98/320/98 & 9/99 and directed the opposite party to pay Rs.60,000/- as compensation for unfair trade practice and deficiency in service and Rs.250/- as the cost of this proceedings in OP No.318 to 320 of 1998 and directed a compensation of Rs.25,000/- along with cost of Rs.250/- to pay to the complainant in OP No.9/1999.

Aggrieved with the order dated 30.10.2000 of the District Forum, the opposite party preferred appeals before the State Commission being Appeal No.916/01, 917/01, 918/01 & 919/01.The State Commission, vide its order dated 23.02.2011 dismissed all the four appeals.Hence the present four revision petitions.

Heard the learned counsel for both the parties and perused the record. The learned counsel for the petitioner stated that the respondents/complainants are not consumer qua the petitioner as they have purchased seeds basically from BWFFDA.Learned counsel for the petitioner argued that there is no evidence that the petitioner suppliedP. Semisulcactus seeds rather than P.Monodon.

Learned counsel for the petitioner stated that there is absolutely no evidence to show that the seeds purchased from the petitioner were the one released by the respondent into the pond.The State Commission as well as the forum below have omitted to note that the revision petitioner is producing only seeds of the P.Monodon variety and that therefore, any other variety found in the pond are not supplied by the revision petitioner.

It was argued by the learned counsel for the petitioner that the Brackish Water Fish Farmers Development Agency, the Agency for Development of Aquaculture, Kerala and The marine Products Export Development Authority were necessary parties to the proceedings, however they were not made party and therefore, the forum ought to have dismissed the complaint for non-joinder of necessary parties.Moreover the Forum or the State Commission could not get expert advice from these agencies and facts could not be assessed properly.

Learned counsel for the petitioner further stated that the growing of prawns by purchasing seeds from hatcheries is a commercial activity.The respondents having purchased the seeds for a commercial purpose, the State Commission as well as the forum below ought to have decided that the respondent will not be covered within the definition of 'Consumer' as defined under Consumer Protection Act.This aspect was not properly considered by the forum below.

On the other hand, learned counsel for the respondents/complainants stated that both the fora below have given concurrent finding of fact that proper seeds were not supplied and there was presence of flower prawn variety.The learned counsel stated that Assistant Director of MPEDA, Secretary of the Malabar Area Prawn Farmers Federation and Chief Executive Officer of BWFFDA have all testified that there were seeds of flower prawn variety supplied by the petitioner.They are responsible officers either from the government agencies or from farmers' association and have no vested interest in the matter.It was argued that there was no need to make these agencies i.e. Brackish Water fish Farmers Development Agency (BWFFDA) Kannur & Assistant Manager of Marine Products Export Development Agency (MPEDA) as parties as they were not the necessary parties.Concerned officers of some of those agencies have already testified giving the factual position.

It was further argued that both the fora below have given concurrent finding and scope under the revision petition is quite limited as this Commission cannot reassess the facts and hence these revision petitions are required to be dismissed.

I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record.Coming to the technical objection raised by the petitioner that the complainants are engaged in commercial activity and therefore, they are not "consumer", it is seen that the seeds purchased were grown in ponds by the complainants themselves and therefore, they are very well covered under the explanation attached to Section 2(1)(d) of the Consumer Protection Act, 1986. Clearly, the seeds have been used for earning livelihood by means of self-employment. Even if this fact is not mentioned in the complaint and so far as the seeds purchased have not been sold for any profit and they have been utilised by the complainants themselves, they will fall under the definition of consumer.

12.Both the fora below have given concurrent finding of fact that the purchased seeds which ought to have been only P.Mondon variety, were in fact of another variety P.Semisulcactus.The method of calculation for loss has also been concurred by both the fora below.Thus, this Commission cannot reassess the facts in the revision petition as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon'ble Supreme Court has observed the following:

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

It is not that the finding of the fora below is without any evidence as the three responsible officers like Assistant Director of MPEDA, Secretary of the Malabar Area Prawn Farmers Federation and Chief Executive Officer of BWFFDA have testified the presence of the flower prawn variety.

On the basis of the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 23.02.2011 of the State Commission which calls for any interference from this Commission.Consequently, the revision petition Nos.3412-3415 of 2011 are dismissed