[Consumer Disputes] Onus of proof that there was deficiency in service is on the complainant: Supreme Court

In complaints under the Consumer Protection Act of 1986, the onus of proof that there was deficiency in service is on the complainant, the Supreme Court reiterated on Wednesday (SGS India Ltd. v. Dolphin International)..If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint, a Bench of Justices Hemant Gupta and V Ramasubramanian held.“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,” the Court said.It, therefore, set aside an order of the National Consumer Dispute Redressal Commission (NCDRC) which had directed the appellant, SGS India Ltd. to pay a sum of ₹65.74 lakh with 9 percent interest to the respondent, Dolphin International..The appellant, a testing, inspection and certification company that tests the quality and quantity of several products, was engaged by the complainant for providing services for inspection of groundnut procured by the complainant for the purpose of exporting the same.The appellant was responsible for carrying out the inspection of samples and further certifying in respect of different parameters of the groundnut.There were two sets of consignments, one to Piraeus, Greece and another to Rotterdam, Netherlands both of which were certified by the appellant.However, when the consignments reached their respective destinations, it was found to be not as per specifications.With respect to Greece consignment, the issue was with regard to the size/count of peanuts. As regards Netherlands, the consignment which reached the destination, reflected higher levels of Aflatoxin..Senior Counsel Gopal Sankaranarayanan, appearing for the appellant, said that there was no responsibility or assurance of the appellant beyond the borders of India and that they were to only satisfy the quantity, quality, weight and packaging of the consignment at the time of shipment.The appellant was only in charge of supervising the weighing and packing and to certify the quality and quantity of peanuts and had no control or responsibility once the shipment left the Indian port, it was contended.It was also pointed out that there were instructions to seal the containers for fumigation but after fumigation, tapes were to be removed. Therefore, the air could enter the container which may result in deviation in the reports at the port of destination.It was also argued that the size of groundnut is subject to a marginal difference after 2½ months of transportation between Indian and Greece port. Such variation could be as a 7 result of natural causes such as weather, moisture, humidity, temperature and even storage condition, being an agricultural commodity. It was argued that the NCDRC has not given any finding in respect of any deficiency of service in respect of the inspection carried out by the appellant in the territory of India.As regards Netherlands consignment, certificates were furnished by the appellant which had a disclaimer that no responsibility can be accepted for the possible consequences of further development of Aflatoxin producing moulds depending upon the condition of storage and/or transportation..The Court accepted the argument stating that the NCDRC order is not sustainable since it proceeds on the wrong understanding of law and facts.The onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act, 1986, the Court underscored. In the instant case, it was the complainant who had approached the NCDRC, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.The complainant 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, the Court observed.“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,” the Bench held..Further, it observed that 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, the Bench noted, 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.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.“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. 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,” the judgment concluded..Thus, the Court allowed the appeal, ruling that the NCDRC has erred in law in drawing adverse inference against the appellant..[Read Judgment]