SC: Onus of proof lies on complainant if there was deficiency in service

By Legal Wires 5 Minutes Read

The Supreme Court reiterated that the onus of proof that there was a deficiency in service lies with the complainant under the Consumer Protection Act, 1986.

SGS India Ltd. v. Dolphin International

The Bench of Justice Hemant Gupta and Justice V Ramasubramanain held that the burden would then shift to the respondent in the complaint If the complainant is able to discharge its initial onus.

“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.

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.

There were two sets of consignments that were certified by the appellant. One consignment was to Piraeus, Greece and the other to Rotterdam, Netherlands.

However, on the arrival of the consignment on their respective destinations were found out to be not as per specifications.

It was found out that the Greece consignment the issue was regard to the size of peanuts and for the Netherlands consignment, it reflected a higher level of Aflatoxin.

The appellant contended he was only in charge of supervising the weighing and packing and certifying the quality and quantity of peanuts and had no control or responsibility once the shipment left the Indian port.

It was also argued that the size of groundnut is subject to a marginal difference after 2½ months of transportation between Indian and Greece ports. Such variation could be as a 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 or transportation.

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 the complainant who had approached the National Consumer Dispute Redressal Commission (NCDRC), therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

“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.

The court noted that the appellant had certified the weight, packing, quality and quantity of the consignment at the port of loading.

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.

Therefore the Apex Court set aside an order of the NCDRC which had directed the appellant, SGS India Ltd. to pay a sum of ₹65.74 lakh with 9% interest to the respondent, Dolphin International.