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Supreme Court of India
Sgs India Ltd. vs Dolphin International Ltd. on 6 October, 2021Author: Hemant Gupta

Bench: Hemant Gupta, V. Ramasubramanian

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5759 OF 2009

SGS INDIA LTD. …..APPELLANT(S)

VERSUS

DOLPHIN INTERNATIONAL LTD. …..RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by

the National Consumer Disputes Redressal Commission 1 on

1.7.2009 allowing the complaint filed by the respondent 2 and

directing the appellant to pay a sum of Rs.65,74,000/- with

interest @9% p.a. from the date of filing of complaint till

realization. The appellant was also directed to pay Rs.25,000/-

as cost to the complainant.

2. The appellant herein is a testing, inspection and certification

company that tests the quality and quantity of several
Signature Not Verified

Digitally signed by
Jayant Kumar Arora products. The complainant engaged the appellant for
Date: 2021.10.06
16:53:59 IST
Reason:

providing services for inspection of groundnut procured by the

1 For short, the ‘Commission’
2 For short, the ‘complainant’

1
complainant for the purpose of exporting the same to Greece

and Netherlands. 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. The specification requirement in the

communication dated 7.11.1997 was in respect of 122

containers of peanuts procured from M/s Shree Ram Industries,

Rajkot. 10 containers out of 122 containers were required to

be stuffed at Kandla Port and the rest at the factory of Shree

Ram Industries, Rajkot. The specifications required by the

complainant in respect of consignment to Greece were as

under:

“1) Product : Moisture : Max 7.0% till
Specificatio 15/11/97
n Max 6.5%
thereafter
Aflatoxin : Max 5 PPB
Broken/Split : Max 1%
Admixture : Max 0.25%
Damage : Max 0.5%
Sprouty/yellow : Nil
2) Packing : 50 Kg new jute bag of minimum 450
Requiremen gms. Gross for net basis.
t
3) Marking : As per contract with supplier
4) Stuffing :
Instructions
– Containers should be new, without holes and with doors
which close hermatically.
– To protect bags from sweating and prevent them from
touching the walls of the containers, every container’s
bottom, top and walls should be lined by bituminised
paper (not simple craft paper) top-most layer of bags is
to be covered with corrugated sheet.
– Container

– Container should be fumigated by 48 Grams/cb.m. Methyl
Bromide and sealing tapes used to cover container vents
so as to ensure proper fumigation.
– Sealing tapes must be removed as port prior to container

2
being shipped.
5) SGS Certificate: SGS Certificate of quality, quantity and
aflatoxin can be issued at your Kandla/Jamnagar office on
receipt of copy of B/L from our C&F agent in Kandla.

xx xx xx

Hope you will find the above in order. Kindly carry out
stringent continuous inspection of the cargo
accordingly and do not hesitate to reject the cargo if
the material/stuffing is not as per our requirements.”

3. The appellant carried out the inspection and analysis of Hand

Picked and Selected peanuts3 which were to be exported to

Greece. The peanuts were of two qualities – Bold and Java and

the Inspection Certificate of quantity, quality, weight and

packing certificates were issued from 2.12.1997 to 20.12.1997.

One of the reports in respect of Bold and Java variety of

peanuts is as under:

“Representative samples were drawn from 10% of the
bags selected at random. Based on examination
analysis of samples, we certify that the goods are:-

350 BAGS INDIAN GROUNDNUT KERNELS CROP 1997
COUNT 45/55 JAVA VARIETY (WINTER CROP)
– Moisture ……………… 5.65%
– Admixture ……………… 0.07%
– Damage ……………… 0.15%
– Sprouty/Yellow ……………… 0.07%
– Broken/Split ……………… 0.47%
– Aflatoxin (B1 B2 ……………… Less than
G1 G2) 5 PPB

No responsibility can be accepted for the possible
consequences of further development of aflatoxin
producing moulds dependent up on condition of
storage and/or transportation nor for differences arising
from varying methods applied.”

4. The merchant vehicle “Shun Cheng-12” reached Piraeus,

3 For short, ‘HPS peanuts’

3
Greece on 7.2.1998. The complainant thus sent a

communication on 7.2.1998 to the appellant in respect of 20

full container loads. It was stated that peanut count size in 11

full container load was disputed and further asked to send all

the sealed samples to SGS, Greece which was another unit of

the Appellant. It was communicated as under:

“This buyer is now disputing the peanut count size in
11 FCLs and is demanding the following: (a) a discount
of US$ 30 = PMT on these 11 FCLs (b) Our bearing
detention/demurrage charges for these 11 FCLs till
settlement of this matter (c) Our bearing cost of SGS
inspection for these 11 FCLs at discharge port.”

5. The appellant thereafter responded to such communication on

9.2.1998 stating that the sealed samples for shipment retained

by the appellant were couriered to the counterpart of the

appellant in Greece. The samples were tested by the

counterpart of the appellant. The result of type Bold of kernels

per ounce was 52-54 whereas for Java type, the count was 57-

61. The dispute with regard to shipment in Greece is only in

respect of the size/count of Java peanuts as against the limit of

45/55.

6. In respect of shipment to Rotterdam, Netherlands, the product

specifications as per the communication dated 7.11.1997 were

as under:

“All cargo is originating from Shree Ram Industries,
Rajkot and will be factory stuffed. Contracted specs.
are as under:

Moisture : Max 7.5%

4
Broken kernels : Max 1.0%
Admixture : Max 0.5%
Aflatoxin (as per : B1B2G1G2 : 4 PPB Max
“Code of Practice”

Goods will undergo for final inspection by Dr. A. Verwey
lab. at discharge port as per code of practice for
peanuts of Product Board for Fruit of Vegetables, The
Hague, “January, 1996” (Copy given by the
undersigned to Mr. Prafful).”

7. The Inspection Certificate dated 23.12.1997 of quantity,

quality, weight and packing for the consignment to

Netherlands is reproduced as under:

“INDIAN GROUNDNUT KERNELS CROP 1997 COUNT
50/60 JAVA VARIETY (WINTER CROP)
– Moisture ……………… 6.30%
– Admixture ……………… 0.14%
– Broken Kernels ……………… 0.32%
– Aflatoxin (B1 B2 ……………… Less than
G1 G2) 4 PPB

Goods are free from Mould and infestation Crop 97

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.”

8. Similar inspection certificate was given in respect of other

containers for shipment by merchant vehicle “Orient Patriot”.

9. Dr. Verwey’s Lab at Rotterdam, Netherlands conducted an

inspection of the consignment and in its report dated 3.2.1998

reflected a higher level of Aflatoxin, including its variants B1,

B2, G1 and G2. The test carried by SGS, Netherlands also

5
confirmed high Aflatoxin level.

10. In this background, the argument of Mr. Gopal

Sankaranarayanan, learned senior counsel for the appellant

was 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. It had no control or

responsibility of the subject shipment once the shipment left

the Indian port. There was thus no corresponding obligation

on the appellant to ensure that the packed consignment would

have the same specifications at the port of destination as well.

It was also pointed out that there were instructions that the

appellant had 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. Each of the certificates

furnished by the appellant also 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

nor for the differences arising from varying methods applied.

Therefore, in view of such disclaimer being part of the

certificates furnished by the appellant at the time of shipment,

6
the responsibility of the appellant in respect of the

consignment does not extend till the port of destination.

11. It was contended that there is not any whisper that the

method of testing, packing, weighment was not as per the

specifications provided by the appellant. Therefore, the

agricultural produce transported via ship has to face vagaries

of nature starting from the tropical weather of India over the

high sea, which could have altered the level of Aflatoxin and

the size of peanuts.

12. In the absence of any requirement that the consignment

should have the same level of Aflatoxin or the size of the

peanut at the destination port, the appellant cannot be made

liable for any variation in the content of Aflatoxin or sizes of

peanuts.

13. It was further contended that the samples retained by the

appellant were couriered on the same day i.e., 9.2.1998, when

the sample was tested at the destination but the report of the

couriered sample has not been shared by the complainant, nor

the appellant was privy to the report of Dr. Verwey’s Lab in

respect of consignment to Netherlands.

14. 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 Commission 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.

15. On the other hand, the argument of Mr. Vijay Hansaria, learned

senior counsel for the complainant was that it had got orders

for export of 20 full container loads of HPS peanuts from

Athens, Greece and 28 full container loads from Rotterdam,

Netherlands. As per the terms and conditions of the

inspection, Aflatoxin could be maximum 4 Particles Per Billion

(PPB) in respect of consignment meant for Netherlands. The

stuffing instructions were that the containers should be new,

without holes and with doors which closed hermetically. It was

pointed out that hermetic means to exclude external air,

airtight as per the dictionary meaning. The appellant was thus

liable to ensure not only the quality but also the stuffing and

packaging of the containers and it was even authorized to

reject the cargo if the material and/or stuffing were not as per

requirement. The cargo was to be tested by High Performance

Liquid Chromatography (HPLC) method for which higher

charges were claimed by the appellant. It was pointed out that

Aflatoxin content for the consignment to Rotterdam,

Netherlands in respect of B1, B2, G1 and G2 was required to

8
be maximum of 4 PPB. The certificate given by the appellant

was to the effect that Aflatoxin content was less than 4 PPB

but on arrival at the port of destination, the Aflatoxin B1, B2,

G1, G2 was found to be beyond 4 microgram/Kg i.e. PPB. Mr.

Hansaria referred to the communication dated 17.2.1998 on

behalf of Dr. Verwey’s Lab that on arrival of cargo, no water

damage to the contents of the container nor any visible mould

growth was reported. Any mould growth on groundnut kernel

will not take place unless the water activity of groundnut is

0.68 which is equal to the moisture content of 7%. When

Aflatoxin producing moulds are present in groundnuts, they

will not metabolize Aflatoxins unless the water content of the

nuts is above 10%. Dr. Verwey’s Lab was an independent

expert nominated by the buyer. The appellant was informed

that the goods would undergo final inspection at the discharge

port by the said Lab.

16. In respect of the cargo to Greece, the size of peanuts Java type

were found to be 57 to 61 counts per ounce, which was higher

than what was certified by the appellant to be 45 to 55 counts

per ounce. It was alleged that the appellant had deliberately

withheld the report of its counterpart in Greece with regard to

samples sent by it on 9.2.1998. It was even contended that

the appellant did not send its sealed sample at the port of

loading to its counterpart in Netherlands though the same was

requested on 12.2.1998 and 19.2.1998. Since report has not

9
been produced by the appellant, adverse inference should be

drawn against the appellant.

17. The Commission found that the appellant has not led any evi-

dence in respect of the contention that quantity of Aflatoxin in

peanuts is affected by various extraneous factors i.e., weather,

moisture, humidity, temperature and storage conditions. On

the basis of the said fact, the Commission returned a finding

that the appellant was grossly negligent and deficient in ser-

vice as the count of Java type peanuts and content of Aflatoxin

was more than what was specified.

18. We have heard learned counsel for the parties and find that

the order of the Commission is not sustainable and it proceeds

on the wrong understanding of law and facts.

19. The onus of proof of deficiency in service is on the com-

plainant 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. In a judgment of this Court reported as Ravneet

Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4, this

court held that the burden of proving the deficiency in ser-

vice is upon the person who alleges it.

“6. The deficiency in service cannot be alleged without

4 (2000) 1 SCC 66

10
attributing fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of
performance which is required to be performed by a
person in pursuance of a contract or otherwise in
relation to any service. The burden of proving the
deficiency in service is upon the person who alleges it.
The complainant has, on facts, been found to have not
established any wilful fault, imperfection, shortcoming
or inadequacy in the service of the respondent.
………….”

20. This Court in a Judgment reported as Indigo Airlines v.

Kalpana Rani Debbarma & Ors.5, held the the initial onus

to substantiate the factum of deficiency in service committed

by the opposite party was primarily on the complaint. This

Court held as under:-

“28. In our opinion, the approach of the Consumer
Fora is in complete disregard of the principles of
pleadings and burden of proof. First, the material facts
constituting deficiency in service are blissfully absent
in the complaint as filed. Second, the initial onus to
substantiate the factum of deficiency in service
committed by the ground staff of the Airlines at the
airport after issuing boarding passes was primarily on
the respondents. That has not been discharged by
them. The Consumer Fora, however, went on to
unjustly shift the onus on the appellants because of
their failure to produce any evidence. In law, the
burden of proof would shift on the appellants only after
the respondents/complainants had discharged their
initial burden in establishing the factum of deficiency
in service.”

21. 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

5 (2020) 9 SCC 424

11
services therefore, drawn adverse inference against the

appellant.

22. 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.

23. 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

12
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.

24. 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.

25. Therefore, in the absence of any proof of negligence on the

13
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.

26. In view thereof, we find that 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. Consequently, the present appeal is allowed. The

order passed by the Commission is thus set aside and the

complaint is dismissed.

………………………………………J.
(HEMANT GUPTA)

………………………………………J.
(V. RAMASUBRAMANIAN)

NEW DELHI;
OCTOBER 06, 2021.

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