The onus of proof that there was deficiency in service is on the complainant: Supreme Court

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 as upheld by the Hon’ble Supreme Court through the learned bench of Justice Hemant Gupta in the case of SGS India Ltd. v. Dolphin International Ltd. (CIVIL APPEAL NO. 5759 OF 2009)

The brief facts of the case are that the appellant herein is a testing, inspection and certification company that tests the quality and quantity of several products. The complainant engaged the appellant for providing services for inspection of groundnut procured by the 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.

The complainant sent a communication 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. 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.

In respect of shipment to Rotterdam, Netherlands, similar inspection certificate was given in respect of other containers for shipment. 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.

Mr. Gopal Sankaranarayanan, learned senior counsel for the appellant contented 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. 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. 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.

Mr. Vijay Hansaria, learned senior counsel for the complainant contended that the appellant was 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. It was pointed out that Aflatoxin content for the consignment to Rotterdam, Netherlands in respect of B1, B2, G1 and G2 was required to be maximum of 4 PPB. The certificate given by the appellant was less than 4 PPB but on arrival at the port of destination, it was found to be beyond 4 microgram/Kg i.e. PPB. 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.

After hearing the learned counsel for the respective parties at length, referring to the cases of Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anrthe and Indigo Airlines v. Kalpana Rani Debbarma & Ors, the Hon’ble Court held, “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. 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 and the complaint is dismissed.”

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Judgment reviewed by Vandana Ragwani

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