SGS INDIA LTD. versus DOLPHIN INTERNATIONAL LTD.

Citation: [2021] 8 S.C.R. 695 · Decided: 06-10-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2021] 8 S.C.R. 695
695
SGS INDIA LTD.
v.
DOLPHIN INTERNATIONAL LTD.
(Civil Appeal No. 5759 of 2009)
OCTOBER 06, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ]
Consumer Protection Act, 1986 – Deficiency in service – Onus
of proof – Complainant engaged the appellant, a testing, inspection
and certification company, for inspection of groundnut procured
by the complainant for exporting to Greece and Netherlands –
Dispute with regard to shipment in Greece and Netherlands was
w.r.t the size/count of Java peanuts and content of Aflatoxin being
more than what was specified, respectively – Commission found the
appellant to be deficient in service – On appeal, held: Initial burden
of proof of deficiency in service was on the complainant – 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 it, the burden of proof would not shift on the appellant
– Complainant has not produced best evidence in respect of the test
results of the samples sent by the appellant to the port of destination
– There is no proof of negligence on the part of appellant at the
time of loading of the consignment – Thus, it cannot be held
responsible if at the port of destination, the products specifications
were not the same as certified by it at the time of loading of
consignment – Order passed by the Commission set aside – Complaint
dismissed.
Allowing the appeal, the Court
HELD: 1.1. The onus of proof of deficiency in service is on
the complainant 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.
The Commission has referred to the samples collected at the
time of dispatch of consignments to Netherlands but the report
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
of such samples has not been produced by the appellant to hold
that the appellant is deficient in providing services therefore,
drawn adverse inference against the appellant. 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. [Paras 19, 21 and 22][704-B-C; 705-B-E]
Ravneet Singh Bagga v. KLM Royal Dutch Airlines &
Anr. (2000) 1 SCC 66 : [1999] 4 Suppl. SCR 320
– relied on.
1.2 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 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
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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

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