ASHOK COLD STORAGE AND GENERAL MILLS vs DHARNIDHAR TEWARI

APPEAL No. 1442/98 has been filed by M/s. Ashok Cold Storage and General Mills, Mungra Badshahpur, District Jaunpur through its Manager Ashok Kumar Gupta against the judgment and order dated 9.7.1997 passed by District Consumer Forum, Jaunpur in Complaint Case No. 7/94.

THE Appeal No. 1443/98 has been filed by the same party against the judgment and order dated 27.2.1997 passed by the same District Forum in Complaint Case No. 48/93. Since the controversy involved in the appeals is of similar nature, both the appeals are being adjudicated together. The facts of the case in Appeal No. 1442/ 98 are that the complainant Sri Dharnidhar Tewari put his 29 bags of potatoes consisting of 25.52 quintals in the cold storage of the appellant in Mungra Badshahpur on 29.3.1992 and an amount of Rs. 145/- was paid as an advance rent and a receipt against which was also obtained. The potatoes in question were seeds of potatoes and when the time came for the return of the potatoes seeds then the Manager of the appellant refused to give delivery of the potatoes and inspite of contacting the cold storage, the complainant had to return without any redressal. The complainant had to purchase seeds from the market and after some time when he contacted the proprietor of the cold storage he was informed that by some mistake, the potatoes have been handed over to somebody else and the price of the potatoes will be paid to the complainant but the price of the potatoes were never paid to him. He, therefore, lodged a complaint before the District Consumer Forum for awarding Rs. 8,700/- as cost of the potatoes, Rs. 500/- as the expenses for journey and Rs. 10,000/- as compensation.

The case of the opposite party before the District Forum was that because of mismanagement of supply of electricity, the third Chamber of. the cold storage could not be controlled and when the opposite party apprehended that the potatoes are likely to get rotten, he informed the District Horticulture Officer under whose direction the notice was given to the complainant twice directing to take back his potatoes but the complainant never came back to take the potatoes. The opposite party''s stand in the District Forum was that the District Horticulture Officer has asked for returning the potatoes to the growers concerned as per the provisions of the U.P. Cold Storage Regulation Act, 1976. Since inspite of giving notice to the complainant on two occasions, the complainant did not turn up to take back his potatoes, therefore, the potatoes had got rotten and the same were not even placed for auction. The potatoes, therefore, had to be thrown out.

THE District Forum, after hearing the two parties, partly decreed the complaint of the complainant and ordered that an amount of Rs. 5,410/- alongwith the journey expenses etc. to be paid to the complainant alongwith 12% interest, per annum. Aggrieved of this order of the District Consumer Forum, the appellant has come in appeal and has challenged the correctness of the order.

IN the memo of appeal, it has been stated by the appellant that the complainant was informed of the fact of the failure of electricity and was given a notice to remove his potatoes from the cold storage under postal certificate but the complainant did not lift the potatoes and the potatoes had to be removed. The District Consumer Forum failed to consider that there was a totally different Forum provided for adjudication of the cases in regard to cold storage under the provisions of U.P. Regulation of Cold Storage Act, 1976 and, therefore, the order of the District Forum is without jurisdiction. In Appeal No. 1443/98 the facts of the case are as follows : The complainant Sri Suresh Kumar put his 72 bags of potatoes in the cold storage of the opposite party M/s. Ashok Cold Storage and General Mills on 4.4.1992 and paid Rs. 600/- as rent. When the season was going to be over, the complainant went to the appellant''s cold storage for delivery of potatoes then he was informed that the potatoes have got rotten and will not be returned. It was alleged by the complainant that the appellant had sold out these potatoes along with the other potatoes of other consumers and consumers were put to financial loss. A claim of Rs. 28,800/- as cost of the potatoes, compensation of Rs. 5,000/- and other financial loss of Rs. 5,000/-, total Rs. 38,400/- was lodged before the District Consumer Forum. 9. The appellant opposite party in the complaint case gave their version before the Forum to the effect that because of mismanagement of electricity supply the temperature of the cold storage could not be controlled and when the appellant came to know that the potatoes put in the cold storage would become rotten, he informed the complainant twice under certificate of posting but the complainant never came to take back his potatoes. The opposite party had clearly indicated to the complainant that in the event of failure of electricity the responsibility will not be of the cold storage. The District Consumer Forum, after hearing both the parties decreed the complaint of the complainant and ordered that an amount of Rs. 28,800/- alongwith a compensation of Rs. 2,000/- and cost of Rs. 500/- be paid to the complainant.

AGGRIEVED of this order, the opposite party has come in appeal and has challenged the correctness of the order passed by the District Consumer Forum.

WE have heard the arguments of Mr. R.K. Gupta, learned Counsel for the appellant at the admission stage. WE have not considered it necessary to issue notice to the complainants as that would have caused delay and the judgment and order in both the appeals would have been the same. In both the appeals, the learned Counsel for the appellant has admitted the fact of the potatoes having been stored in the cold storage of the appellant. The learned Counsel has stated that provisions of Consumer Protection Act are not attracted in the instant cases under the provisions of U.P. Regulation of Cold Storage Act. The action was taken to inform the parties to take back their potatoes.

In Appeal No. 1442/98 the judgment and order appealed against is dated 9.7.1997. The complaint was contested by the opposite party. The appeal was filed on 4.6.1998. There is a delay of 11 months in filing the appeal. In the application for condonation of delay, it has been stated that the appellant was a heart patient and was ill since the start of 1997 and on 15.6.1997 he suffered a heart attack and was advised bed rest for four weeks. It has also been stated that the appellant had no knowledge regarding the judgment and order of the case. A similar plea for condonation of delay has been made in Appeal No. 1443/98. In this appeal, the judgment and order of the District Forum is dated 27.2.1997 and the appeal was filed on 4.6.1998 after about 1 years.

IN their written version before the District Forum, the appellants have admitted that the cold storage was working in partnership and in a partnership firm any partner was within his right to file the appeal against the judgment and order of the Forum in time. Again the appellant has stated that he was a heart patient and on 15.6.1997 he suffered a heart attack and was advised bed rest for four weeks. After four weeks from 15.6.1997 the time was available for the opposite party to file the appeal. There was no reason to file the appeal quite belatedly on 4.6.1998 in both the appeals. A perusal of the medical certificate attached in support of the condonation application advises rest for four weeks but the appeal has been filed after about eight months from 15.6.1997, therefore, the application for condonation of delay in filing appeal cannot be accepted and has to be rejected out-right. It appears that the appellant has filed these appeals to circumvent the compliance of the orders passed by the District Forum in the two appeals. Section 15 of the Consumer Protection Act clearly provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order in such form and manner as may be prescribed provided that the State Commission may entertain an appeal after the expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. We find that there is no sufficient cause for filing the appeal with such delay. Even if the medical certificate in favour of the appellant is relied upon then also the appeal should have been filed many months earlier. The delay in filing appeal has been deliberate and we do not find any justification in condoning such delay.

IN view of what has been discussed above, we find that Appeal No. A/1442/98 and Appeal No. A/1443/98 are quite time barred and not maintainable. Both the appeals are liable to be dismissed. ORDER The Appeal No. 1442/SC/1998 and Appeal No. 1443/SC/1998 are dismissed. The judgment and orders dated 9.7.1997 and 27.2.1997 are upheld. Let compliance be made within six weeks from the date of this order. There will be no order as to cost. Let copy of this order be made available to the parties as per rules. Appeals dismissed.