DINESH COLD STORAGE vs PHOOL CHAND

THIS is an appeal against the judgment and order dated 17.3.1993 passed by District Consumer Forum, Shahajahanpur, in Complaint Case No. 518 of 1992.

THE facts of the case in brief are that the complainant/respondent deposited six bags of potatoes on 21.3.1992 and 7 bags of potatoes on 17.3.1992 in the cold storage of appellant against receipt. On 20.10.1992 the complainant demanded his potatoes back but the opposite party/appellant refused to return his potatoes. Hence the complainant has claimed Rs. 7,915/- as the price of potatoes before the District Consumer Forum, Shahajahanpur. The opposite party/appellant did not appear before the District Forum inspite of notice and the case was decided ex parte. The District Forum decided the cost of one kg. of potato assuming the market rate in the month of October and November as Rs. 1.50 per kg. which amounts to Rs. 1,600/- and ordered the opposite party to pay Rs. 1,600/- within one month to the complainant/respondent, failing which complainant would be entitled to get 18% per annum interest thereon from the date of order till the date of payment.

Aggrieved of the order of the learned District Forum the opposite party has come in appeal and has challenged the correctness of the order of the District Forum.

NOTICES were served to both the parties but none appeared on the date fixed. We have gone through the papers which have been filed with the appeal file. It is clear from the memo of appeal and the copy of judgment and order passed by the learned District Forum that 6 bags and 7 bags, totalling 13 bags, of potatoes were deposited by the complainant/respondent on 21.3.1992 and 17.3.1992 respectively.

APPELLANT/opposite party stated in para No. 2 of the memo of appeal that on 6.6.1992 the appellant had sent a notice to the complainant/respondent that due to irregular supply of electricity the potatoes were degenerating, hence complainant/respondent should take back his potatoes but the complainant/respondent did not turn up. In para No. 3 of the memo of appeal, the appellant has stated that he also informed to the Zila Udyan Adhikari, Shahajahanpur on 3.6.1992 about the same and requested for permission to give notices to the growers. The cold storage is insured with National Insurance Company and appellant/opposite party sent a letter to the National Insurance Company on 5.6.1992 for survey and the claim is pending. In para No. 5 of appeal, the appellant has stated that Zila Udyam Adhikari, Shahajahanpur also sent an information of degeneration of stored potatoes by his letter dated 26.9.1992 to the District Magistrate, Shahajahanpur. APPELLANT/opposite party denied the allegations made by the complainant/respondent before the District Forum that the appellant/opposite party did not return the potatoes to the complainant. He further stated in his appeal memo that a letter was sent to the complainant for taking back the bags of potatotes but the complainant did not do so. Hence the appellant is not liable to pay the cost of potatoes. It is also stated in the memo of appeal that the rate of potato in November, 1992 was Rs. 50 per quintal, hence the complainant is liable to get the damages according to market rate prevalent at the relevant time. The appellant also stated in his appeal memo that he had given assurance to the complainant that after receiving the claim from the Insurance Company, the cost of potatoes will be disbursed by the cold storage. He also alleged that the complainant is not a consumer and nor according to provisions of Consumer Protection Act, 1986 it comes under "service". The District Forum has no jurisdiction to adjudicate the case of the complainant. It is stated in para 5 that the news of rotting of potatoes in the appellant''s cold storage was due to irregular supply of power which was published in the local newspapers. In para 12 it is admitted by the appellant that he was under arrest by Tehsil Officer due to recovery of non-payment of dues of electric bills on 16.3.1993 and was released on 31.3.1993 after bail. Owing to the above circumstances the appellant was unable to be present before the District Forum on 17.3.1993, the date of hearing and his Counsel was also busy in some other case. Hence the case was decided ex parte against the appellant/opposite party which is liable to be set aside. It is noteworthy here that the appellant cold storage keeps the potatoes of his clients after taking charges; then it is the duty of the appellant/cold storage to pay his electric dues timely for getting regular electric supply because if electricity fails then goods kept in the cold storage will start rotting. Else, it is the duty of the cold storage to have generators as stand-by arrangement. In the present appeal, the cold storage/appellant did not return the potatoes which is liablility of the owner of the cold storage. Thus, on this part, we find negligence on behalf of the appellant.

THE appellant raised an objection through his appeal that the complainant is not a consumer and this type of service does not come under the provisions of Consumer Protection Act, 1986. According to Section 2(1)(d)(ii) a "consumer" means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. According to the provisions of Consumer Protection Act, 1986 the complainant comes within the definitions of consumer and he also hired the services from the cold storage by paying consideration/charges to the cold storage. Hence we find no force in this plea taken by the appellant/opposite party.

ACCORDING to the memo of appeal, appellant/opposite party is ready to pay the damages to the complainant/respondent only after receiving the claim from the National Insurance Company. We find it is not correct and the complainant is not bound to wait for settlement of the claim by the Insurance Company. One more plea was taken by the appellant/Opposite Party that the rate of potato in November 1992 was Rs. 50/- per quintal at the time of sowing and hence the complainant is entitled to receive the cost of potatoes only at the rate of Rs. 50/- per quintal and not at the rate claimed by the complainant. Since the crop of potato in the year 1992 was normal and there was no dearth or excess of potatoes hence it cannot be assumed that the rate of potato plunged as low as Rs. 50/- per quintal. The learned District Forum was correct in its judgment and order in deciding the rate of potato at Rs. 1.50 per kg. and decreed the claim of the complainant for Rs. 1,600/- as compensation for loss. We therefore, find no force in the present appeal which is liable to be dismissed. ORDER The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. There will be no order as to the costs. Let compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal dismissed.