HIMALAYA FOOD CO vs Dhanpat

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is directed against order dated 7.3.1997, passed by District Forum-II, Udyog Sadan, Institutional Area, Mehrauli, New Delhi Complaint Case No. 55/94 entitled Shri Dhanpat & Ors. v. M/s. Himalaya Food Company.

THE facts, relevant for the disposal of the above mentioned appeal, briefly stated, are that S/Shri Dhanpat, Kiran and Balbir Singh, the respondents had a filed a joint complaint under Section 12 of the Act against the appellant before the District Forum averring therein that they as farmers used to grow vegetables, predominantly, potatoes every year. In the complaint, filed by the respondent, it was stated that respondent No. 3, Shri Balbir Singh was a cutlivator, on record in respect of Khasra Nos. (Pt.) 879, 880, 881, 882, 886 and 914 of village Madanpur Khadar, Tehsil Mehrauli, New Delhi, it was stated that respondent No. 1 Shri Dhanpat and respondent No. 2 Shri Kiran also worked for respondent No. 3 Shri Balbir Singh. It was stated that in a portion of their fields, the above said farmers/cultivators used to grow potatoes for seed purposes also, the yield of which used to be stored in the cold storage for sowing the same in the next seasons. It was stated that respondent No. 3 Shri Balbir Singh and his persons had been utilising the services of the appellant for the last many years for storage of their potato seeds in the cold storage which was being run by the appellant. It was stated that the appellant had offered its services for the storage of various items on payment of fixed charges and was liable to maintain the standard of storage.

It was stated that out of potato seeds of the year 1993, the respondents had deposited the following quantity of potato seeds in the cold storage which was being run by the appellant in the month of April, 1993. Date Lot Number Quantity Charges 5.4.1993 69/93 93 Bags each weighing 80 kgs. Rs. 46/- per bag for the season 8.4.1993 74/66 66 Bags each weighing 80 kgs. -do-

IT was stated that for depositing the stock with the cold storage the receipts used to be issued by the appellant sometimes on printed order books/receipts and sometimes on plain paper. IT was stated that however for the above deposit of stock on 5.4.1993 and 8.4.1993 printed receipts had been issued by the appellant (copies collectively annexed with the complaint as Annexure C-2). It is stated that when the fields were ready for sowing the next crop of potatoes, the respondents approached the cold storage of the appellant on 10.10.1993 where the above stocks of potato seeds had been stored. It is alleged that there they met one Shri Hari Nath, Manager of the appellant, who informed that the Stock Register was not readily available and in the absence of Stock Register, it would not be possible for him to deliver the stocks.

IT is stated that again on 12.10.1993, the respondents visited the cold storage, being run by the appellant and on that date an employee of the appellant by name, Shri Pradeep informed the respondents that the stocks of potato seeds, stored in the cold storage, had deteriorated and there was germination in the potato seeds stored in the cold storage and as such both the lots stored in the cold storage were not fit for delivery. IT is stated that on being so informed the respondents along with a Farming Consultant, who had accompanied them on their request, inspected the stocks in question on 12.10.1993 itself and it was found that there was germination in all the stocks and the stocks of potato seeds were quite unfit for sowing. IT was stated that according to consultant, Shri S.K. Gautam, the germination was more than 5 weeks old and was due to non-adherence of the temperature schedule during storage. IT was stated that the manager of the appellant who was present in cold storage promised to replace the stocks but on 21.10.1993, the manager of the appellant informed that replacement was not possible and the respondents would shortly hear about compensation. It was stated in the complaint filed by the respondents that as the sowing season for the potato crop was going to be over shortly, the respondents had to make some alternative arrangements for potato seeds and for that purpose had to purchase potato seeds from Meerut (UP) and transported the same to their fields. It was stated that for the purchase of pototo seeds and transporting the same to their fields from Meerut (UP), the respondents had to incur an expenditure of Rs. 51,200/-. It was stated that thereafter the respondents got served a legal notice dated 5.11.1993 but there was no response from the appellant.

ALLEGING deficiency in service on the part of the appellant, the respondents had prayed in the complaint, filed by them before the District Forum that the appellant be directed to pay a sum of Rs. 89,118/- to the respondents as detailed in Para 11 of the complaint together with interest @ 18% p.a. till payment.

THE claim of the respondents in the District Forum was resisted by the appellant and in the reply/written version filed on behalf of the appellant, the appellant had taken certain preliminary objections to the effect that the complaint, filed by the respondents, was mis-conceived, frivolous and unsustainable in law; that the District Forum had no jurisdiction to entertain and adjudicate as the same is not a consumer dispute; that the complaint filed by the respondents was bad for mis-joinder of parties; that the complaint, filed by the respondents, was baseless and abuse of the process of law, filed only to blackmail the appellant. On merits while not disputing the storage of potato seeds, it was stated that respondent No. 3 Shri Balbir Singh had not utilised the services of the appellant and was not a consumer. It was stated that the appellant vide letter dated 31.8.1993 , sent under cover of posting, had informed the respondents that electric supply to the cold storage was very erratic and there was likelihood of goods stored in the cold storage deteriorating or getting damaged. It was stated that the appellant in the said letter had requested respondent Nos. 1 and 2 to take their stored goods back and to utilise the services of some other cold storage. It was stated that the respondents even after being informed of the situation were careless and negligent and did not take any steps as advised by the appellant. It was stated that the loss had occurred due to the fault and negligence of the respondents themselves. It was stated that the appellant had replied to the notice vide reply dated 10.11.1993 sent through ordinary post, it was stated that the respondents were not entitled to any relief and that the complaint filed by them was liable to be dismissed summarily with cost.

A rejoinder to the reply/written version was filed on behalf of the respondents/complainants. Both the parties adduced their evidence in support of their respective contentions by means of affidavit before the District Forum.

THE learned District Forum vide impugned order has held that the appellant failed to take necessary steps to maintain the required temperature which resulted in the deterioration of potato seeds. THE learned District Forum for deficiency in service on the post of the appellant had directed the appellant to pay to the respondents a sum of Rs. 55,268/- along with interest @ 18% p.a. from 12.10.1993 till payment. THE learned District Forum has also awarded a sum of Rs. 5,000/- as compensation and cost of litigation. THE learned District Forum has directed that the above amount be paid by the appellant to the respondents within one month from the date of the receipt of that order. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.

A notice of the appeal was issued to the respondents who have filed a detailed reply to the memorandum and grounds of appeal. Both the parties have also filed written submissions/arguments. We have heard the learned Counsel for the parties and have also carefully gone through the documents/material on record including the written submissions filed on behalf of both the parties. The learned Counsel for the appellant, during the course of arguments vehemently contended that the complaint, filed by the respondents before the District Forum involved complex and complicated questions of fact which could not have been satisfactorily adjudicated by a redressal agency, established under the Act as proceedings before such an agency were summary in nature where evidence was led, only by means of affidavits whereas the adjudication of dispute in the complaint, filed by the respondents required expert evidence and detailed examination of the witnesses and thus that complaint was not maintainable before a redressal agency, established under the Act and should have been dismissed by the District Forum on the above ground alone.

IN our opinion, the above contention, advanced by the learned Counsel for the appellant, is devoid of substance in view of the recent decision of the Honble Supreme Court in Case of Dr. J.J. Merchant & Ors. v. Srinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=JT 2002 (6) SC 1. IN the above said decision their lordships of the Honble Surpeme Court have held : 10. Learned Counsel for the appellant next contended that the present case involves complicated question of facts for which experts including doctors would be required to be examined and their cross-examination may be necessary, therefore, also, the National Commission ought to have directed the complainant to approach the Civil Court. For this purpose, the reliance is placed upon the decision of this Court in INdia Medical Association v. V.P. Shantha & Ors., and it is submitted that in the present case complicated question of fact involving negligence of doctors is to be decided and, therefore, complainant should be directed to approach the Civil Court. IN the aforesaid case, the Court rejected the said contention and observed thus .....it has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometime complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the outpatient card containing the warning as in Chin Keow v. Govt. of Malaysia, (1967) 1 WL 813 (PC) or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs of other items or operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the agencies under the Act. IN complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said agencies for determining the issues arising before them, the services rendered by the medical practitioners are not intended to be included in the expression ''service as defined in Section 2(1)(o) of the Act.....

IN the aforesaid case, the Court was dealing with a contention that services rendered by the medical practitioners are not intended to be included in the expression service as defined in Section 2(1)(o) of the Act. That contention was negatived by the Court. Further from this decision, it is apparent that it is within the discretion of the Commission to ask the complainant to approach the Civil Court for appropriate relief in case complaint involves complicated issues requiring recording of evidence of experts, which may delay the proceeding. But the Court has specifically held that issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies.

Further, under the Act the National Commission is required to be headed by a retired Judge of this Court and the State Commission is required to be headed by a retired High Court Judge. They are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged consumers should be directed to approach the Civil Court.

It was next contended that such complicated questions of facts cannot be decided in summary proceedings. IN our view, this submission also requires to be rejected because under the Act for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved on other side, is not necessary. It should be kept in mind that Legislature has provided alternative efficacious simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground.

(Emphasis supplied)

THE above decision of the Apex Court clinches the matter finally insofar as the above objection taken by the learned Counsel for the appellant is concerned. Moreover, in our opinion, in the complaint, filed by the respondents before the District Forum as a matter of fact, no complicated question of fact was involved as the case, as per the averment made by the respondents was pure and simple regarding the alleged deficiency in service which according to them has resulted in deterioration/damage to the potato seeds, stated to have been stored by them in the cold storage of the appellant. The learned Counsel for the appellant further contended that the complaint, filed by the respondent was bad for misjoinder of respondent No. 3 because respondent No. 3 Shri Balbir Singh has not utilised the services of the appellant and no receipt had been issued in his name. In our opinion, on the basis of material on record, the above contention advanced by the learned Counsel for the appellant is also devoid of merit and is liable to be rejected because the potato seeds stated to have been stored in the cold storage of the appellant belonged to respondent No. 3 who had produced the same in his fields. The above fact has not been specifically denied by the appellant before the District Forum. Morever, in support of their above averment respondents have filed the affidavit of Shri Dhanpat dated 31.10.1994 wherein the averment made by the respondents in their complaint stands fully supported. The above fact as stated in the above said affidavit of respondent No. 1 Shri Dhanpat has gone on record unrebutted and unchallenged which we see no reason to disbelieve. Respondent No. 3 Shri Balbir Singh has also filed copies of the Revenue Records to prove that he owns agricultural land at village Madanpur Khadar, Mehrauli, New Delhi along with one Shri Mohan Lal. The respondents in the complaint, filed by them, had also averred that they had been availing of the services of the appellant and copies of some of the receipts issued by the appellant had been filed. The above fact has not been specifically controverted by the appellant. In the presence of the above facts, the above objection taken by the learned Counsel for the appellant also deserves to be rejected summarily.

On merits, it is not in dispute that the pototo seeds in question were stored in the cold storage of the appellant on 5.4.1993 and 8.4.1993 for which the appellant had issued two receipts (copies annexed with the complaint and marked collectively as Annexure C-2.) On a perusal of the above said documents, the correctness of which is not disputed even by the appellant. It is pertinent to note that the pototo seeds of respondent No. 3 had been stored in the cold storage of the appellant by respondent Nos. 1 and 2 for consideration. Thus, on the basis of the above facts, it is established that the respondents were consumers within the meaning of Section 2(1)(d)(ii) of the Act and the appellant was a provider of service within meaning of Section 2(1)(o) of the Act.

THE next question requiring consideration by us in the present appeal is as to whether was there any deficiency in service on the part of the appellant within the meaning of Section 2(1)(g) of the Act. Insofar as the above aspect is concerned, the report of Shri S.K. Gautam, Farming Consultant (copy annexed with complaint as Annexure C-3) is of utmost significance. THE operative portion of the above said document reads as under : On request of Mr. Dhanpat r/o Village Madanpur Khadar, New Delhi and Mr. Balbir Singh of 4812, Central Board, Jangpura, New Delhi, I visited the Cold Storage of Himalaya Food Co. at C-20, Okhla Industrial Area, Phase-I, New Delhi today on 12.10.1993 and inspected the stocks of Potato Seeds stored in the said Cold Storage in Lot Numbers 69/93 and 74/66. I found that the said potato stocks had deteriorated and germinated to the size of 3 to 6 inches and inter-mingled with each other. THEse are rendered unfit for sowing or even any other purpose. In my opinion, the shrinkage and germination was of more than 5 weeks duration due to non-adherence of temperature schedule. On a perusal of the contents of the above said document, it is apparent that the potato seeds, lying stored in the cold storage of the appellant, had deteriorated and were rendered unfit for sowing or for any other purpose due to non-adherence of temperature schedule. The learned Counsel for the appellant during the course of arguments made a vain attempt by saying that the damage to pototo seeds stored in the cold storage was due to erratic electric supply. However, no details of the same have been furnished by the appellant either before the District Forum or before us. In the absence of any such document it is somewhat difficult to believe the contention now being advanced by the learned Counsel for the appellant in support of the case of the appellant. The learned Counsel for the appellant further contended that the appellant had informed the respondents about the erratic electric supply in the cold storage but the respondents, despite being informed, did not take any steps and damage to the potato seeds had occurred due to their negligence. Insofar as the above aspect is concerned, we have put a specific query to the learned Counsel for the appellant to point out any document which may indicate the receipt of such intimation by any of the respondents. The learned Counsel for the appellant failed to file any document excepting a copy of communication stated to have been sent under certificate of posting. The learned District Forum was fully justified in rejecting the above contention vide impugned order. In the given facts, in our opinion, the finding of the learned District Forum to the effect that the appellant failed to take necessary steps to maintain the required temperature which resulted in the deterioration of potato seeds in the given facts appears to be fully justified and calls for no interference by this Commission in exercise of its appellate powers.

THE learned Counsel for the appellant submitted that the relief granted by the District Forum to the respondents is too arbitrary. On the above point also, we have heard the learned Counsel for the parties. THE learned District Forum for allowing the relief has given adequate reasons and the same also calls for no interference by this Commission in exercise of its appellate powers. In view of the above discussion, in our opinion, the appeal, filed by the appellant is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed. The order passed by the District Forum is upheld. The appellant is directed to pay the amount in terms of the order passed by the District Forum to the respondents within 45 days from the date of the receipt of this order failing which the respondents would be at liberty to file an application under Sections 25/27 of the Act for the implementation of the order before the District Forum as the respondents may be advised. The present appeal, filed by the appellant, stands disposed of in above terms. Appeal dismissed.