MAHAL COLD STORAGE vs Devinder Singh

THIS appeal has been brought under Section 15 of the Consumer Protection Act, 1986, by the opposite party from an order of the District Forum, Ropar dated 26.11.1998, whereby the following directions were given : "Consequently, we are of the considered view that the ends of justice would be served if the complainant is held entitled to payment of Rs. 8,593/- (Rs. 4,693/- + 3,900/-) with interest at the rate of Rs. 18% per annum from 15.10.1995 till actual realisation besides an amount of Rs. 5,000/- (five thousand) as costs of these proceedings, payable by opposite party-1- The Mahal Cold Storage. It is ordered accordingly. The payment be made within 30 days."

THE case of the respondent was that 30 bags of potato seeds were kept in the cold storage of the opposite party No. 1 for a period from 1.4.1995 to 15.10.1995 against a payment of Rs. 1,050/-. THE potato seeds were damaged by sprouting through the negligence of the opposite party concerned as a result of which the complainant had to incur extra heavy expenditure to purchase potato seeds from the market to carry on his farming operations. The opposite party before the District Forum resisted the complaint on a counter- affidavit one by Gurdev Singh Mahal, partner of the Firm-Opposite Party No. 1 (Ex. R-1) admitting entrustment of the commodity in question through one Sh. Hardip Singh but without the required payment of Rs. 1,050/-. The opposite party contested that on the expiry of the contractual period on 15.10.1995 the said Sh. Hardip Singh neither made the said payment of Rs. 1,050/- nor took the delivery of the bags of potato seeds in question. In these circumstances the opposite party has no option but to sell the commodity in the market so that the limited storage capacity of the said cold storage could be utilised.

Both the parties led their evidence before the District Forum. After considering the material on records, the District Forum passed the impugned order.

WE have heard the Counsel for the parties and perused the records. Section 2(1)(d) of the Consumer Protection Act, 1986 defines ''consumer'' as under : "(d) ''consumer'' means any person who- (i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) 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 payments, when such services are availed of with the approval of the first-mentioned person."

"Hire" has been defined in Concise Oxford Dictionary as under : "hire - 1. (often foll, by from) procure the temporary use of (a thing) for an agreed payment (hired a van from them). 2. esp. US employ (a person) for wages or a fee, 3. US borrow (money).- n. 1. hiring or being hired. 2. payment for this. for (or on) hire ready to be hired. hire-car a car available for hire. hired girl (or man) US a domestic servant, esp. on a farm. hire out grant the temporary use of (a thing) for an agreed payment. hire purchase Brit. a system by which a person may purchase a thing by regular payments while having the use of it, hireable adj. (US hirable), hirer n."

"Consideration" means "n. 1 the act of considering; careful thought. 2 thoughtfulness for others; being considerate. 3 a fact or a thing taken into account in deciding or judging something. 4 compensation; a payment or reward. 5 Law (in a contractual agreement) anything given or promised or forborne by one party in exchange for the promise or undertaking of another. 6 archaic importance or consequence. in consideration of in return for; on account of. take into consideration include as a factor, reason, etc; make allowance for. under consideration being considered." Learned Counsel for the appellants contended that the respondent/complainant had not hired any service for consideration for storage of potato seeds in the cold storage of the opposite parties. Section 2(1)(o) of the Act speaks as under : "2(1)(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

A perusal of Section 2(1)(d)(ii) of the Act provides that a person claiming himself as "consumer" should satisfy, amongst others, three conditions, namely (1) the service should have been rendered to him, (2) the service should have been hired by him, and (3) for hiring the service, he should have paid consideration in the manner envisaged by Section 2(1)(a)(ii) of the Act. If the aforesaid three conditions are not satisfied, then the person making the complaints cannot be termed as "consumer" so as to entitle him to file the complaint. The main contention of the Counsel for the appellant is that the complainants did not deposit any amount for consideration with the opposite parties. The complainant is not a consumer qua the opposite parties. Ex. A1 is an affidavit of Sh. Devinder Singh son of Sh. Kapur Singh, wherein he has stated that he stored 30 bags of potatoes with opposite party No. 1, but has mentioned that he paid Rs. 1,050/- as storage charges for the said season through party No. 2, Sh. Bindi Badshah son of Sh. Phini Shah, Commission Agent of party No. 1, vide Receipt No. 164 dated 1.4.1995 (Ex. A-1). We have perused the Receipt No. 464/30 marked as Ex. A-3, which shows that 30 bags were received by the opposite party - Bindi Badshah, Kharar for a consideration of Rs. 1,050/- for service. The receipt has been signed by the manager of the opposite parties. Sh. Hardip Singh has signed on the receipt, appears to be representative of Bindi Badshah, who deposited the bags with the opposite party. Bindi Badshah in reply to the written statement in para No. 7 has stated as under : "That the prayer of the complainant to have the relief from this Forum amounting to Rs. 20,000/- is slightly excessive. It will meet the ends of justice if the complainant is provided a relief of Rs. 18,000/- which is to be recovered from the party No. 1 as the potatoes in dispute were stored in it. The party No. 2 merely assisted party No. 1 and the complainant as he is an agent (Commission) of Kharar Sabzi Market. The responsibility for the payment of claim regarding the price of potatoes, litigation expenses and damages is that of party No. 1 and not party No. 2."

An affidavit of Sh. Avtar Singh son of Sh. Telu Ram of village Badli, Distt. Navvan Shahr, has been filed, where in he was stated as under : "(1) That on 19.9.1995 at about 10 a.m. Shri Devinder Singh s/o S. Kapoor Singh, R/6 Village Badali (adjoining to my Village - Badala Naya Shahr), Tehsil Kharar, Distt. Ropar (complainant) met the Manager of party No. 1 - The Mahal Cold Storage, Village Behlolpur, Tehsil Kharar, Distt. Ropar, in my presence and requested him for delivery of 30 bags of Potatoes Seed stored in the said Cold Storage.

(2) That the said Devinder Singh found the said 30 bags as defective being sprouted and pointed it out to the Manager of party No. 2, requesting him to pay the market price of Rs. 9,900/- of the said potatoes seeds along with the storage charges of Rs. 1,050/-. (3) That the Manager of party No. 1 refused to do so and, therefore, I along with Shri Devinder Singh supra, went to party No. 2 - Pindi Badshah son of Phini Sehash Commission Agent of party No. 1, resident of House No. 139, Ward No. 6, Municipal Committee, Kharar, Distt. Ropar to whom the said Davinder Singh told that either he should pay the above amount or get it paid by party No. 2 as the potatoes seed stored therein through him has been sprouted."

The complainant who was in the witness box deposed as under : "Bhindi Badshah is an agent of both the parties and he accompanied my man to the Cold Storage of the opposite party when the consignment in question was deposited there. My man is named Avtar Chand. I sent Avtar Chand for this purpose because I was to attend a function of Rotary Club. My man was issued the receipt of entrustment which has been placed on record but I do not know whether he signed the Register of the opposite party Cold Storage or it was signed by Bhindi Badshah. I do not know whether the entrustment was actually made at the spot by one Sh. Hardeep Singh. It is incorrect to suggest that Bhindi Badshah was my agent for entrustment in question. I had not issued any authority letter in favour of Bhindi Badshah or any power or attorney for the above mentioned purpose of entrustment. It is incorrect to suggest that I have lodged a false complaint."

FROM the above position and in the circumstances, we can conclude that it was merely a technicality that the receipt was not prepared in the name of the complainant but was issued in favour of the Commission Agent though his representative who happened to be present in the cold storage of the opposite parties. Shackles of the technical need not to stand in the way more particularly when the opposite party No. 2 has admitted that the 30 potatoes seed bags were deposited by him on behalf of the complainant and not for himself and has not claimed as such for himself. The opposite party No. 1 has to discharge the liability against that receipt. In the wake of the above, it is very significant to observe that opposite party No. 2 - Bindi Badshah in this case is a Commission Agent, who deposited the potato seeds bags on behalf of the complainant in the sense it was the complainant who was the owner of the potato seeds. The suggestion of the opposite party No. 1/appellant that the receipt relates to Bindi Badshah, therefore, the complainant cannot be a ''consumer'' does not appear to be entirely on foundation, when aforesaid circumstance proves that the bags belonged to the complainant and he suffered a loss. The evidence which has been allowed by the impugned order is relevant for adjudication of the dispute in question raised in the case.

IN Nayak Parmar Association & Ors. v. Parkash M. Sanghvi & Ors., State Commission, Gujarat, 1998 (1) CPC 281, has held as under : "Whether the impugned order can be described, alleged as illegal being without jurisdiction ? Turning to other contentions raised by the petitioner, we at the very outset would like to state that there is indeed no substance whatsoever in them, as by no stretch of imagination the impugned order passed by the District Forum which is passed in overall interest of justice can ever be said to be in any way illegal unjust or perverse resulting into the miscarriage of justice calling for our interference. IN fact to secure the ends of justice, if the circumstance on the record so constrains to exercising just, proper and equitable judicial discretion, some such orders like the one under the challenge is passed, then merely because there is no express provision empowering the CDR Forum in the Act, that lacuna standing by itself reasonably bridged cannot be said to be illegal as long as there is no express bar to exercise of such power which by virtue of its being justice oriented exercise of the judicial discretion is a must obligation under the constraints of judicial conscience if one claims to have any."

In view of the ratio of the decision referred above, there is no scope for interference with the order of the District Forum granting compensation for the loss caused to the complainant. The complainant is a beneficiary of the transaction conducted by Commission Agent or his representative. Thus, the complainant is a ''consumer'' qua opposite Party No. 1. No other point was stressed.

For the reasons recorded above, we uphold the order of the District Forum and dismiss the appeal with costs of Rs. 2,000/-. The appellant shall pay the costs to the respondent - complainant. Appeal dismissed with costs.