NATIONAL FRUIT AGENCY vs HIMACHAL PRADESH HORTICULTURE PRODUCE MARKETING And PROCESSING CORPN. LTD.

THE opposite party M/s. Himachal Pradesh Horticulture Produce Marketing & Processing Corpn. Ltd. is maintaining a cold storage facility at Madras wherein it used to store vegetables and apples that would be brought by traders. THE ease of the complainant firm is that it had stored apples in the said cold storage. From 30.10.1994 to 15.11.1994 the cold storage was not maintained at the necessary temperature viz; 2 Celcius to 4 Celcius. THE opposite party failed to maintain the necessary generator to avail of during power failures, and that resulted in damage to the fruit''s. On account of this, he had to sell 2741 full cases of apples at a very low rate and thereby he sustainted heavy loss. THE failure to maintain properly the temperature condition in the cold storage clearly amounts to deficiency in service on the part of the opposite party. On these allegations, the complaint has been filed for compensation.

THE opposite party contends that because of heavy cyclonic weather there was storm between the period 30.10.1994 and 15.11.1994 on account of which the transformer of the T.N.E.B. [Tamil Nadu Electricity Board] fell on the cold storage of the opposite party and thus there was failure of electricity. THEy tried their level best to maintain the temperature, and there was absolutely no fault on their part. THE opposite party denied that there was any agreement that they should maintain generators as a stand by for electricity. THEy also contended that on their part there was no breach of contract or any conditions of the transaction between them and the complainant in respect of the apples stored, and therefore they are not liable to pay any amount. On these grounds, the opposite party prayed for dismissal of the complaint. The point that arises for consideration is whether there was any deficiency in service on the part of the opposite party as alleged.

Now, on going through the pleadings and evidence in the case, we could see that there is no case made out by the complainant that would establish any deficiency in service on the part of the opposite party. Clause 18(i) of the Cold Storage Order, 1980, reads thus: "(i) For the foodstuffs stored in a cold storage by each hirer, the licensee shall issue a cold storage receipt in Form T''."

"Foodstuffs" have been defined in Clause 2(c) to include fruits also. As per Clause 18(i), the licensee opposite party had issued a number of receipts, one of them being a receipt dated 17.10.1994 [Ex. B-8]. In this receipt. Clause 7 reads as follows: "7. The cold storage undertakes to exercise responsible care and deligence required by the rules and regulations relating to such storage for keeping the goods in the cold storage. However, the cold storage is not legal obligation for any loss damage destruction, deterioration, shrinkage or spoilage of the stored goods as a result of break down in refrigeration, plant leakage of gas failure or non supply of electricity strike by labourers lockout fire natural calamities or act of God or war or rules of order issued by the Government or any other authority or revolution or communal or other riots sabotage or civil and political commotion or accident during storing or any other cause over which the cold storage has no control. The cold storage shall be at liberty to dispose of damaged goods if not withdraw within seven days from the date of issue of written intimation."

A reading of this would show that in case of non- supply of electricity, the opposite party will not be held liable for any loss or damage of foodstuffs. It is not in dispute that there was failure of electricity. A reading of the conditions in the receipt would clearly show that it was the obligation of the opposite party to maintain the temperature with the electricity power. There is nothing in the receipt stating to the effect that the opposite party should have had a generator also. Therefore, to say that because the opposite party had no generator anticipating contingencies of the incident as in tills case they were guilty of deficiency in service is not correct and cannot be accepted. In this view of the matter, it cannot be said that there was any deficiency in service on the part of the opposite party. Thus we find no merit in the complaint.

THE complaint is therefore dismissed. However, there will be no order as to costs. Complaint dismissed. __________________