TAYYABHUSAIN vs DINESH

THIS is an appeal against the judgment and order dated 17.1.1994 passed by District Consumer Forum, Shahjahanpur in Complaint Case No. 785/1993.

THE facts of the case stated in brief are that the complainant placed 368 bags of potato in March, 1992 in the cold storage of opposite party, M/s. Dinesh Cold Store. THE opposite party has not returned the potatoes even though the charges for the same were paid. It is further prayed that on account of the negligence the potatoes got rotten. THE complainant has prayed for Rs. 75,000/- as cost of the potatoes, Rs. 6,000/- as costs of the packing material, Rs. 5,000/- for mental agony and Rs. 1,000/- as fee of the Counsel. The opposite party in the written version alleged that no fee was charged from the complainant for keeping the potatoes in the cold storage and, therefore, the complainant is not a consumer. The complainant carries on wholesale business of potatoes and therefore, he is not a consumer. The potatoes placed by the complainant in the cold storage were taken back on 9.6.1992, 11.6.1992, 14.6.1992 and 17.6.1992, details of which are given in paragraph 15 of the written statement. The rate of potatoes was Rs. 50/- to Rs. 100/- per bag on 21.11.1992 and the complainant cannot claim compensation at a higher rate. In March, 1992 the complainant had placed the potatoes in the cold storage of the opposite party. The complainant was advanced Rs. 20,000/- which the complainant is liable to return to the opposite party with interest. The sum has not been returned in spite of several demands.

The parties led evidence before the learned District Forum, who after considering the evidence on record, came to the conclusion that this case cannot be tried before the District Forum and hence it directed the parties to adjudicate the matter in the regular Court.

AGGRIEVED against the order of the learned District Forum, opposite party has come in appeal and has challenged the correctness of the order passed by the District Forum. Notice was sent to the opposite party. In spite of service of notice by registered post, none turned up on the date of hearing. Hence the arguments of the learned Counsel for the appellant was heard.

A perusal of the facts of the case goes to show that 368 bags of potatoes were kept with M/s. Dinesh Cold Store. The contention of the cold storage was that the potatoes were taken on five occasions by the complainant. It has also been averred that a sum of Rs. 20,000/- was advanced to the complainant which has not been paid so far. The learned District Forum on the basis of these facts came to the conclusion that the matter requires investigation into the fact whether the complainant took advance from the cold storage and whether the potatoes were also taken back from the cold storage or not. All these points which have been alleged by the complainant and denied by the opposite party could easily have been decided by the learned District Forum. The learned District Forum was not correct in saying that the controversy involved cannot be adjudicated upon by the District Forum and Civil Court be approached for deciding these matters. The view of the learned District Forum cannot be upheld. Thus the result of the appeal is that the appeal is to be allowed and the case is to be remanded back to the District Forum for trial according to the law. ORDER The appeal is allowed. The judgment and order of the learned District Forum are set aside and the case is remanded back to the District Forum for trial according to law. The learned District Forum shall inform the parties to be present on the date to be fixed by the District Forum.

OPPORTUNITY shall be given to the parties to file additional evidence if any and then the Forum shall decide the case in accordance with the law as early as possible. The parties shall appear before the learned District Forum on 5th March, 2001.

LET copy as per rules be made available to the parties. Appeal allowed.