Maa Sidheshwari Sheetgrah PVT. LTD. vs Amar Singh Yadav

Prem Narain, Presiding Member

This revision petition has been filed by the petitioner Maa Sidheshwari Sheetgrah Pvt. Ltd. against the order dated 21.08.2018 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, (in short 'the State Commission') passed in Appeal No.2885 of 2016.

Brief facts of the case are that the respondent had put his potato bags in the cold storage of the petitioner. When the respondent/complainant demanded the potatoes from the petitioner the same was not given. The complainant approached the District Horticulture Officer, who also ordered that the potatoes may be released to the complainant on payment of charges for the cold storage, however this order was also not complied by the petitioner/opposite party. The respondent then preferred consumer complaint being complaint No.143 of 2015 before the District Forum. The complaint was resisted by the petitioner/opposite party on the ground that the respondent/complainant did not pay the charges for the cold storage, which was roughly amounting to Rs.1,50,000/-, therefore, the potatoes were not released. The District Horticulture Officer also allowed the complainant to deposit the charges with the District Horticulture, Officer but the same was not deposited by the complainant. As the matter was sub-judice, the potatoes could not be sold in the market and the same became rotten. In such condition, it was prayed that the complaint may be dismissed as there was no deficiency of service on the part of the opposite party. The District Forum however, accepted the complaint and directed the opposite party to pay Rs.2,68,108/- to the complainant along with 6% p.a. interest.

Aggrieved by the order of the District Forum, the opposite party/petitioner herein preferred appeal being 2885 of 2016 before the State Commission. The State Commission vide its order dated 21.08.2018 partly accepted the appeal and set aside the order of compensation of Rs.10,000/- for harassment and mental agony, but upheld the remaining order of the District Forum.

Hence the present revision petition.

Heard the learned counsel for the petitioner and AR of the respondent caveator. Learned counsel for the petitioner stated that the complainant did not pay the charges for the cold storage, which was to the tune of Rs.1,50,000/-. It was the duty of the complainant to pay the bill/charges of the cold storage before lifting the potatoes. As the matter was sub-judice, the potatoes could not be sold and the same became rotten. Learned counsel stated that as per the rules, if a party does not turn up for lifting the potatoes, obviously the potatoes are to be disposed of by taking permission from the District Horticulture Officer. However, in the present case, the same was not done as the matter was sub-judice before the District Forum. The observation of the District Forum and the State Commission that the potatoes have been sold is totally wrong because there is no evidence on the file for the same. This is on the basis of only presumption. The petitioner has not earned anything by selling the rotten potatoes, rather petitioner has suffered loss as charges for cold storage have not been paid by the complainant.

It was further pointed out by the learned counsel for the petitioner that the present revision petition is filed with a delay of 168 days. It has been stated that the delay has occurred due to time taken in searching for an advocate at Delhi and some time was taken in translation of all the documents, which were mainly in Hindi. The delay is unintentional as well as inadvertent and the same needs to be condoned in the interest of justice.

On the other hand, AR of the respondent/caveator stated that the petitioner is adopting unfair trade practice at every stage since when the potatoes were kept in the cold storage. The proper receipt was not issued and when the matter was brought to the notice of District Horticulture Officer then only the proper receipt was issued. In fact, the respondent was ready to give charges for the cold storage, but the same was not accepted by the petitioner. He further stated that the revision petition has been filed with a delay of 168 days and no proper reason has been given for such huge delay, therefore, the revision petition is liable to be dismissed only on the ground of limitation.

I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as AR of the respondent/caveator. The District Forum, in its order has observed the following:-

"Hence, the evidences available in the file proves that opposite cold storage has not returned the potatoes of complainant and complainant has not paid the outstanding amount towards rent etc. to opposite party. The opposite party has also stated that complainant himself does not come to take potatoes, whereas complainant stated that opposite party does not provide his potatoes. In such circumstances, this fact is proved that opposite party has not clear that the potatoes of complainant which were stored in the cold storage of opposite party, was sold or they get spoiled, and how opposite party received his outstanding amount of Rs.1,40,952/- from complainant and if complainant has not paid above amount to opposite party, then why opposite party has not taken any action against the complainant to receive his outstanding amount, opposite party has not produced no evidence foe this fact. In such circumstances, it becomes clear that opposite party had stored potatoes of complainant in cold storage, sold it and did not provide calculations to complainant. Therefore, opposite party has showed lack in service. The complainant is consumer and opposite party is his service provider. The complaint of complainant is liable to be accepted partially against the opposite party. The complainant is entitled to receive the cost for his potatoes and opposite party is responsible to pay remaining payment to complainant, after deducting the amount towards rent, transportation etc. from the cost of potatoes.

It is clear from the evidences available in the file that cost of potatoes of complainant was Rs.4,09,060/- out of which Rs.1,40,952/- should be deducted towards rent, transportation in favour of opposite party, therefore, complainant is entitled to receive Rs.2,68,108/- towards the cost of potatoes along with annual simple interest of 6 percent, from the date of filing the complaint to the date of actual payment Rs.10,000/- towards mental and physical loss and Rs.5,000/- towards suit cost. The complaint of complainant is liable to be accepted against the opposite party partially."

From the above observations of the trial forum two things are clear, first that the rent/charges amounting to Rs.1,40,952/- of cold storage were not paid by the respondent/complainant to the opposite party and secondly that the cost of the potatoes was Rs.4,09,060/-. As both the fora below have given concurrent finding of facts, therefore, this Commission would not like to interfere with these figures in the light of the judgment of the Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein the Apex Court has held as under:-

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

The District Forum has passed the order assuming that the potatoes were sold by the petitioner because the petitioner did not make any efforts to recover the rent/charges for the cold storage from the complainant. The complainant had approached the District Horticulture Officer for directing the opposite party to release the potatoes to the respondent. The District Horticulture Officer vide letter dated 23.10.2015 asked the opposite party to release the potatoes and also directed the complainant to make the payment of rent/charges. Even the District Horticulture Officer allowed the complainant to deposit the rent/charges in the office of the District Horticulture Officer if the opposite party was not accepting the payment. Inspite of these orders from the District Horticulture Officer, rent/charges were not paid to the opposite party. Clearly, the opposite party was entitled for not releasing the potatoes to the complainant.

As per the rules, as admitted by the learned counsel for the petitioner, if a farmer does not lift the stored potatoes then cold storage is entitled to sell in the open market after due permission from the District Horticulture Officer. The argument of the learned counsel for the petitioner that this rule could not be complied with because the matter was sub-judice before the District Forum is not acceptable because it was the basic responsibility and duty of the petitioner to save the potatoes and not to allow them to rot. Even if the assertion of the petitioner is accepted that the potatoes were not sold as they became rotten, the responsibility still lies with the petitioner/opposite party for the loss of potatoes. However, the fact remains that the respondent/complainant has not paid the rent/charges for the cold storage and therefore, the loss suffered by him has been caused partly on account of his mistake/omission also. Therefore, it can be considered a case of contributory negligence on the part of the respondent/complainant. Keeping this in view, I am of the opinion that part of the loss suffered must be borne by the respondent/complainant. The District Forum has awarded compensation of Rs.2,68,108/-. In my view, a compensation of Rs.2,00,000/- shall be reasonable sufficient and just.

Based on the above discussion, the revision petition No.966 of 2019 is partly allowed and the order of the fora below are modified to the extent that the compensation to be paid by the petitioner to the respondent/complainant shall be only Rs.2,00,000/- (rupees two lakhs only) instead of Rs.2,68,108/-. Except for this modification, the order of the State Commission remains unchanged.