1.      This revision petition assails the order dated 12.05.2017 in First Appeal No. 981 of 2016 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated of the District Consumer Disputes Redressal Forum, Hoshiarpur (in short, the ‘District Forum’) dated 02.12.2016 in Consumer Complaint no. CC 51 of 2016.

2.      The brief facts of the case are that the respondent complainant stated before the District Forum that he stored 1087 bags of potatoes in the petitioner’s cold storage in May 2015 for which he was charged Rs.20,000/- as part payment. In November 2015 when the respondent complainant sought to take back the stored potatoes, it was found that all the potatoes had been spoiled. Stating that the cost per bag of potatoes was Rs 600/-, the respondent complainant approached the Deputy Commissioner, Hoshiarpur on 24.11.2015 who found the allegation to be true based on a report by the Deputy Director (Horticulture) and due to negligence. The District Forum concluded, on contest, that the claim was valid and partially allowed the complaint in respect of 441 bags of potatoes and directed payment of Rs 2,64,600/- along with compensation of Rs 5,000/- and litigation expenses of Rs 2,000/- within one month, failing which with 9% p.a. interest. An appeal was preferred against this order by the petitioner opposite party before the State Commission where the appellant (petitioner respondent) failed to appear to argue his case. The State Commission affirmed the order of the District Forum holding the petitioner guilty of deficiency in service and dismissed the appeal. Hence this revision petition. 

3.      The petitioner respondent contends that the fora below failed to appreciate that the respondent complainant was not a ‘consumer’ under section 2(1)(d) of the Consumer Protection Act, 1986 as he had not established how the storage of potatoes in the cold storage amounted to earning of livelihood. He had not approached the court with clean hands as his contention that he had not taken any bag of potatoes had been negated by the finding of the District Forum which held that only 441 bags were remaining and not 1087 bags. It is stated that orders of the lower fora were based on surmises and conjectures. It was not disclosed that the cut off date for withdrawing the bags of potatoes was 15.10.2015 and that the petitioner had no responsibility for the stored potatoes after that as it was the respondent’s own case that he approached the petitioner in November 2015 and that this was a material irregularity which was not appreciated by the fora below. It is contended that the reliance on the report of the Horticulture Department should not have been regarded as the receipts for the deposits clearly states that the cut-off date for the storage was 15 October 2015. It is also contended that the fact that no rent was paid for the bags stored at the cold storage and therefore there was no contract for services was not considered. The petitioner relied on this Commission’s orders in M/s Mukherji Builders & Construction Corporation Vs.  (Mrs.) Annupurna Mishra, 2013 SCC OnLine NCDRC 420 and Sure Marketing Services Vs. Leo D’souza, MANU/CF/0384/1992 to aver that the petitioner needs to come before this Commission with clean hands and on the judgment of the Hon’ble Supreme Court in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., MANU/SC/0628/1996 to aver that the terms and conditions on the receipt are binding.       

4.      I have heard the learned counsel for both the parties and carefully considered the material on record.

5.      The finding of the District Forum is as under:

As the complainant alleged that he stored 1087 bags of potatoes whereas the opposite party alleged that the complainant has deposited only 649 bags out of which he received back 285 bags of potatoes but as per evidence of the complainant he deposited 193 bags vide receipt mark C4, 224 bags vide receipt mark C-5, 132 bags vide receipt marked C6 and 100 bags vide receipt marked C7 and total bags deposited by the complainant comes to 649 bags as per receipts produced on the file by the complainant himself and if we go through the said 4 receipts then it further becomes clear that some figures of potato bags have been deleted by way of putting a line there on which is as per receipt No. 324, 112 bags plus 41 bags and as per receipt No. 319, 55 bags. It means 208 bags were received back by the complainant and then the same were deleted on the receipt and as such we come to the conclusion that there remains only 441 bags of potatoes of the complainant towards the opposite party which were spoiled due to not proper care and caution on the part of the opposite party which itself is a deficiency in service on the part of the opposite party and, therefore the complainant is entitled to recover the price of the aforesaid 441 bags of potatoes. So far the concern of rate of the potatoes per bag of Rs 600/- is related, the same is not denied by the opposite party in his written statement. So, it means that the price of the potatoes is admitted and even the condition of the Cold Store of the opposite party is self-explained from the letter of the Deputy Director, Horticultural Department, the same is marked C2 which itself shows that a huge quantity of potatoes was lying in the Cold Store of the opposite party in a spoiled condition. Accordingly, we find that the complainant is entitled for recovery of the price of remaining potato bags of 441 at the rate Rs 600/- per bag which comes to Rs 2,64,600/-.

6.      The State Commission in its order dated 12.05.2017 concluded as under:

6.       From a critical analysis of evidence on the record and going through the evidence of the parties as put forth on the record, we find that the report of Deputy Director, Horticulture concerned Ex. C2 lends corroboration to the case of the complainant. This report has proved that potatoes were damaged in the cold storage of OP. This report is submitted by a public servant who has no motive to depose falsely. He gave report as per the direction of the Deputy Commissioner concerned. Even if the cold storage was closed after 15^th October of every year, even then it was the duty of the cold store’s owner to issue notice to complainant in that regard. Such a perishable food item has been spoiled on account of negligence of OP. In this case OP took no step to intimate the complainant to receive back the delivery. There is nothing on the record produced by the OP other than a mere affidavit of its partner. We attach no significance to the uncorroborated statement of Yarun Khera Kashyap OP’s partner contained in his affidavit on the record. On the other hand, there is overwhelming evidence on the file to prove negligence on the part of OP in causing spoilage of stored potatoes at a large scale even if rent charges were not paid in time. We affirm the findings of the District Forum holding opposite party deficient in service. The District Forum correctly passed the order of awarding of compensation to the complainant in this case. No illegality or perversity has been found by us in the order of the District Forum under challenge in this appeal.

7.       As a result of our above discussions, we thus affirm the order of the District Forum and dismiss the appeal of the appellant. 

7.      From the record it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidence led by the parties and documents on record. The present revision petition is, therefore, an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.       

8.      This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

9.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

10.    Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel & Ors vs H & R Johnson (India) Ltd., & Ors  (2016) 8 SCC 286 dated 02.08.2016 held:

“17. 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.”

11.   The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

12.    In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail. No illegality or infirmity or perversity is therefore found in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.