RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.1375 of 2006

Manager, Aziz Cold Storage, Pitaura,

Kayamganj, Distt: Farrukhabad.                    ….Appellant.

Versus

Sanjeev Kumar s/o Sri Shyam Lal, 

R/o Gram Darapur, Post: Kankapur,

Tehsil: Sadar, District: Farrukhabad.          …Respondent.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Smt. Bal Kumari, Member.

Sri A.K. Pandey for the appellant.

Sri J.P. Saxena for the respondent.

Date    11.8.2015

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 13.1.1998, passed by the Ld. DCDRF, Farrukhabad in complaint case No.139 of 1997, the appellant Manager, Aziz Cold Storage, Pitaura, Kayamganj, Distt: Farrukhabad has preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind on the basis of surmises and conjunctures and therefore, it has been prayed that the same be set aside in the interest of justice, otherwise the appellant will suffer irreparable loss.   

From perusal of the records, it transpires that the respondent/complainant Sri Sanjeev Kumar had stored 18

(2)

gunny bags of potatoes, weighing about 18 quintals in the appellant Cold Storage on 17.3.1996. He wanted to take back the consignment in the month of October, 1996 but was not permitted to do so. No cogent reason has assigned for this gross remiss.  Aggrieved by this deficiency in service, complaint case no.139 of 1997 was filed for redressal of his grievances. The appellant failed to put in his appearance before the Forum below in spite of service of notice, therefore, the case proceeded  exparte against him and judgment was pronounced on 13.1.1998 on the basis of documentary evidence available on record. 

Aggrieved by this exparte judgment dated 13.1.1998, the instant appeal was filed on 5.6.2006. Thus, the appeal is barred by limitation for a period of more than 8 years. It has been contended that the appellant had no knowledge of the exparte judgment and, therefore, he could not file the appeal in time. This is totally incorrect and an attempt was made by the appellant to misguide and deceive the Commission. From perusal of the records, it transpires that the appellant Cold Storage had filed an objection dated 28.2.2000, supported by affidavit of one Sri Asrar Mohd. Khan before the Forum below for quashing the execution proceeding. Thus, it will be inappropriate and incorrect to hold that it had no knowledge of the judgment prior to 19.4.2006. An application for quashing the execution proceedings is not maintainable without certified copy of the judgment. Thus, it is clear that the instant matter falls within the ambit of concealment of material facts. Hence, the application for condonation of delay on the basis of incorrect facts is liable to be rejected. 

(3)

Besides this, from perusal of the records, it transpires that the appellant admitted vide its letter dated 1.8.1997 that the respondent Sri Sanjeev Kumar had stored 18 quintals of potatoes in the appellant Cold Storage. From perusal of the aforesaid letter, it also transpires that a notice was given to him, intimating that the potatoes would be auctioned on 8.8.1996 if not withdrawn before that period. Thus, the storage of potatoes and its non-return of the same is an admitted fact. The appellant has not filed copy of notice date 15.7.1996 and there is nothing on record either to prove the service of letter dated 1.8.1997. The genuineness of this letter dated 1.8.1997 becomes doubtful as receipt of the Registry has not been filed. Besides this, the complaint case is that the respondent/complainant had been visiting the Cold Storage regularly from October, 1996 onwards for fetching back his potatoes. Under Section 12 of the U.P. Regulation of Cold Storages Act, 1976 (U.P. Act no.X1 of 1976), it was the duty of the appellants Cold Storage (Licensee) to "take such care of goods stored in the Cold Storage as a man of ordinary prudence would take of his own goods under similar circumstances and conditions". There is nothing on record to show that the appellants had taken due care for proper storage and preservation of the potatoes. Section 17(1) of the U.P. Act XI of 1976 further provides that "whenever goods stored in a Cold Storage begin to deteriorate or are likely to deteriorate from a cause beyond the control or the licensee, or where the hirer fails to take delivery of goods stored in the Cold Storage within a period of 15 days from the date specified

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therefor in the receipt, the licensee shall forthwith give notice thereof to the hirer, requiring him to take deliver of the goods immediately after surrendering the receipt duly discharged any paying all charges due to the licensee, and sent a copy of such notice to the Licensing Officer". Sub Section 2 further provides that where the hirer fails to comply with notice referred to in sub-section (1) within a period of seven days from the date of service thereof, the licensee may cause the goods to be removed from the cold storage and sold by public auction at the cost and risk of their hirer:  "Provided that the licensee shall give notice to the sale to the Licensing Officer at least forty-eight hours before such sale and the Licensing Officer shall supervise such sale either himself or through an officer authorized by him in that behalf". In the instant matter, attempt has been made to prove that a notice was given to the respondent/complainant on 15.7.1996 and, thereafter on 1.8.1997 in which he was required to take back the stored potatoes but there is absolutely no evidence of compliance of Section 17(2) of the Act XI of 1976 regarding public auction at the cost and risk of the hirer under intimation to the Licensing Officer. Thus, it is clear that the appellant did not comply with the provisions contained under Section 17(1) and 17(2) of the Act XI of 1976 and, therefore, it would not be appropriate to allow it to go scot-free. The appellant certainly failed to take due care for the proper preservation of the stored potatoes as was expected by it under Section 12 of the U.P. Regulation of Cold Storages Act, 1976 (U.P. Act no.X1 of 1976) Act. The Forum below took a very lenient

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view in favour of the appellant and directed it to return the 18 quintals of potatoes which had been stored in the Cold Storage. From perusal of the records, it transpires that the price of potatoes at that time was Rs.400.00 per quintal, therefore, the amount comes to Rs.400.00 x 18 = Rs.7,200.00 only. No other relief was given to the  respondent/complainant and, therefore, we are not inclined to interfere in this order.

It may be observed here that the Cold Storage matters are regulated by the U.P. Regulation of Cold Storages Act, 1976 (U.P. Act no.X1 of 1976) but there is no denial that provisions of the Consumer Protection Act, 1986 is in addition to and not in derogation of the provisions contained under Act XI of 1976 in view of Section 3 of the Act 68 of 1986 and as such the complaint for deficiency in service was maintainable before the Forum below.

Considering the totality of the circumstances, we are of the considered view that the appeal is meritless and barred by limitation for about 8 years and, therefore, is liable to be dismissed with costs.

ORDER

The appeal, being meritless and barred by limitation, is dismissed with costs. Certified copy of the judgment be provided to the parties in accordance with rules.

         (A.K. Bose)                               (Bal Kumari)

    Presiding Member                             Member

Jafri PA II

Court No.4