PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioner against the order dated 27.07.2015 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No. 1061/2014   – Vinay Malpani S/o Late Devnarayana Malpani Proprietor Dev Trading Company Vs. Sarju Cold Storage, by which, appeal was allowed.

2.      Brief facts of the case are that Complainant/respondent proprietor of Dev Trading Company kept 100 bags of Dana methi and 122 kattas of Dana methi in OP/petitioner’s cold storage on 27.5.2006.  On 9.6.2006, fire broke out in the cold storage which damaged complainant’s 100 bags of Dana Methi and 76 kattas of Dana Methi.  It was further alleged that there was no requisite firefighting arrangement; no set back was left on the four sides of cold storage for use of fire brigade. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint, admitted depositing goods by complainant with OP.  It was further pleaded that on account of fire, goods were destroyed inspite of efforts to save goods.  It was denied that there were no adequate fire extinguishing equipments, but it was admitted that fire extinguishing equipments could not be used due to extensive spread of fire before use of equipments.  It was further pleaded that as per terms and conditions of deposit receipt, OP was not liable for any loss caused due to fire as complainant was advised to get it insured at the time of depositing goods with OP, though, OP was responsible for keeping goods in safe condition.  It was also pleaded that complainant does not fall within purview of consumer.  Denying any deficiency on their part, prayed for dismissal of complaint. Learned District forum after hearing both the parties, dismissed complaint.  Appeal filed by complainant was allowed by learned State Commission and OP was directed to pay amount of 100 bags and 76 kattas of Dana methi as shown in the bills along with 9% p.a. interest along with Rs.51,000/- as compensation against which, this revision petition has been filed.

3.      Heard learned Counsel for the parties finally at admission stage and perused record.

4.      Learned Counsel for the petitioner submitted that complainant does not fall within purview of consumer and as per terms and conditions printed on the deposited receipt, OP was not liable for any damage due to fire, learned District Forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside.  On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5.      The core question to be decided is whether complainant falls within purview of consumer or not and whether OP is bound to reimburse loss?

6.      Learned Counsel for petitioner submitted that complainant was carrying on business of Kirana Trading and commission Agency so he does not fall within purview of consumer.  It is not disputed that complainant was carrying on business and in pursuance to his business; he deposited bags and kattas of Dana Methi with OP on payment of charges.  Learned Counsel for the respondent has placed reliance on judgment of this Commission in R.P. No. 4246 of 2008 – M/s. Sarju Cold Storage Vs. M/s. Mohan and Brothers & Anr. in which it was observed that in the light of judgement of this Commission in Harsolia Motors Vs. National Insurance Co. Ltd., complainant by keeping the perishable goods in a cold storage cannot be termed as utilizing services of cold storage for commercial purposes to earn profit.  I agree with the aforesaid view because complainant deposit goods with OP for preservation of goods which were required to be kept safely by OP as admitted in para 5 of the written statement and was required to return those goods as and when demanded.  So, there was no question of availing services of OP for commercial purpose.  This Commission in I (2015) CPJ 597 (NC) – Gati Ltd. Vs. R. Ramesh observed that complainant availing services of OP for transportation of his goods falls within purview of consumer. This Commission in III (2012) CPJ 248 (NC) – Punjab Agri Food Parks Ltd. & Anr. Vs. Gurdeep Singh, III (2008) CPJ 172 (NC) – Bhagwa Cold Storage Vs. Mohan Jee @ Mohan PD and II (2006) CPJ 330 (NC) – Durga ICE & Cold Storage Vs. Garg Stores upheld grant of compensation for damage caused to the goods kept in cold storage. In the light of aforesaid judgments it becomes clear that complainant falls within purview of consumer and complaint filed by him before Fora below was maintainable.     

7.      Learned Counsel for petitioner submitted that as per Condition No. 6 & 7 printed on the back of deposit receipt; petitioner is not liable for any loss, damage to the stored goods on account of fire, etc.  Learned Counsel for petitioner admitted that this goods deposit receipt does not contain signatures of complainant, but submitted that these terms and conditions were explained by OP to the complainant at the time of depositing goods with OP.  Admittedly, conditions have been printed on the back of deposit receipt and deposit receipt does not contain signatures of complainant on front side or back side of the deposit receipt.  Petitioner has not placed any reliable evidence on record to prove that OP explained aforesaid terms and conditions to the complainant at the time of depositing goods.  In such circumstances, complainant is not bound by terms and conditions  printed on back of the deposit receipt.  No doubt, it has been printed on front side of deposit receipt that owners are advised in their own interest to have their goods insured before putting the same in the storage, but by this advice it cannot be inferred that in the absence of insurance coverage, OP is not bound to return goods in the same condition in which it was deposited by complainant and OP should have taken insurance policy for coverage of loss.

8.      Learned Counsel for petitioner submitted that all firefighting equipments were working and there was no deficiency on their part in trying to extinguish fire immediately. This argument is devoid of force because OP in para 14 of its written statement admitted that fire was so extensive that before use of firefighting equipments, fire spread all over the storage.  In such circumstances, it cannot be presumed that any firefighting equipment were put in operation by OP for extinguishing fire. How fire was caused is also disputed because in the final report it was observed that it could not be ruled out that cause of fire was short circuit whereas FSL report dated 30.9.2009 opines that no evidence of electric short circuit was detected.  As cause of fire was also not definite and as OP being bailee was bound to return deposited goods to the complainant in same condition, order passed by learned State Commission directing refund of price as per bill with 9% p.a. interest is in accordance with law and I do not find any illegality, irregularity or jurisdictional error in the impugned order to this extent.  Learned State Commission has also allowed compensation of Rs. 51,000/- along with interest which should be reduced to Rs.25,000/- as interest has already been allowed.

9.      Consequently, revision petition filed by the petitioner is partly allowed and impugned order dated 27.07.2015 passed by the learned State Commission in Appeal No. 1061/2014   – Vinay Malpani S/o Late Devnarayana Malpani Proprietor Dev Trading Company Vs. Sarju Cold Storage is partly allowed and compensation of Rs. 51,000/- allowed by learned State Commission is reduced to Rs. 25,000/- and rest of the order is upheld.  Parties to bear their costs.  Record of Fora below may be returned back.