PER MR PREM NARAIN, PRESIDING MEMBER

        This revision petition has been filed by M/s Kiran Cold Storage Pvt., Ltd., against the judgment dated 18.04.2017 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal no. 1568 of 2015.

2.     The brief facts of the case are that the respondent kept 734 potato bags in the cold storage of the petitioner on different dates. When the respondent went to take the potatoes he found that the potatoes were not in good condition. On 08.10.2010 and 09.10.2010 respectively, it has been alleged by the petitioner that the respondent took out 23 and 105 bags of potatoes and same were given to Bhura and Nafis. On 23.10.2010, the respondent made a complaint to the District Horticulture Officer, Saharanpur against the petitioner for deteriorating potatoes on which the Senior Horticulture Inspector Mr Arun Kumar inquired into the matter and gave his report.  On various dates, the revisionist sent letters to respondent to take out the potato bags but he did not come because he was to pay Rs.62/- per bag as rent and there was a bumper crop, due to which the market rate was quite low. The petitioner sold the potatoes through Mandi Samiti Saharanpur for Rs.93,825/- after deducting Mandi expenses of Rs.87,295/- came to the hand of petitioner. On 30.11.2010, after deducting Rs.62 per bag rent a cheque of Rs.37,601/- was sent to the complainant which he accepted and encashed the same. However, the respondent/complainant filed a consumer complaint being Complaint no. 227 of 2010 before the District Forum. During the pendency of the complaint the petitioner gave a letter to the District Horticulture Officer to give enquiry report so that written reply may be filed before the District Forum.  The District Horticulture Officer, Saharanpur gave his report dated 26.10.2013 that potatoes were sold in the market at then prevailing rate.

3.     The District Consumer Disputes Redressal Forum, Saharanpur (‘the District Forum’) vide its order dated 06.07.2015 accepted the complaint against M/s Kiran Cold Storage Pvt., Ltd., and ordered as under:

“The respondent is ordered to pay Rs.5,41,599/- as the price of the spoiled  potatoes within one month from the date of this order along with 9% interest from the date of filing of the complaint to the date of this order. Except this in the same time period the respondent will also pay Rs.50,000/- as compensation for mental and physical loss and for the negligence in service and Rs.5,000/- for complaint expenses to the complainant. If the payment is not made within the above mentioned time period then the respondent will pay 9% interest from the date of this order to the date of payment to the complainant”.

4.     Dissatisfied by the order of the District Forum, the petitioner/ Cold Storage preferred an appeal before the State Commission being Appeal no. 1568 of 2015. The State Commission vide its order dated 18.04.2017 partly allowed the appeal as under:

“The judgment and order dated 06.07.2015 passed by the District Forum in complaint no. 227 of 2010 is modified by setting aside the compensation of Rs.50,000/- for mental and physical discomfort. Remaining part of the judgment and order will be the same”.

5.     Hence, the present revision petition.

6.     Heard the learned counsel for both the parties and have examined the record. The learned counsel for the petitioner stated that the main ground for filing the appeal is that the order has been passed in utter violation of Section 14 of the Consumer Protection Act, 1986. The State Commission did not discuss all the above said facts and evidence in its judgment. The State Commission has observed that there was no evidence for taking out 128 bags while the statement of taking out 128 bags was filed vide list of documents on 21.02.2017 and further an application dated 06.03.2017 was also given for the same. Thus without perusing this document and without discussing it the liability of 128 bags has also been fixed on the petitioner. The State Commission has not considered the various letters and intimation dated 25.10.2010, 01.11.2010, 06.11.2010 and 13.11.2010 sent to complainant to take out the potatoes. Further, the State Commission did not discuss the letter given to the District Horticulture Officer by the complainant and also by the petitioner pertaining to their enquiry and also did not discuss the enquiry report dated 26.10.2013 of District Horticulture Officer in which the petitioner was not found at fault. The State Commission without discussing the rate of potatoes, confirmed the rate and interest given by the District Forum. The State Commission gave only one relief to the petitioner, i.e., the order relating to Rs.50,000/- as compensation has been struck down. Though, Rs.62/- per bag rent has been provided in the body of the judgment, but this part is not mentioned in the operative portion of the judgment.

7.     It was also argued by the learned counsel for the petitioner that the potatoes were kept in cold storage at proper temperature and with full care and therefore, the potatoes were not deteriorated. The complainant was liable to make payment of the rent at the time of taking the potatoes and with an intention to avoid payment of rent, he did not take out the bags and further in the year 2010 there was heavy crop of potatoes due to which the market rate was much down. Besides there were 30 thousand potato bags kept in cold storage including those of government department and they also have taken out their bags which were in good condition.

8.     The learned counsel for the petitioner pointed out that the District Forum and the State Commission did not discuss the legal point raised by the petitioner that the complainant has kept the potatoes in cold storage for earning heavy profit by selling in market at appropriate time and therefore, the complainant was not a consumer Under Section 2 (1) (d) of the Consumer Protection Act, 1986 and his complaint was not maintainable under the Consumer Protection Act, 1986.

9.     On the other hand, the learned counsel for the respondent stated that both the fora below have given concurrent finding on facts and therefore, this Commission does not have the jurisdiction to alter the concurrent findings given by the fora below. Learned counsel has stated that it is the operative portion of the order that is required to be implemented. If the State Commission has mentioned any observation in the body of the judgment, it is not necessarily required to come in the operative portion of the judgment. In the present case, the State Commission has not passed any order for deducting the sum of Rs.45,694/- for rent as is being claimed by the revisionist.

10.   Learned counsel for the respondent/ complainant states that the complainant had put the potatoes in the cold storage for selling the potatoes at the appropriate time. This cannot be said to be profiteering and therefore, the complainant is a consumer under the Consumer Protection Act, 1986, as the complainant has utilized the services of the cold storage on payment basis. So far as the question of price is concerned, both the fora below have given concurrent finding in this regard and therefore, the same cannot be interfered with.

11.   I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. It is seen that both the fora below have given concurrent findings of facts on all the issues raised in the complaint. The scope under the revision petition is quite limited and the facts cannot be reassessed by this Commission as has been held by the Hon’ble Supreme Court in the case  of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 as follows:

“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.”

12.   A perusal of the order of the State Commission shows that the State Commission has observed as under:

“The statement of the complainant is that he kept 724 potato bags @ Rs.62 rent per bag in the cold storage of the appellant/ opposite party and selling of those potatoes without obtaining the consent of the complainant/ respondent and in his absence is deficiency in service of the opposite party/ respondent. After detailed analyses and its price and interest the District Forum passed the order as per law and there is no need to interfere in it, as far as the award of Rs.50,000/- compensation for mental and physical  discomfort is concerned, that it not proper and is liable to be set aside. The appellant shall pay to the complainant/ respondent to the balance amount with interest after subtracting the rent of Rs.62 per bag and subtracting the paid amount of Rs.37,601/-.

13.   Though the State Commission has mentioned that the deduction has to be made for rent @ Rs.62/- per bag apart from subtracting the paid amount of Rs.37,601/- but the State Commission has inadvertently omitted this in its final operative portion of the order. Thus, I find force in the assertion of the revisionist that the rent @ Rs.62/- per bag be deducted from the amount to be paid by the opposite party/ petitioner to the complainant.

14.   There is no doubt that the complainant is a consumer as the complainant has obtained the services of the cold storage on payment basis. The cold storage should not be concerned whether the complainant earns profit after selling the potatoes in the market or not. In the present case, the complainant has not got the potatoes to sell in the open market and there is no question of earning profit. The complainant has not stated in his complaint that the services of cold storage were obtained for any other purpose. The petitioner has not filed any evidence to show that the potatoes were kept in the cold storage for commercial purpose. Though, the potatoes were kept in the cold storage for safety of the potatoes for long time so that they could be sold at appropriate time. The Hon’ble Supreme Court in the case of Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has held the following:-

“13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a “commercial purpose” and not for “self-employment”, the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for “self-consumption” in economic activities in which they are engaged would be “consumers” as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than “self-employment”.

Therefore, the point to be considered is whether the appellants have purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”. There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of “consumer”. It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.”

15.   So far as the question of prices of potatoes is concerned, both the fora below had examined this issue and it is a matter of fact that there is concurrent finding given by both the fora below, therefore, this Commission in its revisional jurisdiction would not like to interfere with the price of the potatoes.

16.   Based on the above discussion, the revision petition is partly allowed and the order of the State Commission is modified to the extent that the amount of Rs.45,694/- being the rent for the potato bags and the amount of Rs.37,601/- (paid amount) shall be deducted from the payment to be made by the petitioner/ opposite party to the complainant as per the order of the State Commission.