DURGA ICE AND COLD STORAGE Vs. GARG STORES

JUDGEMENT

(1.) Appellant was the opposite party before the State Commission, where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the appellant.

(2.) Undisputed facts of the case are that the respondent/complainant who is a trader in dry fruits -like, the tamarind seeds, tamarind and dried grapes for, sometime had been keeping given quantities as per the receipts on records with the appellant's cold storage. The cold storage caught fire on the night of 30-31st December, 2000 in which the tamarind seeds of the value of Rs. 1,98,443, tamarind of the value of Rs. 1,60,180 and dried grapes (Kishmish) of the value of Rs. 1,67,497 belonging to the respondent/complainant was completely destroyed. When the complainant was neither getting any refund of money as his goods had been destroyed in the fire in the cold storage owned by the appellant, nor any settlement taking place, a complaint was filed before the State Commission for award of Rs. 5,26,120 along with interest @ 18% p.a. from the date of fire incident. The complaint was resisted by the appellant before the State Commission in which four issues were framed, i.e., relating to whether the complainant is a consumer or otherwise?, appellant rendering services within the meaning of Consumer Protection Act?, thirdly, whether there was any deficiency in the service on the part of the appellant? and if there was deficiency, what relief, complainant shall be entitled to? The State Commission after hearing both the parties and relying on several judgments of the Hon'ble Supreme Court and this Commission, gave replies to all the issues in affirmative and directed the appellant to pay a sum of Rs. 4,58,106 alongwith interest @ 12% p.a. from 31st Decemeber, 2000 till actual payment along with cost of Rs. 5,000. Aggrieved by this order, this appeal has been filed before us.

(3.) We heard the learned Counsel for the parties at length. The only point agitated before us, by the learned Sr. Counsel for the appellant is that there has been no deficiency in service on the part of the appellant. As the appellant had done every thing as per requirement of law and practice, as also the fact that along with complainant he has also suffered loss as his cold-storage, which was the oldest in Delhi was completely destroyed he cannot be held deficient in rendering service. According to him, as per material on record, the 'maintenance contract' had been outsourced and everything whatever was possible to save the goods, had been done. After hearing the parties and perusal the material on record, we find that there is no report either from the Fire Service Department or any other person that there was 'funtional-fire-fighting-equipment', except a bald statement of the appellant that he had outsourced this work and material was in place. We find, firstly no affidavit on record that the fire extinguisher material was functional and available at the spot and secondly there is no material/affidavit of any person who was on duty at the time of fire taking place, having used any of the fire fighting equipment to douse/extinguish the fire. In the absence of which we are unable to accept the plea raised by the appellant that they had taken adequate care to meet the fire contingency. This, in our view, is a clear case of deficiency in service on the part of the appellant. Admittedly about 1,000 bags were kept of which claim is for less than 200 bags of the material kept. We are unable to appreciate the plea raised by the appellant that since the complainant was both keeping and taking the material out for storing/trading purposes and since their record has been destroyed in the fire, they are not in a position to state as to what was the value of the material destroyed by the fire but the State Commission as per their order relied upon the bills produced before them, awarded the amount of Rs. 4,58,106 against the claimed amount of Rs. 5,26,720. In the absence of any evidence produced to the contrary the State Commission was justified in awarding the amount, which it did.