Allahabad High Court
Subodh Chandel And Another vs The President Distt.Consumers ... on 28 May, 2013
Bench: Sunil Ambwani, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 29 Case :- WRIT - C No. - 30448 of 2013 Petitioner :- Subodh Chandel And Another Respondent :- The President Distt.Consumers Disputes Redressal Forum & Anr Counsel for Petitioner :- D.K. Pandey AND Case :- WRIT - C No. - 30451 of 2013 Petitioner :- Subodh Chandel And Another Respondent :- The President Distt.Consumers Disputes Redressal Forum & Anr Counsel for Petitioner :- D.K. Pandey Hon'ble Sunil Ambwani,J.
Hon'ble Bharat Bhushan,J.
1. We have heard Shri D.K. Pandey, learned counsel appearing for the petitioners.
2. In these writ petitions the petitioners are challenging the orders of the District Consumers Disputes Redressal Forum, Auraiya dated 2.5.2013, by which the Forum has awarded Rs.1,75,500/- (in Writ C No.30448 of 2013), and Rs.1,60,920/- (in Writ C No.30451 of 2013) as price of the potatoes, damages and cost of litigation with 9% interest.
3. Shri D.K. Pandey, appearing for the petitioners submits that the District Consumer Forum did not have jurisdiction to entertain the claim for the price of the potatoes kept in the cold storage of the petitioners, which the petitioners had stored in the year 2009 on the ground that such remedy is specifically provided under U.P. Regulation of Cold Storage Act, 1976 (for short the Act), which was enacted by the State of UP for licensing, supervision and control of cold storage in Uttar Pradesh and for matters connected therewith. He submits that the Act provides for special remedies under Sections 24 and 25 of the Act for compensation for loss, destruction and to decide the dispute regarding compensation to be referred by the Licensing Officer, subject to appeal under Section 36 of the Act.
4. It is further submitted that the storage of the potatoes by the farmers in cold storage is for commercial purpose for which a claim petition cannot be filed in the Consumer Forum. The services offered by the cold storage in such case will fall in the exception under Section 2 (1) (d) (ii) of the Consumer Protection Act, which excludes the consumers of commercial purpose from the definition of consumers, for invoking remedies under the Act. In the present case the farmers had kept their agriculture produce in the cold storage for hire. They were required to pay the price for protection of the potatoes, and thus they were consumers for commercial purpose.
5. Shri D.K. Pandey has relied on a judgment of Supreme Court in General Manager, Telecom vs. M. Krishnan & another, Civil Appeal No.7687 of 2004 decided on 1.9.2009, in which the Supreme Court, in view of the special remedies provided under Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, held that in such case the remedy under the Consumer Protection Act is by implication barred. The Supreme Court held that special law overrides the old law and hence the High Court was not correct in its approach. The Supreme Court referred upon a decision in Chairman, Thiruvalluvar Transport Corporation vs. Consumer Protection Council (1995) 2 SCC 479 in which it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. Reliance has also been placed on some interim orders granted by this Court in such matters.
6. In the present case, the petitioners took up a defence in the District Consumer Forum that they were co-owners of the cold storage, which they had sold in the year 2009. The complainant has not produced the receipt, but only a gate pass and has not produced the Patti to establish that he had given the potatoes valued at Rs.1,50,500/- and Rs. 1,35,920/- to be kept in the cold storage.
7. The U.P. Regulation of Cold Storage Act, 1976 is a special Act enacted by the State of UP in the year 1976 for licensing, supervision and control of cold storage in UP and for matters connected therewith. Sections 24 and 25 of the Act provide as follows:-
"24. Compensation for loss, destruction, etc.- Except as otherwise provided in this Act the licensee shall be liable to pay to the hirer compensation for every loss, destruction, damage, deterioration or non-delivery of the goods stored in his cold storage caused by the negligence, misconduct or default on the part of such licensee.
25. Dispute regarding compensation to be referred to the Licensing Officer- (1) Every dispute regarding compensation payable by the licensee under Section 24 shall be referred to the Licensing Officer, and subject to the result of appeal, if any, under Section 36, the order of the Licensing Officer shall be final.
(2) When the Licensing Officer is satisfied that any compensation payable by a licensee under sub-section (1) has not been paid within thirty days from the date of the order under sub-section (1) or, as the case may be, from the date of the decision of the Tribunal under Section 36, he shall issue a certificate of recovery to the Collector, and the Collector shall recover the amount of such compensation together with costs of recovery as arrears of land revenue and pay the amount realised, after deduction of costs, to the hirer."
8. The Act under Section 24 fixes liability of compensation on the hirer for every loss, destruction, damage, deterioration or non-delivery of the goods stored in his cold storage caused by the negligence, misconduct or default on the part of such licensee. Section 25 provides for reference of the dispute by the Licensing Officer with a right of appeal under Section 36 of the Act.
9. The U.P. Regulation of Cold Storage Act, 1976 is a State Act which was enacted prior to the Consumer Protection Act, 1986 (a Central Act). The U.P. Regulation of Cold Storage Act, 1976 was not reserved nor any assent was given to it by President of India.
10. The question as to whether the jurisdiction of the Consumer Forums under the Consumer Protection Act, 1986 can be invoked where special remedies are provided for compensation/damages under any State Acts or Central Acts came up for consideration of the Supreme Court in Trans Mediterranean Airways vs. Universal Exports and another (2011) 10 SCC 316. The Supreme Court held that the Consumer Protection Act aims to protect the interests of the consumers and to provide for speedy resolutions of their disputes with regard to defective goods or deficiency of service. Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of any other law, and reads as follows:-
"3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force"
11. The Supreme Court held that the framework of the Consumer Protection Act was provided by a resolution dated 9.4.1985 of the General Assembly of United Nations Organisation which is commonly known as Consumer Protection Resolution No.39/248. India is signatory to the said resolution. The Act was enacted in view of the afore-mentioned resolution of General Assembly of the United Nations. The Preamble to the Act suggests that it is to provide better protection for the consumers and their interests. The legislature has constituted quasi judicial tribunals/Commissions as an alternative system of adjudicating consumer disputes. Section 3 of the Act gives an additional remedy for deficiency of service and that remedy is not in derogation of any other remedy under any other law. In para 41 of the judgment the Supreme Court held:-
"In our view, the protection provided under the C.P. Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute, but provided an additional or alternative remedy."
12. Similar view was taken in Jabalpur Tractors v. Sedmal Jainarain 1995 Supp (4) SCC 107 and Fair Air Engineers (P) Ltd v. N.K. Modi (1996) 6 SCC 385. In State of Karnataka v. Vishwabharathi House Building Coop. Society (2003) 2 SCC 412 a three-Judge Bench of Supreme Court observed in paragraph 16 as follows:-
"16.....inasmuch as the provisions of the said Act are in addition to the provisions of any other law for the time being in force and not in derogation thereof as is evident from Section 3 thereof"
13. The Supreme Court relied on its earlier judgments and reiterated the jurisdiction of the Consumer Fora under Consumer Protection Act, 1986 in Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305; Kishore Lal v. ESI Corp (2007) 4 SCC 579 (para 17); Skypak Couriers Ltd v. Tata Chemicals Ltd (2000) 5 SCC 294; Patel Roadways Ltd. v. Birla Yamaha Ltd (2000) 4 SCC 91; H.N. Shankara Shastry vs. Director of Agriculture (204) 6 SCC 230 and National Seeds Corporation Ltd vs. M. Madhusudan Reddy (2012) 2 SCC 506 (para 57). The Supreme Court has subsequent to its decision by two Hon'ble Judges in General Manager, Telecom vs. M. Krishnan and another dated 1.9.2009 held in the above quoted decisions that the remedies under the Consumer Protection Act are in addition to and /or not in derogation to any other remedies provided under any other law. What follows is that the respondents in the present case, even if there are special remedies available to them under UP Regulation of Cold Storage Act, 1976 which provides for deciding the disputes of compensation, could have approahced the Consumer Forum under the Consumer Protection Act, 1986 for compensation and damages for any deficiency in service by the cold storage as a service provider to the claimants as farmers, who are consumers of such services. On these later judicial pronouncements, by benches of larger strength the argument, that the special remedies provided under the General Act would bar the jurisdiction of Consumer Forum has no substance and is liable to be rejected.
14. It was next contended that the farmers keeping their potatoes in the cold storage avail the facilities which are commercial in nature and thus the farmers in such case would not fall within the definition of consumer under Section 2 (1) (d) of the Act.
15. In National Seeds Corporation Limited vs. M. Madhusudhan Reddy and another (2012) 2 SCC 506 in somewhat similar facts where the farmers had allowed the National Seeds Corporation Limited, a Government of India company to arrange for production of quality seeds of different varieties in the farms of registered growers and supply the same to the farmers, the Supreme Court held that where the farmers/growers agreed to produce seeds on behalf of seed seller for the purpose of earning their livelihood by self-employment by using their skill and labour, the purpose cannot be said to be commercial purpose and that they would certainly fall within the ambit of Explanation to Section 2 (1) (d) of the Consumer Protection Act. The explanation excludes the use by a consumer of goods used by him exclusively for the purpose of earning his livelihood by means of self-employment. This exclusion will include farmers, who store their goods grown by them temporarily in a cold storage. The Explanation reads:-
"Explanation- For the purpose of sub clause (i) 'commercial purpose', does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment; (The explanation was substituted w.e.f. 15.3.2003 by Consumer Protection (Amendment) Act 2002 (62 of 2002)."
16. The use of service by the service provider, where the consumer hires and avails any service for a consideration, which has been paid or promised or partly paid or partly promised or under any other system of deferred payment and which includes any beneficiary of such services other than the person, who hires or avails the services for consideration for any commercial purpose, is included within the definition of consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act. A farmer, who stores his agricultural produce in the cold storage for hire, to be taken out at a later point of time for getting a higher return would thus fall within the explanation to Section 2 (1) (d) of the Act. The goods produced by him stored in a cold storage for hire to be taken out at a later point of time for sale for all purposes would fall within the explanation as the storage of goods is for the purposes of earning his livelihood by means of self-employment.
17. The submission, that the hiring of cold storage by farmers is a commercial use, is also liable to be rejected.
18. On the aforesaid facts and legal position, we relegate the petitioners to the remedy of filing an appeal against the judgment on merits of the case to the State Consumer Commission.
19. The writ petitions are dismissed on the ground of alternative remedy of statutory appeal provided under the Consumer Protection Act, 1986.
Order Date :- 28.5.2013 RKP