DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

D.F. Case No.69/2012

Date of filing:24.04.2012                                                              Date of disposal:30.09.2013

Complainant:1. Selim Sk. 2. Shanti Sk., both are resident of Vill.-Nowpara, P.O.-Sultanpur,

                             District-Burdwan.

VERSUS

Opposite Party: 1.Baghnapara Himghar(P) Ltd., Vill.-Baghnapara, P.O.-Baghnapara Rathtala,

                                Dist.-Burdwan, represented by its proprietor/partner.

                              2. Baghnapara Himghar(P) Ltd., Vill.-Baghnapara, P.O.-Baghnapara Rathtala,

                                Dist.-Burdwan, represented by its Manager.

Present :  Hon’ble President: Sri Udayan Mukhopadhyaya

     Hon’ble Member :  Smt. Silpi Majumder

                  Hon’ble Member :  Sri Durga Sankar Das

Appeared for the Complainants: Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Parties:  Ld. Advocate, Shavan Kumar

JUDGEMENT

This is an application U/s 12 of the C.P. Act, 1986.

The complainants’ short case is that they are agriculturist by profession.  The complainants kept/stored the potato’s described in the schedule herein below, in the cold store of the O.P. for the period March-2011 on the basis of their individual bond for future benefit to earn their source of livelihood.  The complainants as per the prevailing system also promised to pay the cold store charges to the O.P. at the time of delivery of the potatoes.  When the complainants went to take delivery of potatoes in the third week of November, 2011, the O.P. initially gave assurance of delivery later on the plea of non-traceability.  Thereafter, the complainants went to take delivery of their potatoes in the first week of December, 2011, the O.P. again informed the complainants that the potatoes were not readily available and assureds the complaint that they would find out soon.  The O.P. requested the complainants to approach before them for taking delivery of the potatoes in the fourth week of December, 2011 and assured the complainants that the potatoes would be delivered on the fourth week of December, 2011.

It may be noteworthy to mention that in the mean time the Additional District Magistrate (LA), Office of the District Magistrate, Burdwan (Food Section), Govt. of West Bengal vide his notice bearing memo No.825(31)/FS dt. 27.12.2011 informed the Mayor of Asansol Municipal Corporation, Chairman of Burdwan/ Gushkara/Memari/Kalna /Katwa/Dainhat Municipality, all the Sub-divisional Officers and Block Development Officers of Burdwan District that potatoes are lying at nearby cold storages are to be distributed to primary and upper primary schools for mid day meal purpose on the basis of guidelines mentioned in the said notice.  The O.P. cold storage was selected for supply of the potatoes for mid day meal purpose.  The complainants went to take delivery of their potatoes but the O.P. refused to deliver the same on the plea that in view of the notice dated 27.12.2011 issued by the Additional District Magistrate(LA), Office of the District Magistrate, Burdwan (Food Section), Govt. of West Bengal,  the potatoes are lying in the cold storage of the O.P. would be supplied for mid day meal purpose and in lieu of that the complainant would get the cost of the potatoes.  Finally, in the first week of January, 2012 when the complainants approach before the O.P. and asked for the payment of the costs of their potatoes, the O.P. refused to pay the same and also refused to deliver the  potatoes which were kept by the complainants in the cold storage of O.P.

The O.P. neither deliver the potatoes nor paid the cost of the potatoes at the market rate prevailed that time till this date which are tantamount to deficiency in service and unfair trade practice on the part of the O.P. towards the complainants.  That finding no other alternative the complainants have been compelled to file this case against the O.P.  That due to deficiency in service and unfair trade practice on the part of the O.P. the complainant have suffered great mental pain and agony.  The complainant No.1 is entitled to get Rs.37,800/- and complainant No.2 is entitled to get Rs.51,300/- i.e. total Rs.89,100/- towards the cost of 14,850 Kgs. Potatoes i.e. at the rate of Rs.6/- per Kg and Rs.25,000/- each i.e. total Rs.50,000/- as compensation towards mental pain and agony and Rs.20,000/- as litigation cost.

                                                SCHEDULE

          The O.P. contested the case by filing written version denying inter-alia all the material allegations made in the complaint.  The O.P. further stated that this company deals with the said cold storage business, the local/nearby traders used to keep potatoes in the said store against rental and the rent is payable against the stock of potatoes in packets (50 Kgs) at the time of end of the season or at the time of delivery.  It is pertinent to mention that cold storage business being or seasonal business the loading of potatoes usually starts end February or starting of March and unloading starts on and from mid September which ends at the end of November.  The usual last date of taking delivery of potatoes is 30^th November, of the year.  Thereafter the store requires renovations and check to make it ready for the next season.   The complainants who are local traders of potatoes kept 126 packets and 171 packets of potatoes respectively in the cold storage against bond No.7507 and 4728, 5986 and 5987 respectively delivery of which were to be taken latest by 14^th November, 2011, upon the payment of the rent which was Rs.53.75 per packets of potatoes.  In fact during the season of 20102011 there was huge production of potatoes which cause the price of potatoes very low and the traders infect on assessing the loss were reluctant to take delivery the potatoes as even the cost price of the potatoes and the rent payable thereof could not be even realized.  In such situations many traders did not take delivery of potatoes from the cold storage even the season was end.  The State of West Bengal therefore to cope up the situation extended the statutory period of story potatoes in the cold storage from 30.11.2011 to 15.12.2011 vide notification No.6796-MW&C/AM/0/7C-1/2004(1) dated 30^th November, 2011 without releasing any rent for such extended period.  But no such attempt was taken on the complainant’s side even after extended the statutory period till 30.12.2011.  It has further alleged that there was lying a good number of potatoes in the store which is required to be ready for next season, more over the potatoes were also started ruin/spoiled, for which director of cold storage made representation to the Additional Director, Agriculture Marketing, Burdwan intimating him to sale undelivered unclaimed stock of potation by auction sale to be held on 7.1.2012 vide letter dated 2.1.2012 and the matter was also informed local Baghnapara Gram Panchayat vide letter dated 2.1.2012 and permission of such auction sale was also obtained from them.  It has further claimed that due to good gesture the O.P. also announced the matter in the locality and the surrounding villages extensively by hiring mike and microphone regarding the statutory period of storage is being over and the unclaimed stock will be put on auction.  It has stated that all attempt failed in vain and ultimately on 7.1.2012 in presence of local traders (20 number of traders) who were participated in the said auction.  The 5334 packets of potatoes were sold in auction sale @ Rs.31/- per packet and rent of storing of such potatoes were not realized.  It has further claimed that an amount of Rs.1,65,664/-was received from the auction sale whereas rent was due Rs.2,87,240/-, thus the complainant had to pay rent for the potatoes stock amount to Rs.15,963.75 paisa which complainant had suppressed.  So there is no deficiency in service and unfair trade practice.  Hence, prays for dismissal of the case.

Points for consideration in this case are;

1. Whether the act of O.P.s leads to deficiency in service and unfair trade  practice?

DECISION WITH REASON

Admittedly, the complainants kept potatoes at Baghnapara Himghar Ltd. in the district of Burdwan which is clearly reveals from the copy of bonds bearing serial number 7507, 4728, 6986 and 5987.  Thus there is no dispute the potatoes were kept at O.P.s’ cold storage.    It is also not disputed that the system of payment of cold storage charge is being collected at a time selling out the goods (herein potatoes).   The O.P. has claimed in his written version at page-9, para-18 that the potatoes were sold in auction i.e. 5334 packets of potatoes at a rate of 31/- per packet and thereby collected Rs.1,65,664/- out of auction sale and the same amount was adjusted with the rent payable i.e. amounting to Rs. 2,87,240/-.  But fact remains, the same matter was not informed to the complainant regarding the amount sale proceed and whether the said amount will be adjusted or not.  Thus it is clear when the O.P. has admitted that he sold the potatoes at Rs.1,65,664/- on 7.1.2012 and remaining balance is still due amounting to Rs.15,963.75 paisa towards the charge of the cold storage.  So, payment of charges is admittedly recover from the same process of auction sale.  It is the allegation of the complainants that inspite of taking several attempts for taking delivery of the potatoes kept in the cold storage the O.P. refused to do the same on a several pretext and lastly when after receipt a notice dated 27.12.2011 vide Memo No.825 (31)/FS from the Additional District Magistrate(LA) to distribute the potatoes for the purpose of mid-day meal, this O.P. without informing or sending any information to the complainant which is clearly proves that Baghnapara Himghar Pvt. Ltd. is one of the said cold storage where the said direction of ADM (LA) was imposed for the purpose of mid-day meal.  Complainant himself in affidavit on evidence able to establish that he went to take delivery of potatoes from the O.P. time to time.  It has also alleged that lastly the O.P. refused to deliver the same on a plea that in view of notice dated 27.12.2011.  The potatoes lying in the cold storage of the O.P. would be supplied for mid-day meal purpose but when the complainant asked for payment the O.P. refused to pay the same and thrown him out from the premises of the cold storage.

Mere denial of the O.P. in this respect cannot be taken lightly particularly when Govt. notification was hanging upon the cold storage.  So, it was the duty of the O.P., at least price of potatoes which was collected from the government schools as the case may be should be given to the complainant.  But the O.P. instead of that refused to pay any farthing and claim otherwise that due to non-delivery of potatoes within the stipulated periods the said potatoes were sold out by public auction in presence of the complainants at the cost and price of the complainants at Rs.1,65,664/- i.e. on 7.1.2012.    This averment of the complainants cannot be believed because the government notification dated 27.12.2011 clearly shows in para-3 that ‘school wise distribution are to be completed quickly.  Total distribution must be completed within two days’.  So after received of the said distribution of the potatoes for mid-day meal purpose from the office of the District Magistrate, Burdwan (Food Section), definitely the O.P. being a business man would choose to sell out the potatoes only on 7.1.2012 to auction sale without comply the solemn direction of the government.  Thus the said story of auction cannot be believed.  The documents of auction which have filed at the time of argument is after thought and prepared for the purpose of this case, otherwise at the time of filing the W/V on 21.8.2012 the O.P. easily can filed all those documents including auction papers but inevitable did not happen.  More over fair trade practice demand giving of notice to the customers in default collection of potatoes and question of rent being involved in default cases.  But in the case in hand O.P. has miserably failed to show that the complainant has failed to take charge of the potatoes which were kept in their cold storage and in that regard time to time entries in the book of accounts etc. and stock register of the cold storage was required to be produced.  But the O.P. did not produce the same to show their bonafide and instead of that after lapse of one year of filing the written version, he filed some documents for hiring mike and microphone intimating the public at large regarding the auctions etc., apart from that letter issued by the Director, Baghnapara Himghar Pvt. Ltd. to the Additional Director, Agriculture of Marketing, Purta Bhavan, advertising letter for public at large etc. to establish that complainant was aware regarding the facts of auction etc.  We are aware that the fair trade practices demands giving of notice to the customer as and when they will be default, in collecting the potatoes but the O.P. to establish his fair trade practice did not file any notice upon the complainant either at the time of distribution of potatoes for mid-day meal purpose of school or auction sale.  This act of the O.P. undoubtedly unfair trade practice and also indicates to suppress the material facts to the poor consumer and instead of that he did such a thing which are not enlighten the fair trade practice. 

Non-production of any book of account, non-furnishing of any explanation as to what persuaded the O.P. removed the potatoes for distribution or auction without informing the complainants, will be counted against O.P.  It is also known to us that later part of November and first part of December, the price of potatoes goes up generally, because of the gap between the supply and demand and taking that advantage O.P. distributed the potatoes either following the direction of Government (Food Section) sold it out through auction for wrongful gain without intimating the complainants.  But surprising, the sale proceeds were adjusted whimsically from the arrear of dues without being heard of the complainant.  This act of the O.P. hits the principles of natural justice, for which this Forum has been created to remove this type of unfair trade practice as well as deficiency of service.

In the above back drop, we constrained to hold that the O.P.’s plea as to neither the complainant nor his men turned up, to collect the potatoes within time, has no leg to stand since if any person for his livelihood invest his money for his earning maintain his family, will become dormant in respect of collections of stored potatoes giving the period of crisis.  But the O.P. did not deliver the same for wrongful gain.  This act is undoubtedly a deficiency in service.

Out of our foregoing discussion, fact and circumstances, as reflected from the documents and evidence we find, that this is a clear case of deficiency in service on the part of the O.P.  Thus, this point is decided affirmative.  Hence, it is

ORDERED

that the application U/s 12 of the C.P. Act is allowed on contest against the O.P.s.  The O.P. is directed to pay Rs.89,100/- to the complainants  towards the cost of 14850 Kg of potatoes at the rate of Rs.6/- per kilogram and Rs.25,000/- in total(Rs.12,500/- + Rs.12,500) towards compensation for mental pain agony and harassment together with Rs.1000/- towards the litigation cost since the procedure of this Forum is cheaper.  The O.P. is directed to comply the above direction within 30 days from this date of order, in default interest will carry @9% p.a. since the date of filing of this case to till its realization, in default complainants is at liberty to execute this order through this Forum.

                    (Udayan Mukhopadhyaya)        

             Dictated and corrected by me.                                                           President,       

                                                                                                                    D.C.D.R.F., Burdwan.

                  (Udayan Mukhopadhyaya)

                           President,

                   D.C.D.R.F., Burdwan.

         (Mrs. Silpi Majumder)                                                          (Sri Durga Sankar Das)

                    Member,                                                                                       Member,    

            D.C.D.R.F., Burdwan                                                          D.C.D.R.F., Burdwan