| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.452 of 28-10-2015 Decided on 15-12-2016 Gurpal Singh aged about 35 years S/o Nachhattar Singh R/o Village Natt, Tehsil Talwandi Sabo, District Bathinda. ........Complainant Versus 1.Davinder Pal Singla Partner/Proprietor of M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi. 2.Er.Nikhil Singla Partner/Proprietor of M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- complainant: Sh.Gurpal Singh, in person. For opposite parties: Sh.Shaminder Singh Sohal, Advocate. ORDER Jarnail Singh, Member The complainant Gurpal Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Davinder Pal Singla and Other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is small farmer and he had grown potatoes in Rabi 2015 in his 13 acres land to earn his livelihood. Opposite parties are running the cold store under name of Singla Cold Storage at Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda. They are making tall claims for best services for storage of vegetables, dry fruits etc. in their cold store. Allured by it, the complainant approached opposite parties, they assured him best service for storage of potatoes. He paid Rs.67,000/- on 26.3.2015 and 31.3.2015 for storage of potatoes for 6 months and stored his potatoes with opposite parties, they fully checked the health of potatoes at the time of storage and assured that the same shall be kept in store at the required cooling temperature for which they have sufficient arrangements and equipments. They shall deliver the potatoes in the same good condition after 6 months in the presence of Jagdev Singh S/o Mohinder Singh. The details of receipts and storage is revealed as under:- S.N | Receipt No. Date | No. of bags | Quality | Rate per bag (50 kg) | Value | 1 | Rake No.390 dt. 1.4.15 | 53 | Seed | 800 | Rs.42,400/- | 2 | Rake No.391 dt. 1.4.15 | 78 | Ration | 400 | Rs.31,200/- | 3 | Rake No.392 dt. 1.4.15 | 124 | Ration | 400 | Rs.49,600/- | 4 | Rake No.395 dt. 1.4.15 | 78 | Ration | 400 | Rs.31,200/- | 5 | Rake No.623 dt. 7.4.15 | 155 | Ration | 400 | Rs.62,000/- | 6 | Rake No.661 dt. 9.4.15 | 140 | Ration | 400 | Rs.56,000/- | 7 | Rake No.686 dt. 10.4.15 | 160 | Ration | 400 | Rs.64,000/- | 8 | Rake No.719 dt. 12.4.15 | 140 | Seed | 800 | Rs.1,12,000/- | 9 | Rake No.747 dt. 13.4.15 | 180 | Seed | 800 | Rs.1,44,000/- | 10 | Rake No.749 dt. 13.4.15 | 27 | Seed | 800 | Rs.21,600/- | 11 | Rake No.785 dt. 15.4.15 | 142 | Ration | 400 | Rs.56,800/- | 12 | Rake No.601 dt. 6.5.15 | 47 | Seed | 800 | Rs.37,600/- | 13 | Rake No.602 dt. 6.5.15 | 140 | Ration | 400 | Rs.56,000/- | | | Total | | | Rs.7,74,400/- |
It is alleged that to great dismay of the complainant, when in the month of July 2015, he alongwith Jagdev Singh and Bhupinder Singh and others approached cold store for part delivery of his potatoes, he found that the entire lot has been damaged due to the negligent act of opposite parties as the cold store was not kept at the required cooling temperature by them. They have caused huge loss to the complainant to the tune of Rs.7,74,400/-. He asked them to pay loss amount, but to no purpose. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.2,50,000/- as compensation for mental agony, harassment alongwith interest and Rs.3000/- as cost of complaint and Rs.7,74,400/- as cost of potatoes. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their written version. In their joint written version, opposite parties have raised the legal objections that this complaint has been filed by the complainant only to injure their goodwill and reputation. This complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, opposite parties are entitled to get special costs from the complainant U/s 26 of 'Act'. The intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination that is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. It is pleaded that the complainant has concealed the material facts and documents from this Forum and opposite parties. As such, he is not entitled to any relief. He has concealed the fact that he has stored the potatoes in wet, poor and smeared condition. This fact is within the knowledge of the complainant. This fact is clearly mentioned on the slips/parchi issued to him and it was brought by opposite parties to his notice, but he alongwith other farmers made agitation against opposite parties. As such, under the compelled circumstances, opposite parties stored the wet, smeared and poor condition potatoes. He wanted to misuse the process of law to get undue gain and benefit from opposite parties. He is not a consumer of opposite parties. He has no locus-standi or cause-of-action to file this complaint against opposite parties. On merits, it is admitted that opposite parties received Rs.67,000/- from the complainant for storing his potatoes. It is further mentioned that the complainant and other failed to take delivery of his/their potatoes up to 31.10.2015, rather they have forced opposite parties to pay the price of their smeared potatoes. As such, opposite parties have already filed civil suit for declaration and permanent injunction, which is pending in the court of Sh.Suresh Kumar, Ld. Civil Judge (Junior Division), Bathinda. All other averments of the complainant are categorically denied. After controverting all other averments, opposite parties have reiterated their stand as taken in the legal objections and detailed above and in the end, they have prayed for dismissal of complaint. Parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence his own affidavits dated 28.10.2015 and 30.12.2015, (Ex.C1 and Ex.C15); photocopies of stock receipts, (Ex.C2 to Ex.C13); photocopy of payment receipt, (Ex.C14); photocopy of DDR, (Ex.C16) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 5.8.2016, (Ex.OP1/1); photocopy of conditions, (Ex.OP1/2); photocopy of civil suit, (Ex.OP1/3); photocopies of gate pass, (Ex.OP1/4 to Ex.OP1/7); affidavit of Jagtar Singh dated 5.8.2016, (Ex.OP1/8); photocopy of letter, (Ex.OP1/9) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. The complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by the complainant that he has already paid Rs.67,000/- in lieu of rent against the receipt Ex.C14. The other receipts prove that the potatoes were stored by the complainant with opposite parties. The complainant has alleged that the rate of seeds potatoes is Rs.800/- per bag. This fact is stated on oath also. There is no rebuttal to this evidence. Opposite parties have relied upon terms and conditions contained on the backside of receipts but these terms and conditions are not fair and complainant is not to suffer on the basis of these terms and conditions, which are neither signed by him nor accepted by him. Therefore, the relief claimed be granted and complaint be accepted. On the other hand, learned counsel for opposite parties has submitted that the complainant is required to prove his case by affirmative evidence. No findings can be returned in his favour on the basis of conjectures and surmises. Before claiming any relief from this Forum, the complainant is required to prove himself as 'consumer'. As per complainant, he himself has got stored 1464 bags of seeds potatoes with opposite parties and he has also alleged that he has suffered huge loss. Therefore, this fact shows that service of storage of potatoes was for commercial purpose. Therefore, the complainant does not fall within the definition of 'consumer'. It is also submitted by learned counsel for opposite parties that the complaint has been filed against M/s Singla Cold Store through Davinder Pal Singla and Nikhil Singla, but there is no evidence to prove that they are partners/proprietors of M/s Singla cold Store. Therefore, the complaint is misconceived and is liable to be dismissed on this score also. As per complainant, he went to take delivery and found that the entire lot has damaged. He has relied upon receipts, (Ex.C2 to Ex.C13), although to prove storage of potatoes, but in these receipts, the conditions of potatoes is also recorded as 'poor', 'wet' and 'dagi' (damaged). Therefore, loss to the stocks was only for the reason that these were in smear/poor condition at the time of storage. Opposite parties have also deposed on oath that the complainant was aware that in case of damage, opposite parties will not be responsible. As per conditions mentioned on the backside of receipts as proved as Ex.OP1/2, opposite parties will not be responsible for any loss due to circumstances beyond their control. Although in these conditions power failure, natural calamity are specifically mentioned, but it is further mentioned that in case of such other circumstances also, opposite parties will not be responsible. The loss to the stocks of the complainant was only due to the fact that the same were in the wet/ damage condition at the time of storage. As such, opposite parties are not responsible for any loss. It is also submitted by learned counsel for opposite parties that opposite parties have placed on record gate pass, (Ex.OP1/4 to Ex.OP1/7), which prove that there was not any damage to the stock of other persons and the stock of other persons was delivered on 28.10.2015 and thereafter. One Jagtar Singh has also furnished his affidavit wherein he has admitted that he stored his potatoes in the cold store of opposite parties and received the delivery in safe and good condition and damage to the stock of the complainant was only due to the fact that the same were stored in smear condition and under the pressure of agitation by the farmers. As such, it is proved that there was no loss to the other farmers, who have stored the potatoes in good condition. We have given careful consideration to these submissions. The complaint is filed against both the opposite parties being proprietors of M/s Singla Cold Store. The complainant has not produced any evidence to prove that opposite party No.2 is also proprietor. Moreover the firm M/s Singla Cold Store has also filed suit against the complainant and other persons (copy of plaint is Ex.OP1/3) wherein it is revealed that Davinder Pal Singla is sole proprietor of the firm. Therefore, in these circumstances, complaint against opposite party No.2 is not maintainable and stands dismissed. The complainant has pleaded that he stored the potatoes with opposite parties. He has also mentioned in the later part of complaint that he has no source of livelihood except the cost of potatoes. In Paragraph 1 of complaint also, he has pleaded that he is small farmer and had grown the potatoes in Rabi 2015. Therefore, from these contents and keeping in view that he is rustic villager, it can be safely inferred that complainant has stored the potatoes to earn his livelihood. Hence, it is accepted that the complainant is a 'consumer'. Now, coming to the main controversy. The complainant has stored 1464 bags of potatoes with opposite parties. They have not categorically denied this fact. It is rather pleaded that the potatoes were stored in the damaged condition. This fact further leads to inference that opposite parties have impliedly admitted that the complainant has stored the potatoes. The complainant has produced on record receipts, (Ex.C2 and Ex.C13) issued by opposite parties, which prove that he stored the potatoes as detailed in the complaint with them. He has alleged that the stored potatoes suffered damage due to negligence of opposite parties. Opposite parties have also not disputed that the potatoes stood damage. The contention of opposite parties is that these were stored in poor condition and complainant is responsible for consequences. Of-course, in receipts, (Ex.C2 to Ex.C13), it is mentioned that potatoes are in poor condition, but extent of damage is nowhere mentioned. It is also not the case of opposite parties that at that time the potatoes were not fit for storage. The conditions printed on the receipts issued by opposite parties are proved by opposite parties. It is mentioned that the owner will not be responsible, but this condition is in continuation of earlier part wherein it is mentioned that in case of loss of size/weight, owner of cold store will not be responsible. The owner of cold store (opposite parties) was exempted from the loss only when the it is due to circumstances beyond their control, but there is nothing to show that the loss is due to circumstances beyond their control. In these circumstances, the contention of opposite parties that it is not negligent/liable for damage is not acceptable. The damage to the stored potatoes amounts to deficiency in service on their part. The complainant is entitled to compensation for this loss. Now, point for determination is amount for compensation for which the complainant is entitled to. He has alleged that the rate of potatoes was Rs.400/- and Rs.800/- per bag, but as per opposite parties, the rate of potatoes was Rs.1.50/- per kg.. Opposite parties have tendered into evidence rate list, (Ex.OP1/9), which shows that the rate of potatoes was Rs.350/- per quintile in the month of July 2015; Rs.250/- per quintile in the month of August 2015 and Rs.350/- per quintile in the month of September 2015 and Rs.450 per quintile in the month of October 2015. The delivery was to be made in the month of June/October 2015 and as per plaint, (Ex.OP1/3) also, the goods were stored up to 31.10.2015. As per rate list, the rate of potatoes is as Rs.450/- per quintile in the month of October 2015. The average rate of mix potatoes is assessed as Rs.500/- per quintile and it is also matter of common knowledge that the rate of seeds potatoes is higher side from the rate of ration potatoes. Its rate is assessed as Rs.600/- per quintile. As per receipts, 1017 bags of ration potatoes were stored. The complainant has not mentioned the weight of his bags. It is fairly conceded that the weight of normal bag of potatoes is 40 kg. The total weight of 1017 bags of ration potatoes is worked out 406.80 quintile and its value @450/- per quintile is worked out Rs.1,83,060/-. The rate of 320 bags of mix potatoes is worked out 320 X 40=128.00 quintile and its value @Rs.500/- per quintile comes to Rs.64,000/-. The rate of 127 bags of seeds potatoes is worked out 40 X 127=50.80 quintile and its value @Rs.600/- per quintile comes to Rs.30,480/-. The total value of stored potatoes is Rs.2,77,540/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.27,754/- is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.2,49,786/-. The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/3) has also revealed rent @Rs.85 per bag. The total charges for 1464 bags is calculated as Rs.1,24,440/-. The complainant has alleged that he has paid Rs.67,000/- as rent, receipt, (Ex.C14) proves this fact. Therefore, this amount is adjustable in the rent amount payable to opposite parties. So, a sum of Rs.57,440/- (Rs.1,24,440/- - Rs.67,000/-=Rs.57,440/-) is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.2,49,786/-. Therefore, net loss of the complainant is worked out as Rs.1,92,346/-. As a result of our above discussion, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party No.2. The complainant is held entitled to above sum of Rs.1,92,346/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 15-12-2016 (M.P Singh Pahwa) President (Jarnail Singh) Member
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