| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.486 of 30-10-2015 Decided on 01-09-2016 Balour Singh aged about 46 years S/o Keir Singh S/o Mahinder Singh R/o Village Bhagwangarh, 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. Both R/o House No.Z3-02731, Gali No.2, Nai Basti, Gali Calcutta Wali, Bathinda. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainant: Sh.R.R Khattar, Advocate. For opposite parties: Sh.S.S Sohal, Advocate. ORDER M.P Singh Pahwa, President The complainant Balour 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 1 acre 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.3000/- in the month of March 2015 for storage of potatoes for 6 months and stored his potatoes with opposite parties. Opposite parties 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 and they shall deliver the potatoes in the same good condition after 6 months in the presence of Navjot Singh, who also stored his potatoes with them. 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.38 dt.13.3.2015 | 131 | Ration | 350 | Rs.45,850/- | 2 | Rake No.44 dt.13.3.2015 | 34 | Seed | 500 | Rs.17,000/- | | | Total | | | Rs.62,850/- |
It is alleged that to great dismay of the complainant, when in the month of June 2015, he alongwith Navjot Singh 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.55,000/-. No intimation regarding condition of potatoes was given to him. The complainant asked opposite parties 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.50,000/- alongwith interest as compensation for mental agony and Rs.11,000/- as cost of litigation and Rs.55,000/- 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 is not maintainable as the complainant himself did not come to take the delivery of the potatoes from them during the period as per terms and conditions in order to save his skin from paying the rent for keeping the potatoes in their store. This complaint has been filed only to harass and humiliate opposite parties and to extort money on the higher side whereas the market price of seed/ration potatoes is not more than Rs.60/- per bag of 50 kgs.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 the weight of the bags of potatoes was not proper as the weight of each bag is only 34 kgs instead of 50 kgs. As such, 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 denied that the complainant paid Rs.3000/- in the month of March 2015 to opposite parties for storage of potatoes for 6 months or opposite parties checked the health of potatoes at the time of storage or assured that the same shall be kept in store at the required cooling temperature. The charging of opposite parties for storage of each bag is Rs.85/-. It is further mentioned that the market price of ration/seed potatoes is only Rs.60/- per bag of 50 kgs. Opposite parties were still ready to deliver the stock of 165 bags of potatoes of the complainant and is still ready for the same on payment of rent for the abovesaid bags, but it is for the complainant, who is not ready to take the delivery of 165 bags potatoes from them on payment of entire rent. All other averments are categorically denied. In the end, opposite parties 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 affidavit dated 30.10.2015, (Ex.C1); stock receipts, (Ex.C2 and Ex.C3); photocopy of DDR, (Ex.C4); affidavit of Navjot Singh dated 5.4.2016, (Ex.C5); photocopy of letter alongwith rate list, (Ex.C6) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 2.6.2016, (Ex.OP1/1); photocopy of conditions, (Ex.OP1/2); photocopy of civil suit, (Ex.OP1/3); photocopy of letter, (Ex.OP1/4); photocopies of gate pass, (Ex.OP1/5 to Ex.OP1/8); affidavit of Jagtar Singh dated 2.6.2016, (Ex.OP1/9); copy of reply to legal notice, (Ex.OP1/10); postal receipt, (Ex.OP1/11) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for the complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by the learned counsel for the complainant that the complainant has pleaded in the complaint that he is small farmer and had grown potatoes for his livelihood. Therefore, he falls within the definition of 'consumer' as defined under 'Act'. Other facts are not categorically disputed by opposite parties. The complainant has pleaded that he stored potatoes as detailed in the complaint. The receipts, (Ex.C2 and Ex.C3) also prove this fact. The complainant has alleged that when he approached opposite parties for taking part delivery of the potatoes, he found that the entire lot has been damaged due to negligent act of opposite parties. In written version, opposite parties have taken the stand that the complainant has not approached for taking the delivery of his potatoes. It is rather mentioned that opposite parties are ready to deliver the stock of 165 bags to the complainant on payment of rent, but he is not ready to take delivery of his bags. This version of opposite parties is afterthought version. Before filing the complaint, the complainant has got served the legal notice to opposite parties, they filed its reply, copy of which is produced by them as Ex.OP1/10. In this reply, opposite parties have not admitted the storage of potatoes of the complainant, rather it is pleaded that the complainant never approached opposite parties for preserving the potatoes. The complainant is nowhere asked to take delivery of stock in good condition. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.3000/- in advance for storage of potatoes. Although, he is not in the possession of these receipts, but other facts will corroborate this averment of the complainant. Opposite parties have relied upon the conditions, (Ex.OP1/2). As per condition No.5, 50% of rent charges was to be paid in advance. Even otherwise, opposite parties were having no reason to store such a huge quantity of the potatoes of the complainant without receipt of any advance as rent charges. Hence, the case of the complainant stands proved. The payment of rent is also to be accepted. Opposite parties are liable for loss and compensation claimed by the complainant. To support these submissions, learned counsel for complainant has cited 2012 (3) CPJ 248 Punjab Agri Food Parks Ltd. & Anr. Vs. Gurdeep Singh; 1998 (1) CPJ 542 Himalaya Cold Storages & Ors. Vs. P. Lakshminarayan; 2013 (3) CLT 461 Subodh Chandel and Another Vs. The President District Consumer Disputes Redressal Forum and others. 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 165 bags of 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. It is further submitted by learned counsel for opposite parties that the real facts are that the complainant has not paid any rent. The price of potatoes considerably falled. The complainant opted not to take delivery of potatoes only to escape from the payment of rent. Opposite parties have fairly conceded that they are ready to deliver the stored potatoes in good condition but despite this fact the complainant has not taken any step to take the delivery of the potatoes. The matter has been unnecessarily delayed by the complainant, which now resulted damage to the stored potatoes. Therefore, the complainant is not entitled to any relief. At the last limb of his arguments, learned counsel for opposite parties has submitted that the complainant has claimed damages at excessive rate. As per complainant, he approached opposite parties to take part delivery in the month of June 2015. Therefore, the rate prevailing in the month of June 2015 is relevant to determine the rate of potatoes. Opposite parties have placed on record average rate from the month of July 2015 onwards and it was Rs.350/- per quintile in the month of July 2015 and Rs.250/- per quintile in the month of August 2015. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainant. Before coming to the main relief, it is to be seen whether the complainant falls within the definition of 'consumer' or not. Complainant has pleaded in his complaint that he is small farmer and had grown potatoes to earn his livelihood. In case of Subodh Chandel and Another Vs. The President District Consumer Disputes Redressal Forum and others (Supra), Hon'ble Allahabad High Court observed that farmers, who stores his agriculture produce in cold storage for hire, to be taken out at a later point of time for getting in higher return would fall within explanation of Section 2 (1) (d) of 'Act' as a 'consumer' and plea of opposite parties that hiring of cold storage by farmers is a commercial use, was rejected. Therefore, keeping in view the pleadings of the complainant and above observations of Hon'ble Allahabad High Court, only conclusion is that the complainant falls within the definition of 'consumer'. The complaint is filed against Davinder Pal Singla and Nikhil Singla being partners/proprietors of M/s Singla Cold Store.Complainant has not produced any document to prove that both Davinder Pal Singla and Nikhil Singla are partners of M/s Singla Cold Store, but opposite parties have placed on record plaint, (Ex.OP1/3). This plaint has been filed by M/s Singla Cold Store through its sole proprietor Davinder Pal Singla. In written version also, Davinder Pal Singla has also not denied proprietor of M/s Singla Cold Store. Moreover, there is no evidence to prove that Nikhil Singla is co-proprietor/partner of M/s Singla Cold Store. Therefore, in these circumstances, complaint against opposite party No.2 is not maintainable and stands dismissed. The main plea of opposite parties is that the complainant has not come forward to take the delivery of the potatoes. In written version, opposite parties have not disputed that the complainant got stored 165 bags of potatoes. Therefore, it is to be seen whether the complainant was at fault by not approaching opposite parties to take delivery of potatoes . Opposite parties have produced on record reply to the legal notice served by the complainant. This reply is dated 20.11.2015. In this reply, opposite parties have not admitted the storage of potatoes by the complainant, rather it is mentioned that the complainant never approached them for storage of potatoes and it is not mentioned that opposite parties will deliver the potatoes as and when complainant will come forward to take delivery of potatoes and he be directed to take delivery of his stored potatoes. Therefore, only conclusion is that this version of opposite parties is afterthought. As such, opposite parties are responsible for the loss of potatoes stored by the complainant. Now, point for determination is amount of compensation for which the complainant is entitled to. He has alleged that the rate of potatoes was Rs.350/- and Rs.500/- per bag whereas opposite parties pleaded that the market price of ration/seed potatoes is only Rs.60/- per bag of 50 kgs. The complainant himself has tendered into evidence rate list, (Ex.C6), 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. The average rate of potatoes is assessed as Rs.400/- 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 complainant, 131 bags of ration potatoes were stored. The complainant has mentioned the weight of his bags is 34 kgs. The total weight of 131 bags of ration potatoes is worked out 44.54 quintile and its value @ 400/- per quintile is worked out Rs.17,816/-. The rate of 34 bags of seeds potatoes is worked out 34 X 34=11.56 quintile and its value @Rs.600/- per quintile comes to Rs.6936/-. The total value of stored potatoes is Rs.24,752/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.2452/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.22,300/-. 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 165 bags is calculated as Rs.14,025/-. The complainant has alleged that he has paid Rs.3000/- as part of advance rent, but there is no receipt to prove this fact. Opposite parties have denied having receipt of any advance as part payment. The payment of advance rent is not to be accepted only for the reason that as per conditions mentioned at the backside of receipts, opposite parties were to receive 50% of the rent in advance. It is to be concluded that no advance rent was paid by the complainant. So, a sum of Rs.14,025/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.22,300/-. Therefore, net loss of the complainant is worked out as Rs.8225/-. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- 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.8225/- 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:- 01-09-2016 (M.P Singh Pahwa) President (Jarnail Singh) Member
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