| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.472 of 28-10-2015 Decided on 01-09-2016 Balraj Singh aged about 30 years S/o Madan Singh R/o Village Mal Wala, 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 Balraj 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 2 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.5000/- in the month of March/April 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 Jeet 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.798 dt.16.4.2015 | 258 | Ration | 350 | Rs.90,300/- | 2 | Rake No.894 dt.20.4.2015 | 170 | Seed | 500 | Rs.85,000/- | | | Total | | | Rs.1,75,300/- |
It is alleged that to great dismay of the complainant, when in the month of June 2015, he alongwith Jeet 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.1,75,300/-. 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.1,75,300/- 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 smeared and poor 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 poor condition potatoes. The complainant has not paid any rent for storing his potatoes. He wanted to misuse the process of law to get undue gain and benefit from opposite parties. On merits, it is denied that the complainant alongwith Jeet Singh approached the cold store for part delivery. He was fully aware that his potatoes were already wet, smeared and in poor condition. It is further mentioned that the value of the seed potatoes is not more than Rs.1.5/ kgs. 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 affidavit dated 28.10.2015, (Ex.C1); stock receipts, (Ex.C2 and Ex.C3); affidavit of Jeet Singh dated 2.4.2016, (Ex.C4); photocopy of DDR, (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 5.5.2016, (Ex.OP1/1); photocopy of conditions, (Ex.OP1/2); photocopies of gate pass, (Ex.OP1/3 to Ex.OP1/6); affidavit of Jagtar Singh dated 5.5.2016, (Ex.OP1/7); photocopy of letter, (Ex.OP1/8); photocopy of civil suit, (Ex.OP1/9) 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. It is not disputed that when the complainant approached opposite parties to take part delivery of the potatoes, same were not delivered and these were found damaged. Opposite parties want to take shelter of the remarks mentioned in the receipts wherein it is shown as 'dagi' (damaged). They have intentionally mentioned this fact. In case, the potatoes were not fit for the storage, opposite parties were not to store the same. The complainant was also not to pay the huge amount as storage charges, which is admittedly @ Rs.85/- per bag. Therefore, his claim cannot be denied only for the reason that opposite parties have remarked 'dagi' (damaged) in the receipts. Opposite parties are trying to take shelter under the condition got printed on the backside of the receipts. These conditions are not signed by the complainant. Therefore, he is not bound by these conditions. Moreover as per these conditions also, opposite parties were saved from the loss when the loss was due to some circumstances beyond their control. Some circumstances are also mentioned, which are due to power failure, natural calamity and such type of other circumstances. As such, opposite parties cannot escape from their liability on the grounds mentioned in these terms and conditions also. When the potatoes were admittedly damaged, deficiency in service on the part of opposite parties stands established. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.5000/- 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 428 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. As per complainant, he went to take part delivery in the month of June 2015 and found that the entire lot has damaged. He has relied upon receipts, (Ex.C2 and Ex.C3), although to prove storage of potatoes, but in these receipts, the conditions of potatoes is also recorded as '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 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.OP1/3 to Ex.OP1/6), 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. 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.OP1/9). 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. Now, coming to the main controversy. The complainant has stored 258 bags of ration potatoes and 170 bags of seed potatoes with opposite parties. Opposite parties 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.C3) 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 damaged. 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 and Ex.C3), it is mentioned that potatoes are in 'dagi' (damaged) 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 them. 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 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 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. 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.OP1/9) 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, 258 bags of ration potatoes were stored. The complainant has not mentioned the weight of his bags. It is fairly admitted that the weight of normal bag of potatoes is 40 kg. The total weight of 258 bags of ration potatoes is worked out 103.20 quintile and its value @ 400/- per quintile is worked out Rs.41,280/-. The weight of 70 bags of seeds potatoes is worked out 40 X 170=68.00 quintile and its value @ Rs.600/- per quintile comes to Rs.40,800/-. The total value of stored potatoes is Rs.82,080/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.8200/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.73,880/-. The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/9) has also revealed rent @Rs.85 per bag. The total charges for 428 bags is calculated as Rs.36,380/-. The complainant has alleged that he has paid Rs.5000/- 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.36,380/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.73,880/-. Therefore, net loss of the complainant is worked out as Rs.37,500/-. 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.37,500/- 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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