DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.546 of 27-11-2015

Decided on 19-09-2016

Harbans Lal aged about 45 years S/o Lal Chand, Agriculturist R/o Village Jhumba, and District Bathinda.

........Complainant

Versus

1.Davinder Pal Singla;

2.Er.Nikhil Singla;

Both owners of Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, District 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.K.S Brar, Advocate.

For opposite parties: Sh.S.S Sohal, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Harbans Lal (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).

2. Briefly stated, the case of the complainant is that he is an agriculturist having his agriculture land at village Jhumba, Tehsil & District Bathinda. Opposite parties are running the cold store under name of Singla Cold Storage at Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda.

3. It is alleged that the complainant sown the crop of potatoes in his land measuring one acre and incurred expenditure of Rs.60,000/- on it including Rs.40,000/- as cost of seeds and Rs.20,000/- other miscellaneous expenses i.e. irrigating, fertilizer/manure, spray, packing of the same in bags (Bardaana) after cleaning and cost of bag was Rs.25/- per bag, labour etc. and same were got packed by him in 124 bags each containing 50 kg.

4. It is further alleged that the complainant got stored 124 bags of potatoes with opposite parties in their cold store on 20.3.2015 for safety/security/protection etc. containing its kind as white, grade goli, ration, seed+ rooting. Opposite parties issued receipts No.104, 105 and 135 respectively and Rs.85/- per bag was agreed to be paid by the complainant to them for storage of the potatoes. He paid Rs.5200/- in advance. 124 bags of potatoes were agreed to be stored with opposite parties up to 31.10.2015 as per agreement between the parties. Opposite parties assured the complainant with respect to all kind of safety/protection of the potatoes in their cold store and further assured that they shall be held responsible for any loss/damage, if any, to be stored potatoes.

5. It is further alleged that 20 days before agreement i.e. 31.10.2015, the complainant visited the cold store of opposite parties and asked them to give the delivery of 124 bags of potatoes, but they returned him only 22 bags of potatoes and told that remaining 102 bags of potatoes have been rotten. As opposite parties have not returned the remaining 102 bags of potatoes to the complainant, as such he has suffered financial/monetary loss. He has also got issued a legal notice to opposite parties on 23.10.2015 through his counsel, but to no effect.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.50,000/- as compensation and prayed for directions to opposite parties either to deliver the remaining 102 bags of potatoes or to make the payment of price of the potatoes, which comes to Rs.1,02,000/- i.e. Rs.20/- per kg. and advance amount of Rs.5200/-, total Rs.1,07,200/- alongwith interest @ 18% per annum. Hence, this complaint.

6. 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.25/- per bag of 50 kgs and opposite parties are ready to deliver the potatoes to the complainant. 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.

7. 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. Some potatoes have already been taken by the complainant. 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.

8. On merits, it is admitted that the complainant stored 124 bags of ration, seed and rooting potatoes with opposite parties and agreed to pay Rs.85/- per bag as rent for storage of his bags. It is denied that the complainant paid Rs.5200/- in advance. Opposite parties are still ready to deliver the remaining bags of the complainant on receipt of agreed rent, but he has not come to take the delivery of his remaining potatoes. The potatoes of the complainant were damaged in the storage of opposite parties. It is further denied that the market price of potatoes is Rs.20/- per kg., which comes to Rs.1,02,000/-, rather the complainant himself has mentioned that the market price of per bag of 50 kgs. potatoes seed is only Rs.25/-. All other averments 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.

9. Parties were afforded opportunities to produce evidence.

10. In support of his claim, the complainant has tendered into evidence his own affidavit dated 8.4.2016, (Ex.C1); affidavit of Sanjiv Kumar dated 8.4.2016, (Ex.C2); affidavit of Niranjan Singh dated 8.4.2016, (Ex.C3); photocopy of legal notice, (Ex.C4); postal receipt, (Ex.C5); photocopies of stock receipts, (Ex.C6 to Ex.C8) and R.C received back with postal authority report, (Ex.C9) and closed the evidence.

11. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 12.7.2016, (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); photocopy of letter, (Ex.OP1/8); affidavit of Jagtar Singh dated 5.8.2016, (Ex.OP1/9) and closed the evidence.

12. We have heard learned counsel for the parties and gone through the file carefully.

13. 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 an agriculturist having his agriculture land at village Jhumba, Tehsil & District Bathinda. 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.C6 to Ex.C8) also prove this fact. The complainant has alleged that when he approached opposite parties for taking part delivery of the potatoes, opposite parties have given delivery of only 22 potatoes bags and denied to give delivery of remaining 102 potatoes bags on the ground that these have been rotten. 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 remaining 102 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.

14. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.5200/- 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;

    2004 (2) CPJ 692 Himalaya Food Co. Vs. Dhanpat & Ors;

    2008 (1) CLT 592 Sanjay Kumar Vs. Vinod Kumar Yadav;

    2013 (1) CPJ 335 A.G.P.L Cold Store Vs. Jagtar Singh;

    2012 (2) CPJ 172 Padma Himghar Pvt. Ltd. Vs. Ghanshyam Saha;

    2015 (2) CPJ 725 Handa Cold Storage and Anr. Vs. Kuldip Singh and Ors.

15. 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 124 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'.

16. 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.

17. 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 fallen. The complainant opted not to take delivery of potatoes only to escape from the payment of rent. Opposite parties have never denied to deliver back remaining 102 bags of potatoes. In written version, the categorically stand of opposite parties is that the complainant has never approached them to take back remaining 102 bags and they are ready to deliver the same. Despite this pleading, the complainant has not taken any step to collect the remaining bags. The delivery was to be taken on 31.10.2015 and opposite parties were not liable for any damage after 31.10.2015. This fact is categorically mentioned in conditions, (Ex.OP1/2).

18. 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 delivery in the month of October 2015. Therefore, the rate prevailing in the month of October 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.

19. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainant.

20. Before coming to the main relief, it is to be seen whether the complainant falls within the definition of 'consumer' or not. The complainant has pleaded in his complaint that he is an agriculturist having his agriculture land at village Jhumba, Tehsil & District Bathinda. 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'.

21. 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.

22. The main plea of opposite parties is that the complainant has not come forward to take the delivery of the potatoes. The complainant has pleaded that he approached opposite parties to take back delivery of remaining 102 bags and they have not returned him these bags. It is also pleaded by the complainant that he got issued notice through counsel. Register cover was received back undelivered with the report of refusal. Register cover is produced on record as Ex.C9. The point is whether opposite parties were ready to deliver the remaining 102 bags as pleaded by them or not. There is no notice by opposite parties to the complainant asking him to collect his remaining potatoes bags. Opposite parties have placed on record copy of one plaint, (Ex.OP1/3). This suit was filed against number of persons for declaration that the defendants of the suit are not entitled to recover any claim on account of storage of potatoes in the store of opposite parties. In case, opposite parties were having remaining 102 potatoe bags of the complainant ready for delivery to the complainant, they were also expected to seek directions to take back delivery of remaining 102 potatoe bags. Opposite parties have also not issued any notice to the complainant asking him to take back his remaining 102 potatoe bags within the reasonable time and failing which, they will not be liable to return the same, but there is no such action on the part of opposite parties. Therefore, contention of opposite parties that the complainant has not approached opposite parties to take delivery of the potatoes is not tenable. It is after thought version of opposite parties to escape from their liability regarding stock in question.

23. Now, point for determination is amount of compensation for which the complainant is entitled to. Opposite parties have tendered into evidence rate list, (Ex.OP1/8), 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 was Rs.450/- per quintile in the month of October 2015.

24. As per complainant, 124 bags of potatoes were stored, out of these bags, he has taken the delivery of 22 bags of potatoes The complainant has not mentioned the weight of his bags. It is fairly conceded that the normal weight of potatoes bag is 40 kgs. The total weight of 102 bags of ration potatoes is worked out 40.80 quintile and its value @ 450/- per quintile is worked out Rs.18,360/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.1800/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.16,560/-.

    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 124 bags is calculated as Rs.10,540/-. The complainant has alleged that he has paid Rs.5200/- 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.10,540/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.16,560/-. Therefore, net loss of the complainant is worked out as Rs.6020/-.

25. 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.6020/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization.

26. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

27. The complaint could not be decided within the statutory period due to heavy pendency of cases.

28. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    19-09-2016 (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member