DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.556 of 03-12-2015

Decided on 23-11-2016

Jaspal Singh aged about 27 years S/o Surjan Singh @ Surjeet 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.Raman Roy Khattar, Advocate.

For opposite parties: Sh.Shaminder Singh Sohal, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Jaspal 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).

2. Briefly stated, the case of the complainant is that he is small farmer and he had grown potatoes in Rabi 2015 in his 2 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.5000/- 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 Balour 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.35 dt.12.3.2015	124	Ration	350	Rs.43,400/-
   2	Rake No.34 dt.12.3.2015	102	Seed	500	Rs.51,000/-
   3	Rake No.773 dt.15.4.2015	145	Ration	350	Rs.50,750/-
   		Total			Rs.1,45,150/-

    

3. It is alleged that to great dismay of the complainant, when in the month of June 2015, he alongwith Balour 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.1,45,150/-. 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.1,45,150/- as cost of potatoes. Hence, this complaint.

4. 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.

5. 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 and 127 bags of the complainant were in poor and smeared condition. This fact is within the knowledge of the complainant and clearly mentioned on the slips/parchi issued to him. This fact was brought by opposite parties to the complainant, but he alongwith other farmers made agitation against them. As such, under compelled circumstances, opposite parties stored the smeared and poor condition potatoes of 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.

6. On merits, it is denied that the complainant paid Rs.5000/- to opposite parties for storing his potatoes. It is further mentioned that opposite parties are ready to deliver the potatoes bags to the complainant on payment of entire rent, which he has not paid till date. The complainant has not stored any 145 bags as alleged in the complaint. The complainant has already taken away his potatoes and singed the gate pass under the name of Baggi S/o Surjan Singh as he is also known as Baggi in the village and no bag of the complainant is remained with opposite parties. All other averments are categorically denied.

   In the end, opposite parties have prayed for dismissal of complaint.

7. Parties were afforded opportunities to produce evidence.

8. In support of his claim, the complainant has tendered into evidence his own affidavit dated 3.12.2015, (Ex.C1); stock receipts, (Ex.C2 to Ex.C4); photocopy of letter, (Ex.C5); photocopy of DDR, (Ex.C6) affidavit of Balour Singh dated 5.4.2016, (Ex.C7) and closed the evidence.

9. In order to rebut this evidence, opposite parties have tendered into evidence affidavits of Devinder Pal Singla dated 5.7.2016 and 1.9.2016, (Ex.OP1/1 and Ex.OP1/10); photocopies of conditions, (Ex.OP1/2 and Ex.OP1/11); photocopies of letter, (Ex.OP1/3 and Ex.OP1/15); photocopies of gate pass, (Ex.OP1/4 to Ex.OP1/7, Ex.OP1/13 and Ex.OP1/14); photocopies of civil suit, (Ex.OP1/8 and Ex.OP1/12); affidavits of Jagtar Singh dated 5.7.2016 and 5.8.2016, (Ex.OP1/9 and Ex.OP1/16) and closed the evidence.

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

11. 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 to Ex.C4) 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 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.

    Opposite parties want to take shelter of the remarks mentioned in the receipt, (Ex.C3) 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 receipt. Opposite parties are trying to take shelter under the condition got printed on the backside of the receipt. 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.

12. 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 and Ex.OP1/11). 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.

13. 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 has got stored 371 bags of potatoes with opposite parties but 353 bags were stored as per receipts produced by the complainant 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'.

14. 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.

    The 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 and Ex.OP1/11, opposite parties are not 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.

15. 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, Ex.OP1/13 and Ex.OP1/14), 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. Keeping in view the low market price of the potatoes, various farmers did not come forward to get their respective potatoes bags to avoid the payment of the rent. As such, it is proved that there was no loss to the other farmers, who have stored the potatoes in good condition.

16. 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.

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

18. 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 he had grown potatoes in Rabi 2015 in his two acres fields. 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'.

19. The main plea of opposite parties is that the complainant has not come forward to take the delivery of the potatoes. There is no notice by opposite parties to the complainant asking him to collect his potatoes bags. Opposite parties have placed on record copy of plaint, (Ex.OP1/8 and Ex.OP1/12). This suit was filed against number of persons for declaration that the defendants of the suit are not entitled to recover any claim for storage of potatoes in the store of opposite parties. In case, opposite parties were having potatoes bags of the present complainant ready for delivery to the complainant, they were also expected to seek directions against complainant to take back delivery of the bags. Opposite parties have also not issued any notice to the complainant asking him to take back his potatoes 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. As such, opposite parties are responsible for the loss of potatoes stored by the complainant.

20. The complaint is filed against Davinder Pal Singla and Nikhil Singla being partners/proprietors of M/s Singla Cold Store. The 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.OP1/8 and Ex.OP1/12). 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.

21. Now, coming to the main controversy. Of-course, the complainant has pleaded that he has stored 371 bags of potatoes with opposite parties, but counsel for opposite parties has submitted that actually, 353 potatoes bags were stored. The complainant has wrongly mentioned number of bags, but actually, this was serial numbers of bill book. Counsel for the complainant has not disputed this fact. Therefore, it is held that the complainant stored 353 bags of potatoes with opposite parties.

    Opposite parties have pleaded in their written version that the complainant has already taken away his potatoes and signed the gate pass under the name of Baggi S/o Surjan Singh, but on the other side, in the affidavit of opposite party No.1, (Ex.OP1/1), it is pleaded in Para No.5 of the affidavit that the complainant himself has failed to take delivery of his potatoes till 31.10.2015. As such, opposite parties have taken the contradictory plea. Therefore, the version of opposite parties that the complainant has already taken away his potatoes, is not acceptable.

22. Now, point for determination is amount of compensation for which the complainant is entitled to. Opposite parties pleaded that the market price of seed potatoes was only Rs.60/- per bag and for ration potatoes was Rs.80/-. Opposite parties have tendered into evidence rate list, (Ex.OP1/9), which shows that the average 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.OP1/2 and Ex.OP1/11) 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 seed potatoes is on higher side from the rate of ration potatoes. Its rate is assessed as Rs.600/- per quintile.

23. As per receipts, (Ex.C2 to Ex.C4) 353 bags of potatoes were stored. The complainant has mentioned the weight of his bags as 43 kgs in receipts, (Ex.C2 and Ex.C4). The weight of 124 bags of ration potatoes is worked out 53.32 quintile and its value @ Rs.400/- per quintile comes to Rs.21,328/-. The weight of 102 bags of seed potatoes is worked out 43.86 quintile and its value @ Rs.600/- per quintile comes to Rs.26,316/-. The complainant has not mentioned the weight of his 127 bags of ration potatoes. The normal weight of potatoes bag is 40 kgs. The weight of 127 bags of ration potatoes is worked out 50.80 quintile and its value @Rs.400/- per quintile comes to Rs.20,320/-. The total value of potatoes bags is calculated as Rs.67,964/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.6800/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.61,164/-.

    The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/2 and Ex.OP1/11) has also revealed rent @ Rs.85/- per bag. The total charges for 353 bags is calculated as Rs.30,005/-. 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.30,005/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.61,164/-. Therefore, net loss of the complainant is worked out as Rs.31,159/-.

24. 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.31,159/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization.

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

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

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

    Announced:-

    23-11-2016 (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member