Haryana

Karnal

CC/30/2019

Ramesh Raheja - Complainant(s)

Versus

HAFED Cold Store - Opp.Party(s)

D.S. Chauhan

16 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No.30 of 2019

                                                        Date of instt. 24.01.2019

                                                        Date of decision:16.03.2021

 

Ramesh Raheja age 48 years son of Shri Ram Kishan resident of village Kachwa tehsil Karnal district Karnal.

   …….Complainant.

                                              Versus

1.     HAFED Cold Store, G.T. Road, Taraori, District Karnal through its Manager.

2.     HAFED, Cold Store, G.T. Road, Taraori through D.G.M.

3.     The Managing Director, HAFED Sector-5, Panchkula.

4.     National Insurance Co. Ltd. G.T. Road, Karnal-through its Manager, policy no.420500/11/17/310000004B valid from 28.06.2017 to 27.06.2018.

     …..Opposite Parties.

       Complaint U/s 12 of the Consumer Protection Act, 1986.              

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present   Shri D.S. Chauhan counsel for complainant.

                Shri Ankit Sahni counsel for OPs no.1 to 3.

                Shri Sanjeev Vohra counsel for OP no.4.

                (Jaswant Singh President)

ORDER:                    

                This complaint has been filed by the complainant U/s 12 of the Consumer Protection Act 1986 on the averments that he is a farmer and having his agriculture land in village Kachhwa, District Karnal and is growing vegetables in his field. Complainant had sown potatoes crop in his field for earning his livelihood and a good quality potatoes were grown in the fields of the complainant and has prepared a certified seed of potatoes for sowing in the next crop in his field. The complainant has grown potatoes in his field and he has stored 738 bags, weighing 369 qtl. vide lot no.14/210, 81/205, 213/168/370/155 on different dates in the cold store of opposite party No.1 (hereinafter referred to as OP no.1) against a payment which was received by OP no.1. The said potatoes seeds were stored with the OP no.1 with a view that the complainant will sow the said seeds in his field in the next crop. 

2.             On 10.08.2017 the complainant went to the store of OP no.1 to inspect the said potatoes seeds and then noticed that the potatoes seeds were sprouted due to high temperature and has become unfit for sowing in the field due to negligence on the part of the OPs No.1 to 3. Thereafter, complainant requested the OPs No.1 to 3 to pay the market value of seed potatoes prevailing at that time, in the market and also to pay compensation as the seeds have become unfit for sowing but the OPs No.1 to 3 did not pay any heed to the request of complainant and refused to pay the price of potatoes and compensation.

3.             Further, in order to avoid their liability, the OPs No.1 to 3 filed a Civil Suit for recovery of Rs.28919/- on account of storage charges of the potatoes. Since, the seeds were useless, so there is no occasion for the complainant to lift the useless seeds and the OPs are not entitled to claim any storage charges and they have filed the above Civil Suit only to save its skin from compensation. The complainant has put appearance in the abovesaid Civil Suit and the suit of the OPs No.1 to 3 is likely to be dismissed as the same is based on falsehood.

4.             Further, this happened only on account of negligence on the part of the OPs No.1 to 3 as a result of which the complainant has suffered a huge loss of the seed amounting to Rs.7,38,000/- as per market rate. The complainant also suffered mental agony, pains and suffering to the tune of Rs.50,000/- due to negligence act of the OPs No.1 to 3. Complainant contacted the OPs No.1 to 3 several times and demanded the loss suffered by him but OPs did not pay any single penny to the complainant. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

5.             Notice of the complaint was given to the OPs, OPs no.1 to 3 appeared and filed their written version raising preliminary objections with regard to maintainability; locus standi and concealment of true and material facts. On merits, it is pleaded that the complainant had stored 738 bags of potatoes in the cold storage of OPs no.1 to 3. The storage rent is Rs.110/- per potato bag but complainant deposited Rs.7000/- with the OPs no.1 to 3 as booking amount at the time of storage with the condition that he shall lift the stock by paying the balance storage rent before expiry of the storage period. The complainant has lifted 210 bags on 25.09.2017, 168 bags on 12.10.2017 and 70 bags on 16.10.2017. The complainant has lifted 448 bags of potato by remitting the storage rent to the OPs No.1 to 3 after 16.10.2017, 290 bags of potatoes were left in the store. It is further pleaded that at the time of storing of the potato bags the complainant has also signed the Form-D in which the terms and conditions for storing the goods were categorically and specifically mentioned, which were duly read over to him and he after understanding the said terms and conditions, signed the Form-D. It is further pleaded that  OPs no.1 to 3 several times requested the complainant to lift his remaining stored potatoes bags from OPs no.1 to 3 by paying the balance amount of rent of Rs.29380/-. OPs no.1 to 3 requested telephonically from time to time after 25.09.2017 to lift his stock but complainant did not bother to the request of the OPs no.1 to 3. It is further pleaded that complainant was informed through office letter no.348 dated 25.09.2017 regarding lifting of his balance stock of potatoes bags before the last date of closing of Cold Storage which was 15.10.2017 and extended upto 31.10.2017, but the complainant had not given any response. Thereafter, HAFED sent a reminder dated 03.11.2017 to the complainant to lift his stock within three days from the receipt of the reminder/memo otherwise HAFED would be compelled to dispose off the stock without informing the complainant. OP sent a legal notice through his counsel to complainant asking him to lift the 290 potatoes bags by paying Rs.29380/- as rent within seven days from the receipt of the notice failing which OPs No.1 to 3 dispose off the said potatoes bags and seek his remedies to recover the rent amounting to Rs.29380/- alongwith all legal charges. The complainant is facing a case of rent recovery before the learned Civil Judge, Karnal. There is no deficiency in service on the part of the OPs No.1 to 3. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             OP no.4 appeared and filed its separate written version stating therein that HAFED had purchased an Fire Policy from OP no.4 and intimation with regard to fault of cold storage and damage of potato dated 7.9.2017 were given to OP no.4 on 10.11.2017 i.e. delay of about two months, while as per terms and conditions of the policy the notice of loss/accident should be immediately given to the company as per policy condition no.4. Moreover, as per the statement, the damage occurred due to failure of Joint/Packing of Valve. Such type of events are specifically excluded under the policy. It is further pleaded that plant stoppage was for 3 hours, which was much lessor than stipulated limit of 24 hours as per exception 2 of policy. The policy is subject to following exclusion-Any damage to the stocks due to rise or fall in the temperature caused by stoppage of any section or sections of the Refrigeration Plant for less than 24 hours, following an accident to the Refrigeration Plant and machinery specified in schedule 1 and covered by concurrent machinery insurance policy.

7.            Further, Surveyor, who was deputed by the OPs reported that he found news report of 27.05.2017 about sprouting of potato in this cold storage as early as May 2017. The reported cause as per the news report said that at the time of arrival, the arrived potato remained stored in the open/outside in high ambient temperature as the repairing of the cold storage was not completed. Due to this, there had been sprouting of potato. The cause of loss stated as that the damage occurred due to failure of joint/packing of the valve. The perusal of this news report makes it evident that circumstances of the loss narrated was not based on true facts. So, this amounts to misrepresentation/mis description and voids of the policy benefits as per policy condition no.1 “this policy shall be voidable in the event of any misrepresentation, mis description or non-disclosure in any material particular.” Therefore, the claim of the HAFED was rightly repudiated.  There is no deficiency in service on the part of the OP no.4 and prayed for dismissal of the complaint.

8.             Complainant tendered into evidence his affidavit Ex.CW1/A, sale rate of Horticulture Department Panchkula Ex.C1, sale rate of Marino Industries Ltd. Ex.C2, sale rate of DDA Shamgarh Karnal Ex.C3 and newspaper cutting Ex.C4.

9.             On the other hand, OPs no.1 to 3 tendered into evidence affidavit of Chander Parkash Verma Senior Manager as Ex.RW1/A, account copy Ex.R1, Form-D Ex.R2 to Ex.R5, notice dated 25.09.2017 Ex.R6, notice dated 03.11.2017 Ex.R7, copy of legal notice Ex.R8, report dated 10.01.2019 from Director of Research Ex.R9, list of farmer lifted bag Ex.R10 and Ex.R11, affidavit of Jaspal Singh Ex.R12, affidavit of Bijender Singh Ex.R13, deposit rent application Ex.R14, deposit rent application of Iqbal Singh Ex.R15, proceeding for the disposal of 10299 bags of damage potatoes Ex.R16, book of Hissar Agriculture University Ex.R17 and inquiry report dated 26.06.2019 Ex.R18 and closed the evidence on 27.01.2020 by suffering separate statement.

10.           OP no.4 tendered into evidence affidavit of Reena Basak Administrative Officer Ex.OP4/A, policy with conditions Ex.OP4/1, letter dated 12.01.2018 Ex.OP4/2, survey report dated 01.01.2018 Ex.OP4/3, survey report dated 29.12.2017 Ex.OP4/4, letter dated 11.12.2017 Ex.OP4/5, application of 22C of Legal Services Authorities Ex.OP4/6 and reply of the application of 22C of legal services authorities Ex.OP4/7 and closed the evidence on 01.02.2021 by suffering separate statement.

11.           We have heard the learned counsel of all the parties and perused the case file carefully and have also gone through the evidence led by the parties.

12.           Learned counsel of complainant argued that complainant had stored 738 bags, weighing 369 qtl. on different dates in the cold store of OP no.1 against a payment which was received by OP no.1. The said potato seeds were stored with the OP no.1 with a view that the complainant will sow the said seed in his field in the next crop.  On 10.08.2017 the complainant went to the store of OP no.1 to inspect the said potato seed and then he noticed that the potato seeds were sprouted due to high temperature and have become unfit for sowing in the field due to negligence on the part of the OPs. Thereafter, complainant requested the OPs to pay the market value of seed potatoes prevailing at that time in the market and also to pay compensation as the seeds have become unfit for sowing but the OPs did not pay any heed to the request of complainant and refused to pay the price of potato and compensation. Learned counsel of complainant prayed for allowing the complaint.

13.           Per contra, learned counsel of OPs no.1 to 3 argued that the complainant had stored 738 bags of potatoes in the cold storage of OPs no.1 to 3. The storage rent is Rs.110/- per potato bag but complainant deposited Rs.7000/- with the OPs no.1 to 3 as booking amount. The complainant had lifted 448 bags of potatoes by remitting the storage rent to the OPs, after 16.10.2017, 290 bags of potatoes were left in the store.  Learned counsel of OPs no.1 to 3 further argued that that at the time of storing of the potatoes bags, the complainant has signed the Form-D in which the terms and conditions for storing the goods were categorically and specifically mentioned, which were duly read over to him and he after understanding the said terms and conditions, signed the Form-D. He further argued that OPs no.1 to 3 several times requested the complainant to lift his remaining stored potatoes bags from OPs no.1 to 3 by paying the balance amount of rent of Rs.29380/- but complainant did not bother to the request of the OPs no.1 to 3. OPs no.1 to 3 informed the complainant through office letter no.348 dated 25.09.2017 regarding to lift his balance stock of potato bags before the last date of closing of Cold Storage which was 15.10.2017 and extended upto 31.10.2017 but complainant had not given any response. He further argued that OPs No.1 to 3 sent a legal notice through its counsel to complainant asking him to lift the 290 potatoes bags by paying Rs.28380/- as rent within seven days from the receipt of the notice failing which OPs No.1 to 3 dispose off the said potatoes bags and seek his remedies of recovering of rent amounting to Rs.29380/- alongwith all legal charges. The complainant is facing a case of rent recovery before learned Civil Judge, Karnal. Learned counsel of OPs no.1 to 3 further argued that the matter is to be referred to the Arbitrator as per Form-D and prayed for dismissal of the complaint.

14.           Learned counsel for the OP no.4 i.e. Insurance Company argued that the damage of potatoes were occurred on 7.9.2017 and intimation relating to damage was given to OP no.4 on 10.11.2017 i.e. delay of about two months. The claim of the HAFED was rightly repudiated as there is violation of terms and conditions of the insurance policy.

15.           The first question for consideration before us is that whether the matter is to be referred to the Arbitrator as per Form-D, copy of which are Ex.R2 to Ex.R5 or not?

16.           In a judgment Aftab Singh versus Emaar MGF Land Limited and another, Consumer Cases no.701 of 2015, decided on July 13^th 2017 in which Hon’ble National Commission, New Delhi held as under:-

“Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.”

 

        Hence, the aforesaid contention advanced by learned counsel for the OPs No.1 to 3 is rejected.

17.           Admittedly, complainant had deposited 738 bags with the OPs no.1 to 3 against the Form-D Ex.R2, Ex.R3, Ex.R4 and Ex.R5. As per the version of the complainant, he went to the cold store of the OPs no.1 to 3, to inspect his potato seeds and noticed that potatoes seeds have been sprouted due to high temperature and have become unfit for sowing in the fields due to the negligence on the part of the OPs no.1 to 3.

18.           The onus to prove the fact that the potatoes seeds belonging to the complainant were sprouted due to the negligence on the part of OPs No.1 to 3, was upon the complainant. There is nothing on file to prove the fact that the complainant has ever moved any complaint before the competent authority with regard to the fact that he has stored his potatoes seeds with the OPs No.1 to 3 and that were sprouted due to the negligence of the OPs No.1 to 3.  Furthermore, if any complaint was moved by the complainant to the competent authority, in that eventuality, there could be any report on file but no report of that kind is on record to prove the plea taken by the complainant. The complainant has placed reliance on the newspaper cutting Ex.C4 but he has failed to prove the fact that the potatoes seeds shown in the newspaper cutting belongs to him. Hence, the complainant has miserably failed to prove his case by leading cogent and convincing evidence.   

19.           Thus, as a sequel to abovesaid discussion, we do not find any merits in the complaint and the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 16.03.2021

                                                                President,

                                                      District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

         Vineet Kaushik)                 (Dr. Rekha Chaudhary)

                 Member                          Member