DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
DF Case No 51 of 2013
Date of filing: 11.3.2013 Date of disposal: 04.8.2014
Complainant: 1. Daud Rahaman Sk., Vill: Parulia, PO: Bitra, Dist: Burdwan.
2. Soumen Ghosh, Paschim Sahapur, PO: Bitra, Dist: Burdwan.
3. Bhagya Dhar Ghosh @ Vagadhar Ghosh, Vill: Ghanoshampur,
PO: Bitra, Dist: Burdwan.
-VERSUS-
Opposite Party: 1. Khalispur Cold Storage P. Ltd., Vill: & PO: Khalishpur, Dist: Burdwan, represented by its Proprietor.
2. Khalispur Cold Storage P. Ltd., Vill: & PO: Khalishpur, Dist: Burdwan, represented by its Manager.
Present : Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member : Smt. Silpi Majumder
Appeared for the Complainant: Ld. Advocate, Mirza Raja Begg.
Appeared for the Opposite Party: Ld. Advocate, Saurav Kumar Mitra.
JUDGEMENT
This complaint is filed by the complainants under Section 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the OPs as the OPs did not refund them the packets of potato which were kept in the cold storage of the OPs.
The brief fact of the complainants is that they are agriculturist by profession. They kept potatoes in the cold storage of the OPs for the period from March 2011 to November 2011 on the basis of their individual bond for future benefit to earn their source of livelihood. The complainants as per the prevailing system also promised to pay the cold storage charges to the OPs at the time of taking delivery of the potatoes.
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In the month of first week of December 2011 when the complainants went to take delivery of potatoes the OPs initially gave assurance of delivery and later on they took plea of non-traceability. Thereafter the complainants went again in the second week of December 2011 and at that time also they were informed that the potatoes were not readily available and assured the complainants that they would find out soon. The OPs requested the complainants to approach before them for taking delivery of the potatoes in the fourth of week of December 2011 and assured that the potatoes will be delivered during that period. The complainants have mentioned that the Additional District Magistrate (LA), Office of the District Magistrate, Burdwan (Food Section), Govt. of West Bengal through his notice bearing memo No. 825 (31)/FS, dated 27.12.2011 informed the Mayor of Asansol Municipal Corporation, Chairman of Burdwan/Memari/ Kalna/Katwa/Dainhat Municipality, all the Sub-Divisional Officers and Block Development Officers of Burdwan district that potatoes which are lying at nearby cold storage are to be distributed to Primary and Upper Primary Schools for mid-day meal purpose on the basis of guidelines mentioned in the notice. The cold storage of the OPs was selected for supply of potatoes for mid-day meal purpose. When the complainants went to take delivery of their potatoes the OPs refused to deliver the same in view of the notice dated 27.12.2011 as mentioned earlier. The potatoes would be supplied for mid-day meal purpose and in lieu of that the complainants would get the cost of the potatoes. Finally in the first week of January 2012 when the complainants approached before the OPs and asked for payment of the cost of the potatoes, the OPs refused to pay the same and also refused to deliver the potatoes which were kept in their cold storage and not only that the OPs thrown out the complainants from the cold storage premises. The OPs neither delivered the potatoes nor paid the cost of the potatoes at the market rate prevailed during that time till the date of filing of this complaint which tantamount to deficiency in service and unfair trade practice on the part of the Ops. Thereafter finding no other alternative the complainants being compelled have filed this complaint before this Ld. Forum praying for direction upon the Ops to refund a sum of Rs. 4, 08,000=00 towards the cost of 68000 Kgs. potato i.e. @Rs. 6/- per Kg and compensation to the tune of Rs. 25,000=00 payable to each of the complainants due to mental agony and harassment and litigation cost of Rs. 5,000=00 each. In the page no. 3 of the petition of complaint the complainants have mentioned one schedule.
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The complaint has been contested by the Ops by filing written version wherein it is stated that the complainants are not consumers within the meaning of the C.P. Act 1986 as they stored the potatoes for future benefit and through such storage they used to earn huge profit and for this reason on that score the complaint is liable to be dismissed. The Ops have further stated that there was no deficiency in service or negligence on the part of them. Complainants did not adduce any document how far he has been suffered due to deficiency in service of the Ops as alleged. As this case is not a simple case of deficiency of service and involves determination of complex question on the facts and law, the same cannot be adjudicated by this Ld. Forum within the time frame as provided in the C.P. Act and therefore it will be better to refer this complaint to a competent Civil Court and complainants can seek redressal of their grievance through the Civil Court. The complainants have failed to establish that they are agriculturist and in their land potatoes were produced. In fact the complainants purchased the potatoes from open market for commercial purpose and stored the same with the OP-2 for making huge commercial profit after re-sell. It is well settled that the burden of proof lies on the complainants and in this respect they have miserably failed to discharge the same. Moreover this complaint is liable to be dismissed in limine as there is clear restriction under Section 26 of the West Bengal Cold Storage Act, 1966 wherein it is mentioned that no suit or legal proceeding shall lie against any person for anything in good faith done under this Act. The provisions of the said Act empowered the Licensing Officer to decide the disputes between the licensee and the hirer. In case of any dispute between them in respect of payment of compensation, such dispute shall be referred to the Licensing Officer whose decision in the matter shall be final. Thus when there is a special remedy provided in Section 20A of the West Bengal Cold Storage Act 1966 regarding dispute between licensee and hirer in respect of payment of compensation, then the remedy under the Consumer Protection Act is barred. It has been further stated by the Ops that in terms of the cold storage receipts the complainants were under obligation to take delivery of potatoes on or after 30 November 2011, but the complainants never came for taking delivery the same within the stipulated period and thereafter because due to bumper production of potatoes the price of potatoes fallen sharply during that period and therefore the complainants willfully chose not to take delivery of the said potatoes by
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paying the cold storage charge to the Ops to avoid their loss. The Ops have stated that every cultivator is duty bound to take delivery of his potato within November 15 of every year. When the customer wants to take delivery he has to contact with the officials of the cold storage and upon production of the Bond of the potato the goods is delivered. In this case the story of non-traceability of potato is nothing but an imaginary, baseless and concocted story of the complainants. It has been further stated that in the year of 2011 at the time of storage of potato it was intimated to the complainants that within 15.11.2011 the potato bags should be received by them because after delivery of the entire bags from the cold storage necessary repairing and maintenance works for the cold storage is necessary. But the complainants did not turn up for taking delivery of their goods. Though laches was on their part but filing this case the complainants tried to impose liability upon the shoulder of this OP, which has no basis. This Ops, as had no other alternative placed the potato bags outside the cold storage premises. It has been further submitted that due to carelessness on the part of the complainants such incident has occurred. It has been mentioned that the prevailing system was to clean the cold storage for the next season storage, so if the potato bags of the complainants would be preserved, the interest of the cold storage hampered. The OPs did not admit that the storage of potato is the sole earning of livelihood of the complainants and moreover, the complainants have no locus standi to file this case as they are not the consumer because none of them has paid the charge of the cold storage till date. During that year the cost of the potato was Rs. 1/- per kg. So the OPs are under obligation to pay the cost of the potato bags @ Rs. 1/- per kg. It will be found that the total cost of the potato will be lesser than the cold storage charge. Therefore the complainants are not entitled to get any amount towards cost of compensation as prayed for from these OPs. As the complaints have failed to discharge their duties and liabilities further prayer has been made by the Ops for dismissal of the complaint with exemplary cost.
We have carefully perused the entire records, several documents; judgments filed by the Ops as well the Complainants, Cold Storage Act and heard arguments from the Ld. Counsel for the parties at length. As the Ops have raised a very important point to the extent that the complainants are not a consumer within the purview of the definition of ‘consumer’ as enumerated in the C.P. Act 1986, therefore, at the very
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outset we are to adjudicate whether the complainants are at all consumers or not in terms of the definition of consumer as described in C.P. Act. The OPs have stated in their written version that the complainants stored their potatoes at their cold storage for future benefit to earn their source of livelihood and secondly the Ops have submitted during argument that as the complainants did not pay any rental charge to the OPs towards the cold storage charge, the complainants cannot be termed as consumer as per the C.P. Act. In respect of the first portion as mentioned we are to say that the complainants have stated on affidavit that they kept potatoes in the cold storage of the Ops on the basis of their individual bond for future benefit to earn their source of livelihood. As per the definition of the consumer mentioned in the C.P. Act a person in respect of goods bought and used by him/her and services availed by him/her exclusively for the purpose of earning his/her livelihood by means of self-employment can be termed as consumer. In this respect the OPs have failed to adduce any document before us to prove that the complainants stored their potatoes in the OP’s cold storage and hired their service for commercial purpose. Moreover, when the complainants have mentioned that for earning their livelihood they have stored their potatoes and on the contrary no document is forthcoming on behalf of the Ops to contradict that the complainants stored same not to earn their livelihood, but to generate huge profit from it, hence the argument or submission as made out by the Ops have no legs to stand upon. Therefore, in connection with the first potion of the above-mentioned argument the complainants can easily be termed as consumer as per the definition of consumer as enumerated in the C.P. Act 1986. In respect of the second portion of the argument that as the complainants did not pay any amount towards the cold storage charge, the complainants cannot be termed as consumer. In this respect we are to say that in the definition of consumer there is clear mentioning that consumer means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment, the said person can easily be termed as consumer. In the case in hand admittedly the complainants did not pay any rental charge towards the cold storage, but inspite of this the complainants are consumers because as per the prevailing system of the cold storage rental charge used to be deposited at the time taking out delivery of the potato packets and hence the complainants being agreed
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with the said terms have stored their potatoes with the Ops. Therefore the complainants can be termed as intending consumer because no evidence is before us on behalf of the OPs that service was rendered by the Ops free of charge and /or the complainants refused to pay the rental charge towards the cold storage. Therefore, in respect of the second portion of the above-mentioned argument the complainants are consumer. So the question as raised by the Ops is hereby adjudicated in favour of the complainants holding that complainants are consumers in view of the C.P. Act 1986.
The contention of the Ops is that the instant complaint is not maintainable before this Ld. Forum as complicated facts are involved in this complaint and it cannot be adjudicated by this Ld. Forum because as per C.P. Act this Forum has no authority to adjudicate and decide such complicated questions. Not only that the complainants have also failed to adduce any evidence that in what capacity potatoes were kept with the Ops as no document is filed to prove that the complainants are agriculturist and they owned land in their own name. Therefore, after purchasing potatoes they stored the same with the Ops for commercial purpose because the sale proceeds of the potatoes will generate profit. Therefore, according to the Ops, as no deficiency in service or unfair trade practice has been occurred on behalf of the Ops and the complainants did not suffer any loss or injury, they are not entitled to any relief.
We have noticed that the fact of the instant case is totally different from the case as relied on by the Ops because in the case in hand the complainants have alleged that by-passing the existing law the OPs have sold out their potato packets, not only that, after sold out the same the Ops have refused to pay the sale proceeds after deducting the cold storage rent to the complainants. According to the complainants such action can easily be termed as deficiency in service. After considering the submissions of the both parties and the judgment as relied on by the Ops we are of the view that before entering into the merit of the fact at the very outset it cannot be said that there was no deficiency in service or unfair trade practice on the part of the Ops and the complainants are not entitled to get any relief. We are also of the view that the judgment as relied on by the parties cannot support the case of the OPs. In this context ewe may mention to the landmark judgment passed by the Hon’ble Supreme Court in the case no. Appeal (Civil) 4091/2006 in the case of Oriental Insurance Co. Ltd.
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and Munimahesh Patel, decided on 12.9.2006 wherein Their Lordships have held that as the proceedings before the Consumer Forum/Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions, should not be adjudicated. We have carefully gone through the said judgment and in our opinion the said judgment also not applicable in the case in hand because in the said case there was a great confusion about a document as to whether the insured was a teacher or housewife and in the said case it was necessary to adjudicate the genuineness of the documents of the insured, which in our view is a very complicated issue and for this reason Hon’ble Supreme Court has held that such complicated issues cannot be adjudicated by the Consumer Forum/ Commission. But in the instant case in our view no complicated questions are involved, which cannot be resolved by this Ld. Forum. As the complainants have alleged simply the deficiency in service and unfair trade practice of the Ops, we are of the view that such question can easily be adjudicated by this Ld. Forum. The Ops have mentioned that complainants are not consumers because they did not file any document to show that they are agriculturist and the sale proceeds will not generate any profit. According to the Ops, for making profit the complainants have stored the potato packets for commercial purpose. We have perused the judgment carefully but the said judgment is not applicable in this case because in the said case machine was purchased for manufacturing bricks for commercial purpose but there was no mentioning that the machine was purchased for the purpose of earning his livelihood by means of self-employment. But in the instant case the complainants stored the potatoes with the OPs with a view to sell out the same for future benefit and it has been mentioned that such action was taken for the purpose of earning his livelihood by means of self-employment. Therefore, burden lies on the shoulder of the Ops to prove that the potatoes were kept to generate huge profit and for commercial purpose. But no scarp of document is forthcoming on behalf of the Ops to prove their contention. For this reason it can be said undoubtedly that the complainants being consumers have hired the service of the Ops and promise was made for payment of the rent of the cold storage and no complicated issue is involved in the case in hand, we are of the view that the complaint is maintainable before this Ld Forum as per the C. P. Act.
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Now we turn up our eyes to the factual aspect of the complaint. Admittedly the complainants stored their potato packets with the OPs’ cold storage for which they committed for payment of rent of the cold storage during delivery of the potato packets. The allegation of the complainants is that though they went several occasions for taking delivery of the potato packets from first week of December 2011 to first week of January 2012 but the Ops neither refund their potato packets nor any amount towards sell proceeds of their potatoes. For redressal of their grievance the complainants have approached before this Ld. Forum. Admittedly there is no document to show that the complainants went for collection of their potato packets from the first week of December 2011 to first week of January 2012 but it can be said that where the complainants stored more than 68000 kgs potato in the cold storage which were kept for earning their livelihood, therefore it can safely be said that the complainants approached for collection of the potato bags before the Ops. After perusal of the agreement it is noticed by us that it was mentioned by the Ops that the OPs were under obligation to keep their potato packets from 1st March 2011 to 30th November 2011 and as the complainants have failed and neglected to take delivery of the said potatoes the potato packets will be sold out in the prescribed manner at the cost and risk of the complainants without issuing any further notice and from the sale proceeds the OPs will realize the rental charges of the cold storage including marketing fee and insurance charge. The Ops haves submitted that due to bumper production of potatoes during the questioned year the cost of the potato was @Rs.1/- per kg. But in this respect the Ops have failed to lead any evidence in support of their contentions. The complainants have submitted the price list of potato per kg during that period issued by Office of the Assistant Agricultural Marketing Officer, (Administrative), Kalna, Govt. of West Bengal, Administrative Building, First Floor, Jewdhara, P.O. Kalna, Dist: Burdwan. In connection with another case which was pending before this Ld. Forum, this Ld. Forum wanted to call for the record from the abovementioned Department mentioning the price of potato during the month of November 2011, December 2011 and January 2012. The said Department has mentioned that during November 2011 price of potato per kg was of Rs. 5.50/- and December 2011 it was Rs. 4.50/- and January 2012 it was Rs. 3.50 (old) and Rs. 5.00/- (new). This case is related with the potato packets which were old one, not new, as the same was kept in the month of
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March 2011 and the complainants were permitted to keep the same till 30.11.2011. Therefore, during November 2011 as the price of potato per kg was of Rs. 5.50/-, hence in our view the complainants are entitled to get Rs. 5.50/- per kg from the sale proceeds. Though the OPs have claimed that the cost of per potato packet was of Rs. 55=00, but in this respect no convincing evidence has been adduced by the Ops in support of their contentions. We find much substance in the document which has been called for by this Ld. Forum in another case from the Department of Agriculture, Govt. of West Bengal and as the said document carries much evidentiary value, in our view the complainants are entitled to get Rs. 5.50/- per kg .
In view of the letter as issued by the Department of Agriculture, Govt. of West Bengal the (as the complainant did not went for collecting their potato packets in the month of November 2011 and went there in the month of December 2011) complainants are entitled to get the price as mentioned in the said order i.e. Rs. 4.50 per kg. In view of the abovementioned order the cost of 1225 packet potatoes will be Rs. 2, 75,625=00. The total cost of the rental charge of 1225 packets is of Rs. 65,844/- i.e. Rs.53.75/- per packet. As it was the duty of the complainants for making payment of rental charge during delivery of the potato packets hence after deduction from the cost of the 1225 potato packets the amount will be Rs. 2, 09,781=00. Therefore the complainant no. 1 is entitled to get refund of Rs. 2, 09,781=00. Similarly in respect of complainant no. 2 cost of 24 packets will be of Rs. 5,400=00. The total cost of the rental charge of 24 packets is of Rs. 1,290=00. As it was the duty of the complainants for making payment of rental charge during delivery of the potato packets hence after deduction from the cost of the 24 potato packets the amount will be Rs. 4,110=00. Therefore the complainant no. 2 is entitled to get refund of Rs. 4,110=00. Similarly in respect of complainant no. 3 cost of 111 packets will be of Rs. 24,975=00. The total cost of the rental charge of 111 packets is of Rs. 5,966 =00. As it was the duty of the complainants for making payment of rental charge during delivery of the potato packets hence after deduction from the cost of the 111 potato packets the amount will be Rs. 19,009=00. Therefore the complainant no. 3 is entitled to get refund of Rs. 19,009=00.
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Therefore the complainants are entitled to get Rs. 2, 32,900=00 in total from the OPs after deduction of the rental charge of the cold storage. In the prayer portion the complainants have prayed for Rs. 4, 08,000=00 towards the cost of 68000 kg potato i.e. @Rs. 6/- per Kg. But in this respect the complainants did not deduct the rental charge of the cold storage which they were bound to pay as per promise in the respect of the service as availed of. Secondly, in our opinion the complainants are not entitled to get the rate of potato @Rs. 6/- per kg because during the month of December 2011 the price was not Rs. 6/- per kg, it was Rs. 4.50 per kg as per the circular of the Agricultural Department, Govt. of West Bengal. As the said document has been called for in another case by this Ld. Forum we cannot go beyond the said circular. The complainants have also prayed for compensation to the tune of Rs. 25,000/- payable by the Ops to each of the complainants but in our view the amount as prayed for is on the higher side and in our opinion it will be just if we direct the Ops to pay compensation to the tune of Rs. 5,000/- to each complainant payable by the OPs. It is true that the complainants did not adduce any evidence that how far they have suffered mental pain and agony as well as harassment due to such action of the Ops, but it is clear to us that the person who used to keep potatoes in the cold storage for earning benefit to earn their livelihood by means of self-employment, non-refund of potato packets or sell proceeds of the potato packets has been seriously hampered their mental peace and to maintain their family establishment satisfactorily. For this reason the Ops are liable to pay compensation as per abovementioned direction. Undoubtedly the complainants have approached before this Ld. Forum by filing this complaint for getting redressal of their grievance and for this reason they had to incur some cost and the Ops are bound to pay some amount towards litigation cost to the complainants. As the complainants have filed one complaint, hence in our view they are not entitled to get litigation cost separately. In our opinion it will meet justice if we direct the Ops to pay Rs. 2,000/- in total to the complainants as litigation cost.
Hence, it is
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O r d e r e d
that the complaint be allowed on contest with cost. The Ops shall pay either severally or jointly an amount of Rs. 2, 32,900=00 in total towards the cost of the potato packets within a period of 45 days from the date of passing of this judgment, in default, the abovementioned amount shall carry penal interest @10% per annum for the default period. The OPs are further directed to pay compensation either jointly or severally to the tune of Rs. 15,000/- in total i.e. Rs. 5,000/- to each of the complainants and litigation cost of Rs. 2,000/- in total to the complainants within 45 days from the date of passing of this judgment, in default, complainants will be at liberty to put this decree into execution as per provisions of law. With the abovementioned observation the complaint is thus disposed of accordingly.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
(Silpi Majumder) Member
D.C.D.R.F., Burdwan
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