DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

DF Case No 99 of 2013

Date of filing:  29.4.2013                                                                          Date of disposal: 26.5.2014

Complainant: 1. Khudiram Mondal, Village: Mokra, Post Office: Bohar, District: Burdwan.

                        2. Ujjal Mondal, Village: Mokra, Post Office: Bohar, District: Burdwan.

-VERSUS-

Opposite Party: 1.     Khalishpur Cold Storage P. Ltd., Vill. & P.O. Khalishpur, District: Burdwan, represented by its Director.

                              2.   Khalishpur Cold Storage P. Ltd., Vill. & P.O. Khalishpur, District: Burdwan, represented by its Manager.

 Present :  Hon’ble President: Sri Udayan Mukhopadhyay

     Hon’ble Member :  Smt. Silpi Majumder

                  Hon’ble Member :  Sri Durga Sankar Das

Appeared for the Complainant:     Ld. Advocate, Subrata Ghosh.

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 of the Ops at the time of taking delivery of potatoes. The complainants went to take delivery of the potatoes in the first week of December 2011. The OPs initially gave assurance of delivery and later on they took plea of non-traceability. Thereafter they failed to give delivery in the second week of December 2011 also. The Ops again informed the complainants that the potatoes were not readily available and assured the complainant that they would find out soon and assured that the same will be delivered in the 4^th week of December 2011. In the meantime Additional

1

District Magistrate (LA), Office of the District Magistrate, Burdwan (Food Section), Govt. of West Bengal through their notice bearing memo. No. 825(31)/FS, dated 27.12.2011 informed the mayor of Asansol Municipal Corporation, Chairman of Burdwan/Guskara/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 said notice. When the complainants went to take delivery of the potatoes the Ops refused to deliver the same on the plea that in view of the notice dated 27.12.2011 issued by the Additional District Magistrate (LA), Burdwan the potatoes which are lying in the cold storage of the Ops would be supplied for mid-day meal purpose and in lieu of that the complainants would the cost of the potatoes. In the first week of January 2012 the complainants again 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 same which were kept by the complainants in the cold storage of the Ops. The Ops never delivered the potatoes nor paid the cost of the potatoes at the market price prevailing at that time till this date which tantamount to deficiency in service and unfair trade practice on the part of the Ops. The complainants claimed relief as under:-

a. Refund of cost of 12600 kg potatoes @Rs. 6/- per Kg. i.e. Rs. 75,600=00,

b. Rs. 30,000=00 each as compensation towards mental pain, agony and harassment, and

c. Rs. 10,000=00 each as litigation cost.

In the schedule below name of the holder of the Bond is quoted below:

2

The complainants have submitted documents like Xerox copy of Bond of depositing potatoes in the cold storage.

            The OPs in the written version have denied the allegations. OP has further stated that this is not a consumer dispute as envisaged in Section 2(1)(d) of the C.P. Act 1986. The OPs have further stated that in the year 2011 due to heavy production of the potato the cost of the potato was very low. Most of the cultivators in the surrounding area did not book time schedule for taking delivery of the potatoes. The Government for the sake of the cultivators by publishing gazette notification extended the period till 05.12.2011. The gist of the said notification was hanged of the notice board of the cold storage apart from that several requests were made through announce in mike in the surrounding village. But during that period as complainants did not turn up for taking delivery of the potatoes. This OP has no other alternative but to place potatoes outside the cold storage premises. In this respect the OPs beg to submit that for the carelessness on the part of the complainants for taking delivery of their potatoes the system and internal maintenance required for next season storage would be hampered if the potatoes be preserved furthermore. Moreover for the next season storage would be hampered and potatoes of several cultivator of surrounding area may be got damage in the next year which will be preserved place in the cold storage. The complainants have no locus standi to file the case as consumer because none of them has paid the cold storage charge till date. On the other hand, they have refused to take delivery of their potato not only in the schedule time but also don’t bother to pay the cold storage charge. In this respect the Ops beg top submit that at that time the cost of potato was Rs. 1/- per Kg. and for proving the same complainants crave leave to file separate application. A report to that effect has been published in the Ananda Bazar Patrika, Burdwan part page 3 on 17.4.2013. The OPs strongly denied that all the potatoes so storage in that time was requisitioned for the supplying the same to primary & Upper primary Schools for the mid day meal purpose. The OPs put the complainants to prove the same with documentary evidence. In this regard the Ops submit the SDO, Kalna-1 has a requisition of nine bag of potato from the present OPs and they have supplied the same. Accordingly, there is no unfair trade practice and deficiency in service on the part of the Ops. and prayed for dismissing the complaint treating the same as vexatious complaint.

3

Decision with reasons:

On compilation of statements along with records it is seen that complainants have deposited 252 packets of potato weighting 12600 Kgs. in the cold storage of OPs as per serial no. of Bond 2649, 4719, 7380 & 7381, cost of which as claimed by the complainant is Rs. 75,600=00 @Rs. 6/- per Kg. It is stated by the complainant that potatoes were not given delivery by the OPs in spite of representation to the OPs in the month of December 2011. The complainant have also given reference one letter of Additional District Magistrate (LA), Burdwan bearing memo. No. 825(31)/FS, dated 27.12.2011 that the potatoes remaining in the cold storage would be distributed to Primary and Upper primary Schools for mid-day meals. In the written version OPs have not cited any document how much amount of potatoes have been supplied to the schools but stated that SDO, kalna-1 gave a requisition of nine bags of potato only. But OPs have not specifically stated what was the fate of the said potatoes. During argument OPs have further stated that there was no letter or correspondence with the complainant by the OPs asking the complainants to take delivery but only miking was done which is also without any proof. Had it been so that the complainant did not take delivery of the potatoes due to low cost of the same there should be specific letter addressing to the complainants to take delivery of potatoes which was not done by the OPs. the rate of potato as quoted by OPs is Rs. 1/- per Kg. for which it is alleged that the complainants did not take delivery of the potatoes but the rate of potatoes as quoted by Assistant Agricultural Marketing Officer, Kalna sub-division that in the month of December 2011 the rate of potato was Rs. 4.50 per Kg. and not Rs. 1/- per Kg. as stated by the Ops. So here is the laches on the part of the OPs. The complainants so far have not paid the cold storage charges. In any of the statements there is no mention what is the actual cold storage charge of the said potatoes which is actually due to the OPs by the complainants and to be paid by the complainants. In this context this Ld. Forum gathered knowledge in connection with another case (DF Case No. 96/2013) which was pending before this Ld. Forum, that during that year the cold storage rent was of Rs. 53.75/- per packet.

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

4

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 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 (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) the 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 130 packet potatoes will be Rs. 29,250=00. The total cost of the rental charge of 130 packets is of Rs. 6987.50/- 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 130 potato packets the amount will be Rs. 22,262.50. Therefore the complainant no. 1 is entitled to get refund of Rs. 22,263=00. Similarly in respect of complainant no. 2 cost of 122 packets will be of Rs. 27,450=00. The total cost of the rental charge of 122 packets is of Rs. 6,557.50. As it was the duty of the complainants for making payment of rental charge during delivery of the potato packets hence after deduction form the cost of the 122 potato packets the amount will be Rs. 20,892.50. Therefore the complainant no. 2 is entitled to get refund of Rs. 20,893=00. Therefore the complainants are entitled to get Rs. 43,156/- 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. 75,600/- towards the cost of 12600 kgs 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

5

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. 30,000/- 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

O r d e r e d

 the complaint be allowed on contest  with cost. The Ops shall pay either severally or jointly an amount of Rs. 43,156/- 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. 10,000/- in total i.e.

6

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      

           DCDRF, Burdwan

                    (Durga Sankar Das)

                             Member

                      DCDRF, Burdwan

                                                                   (Silpi Majumder)                       (Durga Sankar Das)

                                                                            Member                                        Member    

                                                                   DCDRF, Burdwan                          DCDRF, Burdwan

                                                                                                            7