F.A.No.385/2010 against  C.C.No.18/2009, DISTRICT FORUM, VIZIANAGARAM

Between

Sri Ganesh Enterprises,

Prop: Sri Puripanda Visweswara Rao,

S/o.Late Sambasiva Rao, Hindu aged 62 years,

Residing at Kota Street, Salur Village and Mandal,

Vizianagaram District .                                                                                         …Appellant/

                                                                                                                                Complainant. 

        And

M/s.Narayana Cold Storage,

Rep. by it’s Manager, Situated at S.No.64/2,

NH.43, Mutcherlavalasa Village, Ramabhadrapuram Mandal,

Vizianagaram District.                                                                                         Respondent/

                                                                                                                             Opposite Party

Counsel for the Appellant      :  Dr.P.P.Ramayya

Counsel for the Respondent  :  M/s.V.Gouri Sankara Rao.

QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

AND

SRI R.LAKSHMINARASIMHA RAO, MEMBER

THURSDAY, THE TWENTY FIRST DAY OF JULY,

TWO THOUSAND ELEVEN.

Oral Order (Per  Hon’ble Justice Sri D.Appa Rao, President )
                                                          *****

This is an appeal preferred by the complainant against the order granting inadequate amount towards damage to tamarind kept in cold storage.

The case of the complainant in brief is that he kept 45 quintals of tamarind in the cold storage of the opposite party on 15-3-2006 worth Rs.60,750/-.  Due to improper maintenance, the tamarind was spoiled.  Therefore, he addressed two letters demanding the opposite party to reimburse the amount but he did not choose to give any reply.  On that, the complainant issued a legal notice followed by the complaint claiming Rs.60,750/- towards cost of tamarind with interest at 24% p.a. together with compensation of Rs.25,000/- and costs of Rs.2,000/-.

The opposite party resisted the case.  While admitting that the complainant had kept tamarind in the cold storage maintained by it, the allegation that the tamarind was damaged and dis-coloured was denied.  In fact, it took utmost care and caution while storing the stocks in its cold storage by maintaining the requisite temperature.  Had it not maintained with utmost care the entire stocks i.e about 450 lorries of stock could have been spoiled.  It submitted that the complainant was a litigant and his name was black listed and he filed the complaint to harass him and therefore prayed for dismissal of the complaint.

The complainant in proof of his case filed his affidavit evidence and got marked Exs.A1 to A7 (no documents marked in the order but in the record of the District Forum, along with written arguments of complainant and opposite party, Exs.A1 to A7 are numbered) while the affidavit of the Manager of the cold storage is filed and no documents were marked.

The District Forum after considering the evidence placed on record opined that the complainant had sustained loss due to damage of tamarind kept in the cold storage which it quantified at Rs.25,000/- and directed the opposite party to pay the said amount  within two months failing which it awarded interest at 12% p.a. from the date of complaint till realization together with costs of Rs.1500/-.

Aggrieved by the said order, the complainant preferred this appeal contending that the amount awarded by the District Forum was too low.  In fact at the time when the stock was entrusted to the cold storage, the value of the tamarind was Rs.60,750/-.

The point that arises for consideration is whether the tamarind that was kept in the cold storage of the respondent was spoiled and if so what is its price?

At the outset we may state that the respondent, cold storage filed an appeal, S.R.989/2010 which was dismissed by order dated 22-3-2010. 

It is not in dispute that the complainant has entrusted 45 quintals of tamarind to the respondent for storage in its cold storage on 15-3-2006.  The averment that the tamarind was damaged though was disputed by the respondent, evidently he  could not prove it as did not give any reply when protested by letters of the complainant, Exs.A4, A5 and A6.  The respondent did not direct the complainant  for production of the tamarind in order to find out whether the tamarind that was kept in the cold storage was spoiled. 

The only point that can be considered in this appeal is what is the amount that could be awarded to the complainant for damage caused to 45 quintals of tamarind?

During the course of appeal, the complainant has filed documents evidencing the price of the tamarind as on the date when it was entrusted to the respondent and those documents are assigned numbers Exs.A8 to A11.  The receipt Ex.A9 shows the cost of tamarind per quintal is Rs.1029/- and cost of 45 quintals of tamarind would come to Rs.46,305/-.  Therefore, awarding Rs.25,000/- by the District Forum is without any basis, and in view of the documentary evidence, it can be safely inferred that the cost of  45 quintals of tamarind was Rs.46,305/-.  Therefore, the complainant is entitled to the said sum.

In the result this appeal is allowed in part modifying the order of the District Forum by enhancing the cost of tamarind from 25,000/- to Rs.46,305/- to be paid with interest at 9% p.a. from the date of appeal i.e. 18-3-2010 till the date of payment while confirming the costs awarded by the District Forum and directing the respondent to pay the same within four weeks from the date of receipt of this order.  

Sd/-PRESIDENT.

Sd/-MEMBER.   

JM                                                                                                     Dt.21-07-2011