DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 278 of 29-06-2010

Decided on : 25-03-2011

Naib Singh S/o Harnek Singh, R/o Village Nathpura, Tehsil & District Bathinda.

.... Complainant

Versus

Mohabbat Cold Storage Pvt. Ltd., Balianwali Road, Lehra Mohabat, Tehsil & District Bathinda through its Prop./Partner/Director/Managing Director

.... Opposite party

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Lachman Kumar, counsel for the complainant

For the Opposite parties : Sh. H R Chopra, counsel for opposite party.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The opposite party is running a cold store and used to store the goods of its various customers against consideration. The complainant also stored heavy quantity of potatoes in the cold store of the opposite party and paid Rs. 25,000/-. The complainant stored following potatoes with the opposite party :-

Receipt No./Date Lot No. No. of Bags

i) Seed

1584/20-3-2009 484 35

1484/17-3-2009 384 60

1778/26-3-2009 678 120

1608/21-3-2009 508 60

1820/28-3-2009 720 60

1800/27-3-2009 700 60 = 395

ii) Goli

1519/20-3-2009 419 16

1489/17-3-2009 389 31

1585/20-3-2009 485 25

1488/17-3-2009 388 29

1465/15-3-2009 365 60 = 161

iii) Ration

1520/20-3-2009 420 44

1508/15-3-2009 408 62

1799/27-3-2009 699 299

1802/27-3-2009 702 150

1336/11-3-2009 236 60

1583/20-3-2009 483 60

1645/22-3-2009 545 60

1573/20-3-2009 473 180

1606/21-3-2009 507 180 = 996

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Grand Total : 1552 Bags

The weight of each bag was 50 Kg and the rate of bag of seed was Rs. 1100/- per bag. The rate of Goli bag was Rs. 450/- per bag and the rate of Ration Bag was Rs. 700/- per bag. In the month of July, 2009 onwards, the complainant started lifting his goods from the store of the opposite party. The complainant further alleged that the opposite party has mis-utilized and misappropriated the goods of the complainant without consent and delivered short bags of goods. The opposite party has delivered 27 bags short out of lot No. 386 (60 Bags), 18 Bags short out of lot No. 678 (120 Bags), 1 Bag short out of lot No. 419 (16 Bags) whereas 4 Bags short out of lot No. 420 (44 Bags) and 22 Bags short out of lot No. 699 (200 Bags). The opposite party did not deliver the remaining lots of potatoes stored by the complainant in its store despite repeated requests and reminders and even after legal notice dated 25-11-2009 of the complainant. The driver of the complainant and one Jagsir Singh, son of Ikattar Singh R/o Village Nathpura, a close relative of the complainant used to accompany the complainant while storing and lifting the goods. The opposite party out of greed had delivered the goods of the complainant to some other person for wrongful gain. Hence, this complaint.

2. The opposite party filed written reply and has taken legal objection that complaint is bad for non-joinder and mis-joinder of necessary parties and the present complaint is barred under the principle of res-judicata. The complainant has earlier also filed a complaint on the same facts which was withdrawn by him vide order dated 23-6-2010 on the ground of some technical defect. On merits, it has been pleaded that a Cold Store is being run under the name and style of Mohabbat Cold Storage Pvt. Ltd., by the opposite party. The complainant has paid Rs. 25,000/- on 3-11-2009 as part payment for making payment of rent of the potatoes. The complainant has stored different qualities of potatoes i.e. Ration, Goli and Seed in the cold store. He has stored 16 Bags of Goli vide lot No. 419/16, 200 Bags of Ration vide lot No. 699/200, 44 Bags of Ration vide lot No. 420/44, 120 Bags of seed vide lot No. 678/120, 35 Bags of seed vide lot No. 484/35, 60 Bags of Seed vide lot No. 384/35. It has been denied that vide receipt No. 106 dated 11-3-2009, the complainant has stored 180 Bags of Ration but vide lot No. 506/180 dated 11-3-2009, the complainant has stored 180 Bags of Ration. But, in the receipt, the lot number was wrongly written as 507/180 whereas infact the lot Number was 506/180. Against lot No. 507/180 there was 500 Bags stored of another party named as Sarwan Singh C/o NTC. It has also been denied that 31 Bags of Goli was stored vide lot No. 389/31. 29 Bags of Goli was stored vide lot 388/29 and 25 Bags of Goli was stored vide lot No. 485/25. Besides this, the complainant has also stored more Bags of different qualities of potatoes in the store about which the complainant has not mentioned in the complaint. It has been pleaded that it is correct that weight of each Bag of potato is 50 Kg but it is incorrect that rate of Seed Bag was Rs. 1100/- per Bag, rate of Goli Bag was Rs. 450/- per Bag, rate of Ration Bag was Rs. 700/- per Bag. It has been denied that the opposite party has mis-utilized and mis-appropriated the goods of the complainant and delivered any short delivery of goods. It has been denied that complainant that there was any shortage of any Bag or missing of any Bag of the complainant in the store which was stored by the complainant. The complainant has taken the delivery of 180 Bags which he has stored vide lot No. 506/180 dated 11-3-2009, 31 Bags which he has stored vide lot No. 389/31 dated 17-3-2009, 29 Bags vide lot No. 388/29 dated 17-3-2009, 25 Bags vide lot No. 485/25 dated 20-03-2009. Infact, the complainant has stored approximately 1735 Bags and has taken delivery of all the products except 1 Bag out of lot No. 419/16, 22 Bags out of lot No. 699/200, 4 Bags out of lot No. 420/44, 18 Bags out of lot No. 678/120, 27 Bags out of lot No. 384/60. 4 Bags out of lot No. 677/60. The complainant is liable to pay rent of Rs. 78,075/- whereas on 3-11-2009, he has only made the payment of Rs. 25,000/- as part payment towards due rent and has also lifted some of his Bags and checked his remaining Bags. The opposite party has also issued notice to the complainant to lift his product and make payment of due rent but the complainant neither paid the due rent nor lifted the Bags. The opposite party is liable to keep the stored product/potatoes upto 30 Nov., and after this date, the opposite party is within his right to dispose of the remaining stored product because the store is being run from Feb to 30^th Nov., every year. After 30^th November, the product stored also become useless and inhuman for consumption or for any use. When the complainant inspite of service of notice and inspite of contacting the complainant on phone did not lift his product uptil 30^th Nov., and did not make payment of due rent to the opposite party, the opposite party thrown out the remaining useless and valueless product of the complainant in the month of December, 2009 and cleared his store. The fresh crop of potatoes also arrived in the market in the month of Oct., 2009 and prize of the potatoes was also crashed, so old crop has left no value at that time. Further sowing season was also closed, so the remaining stored product was not lifted by the complainant intentionally in order to avoid making payment of the due rent to the opposite party.

3. Parties have led their evidence in support of their respective pleadings.

4. Arguments heard and written submissions submitted by the parties perused.

5. The learned counsel for the complainant submitted that he has stored 1552 bags of potatoes in the cold store of the opposite party the detail of which has been mentioned above. The weight of each bag was 50 Kg and the rate of seed bag was Rs. 1100/- per bag, rate of goli bag was Rs. 450/- per bag and the rate of ration bag was Rs. 700/- per bag. From the month of July, 2009 onwards, the complainant started lifting his goods lying stores in the cold storage. The complainant has paid Rs. 25,000/- to the opposite party for storing his potatoes. The complainant alleged that the opposite party has mis-utilized and misappropriated the goods of the complainant without his consent and delivered short delivery of goods. The opposite party has delivered 27 bags short out of lot No. 386 (60 Bags), 18 Bags short out of lot No. 678 (120 Bags), 1 Bag short out of lot No. 419 (16 Bags) whereas 4 Bags short out of lot No. 420 (44 Bags) and 22 Bags short out of lot No. 699 (200 Bags). The complainant had repeatedly requested the opposite party to deliver his remaining lots of potatoes stored by him in the cold store of the opposite party. He has also served a legal notice dated 25-11-2009.

6. The learned counsel for the opposite party submitted that complaint is barred under the principle of res-judicata as the complainant has earlier filed a complaint on the same facts which was withdrawn by him vide order dated 23-06-2010 on the ground of some technical defects that the complainant has not disclosed which are technical defects in that complaint. The complainant has neither moved application for withdrawing the said complaint nor asked for grant of permission for fresh complaint. The complainant has suo-moto withdrawn that compliant without obtaining the consent from the opposite party for withdrawing the said complaint and for filing the fresh complaint.

   The learned counsel for the opposite party submitted that complainant had paid Rs. 25,000/- to the opposite party on 3-11-2009 as part payment for making payment of rent of the potatoes stored by him. The complainant has stored different qualities of potatoes i.e. Ration, Goli and Seed in the cold store, but not as per detail given by him in his complaint. The complainant has stored different qualities of potatoes i.e. Ration, Goli and Seed in the cold store. He has stored 16 Bags of Goli vide lot No. 419/16, 200 Bags of Ration vide lot No. 699/200, 44 Bags of Ration vide lot No. 420/44, 120 Bags of seed vide lot No. 678/120, 35 Bags of seed vide lot No. 484/35, 60 Bags of Seed vide lot No. 384/35. It has been denied that vide receipt No. 106 dated 11-3-2009, the complainant has stored 180 Bags of Ration but vide lot No. 506/180 dated 11-3-2009, the complainant has stored 180 Bags of Ration. But, in the receipt, the lot number was wrongly written as 507/180 whereas infact the lot Number was 506/180. Against lot No. 507/180 there was 500 Bags stored of another party named as Sarwan Singh C/o NTC. It has also been denied that 31 Bags of Goli was stored vide lot No. 389/31. 29 Bags of Goli was stored vide lot 388/29 and 25 Bags of Goli was stored vide lot No. 485/25. Besides this, the complainant has also stored more Bags of different qualities of potatoes in the store about which the complainant has not mentioned in the complaint. In total, the complainant has stored 1735 bags of potatoes in the store. The learned counsel for the opposite party submitted that it is correct that weight of each Bag of potato is 50 Kg but it is incorrect that rate of Seed Bag was Rs. 1100/- per Bag, rate of Goli Bag was Rs. 450/- per Bag, rate of Ration Bag was Rs. 700/- per Bag as alleged by the complainant. The complainant has taken the delivery of 180 Bags which he has stored vide lot No. 506/180 dated 11-3-2009, 31 Bags which he has stored vide lot No. 389/31 dated 17-3-2009, 29 Bags vide lot No. 388/29 dated 17-3-2009, 25 Bags vide lot No. 485/25 dated 20-03-2009. Infact, the complainant has stored approximately 1735 Bags and has taken delivery of all the products except 1 Bag our of lot No. 419/16, 22 Bags out of lot No. 699/200, 4 Bags out of lot No. 420/44, 18 Bags out of lot No. 678/120, 27 Bags out of lot No. 384/60. 4 Bags out of lot No. 677/60. The complainant is liable to pay rent of Rs. 78,075/- whereas on 3-11-2009, he has only made the payment of Rs. 25,000/- as part payment towards due rent and has also lifted some of his Bags and checked his remaining Bags. The opposite party has also issued notice to the complainant to lift his product and make payment of due rent. Despite receipt of notice, the complainant did not pay the due rent to the opposite party and also did not lift his product from the store. The employees of the opposite party contacted the complainant on phone and also requested him to lift his products and to make payment of due rent. The opposite party was liable to keep the stored product/potatoes upto 30^th Nov., and after 30^th Nov., the opposite party was within its right to dispose of the remaining stored product as per their agreement between the complainant and the opposite party. The store is being run from Feb., to 30^th Nov., every year. After 30^th Nov., the product stored also become useless and inhuman for consumption or for any use. When the complainant did not approach the opposite party to pick up his product till 30^th Nov., despite service of notice and phone calls, the opposite party thrown out the remaining product of the complainant in the month of December, 2009 and cleared his store. The fresh bumper crop of potatoes also arrived in the market in the month of October, 2009 and prize of the potatoes was also crashed, so old crop has left on value at that time. Since the sowing season was also closed, the remaining stored product was not lifted by the complainant intentionally in order to avoid making payment of the due rent. The complainant has neither made any request nor sent any reminder nor served any notice dated 25-11-2009.

7. The opposite party has raised objection that complaint is barred to file the present complaint as he withdrew his earlier complaint filed before this Forum on the same fact and this Forum has not granted permission to him to file a fresh complaint. On 23-06-2010, learned counsel for the complainant recorded the following statement :-

   “Stated that I do not want to proceed with this complaint at the stage due to some technical defects. I may be allowed to withdraw the complaint with permission to file fresh.”

   This Forum in view of the aforesaid statement of the learned counsel for the complainant, passed the below mentioned order :-

   “In view the above statement made by counsel for the complainant, this complaint is dismissed as withdrawn with permission to file fresh one if law permits. Parties are left to bear their own costs. File be consigned.”

   Thus, the objection of the opposite party is not tenable in view of the above said order of this Forum.

8. The complainant has produced on file various receipts issued by the opposite party with regard to the storage of potatoes from Ex. C-2 to Ex. C-20. The opposite party has denied that the complainant has sent any legal notice to it, but the perusal of record shows that complainant has sent legal notice Ex. C-25 through registered post vide receipt No. RLA/5814 dated 25-11-2009 Ex. C-24. Hence, the receipt falsify the version of the opposite party.

   The complainant has mentioned in his complaint that he has stored 1552 bags in the store of the opposite party but the opposite party in his reply has pleaded that complainant has stored approximately 1735 bags in his store. The complainant in para No. 5 of his complaint, has given details of bag received short from the opposite party. If these short bags are calculated, the total of short bags comes to 76. In reply to the complaint, the opposite party has also given the details of almost same bags. The opposite party has submitted that complainant is defaulter of Rs. 78,075/- being rent which is due towards him whereas on 3^rd November, 2009, the complainant has only made the payment of Rs. 25,000/- as part payment towards due rent and has also lifted some of his bags on 3^rd Nov., 2009 and checked the remaining bags. The opposite party has also issued notice to the complainant through UPC to lift his product and to make payment of due rent but despite receipt of notice, the complainant did not give the due rent and also did not lift his product from the store. When the complainant did not lift his product till 30-11-2009, the opposite party has disposed of the remaining stored product. To corroborate this version, the opposite party has placed on file Ex. R-6 & Ex. R-7. The opposite party has also placed on file a statement Ex. R-14 which shows that the complainant has taken delivery of few bags on different dates. As per page No. 9 at Sr. No. 1526 to 1532 the complainant has taken full delivery of the product which has been stored by him. Similarly as per page No. 15 Sr. No. 1606 & 1608 the complainant has taken delivery of full product as stored by him. Against few entires, it has been shown that complainant has not lifted any stock.

9. It is the admitted fact of the opposite party that it has thrown away the potatoes of the complainant as the opposite party is liable to keep the stored product/potatoes upto 30^th Nov., and after this date, the opposite party is within his right to dispose of the remaining stored product. For this, the opposite party has relied upon Terms and Conditions Ex. R-5 and Ex. R-13. Ex. R-5 which pertains to Harnam Cold Store, Rampura Phul and Ex. R-13 also does not reveal that it in any way pertains to the opposite party. The complainant is not bound by the said terms and conditions. The opposite party has not placed on record any terms and conditions, if any, supplied to the complainant at the time of storage of product. The contract of the complainant is an individual contract which has been signed between the complainant and the opposite party. Hence, the opposite party has failed to prove on record that at the time of storage of potatoes by the complainant in the cold storage of the opposite party, the complainant was furnished with the terms and condition that “Stock should be cleared upto 30^th October.” The opposite party has also failed to prove that before the stocks of potatoes of the complainant was thrown away, he was intimated telephonically or any notice was issued to him in this regard. Further the opposite party has submitted that an amount of Rs. 78,075/- was due from the complainant as rent whereas he has paid only Rs. 25,000/-. Since no agreement is placed on file, it cannot be ascertained that what amount of rent was mutually agreed between the parties. Hence, the opposite party is not entitled to recover the amount of rent, if any, from the complainant.

10. Keeping in view the facts, circumstances and the record placed on file, this Forum is of the considered view that there is deficiency in service on the part of the opposite party as he disposed off the stock of potatoes of the complainant without his consent. The opposite party has admitted that approximately 76 bags of potatoes have been thrown away. The complainant has quoted the rates of different bags of different qualities but the opposite party has denied the rates quoted by the complainant. Moreover, the opposite party has failed to give their rates on the file. In the absence of any rate list on the part of the opposite party, it would meet the ends of justice if an amount of Rs. 50,000/- in lump sum is allowed to the complainant as compensation.

11. In view of what has been discussed above, this complaint is accepted with Rs. 5,000/- as cost. The opposite party is directed to pay Rs. 50,000/- as compensation and Rs. 5,000/- as cost to the complainant, within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the amount of compensation i.e. 50,000/- would carry interest @ 9 p.a. from the date of institution of complaint i.e. 29-06-2010 till realisation.

    A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

25-03-2011 (Vikramjit Kaur Soni)

President

(Amarjeet Paul) (Dr. Phulinder Preet)

Member Member

(Amarjeet Paul) Member