Dt. 16.10.2015
JAGANNATH BAG, MEMBER
The present appeal is directed against the Order dated 26.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan, in DF Case No. 70 of 2012, whereby the complaint was allowed on contest with cost.
The complaint case , in brief , was as follows:
The Complainants (1-4) kept / stored 437 packets of potato 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 his source of livelihood. They promised to pay the cold storage charges to the OPs, at the time of taking delivery of the potato. The Complainant went to the OPs for taking delivery of the potatoes in the 3rd week of November 2011, the OP assured to deliver the potato later on . The Complainants thereafter went in the first week of December 2011 . They were told that the same would be delivered in the 4th week of December 2011. When the Complainants again went to the OPs in the first week of January 2012 they were told that as per notice dated 27.12.2011, issued by the Additional District Magistrate (LA) Burdwan , the potato which was lying in the cold storage of the OPs would be supplied to school for midday meal purpose and in lieu of that the Complainants would get the cost of potato. In the first week of January, 2012 , the Complainant again approached the OPs and asked for payment of the cost of the potato, the OPs refused to pay the cost of potato and also refused to deliver the potato which was kept by the Complainants in the cold storage of the OPs. The OPs neither delivered the potato nor paid the cost of the potato as per market price which was tantamount to deficiency in service and unfair trade practice on the part of the OPs. The Complainants having common cause of action joined in a single complaint and claimed refund of cost of 21,850 Kg Potato @ 6 per Kg. i.e., Rs.1,31,100/- and compensation of Rs. 1,00,000/- for mental pain , agony and harassment and Rs. 20,000/- each as litigation cost.
The complaint has been contested by the OPs by filing W.V wherein the allegations have been denied. It was stated that the Complainants were not consumers. It has been contended that in the year 2011 due to heavy production of potato , the cost of potato was very low and most of the cultivators in the surrounding area did not book time schedule for taking delivery of the potato though the period for the storage was fixed up to 15.11.2011. For the sake of the cultivators the Govt. by publishing the Gazette Notification extended the period till 05.12.2011. The gist of the notification was put up in the notice board of the cold storage and requests were made through mike announcement for taking delivery of the potato. The Complainants did not turn up to take delivery of their potato. The OPs had no other alternative but to place potato outside the cold storage premises . The Complainants paid no cold storage charge. The OPs denied that the entire stock of potato of the cold storage was requisitioned for supply to primary and upper primary schools for midday meal purpose. There was no unfair trade practice or deficiency in service on the part of the OPs. Accordingly, the complaint was liable to be dismissed.
Ld. Forum below after having heard both parties and having perused all material facts, as on record, observed that the Complainants were consumers since they by means of self employment stored the potato for earning their livelihood. The OPs did not specifically state how much potato was supplied to the schools and that there was no letter or correspondence with the Complainants asking them to take delivery of their stock of potato . Ld. Forum also observed that though OPs quoted the rate of potato as Re.1/- per kg , the price of potato per kg was quoted as Rs. 4.50 per kg as confirmed by the Department of Agriculture. The total cost of the rental charge of 100 packets was determined as being Rs. 53.75/- per packet and as the Complainants were liable to pay rental charge during delivery of the potato packets, after deduction from the cost of 100 potato packets , the amount will be Rs. 17,125/- . Complainant No.1 was found to be entitled to get refund of Rs. Rs. 17,125 /- , the Complainant No.2 was entitled to get Rs. 20,721/- ,and the Complainant No.3 was entitled to get refund of Rs. 25,003/- and the Complainant No.4 entitled to get refund of Rs. 11,988/- . Accordingly, the Ld. Forum below allowed the complaint on contest with direction upon the OPs to pay either severally or jointly an amount of Rs.74,837/- towards the cost of the potato packets within 45 days from the date of order, in default, the penal interest @ 10% p.a. to be paid. OPs were further directed to pay compensation of Rs.20,000/- @ Rs.5,000/- to each of the Complainants and litigation cost of Rs.4,000/-.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the OPs have come up before this Commission with prayer for direction to set aside the impugned order .
The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint , the W.V. , evidence on affidavit by the Complainant , questionnaire put by the OPs and replies thereto filed by the Complainant and other documents including copy of Memo. No. 825 (31) /FS dated 27.12.2011 of the Additional District Magistrate , Burdwan.
Ld. Advocates appearing for both the Appellant and the Respondents have been heard.
Ld. Advocate appearing for the Appellants submitted that the Complainants are not consumers as they traded in potato and with a commercial purpose stored the potato for profit. It was the responsibility of the Respondents /Complainants to take delivery of the potato within the stipulated period but they failed to do so even within the extended period as notified by the Govt i.e., 05.12.2011 . There was no evidence showing that the Respondent/Complainant approached or asked the OPs for delivery of potato. It was rather for low price of the potato that the Complainants did not come forward to take delivery of their potato which compelled the OP to remove the unclaimed stock of potato. The OPs/Appellant had to undertake cleaning , repairing and maintenance work in the cold storage as per prevailing rules and practice so that necessary arrangement for preservation of potato for the next storage season could be made in the interest of the potato cultivators . Ld. Forum below wrongly held that the OPs did not deliver the potato inspite of request of the Respondents. There was no deficiency in service or unfair trade practice on the part of the OPs.
Ld. Advocate appearing for the Respondents submitted that the Respondents repeatedly approached the Appellant/OPs for delivery of their stock of potato on several occasion but the OPs refused to deliver the same on various pleas and lastly in view of notice of the Additional District Magistrate , Burdwan dated 27.12.2011 that the potato lying in the cold storage would be supplied for midday meal purpose. Ultimately, the OP neither delivered the potato nor paid the cost which was a deficiency in service. The impugned order passed by the Ld. Forum below has taken into consideration all material facts and decided with direction upon the OPs to pay compensation and cost.
The point for consideration is whether the impugned order suffers from material irregularity or jurisdictional error.
Decision with Reasons :
There is no dispute that the Complainants with the purpose of storing 437 packets of potato in the cold storage of the OPs booked storage space and the OPs allowed on certain terms and condition. Receipts have been issued on behalf of the OP Appellants showing that the agricultural produce was accepted for storage. Ld. Forum below referring to the letter No. 825 (31) / FS dated 27.12.2011 of the additional District Magistrate, Burdwan observed that the potato lying in the cold storage of the OP/Appellant would be distributed to Primary and Upper Primary Schools for the purpose of midday meal. At the same time it was observed how much quantity was actually supplied to the schools and how much was left with the cold storage were not recorded or communicated to the Respondent / Complainants in any manner ie., through any letter or through written communication. On the contrary it has been admitted that as the Respondent /Complainant did not take delivery of their potato even within the extended period i.e., 05.12.2011 , they preferred to place the potato outside the premises of the cold storage , mainly for cleaning , repairing and maintenance of the cold storage. Indeed there was no notice or intimation about the step to be taken by the OP/Appellant in regard to the disposal of the potato of the Respondent / Complainants by sale or otherwise.
Ld. Advocate appearing for the Respondents/Complainants rightly asserted that it was incumbent upon the Appellants to send a notice in advance to the Respondents/Complainants intimating about the desperate act of the Appellants to dispose of the stock of potato in such manner as was detrimental to the interest of the Respondent/Complainant. Admittedly, the Appellants threw away the unclaimed stock of potatoes of the Respondents /Complainants (Paragraph-10 of memorandum of appeal). Such act on the part of the Appellants was no doubt a deficiency in service . Ld. Forum below dealt with the entire matter in a reasoned manner and concluded that the Appellants were liable to pay compensation to the Respondents /Complainants after due consideration of the fact that the rental charges not being paid by the Respondents / Complainants would have to be adjusted against the total value of the stock of potato of the Respondents/Complainants at prevailing market price. We find no reason to interfere with the order of the Ld. Forum below . In the result , the appeal does not succeed. Hence.
Ordered
That the appeal be and the same is dismissed on contest. The impugned order is confirmed. There shall be no separate order as to cost.
