This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, in short it is stated by the complainant that on 19/09/2017 he has stored 819 C/R Apple being Truck No. UP-84T-8787 into Shyama Ma Cold Storage (A unit of Jyoti   Vincom Pvt. Ltd.) and removed the same cartoon of apple and lastly 380 C/R has been stored in the said above storage. It is also stated by the complainant that due to illegal motive to non delivery of any article by the aforesaid  company he is facing a huge loss amounting to Rs. 13,300/- + Rs.4,000/-  as truck fair for which the complainant filed G.D.E. vide no. 529 on 13/06/2018 at Polba P.S. and  on 15/06/2018  and the complainant sent notice through his Ld. Advocate to the aforesaid company and the company told the complainant on 28/06/2018 that they received only 20 C/R instead of 380 C/R. apple is fully damaged for which the complainant faced huge monetary loss amounting to Rs.1,00,000/- for physically and mentally loss and on 30/06/2018 the aforesaid company sent him in writing only 319 C/R storage by the complainant, so the company is responsible for damage cost.

            Complainant filed the complaint petition praying direction upon the opposite parties to pay on different heads as specifically mentioned in the prayer of the petition of the complainant including litigation cost.

            As the written version submitted on behalf of the opposite parties are under the heading “Written version of the opposite party abovenamed”, and thus, it is not at all clear whether opposite party no. 1 or opposite party no. 2 has filed the written version and as such under compelling circumstances for ends of justice we assume that said written version has been filed on behalf of both the opposite parties.

            The opposite parties had contested the case by filing written version denying all the material allegations as levelled against them.  These opposite parties submit that the complainant in the instant case is the hirer and opposite parties are the licensee. It is specifically stated by opposite party that u/s 20 (A) of the West Bengal ,the West Bengal Cold  storage (Licensing and Regulation) Act, 1966. The instant case is not maintainable as the disputes, if there be any, ought to have been referred to licensing officer, but here that law complainant did not maintain. Opposite parties alleged that on 19.9.2017 complainant came to opposite parties and offered to stored 819 cartoons of Apples in opposite parties’ cold storage and opposite parties were agreed to keep those cartoons. Opposite parties stated that the maximum storage period of apple is 6 months, but complainant did not take his cartoons within that period. Actually on 19.9.2017 the period of storage of said cartoons has been expired, but on request of complainant opposite parties kept the apples after expiry of the storage period on the express undertaking of the complainant by 30.6.2018 and it was made clear that to the hirer that under no circumstances the cold storage could be held liable for the deterioration of apples in cold storage kept deposited after the storage period. Thereafter complainant started taking delivery of apples on and from 23.10.2017 and till 28.6.2018 complainant was able to take delivery of 439 cartoons of apples by making payment of the cold storage rent for the same. It is alleged further by the opposite parties that complainant failed to take delivery of balance cartoons of apples and several letters were written by the opposite parties to the complainant. Correspondences were exchanged in between complainant and opposite parties on that score. Ultimately, opposite parties on 30.6.2018 serve a letter to complainant that auction of balance 319 cartoons apples would be held on 10.7.2018 and accordingly, on 10.7.2018 there was auction of 319 cartoons apples was held by strictly complying with the procedure laid down for the said purpose under said the Act, 1966.

            Opposite parties further allege that after adjusting the due cold storage rent and other expenses amounting to Rs. 87,000/- from the proceeds of auction a sum of Rs. 83,200/- was receivable by the complainant and said sum was tender for payment by the opposite parties, but the complainant refused to receive the payment.

            Opposite parties further states that on 9.7.2018 opposite parties received a notice u/s 91 of Cr.P.C. from Polba P.S. referring Polba Police case no. 52 of 2018 dt. 15^th June, 2018 and opposite parties came to know on 15.6.2018 that one Rabindranath Mondal claiming to the partner of complainant. Further opposite parties state that there is a deep rooted conspiracy against the opposite parties by the hirer which would be evident from the FIR relating to Polba P.S. case no. 52 of 2018 dt. 15.6.2018 and opposite parties state that complainant’s intention is to extort money from the opposite parties. Ultimately Opposite parties have prayed for dismissal of the case with exemplary costs.

            The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version. So, it is needless to discuss.

            Complainant and opposite parties filed written notes of argument. The contents of petition of complaint and written version of opposite parties including evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussion of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite parties.
2. Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding 20,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. It is to be noted that complainant in his evidence in chief has more or less focused a replica of the contents of petition of complaint. Similarly, opposite parties the affidavit in chief filed on behalf of the opposite parties also appears to be a replica of the contents of their written version.

Ld. Counsel appearing for the complainant submits that due deficiency in service coupled with unfair trade practice by the opposite parties complainant suffered a huge loss and at the same time has suffered mental pain, agony which should be compensated by the opposite parties. It is also highlighted by him the representations notices of the Opposite parties bear the evidence of their illegal activity and unfair trade practice and opposite parties without any cogent ground had refused to deliver rest 360 cartoons and cunningly has auctioned the apples of the complainant at a very low price rate causing serious loss to the complainant.

Per contra, ld. Counsel appearing for the opposite parties argued that from the very inception complainant was playing a tricky game with the opposite parties which will be evident from the conduct of the complainant and without making proper application regarding alleged dispute to the concerned licensing officer as per said Act, 1966 complainant filed the instant complaint which is not maintainable according to law. Ultimately he submits that in all fairness the instant case is liable to be dismissed with exemplary costs.

Regard being had upon the submissions of both sides and considering the material on record first of all it may be noted that it is palpably clear from the cause title of the petition of complaint and different correspondence including copy of BNA of complainant filed before this Forum, the complainant stored the apples for reselling the apples and under the definition of Consumer Protection Act, the complainant is not a consumer under the provision of Sec 2, Sub-section 7, Claus 1.

Further it may be noted that though complainant tried to colour as a person deals with the apple business for his livelihood, but as and when the complainant brought the huge quantity of apples at intervals and that is surely indicates for commercial purpose and certainly this type of business cannot come within the periphery of his livelihood.

Further it reveals that complainant is one of the partners of apple trading business and other partners are namely, Rabindranath Mondal and Md. Guddu which will be evident from the FIR lodged by Rabindranath Mondal on 15.6.2018 in Polba P.S. Case no. 52/2018 and in that FIR Rabindranath Mondal clearly has stated that he is one of the partners of apple trading business of the complainant.

In view of the above discussion it is emphatically and palpably clear that complainant has not come before this Forum in a clean hand and has suppressed many material and important facts. Further we are of the view that considering the attending facts and circumstances of the case and materials of the record which clearly indicates that complainant has not succeeded in proving his case and as such the instant case is liable to be dismissed.

            Hence,

            it is,

ordered

that the complaint case being no. 97 of 2018  be and the same is liable to be dismissed on contest with cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.