Date of Filing: 01-10-2015                                               Date of Final Order: 11-11-2016

Smt. Runa Ganguly, President-in-charge.

           The factual matrix of the case as can be gathered from the record is that the Complainants are small farmers and cultivated potato and after cultivation they stored farm product i.e. potato in cold storage for prevention of distress sale. Thereafter, the Complainants are selling it to the market with a view to getting profitable price.

          After cultivation of potato the Complainants/Farmers kept/stored in the following quantities of potato bags in the O.Ps cold storage, i.e. Silpa Himghar at Sitai, District Cooch Behar, on individual bond and at the time of stored the O.Ps verified the every potato bags and found all potato were in good conditions and thereafter they received advanced money from the Complainants/Farmers and also issued a receipt which itself depicted that the stored product for safe custody for prevention of distress sale and the O.Ps promised to the Complainants that they will render proper service towards the Complainants.

           In the month of July, 2015 the Complainants went to the Silpa Himghar at Sitai, and approached the O.Ps to take back their preserved/stored potato bags by paying the balance rent amount. But the O.Ps did not give the stored potato bags to the Complainants. Then the Complainants went regularly to the Silpa Himghar for the purpose of taking their preserve/stored potato bags by paying balance rent amount, in spite of repeated requests to the O.Ps intentionally dilly-dallying to the Complainants on the flimsy grounds of shortage of staff and sometimes passed over the matter for next month. But consequently the O.Ps did not pay any heed towards the Complainants.

             Subsequently, the Complainants came to know that the said preserved/stored potato bags were damaged badly due to negligent & deficiency on the part of O.Ps for want of proper cooling in the cold storage.

              On 11-08-2015, on behalf of the Complainants Sri Adhir Ch. Barman (Secretary, Chashi Bachaw Committee) submitted a letter to the O. P. No.2, for obtaining their preserved potato bags by paying the balance rent amount and also informed the aforesaid matter to the Assistance Director of Agriculture, Sitai Block, B.D.O., Sitai and Sitai Panchayat Samity, Sitai, for redressing of all disputes. But all efforts were in vain.

            The O.Ps make false or misleading representation to stored farm product i.e. potatoes and due to this reason the Complainants suffered irreparable loss and injury and became very depressed and trying to destroy themselves to get relief from the burden of bank loan and burden of others credit in the market. The O.Ps promised to the Complainants to return stored product but they did not take any positive steps. Therefore, there was deficiency in service adopted by the O.Ps and also they failed to keep their promise.

           It is pertinent to mention here that in the month of September, 2015 the prices of the potato per Kg. were of Rs.7.50/- in the open market.

            Due to such activities of the O.Ps the Complainants are in hard-up and facing hindrance as well as suffer irreparable loss. The Complainants also suffered from mental pain & agony and unnecessary harassments.

          Hence, the Complainants filed the present case praying for issuing a direction upon the O.Ps to return their potato amount of Rs.10/- per Kg. as per following-

            The Complainants further praying for issuing a direction upon the O.Ps to pay (i) Rs.15,000/- each as compensation for mental pain & agony and unnecessary harassment, (ii) Rs.10,000/- each for breaking promise and deficiency in service and (iii) Rs.5,000/- each towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.

           It appears that even after due service of Notices upon the O.P. No.1 i.e. Silpa Himghar at Sitai, Dist. Cooch Behar, did not appear before the Forum and accordingly this case proceeded with Ex-parte against the O.P. No.1.

           The O.P. No.2 to 10 i.e. Secretary, President, Vice President, Cashier and all the Members of Silpa Himghar at Sitai, Dist. Cooch Behar have contested the case by filing W/V denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contentions of the O.Ps are that the O.Ps establishment i.e. Silpa Himghar is guided under the separate Act, not under the C.P. Act. The O.Ps are further stated in their W/V that the Complainants preserved their potato in the Shilpa Himghar but at the time of preserving or storing the same it was detected by the O.Ps that such potato were not in good condition and the O.Ps denied to receive the same but the Complainants at their own wish and risk preserved the said potato in the Shilpa Himghar. Hence, the “Bond” in connection with the said preserved potato was not issued to the Complainants.

           The O.Ps are further contended that the potato was damaged due to natural act, hence, the O.Ps are not responsible for the same. The O.Ps informed on several times to take back the said potato but the Complainants did not take their potato and in this regard one resolution was passed by the O.Ps and such resolution was informed to the Complainants.

           It is the case of the O.Ps that the Shilpa Himghar (i.e. Sitai Illiteracy and Proverty Allevation Association) is registered under the W.B Society Registration Act, 1961 and the Complainants did not make party to the Registrar of Firms, Societies and Non-trading Co-operations.

           By putting all these, the O.Ps prayed for dismissal of the case with cost.

            In the light of facts and circumstances of the case, the following points necessarily came up for consideration.

POINTS  FOR  CONSIDERATION

1. Are the Complainants Consumers as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service by not returning the stored potato to the Complainants and are they liable in any way?
4. Whether the Complainants are entitled to get relief/reliefs as prayed for?

DECISION WITH REASONS

          We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the Ld. Agents of both parties at a length. Peruse also the Evidence on affidavit filed by the parties and original documents.

Point No.1.

           The Complainants in view to distress sell of their cultivated potato for earning money to maintain their livelihood stored the said potato to the cold storage of the O.Ps. The Complainants stored the said goods on payment of certain amount with a desire to get proper service from the O.Ps. The O.Ps issued Bond and money receipt against the stored potato and store charge respectively. Thus, the relation between the Complainants and the O.Ps so established from the record we are convinced to hold that the Complainants are the Consumers of the O.Ps as per provision u/s 2(1)(d)(ii) of C.P. Act, 1986.

Point No.2.

            The Opposite Parties are running their business by establishing Cold Storage in the name and style Shilpa Himgar, is situated in Sitai i.e. within this district and under the jurisdiction of this Forum.

            The complaint value of this case is Rs.16,25,625/- i.e. below the prescribed limit. Thus, in our view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.

          Thus, both the points are decided in favour of the Complainants.         

Point No.3 & 4.

           These points are taken up together for the sake of convenience and brevity.

            Undisputedly, the Complainants stored their cultivated potato in the cold storage of the Opposite parties.

            It is also not in dispute that the O.Ps received the same and issued bond in favour of the 34 numbers of Complainants.

          The point of the dispute is that the opposite parties did not return the stored items to the Complainants even after expiring particular time. The Complainants made several requests but all efforts were in vain.          

            Annexure “A” series go to show that the Complainant received money receipt and Bond as issued by the O.Ps. The Annexure “A” also reveal that the Complainant No.1 stored 200 bags of potato and deposited as advance amount of Rs.8,000/-, the Complainant No.2 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.3 stored 30 bags of potato and deposited as advance amount of Rs. 1,200/-, The Complainant No.4 stored 30 bags of potato and deposited as advance amount of Rs. 1,200/-, the Complainant No.5 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.6 stored 30 bags of potato and deposited as advance amount of Rs. 1,200/-, the Complainant No.7 stored 30 bags of potato and deposited as advance amount of Rs. 1,200/-, the Complainant No.8 stored 80 bags of potato and deposited as advance amount of Rs.3,200/-, the Complainant No.9 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.10 stored 40 bags of potato and deposited as advance amount of Rs.1,600/-, the Complainant No.11 stored 200 bags of potato and deposited as advance amount of Rs.8,000/-, the Complainant No.12 stored stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.13 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.14 stored stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.15 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.16 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.17 stored 25 bags of potato and deposited as advance amount of Rs.1,000/-, the Complainant No.18 stored 25 bags of potato and deposited as advance amount of Rs.1,000/-, the Complainant No.19 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.20 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.21 stored 25 bags of potato and deposited as advance amount of Rs.1,000/-, the Complainant No.22 stored 25 bags of potato and deposited as advance amount of Rs.1,000/-, the Complainant No.23 stored 60 bags of potato and deposited as advance amount of Rs.2,400/-, the Complainant No.24 stored 50 bags of potato and deposited as advance amount of Rs.2,000/-, the Complainant No.25 stored 20 bags of potato and deposited as advance amount of Rs.800/-, the Complainant No.26 stored 50 bags of potato and deposited as advance amount of Rs.2,000/-, the Complainant No.27 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.28 stored 70 bags of potato and deposited as advance amount of Rs.2,800/-, the Complainant No.29 stored 100 bags of potato and deposited as advance amount of Rs.4,000/-, the Complainant No.30 stored 75 bags of potato and deposited as advance amount of Rs.3,000/-, the Complainant No.31 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.32 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.33 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-, the Complainant No.34 stored 30 bags of potato and deposited as advance amount of Rs.1,200/-.

          Annexure “B” series reveal that the Complainants sent letters dated 11/08/2015 & 27/08/2015 through The Secretary, Chasi Bachao Committee to the B.D.O. Sitai Panchayat Samity, A.D.A Sitai Bl;ock, Dinhata, and the Secretary Silpa Himghar to get back the stored potatoes but all efforts were in vain.

        The Complainants stored the said potato for earning profit to sell the same in the market. They wanted to do that only for maintaining their livelihood. The Complainants by swearing an affidavit stated that in the month of July, 2015 the Complainants contacted with the O.Ps to take back the stored potato by paying the balance amount but the O.Ps intentionally delayed without showing any cogent ground for non-returning the said stored goods. Ultimately, the O.Ps failed to return back the same to the Complainants.

           In the above situation the Complainants are passing their day in great anxiety as they cannot repay the loan of the bank in want of money. Moreover, the Complainants came to know that the total stored potato damaged due to poor cooling system in the Cold Storage.

          During the course of argument the Ld. Agent for the Complainant vehemently argued that the Complainants stored their cultivated crops to the OPs Cold Storage for distress but the OPs failed to store the potato properly also did not return the same to the Complainants even after several requests and in this way the OPs deprived he Complainants.

          In W/Ar. The OPs took plea that the Complainants are not consumer because the allegation made in the plaint of the Complainants are not related with the Consumer Protection Act, 1986, rather the subject matter of the case is related with “The West Bengal Cold Storage (Licensing and Regulation) Act, 1966. The Ld. Agent for the OPs attracted our attention to section 9, 20(A), 24 of “The West Bengal Cold Storage (Licensing and Regulation) Act, 1966 and ended his argument with a prayer to dismiss the complaint with cost.

        We have meticulously read the specific sections of the WBCS Act 1966 for proper adjudication of the present dispute.

         Section 9 of The West Bengal Cold Storage (Licensing and Regulation) Act, 1966 reveals that “any dispute arising in this respect may forthwith be referred to the District Agricultural marketing officer or the Sub-Divisional Agricultural Officer having jurisdiction over the areas where cold storage is located or such other officer as the Licensing Officer may nominate in this behalf. Such officer shall as far as possible give his award in respect of the dispute within seven days and the award shall be final and binding on the parties to the dispute.”

         On perusal the documents filed by the Complainant it appears that the Complainants went to the OPs to get return their stored potato in the month of July 2015 and subsequently came to know that the stored potato bags were damaged due to negligent act of the OPs. The OPs neither return their stored potato nor taking any positive measure.

          Annexure “B” series clearly reveal that the complainants made application to the concerned authorities for redress the dispute but all were in vain, for which finding no other alternative they compelled to file the present case. Moreover, as per section 11 of the aforesaid Act the OPs did not issue any notice to the Complainants/farmers for taking delivery of their stored potato.

           It is crystal clear from the documents made available in the record that as per section 24 of The West Bengal Cold Storage (Licensing and Regulation) Act, 1966 the Complainants made an application to the Licensing Officer within thirty days from the date of noticing the dispute. The ADA, Sitai Block received the said application from the Secretary Chasi Bachao Committee on behalf of the Complainants but the OPs failed to file any scrap of papers to show that the Licensing Officer or the Secretary/president of Silpa Himghar took any positive measure to settle the dispute raised by the Complainants. Licensing Officer also failed to take any positive measure in this regard for which the Consumer cannot be deprived as and when the cheap, speedy and efficacious remedy is available under C.P. Act 1986 before Consumer Forum against service provider for their deficiency in service. Moreover, this Act will not oust the jurisdiction of the Consumer Forum also gives no bar to get remedy under the umbrella of C.P. Act. Section 3 of the Consumer Protection Act clearly indicates that the provisions of this Act are not in derogation of any other law for the time being in force.

           The O.Ps in their W/V and Evidence on Affidavit clearly stated that the “Bond” in connection with the said preserved potato was not issued to the Complainants and the potato was damaged due to natural act for which O.Ps are not responsible. The documents filed by the Complainants clearly go to show that the O.Ps have taken false plea to save their skin and failed to file any cogent document to prove that stored potato damaged due to natural act.

            Thus, considering the above facts and circumstances the plea as taken by the O.Ps is not sustainable in the eye of Law and logic also. Moreover, relying upon the evidence of the Complainants and the materials to its entirety we are in considered opinion that the O.Ps did not take proper measure to preserve the stored potato in their Cold Storage by maintaining cooling system properly. They also failed to return the stored potato or its price value and as a result the poor farmers are suffering from pecuniary loss that also caused their mental agony.  It is pertinent to mention that the O.Ps kept mum even after several steps have been taken by the Complainants. In this premises, it can safely be said that the O.Ps have deficiency in service and the present complaint deserve to be allowed.

           In this juncture, reliance has been placed upon the decision referred by the Ld. Agent for the Complainant. In Punjab Agri Food Parks Ltd. vs. Gurdeep Singh on 3 July, 2012 the Hon’ble National Commission upheld the order of the State Commission and that was passed in favour of the complainants with an order of compensation as per market rate of the potato on that particular time. It is also a case where 26 No. of farmers stored there potato in the O.Ps cold storage but did not get return the same as those were  damaged due to improper cooling system in the Cold Storage.

           The present case is not for only one potato grower whose stock has been damaged, there were so many victims related with this dispute. In the present case there are also 40 No. of farmers who have same consequences. The Opposite Parties did not provide efficient service to them.

           Therefore, having heard the Ld. Agents and on meticulous scrutiny of the materials on record, it can obviously be said that the O.Ps have clearly made deficiency in service and as such they are liable to pay compensation due to their deficiency in service that caused mental pain and agony of the Complainants. So, on considering the materials on record and anxious consideration of the facts and circumstances, we are in view that the Complainant’s case is genuine and they are entitled to get relief as sought for.

           Thus, the present complaint succeeds on merits.

           Now, it is to be considered that how much compensation the Complainants are entitled to? Annexure “C” is the document of price rate of Joyti Potato at Cooch Behar district on 14.09.2015. Considering the said documents, in our view that if the Complainant were able to sell their stored potato during that period they could earn huge money as per their desire, but that was frustrated due to negligent act of the opposite parties. Thus, considering the overall aspect and fate of the poor cultivators/present Complainants we think to allow compensation to each of the Complainants as per quantity of their stored potato @ Rs.7.50 per K.G. tallied with the then market price. The O.Ps be directed to pay compensation and return the advance money to the each Complainants as per following chart and that will be met proper justice to them.

CHART

ORDER

Hence,

         it is ORDERED that,

                 The present Case No. CC/90/2015 be and the same is allowed on contest against O.P. Nos. 2-10 and in Ex-parte against O.P. No.1but with cost of Rs.15,000/-.

           The O.Ps are directed to return the deposited amount along with compensation of Rs.6,72,100/- to the Complainants as shown in the chart above (in page No.10 & 11 of this Final Order). The entire amount shall be paid to the Complainants by the O.Ps jointly and/or severally within 45 days from the passing of this order, in default, the O.Ps shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited to the CONSUMER LEGAL AID ACCOUNT.

           Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.

Dictated and corrected by me.