| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.560 of 04-12-2015 Decided on 06-02-2017 1.Devi Lal S/o Chet Ram; 2.Anil Kumar S/o Devi Lal; Both R/o Village Khara, District Hanumangarh (Rajasthan). ........Complainants Versus 1.M/s Singla Cold Storage, Village Tarkhan Wala, Refinery Road, Raman Mandi, through its Parnter Davinder Pal Singla. 2.Davinder Pal Singla 3.Nikhil Singla Both Partners of M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Now Residing at House No.2731, Calcutte Wali Gali No.2, Amrik Singh Road, Bathinda. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainants: Sh.Sandeep Baghla, Advocate. For opposite parties: Sh.Shaminder Singh Sohal, Advocate. ORDER Jarnail Singh, Member The complainants Devi Lal and Anil Kumar (here-in-after referred to as complainants) have filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties M/s Singla Cold Storage and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainants is that they are agriculturists. Opposite party No.1 is a firm M/s Singla Cold Storage, which is being run jointly by opposite party Nos.2 and 3 being the partners of the cold storage. It is alleged that in the year 2015, the complainants stored 350 bags (weighing 50 kg. each) of seed potatoes vide receipts No.509 and 511 dated 4.4.2015 in the cold store of opposite parties. They paid Rs.25,000/- to opposite parties as consideration. In the second week of October 2015, the complainants approached opposite parties for lifting of the seed potatoes bags, but the same were missing from the cold storage. They showed the receipts seeking the delivery of the bags of seed potatoes from opposite parties, but they started evading to deliver the bags on false and lame excuses. It is further alleged that the complainants moved an application dated 22.10.2015 to SHO, PS Raman, but the police failed to take any action against opposite parties. They repeatedly approached opposite parties to take delivery of their potatoes, but to no effect. They verified the market rate of seed potatoes, which is approximately Rs.500/- per bag and accordingly, the cost of the potatoes seeds comes to Rs.1,75,000/- for which they are entitled to. On this backdrop of facts, the complainants have alleged deficiency in service on the part of opposite parties and has claimed Rs.3 lakhs on account of loss; Rs.50,000/- as compensation for mental tension, harassment etc. and interest @ 18% per annum and Rs.1,75,000/- as cost of seed potatoes. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their written version. In their joint written version, opposite parties have raised the legal objections that this complaint is not maintainable as the complainants themselves did not come to take the delivery of the potatoes from them during the period as per terms and conditions in order to save their skin from paying the rent for keeping the potatoes in their store. This complaint has been filed only to harass and humiliate opposite parties and to extort money on the higher side whereas the market price of seed/ration potatoes is not more than Rs.60/- per bag of 50 kgs. and opposite parties were ready to deliver the potatoes to the complainants. The intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination that is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. It is pleaded that the complainants have concealed the material facts and documents from this Forum and opposite parties. As such, he is not entitled to any relief. He has concealed the fact that he has stored the potatoes with no weight and smeared potatoes. This fact is within the knowledge of the complainants and is clearly mentioned on the slips/parchi issued to them. Under the compelled circumstances, opposite parties stored the potatoes of the complainants. Opposite parties have filed the suit against the complainants and others, which is pending in the civil court. The complainants wanted to misuse the process of law to get undue gain and benefit from opposite parties. They are not a consumer of opposite parties. They have no locus-standi or cause-of-action to file this complaint against opposite parties. On merits, it is admitted that the complainants stored 350 bags of seed potatoes with opposite parties and weight of each bag is less than 50 kgs. It is denied that the complainants paid Rs.25,000/- to opposite parties and the market rate of seed potatoes is only Rs.60/- per bag of 50 kgs. All other averments are categorically denied. After controverting all the averments, opposite parties have reiterated their stand as taken in the legal objections and detailed above and in the end, they have prayed for dismissal of complaint. Parties were afforded opportunities to produce evidence. In support of their claim, the complainants have tendered into evidence affidavit of Devi Lal dated 20.11.2015, (Ex.C1); photocopies of stock receipts, (Ex.C2 and Ex.C3); photocopy of letter, (Ex.C4); photocopies of bills, (Ex.C5 and Ex.C6); receipts, (Ex.C7 and Ex.C8) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 17.8.2016, (Ex.OP1/1); photocopy of conditions, (Ex.OP1/2); photocopy of civil suit, (Ex.OP1/3); photocopies of gate pass, (Ex.OP1/4 to Ex.OP1/7); photocopy of letter, (Ex.OP1/8); affidavit of Jagtar Singh dated 5.8.2016, (Ex.OP1/9) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for the complainants has reiterated his stand as taken in the complaint and detailed above. It is further submitted by the learned counsel for the complainants that the complainants have pleaded in the complaint that they are agriculturists. Therefore, they fall within the definition of 'consumer' as defined under 'Act'. Other facts are not categorically disputed by opposite parties. The complainants have pleaded that he got stored 350 bags of potatoes as mentioned in the complaint. The receipt, (Ex.C7 and Ex.C8) also prove this fact. They have alleged that when they approached opposite parties for taking delivery of the potatoes, he found that their entire lot was missing due to negligent act of opposite parties. In written version, opposite parties have taken the stand that the complainants have not approached for taking the delivery of their potatoes. This version of opposite parties is afterthought version. Opposite parties want to take shelter of the remarks mentioned in the receipt wherein it is shown as 'wet'. They have intentionally mentioned this fact. In case, the potatoes were not fit for the storage, opposite parties were not to store the same. The claim of the complainants cannot be denied only for the reason that opposite parties have remarked 'wet' in the receipt, (Ex.C8). Opposite parties are trying to take shelter under the condition got printed on the backside of the receipt. These conditions are not signed by the complainants. Therefore, they are not bound by these conditions. Moreover as per these conditions also, opposite parties were saved from the loss when the loss was due to some circumstances beyond their control. Some circumstances are also mentioned, which are due to power failure, natural calamity and such type of other circumstances. As such, opposite parties cannot escape from their liability on the grounds mentioned in these terms and conditions also. When the potatoes were admittedly damaged, deficiency in service on the part of opposite parties stands established. Although, the complainants have paid Rs.25,000/- in advance for storage of potatoes. The receipt, (Ex.C7) acknowledges the payment of Rs.25,000/- in advance. To support these submissions, learned counsel for complainants has cited 2012 (3) CPJ 248 Punjab Agri Food Parks Ltd. & Anr. Vs. Gurdeep Singh; 1998 (1) CPJ 542 Himalaya Cold Storages & Ors. Vs. P. Lakshminarayan; 2013 (3) CLT 461 Subodh Chandel and Another Vs. The President District Consumer Disputes Redressal Forum and others. On the other hand, learned counsel for opposite parties has submitted that the complainants are required to prove their case by affirmative evidence. No findings can be returned in their favour on the basis of conjectures and surmises. Before claiming any relief from this Forum, the complainants are required to prove themselves as 'consumers'. As per complainants, they themselves has got stored 350 bags of potatoes with opposite parties and they have also alleged that they have suffered huge loss. Therefore, this fact shows that service of storage of potatoes was for commercial purpose. Therefore, the complainants do not fall within the definition of 'consumer'. It is also submitted by learned counsel for opposite parties that the complaint has been filed against M/s Singla Cold Store through Davinder Pal Singla and Nikhil Singla, but there is no evidence to prove that they are partners/proprietors of M/s Singla cold Store. Therefore, the complaint is misconceived and is liable to be dismissed on this score also. As per complainants, he went to take part delivery in the month of October 2015 and found that the entire lot was missing. They have relied upon receipts, (Ex.C7 and Ex.C8), although to prove storage of potatoes, but in this receipt, (Ex.C8) the conditions of potatoes is also recorded as 'wet'. Therefore, loss to the stocks was only for the reason that these were in smear/poor condition at the time of storage. Opposite parties have also deposed on oath that the complainants were aware that in case of damage, opposite parties will not be responsible. As per conditions mentioned on the backside of receipt as proved as Ex.OP1/2, opposite parties will not be responsible for any loss due to circumstances beyond their control. Although in these conditions power failure, natural calamity are specifically mentioned, but it is further mentioned that in case of such other circumstances also, opposite parties will not be responsible. The loss to the stocks of the complainants was only due to the fact that the same were in the wet/ damage condition at the time of storage. As such, opposite parties are not responsible for any loss. It is further submitted by learned counsel for opposite parties that the real facts are that the complainants have not paid any rent. The price of potatoes is considerably fallen. The complainants opted not to take delivery of potatoes only to escape from the payment of rent. The matter has been unnecessarily delayed by the complainants, which now resulted damage to the stored potatoes. Therefore, the complainants are not entitled to any relief. At the last limb of his arguments, learned counsel for opposite parties has submitted that the complainants have claimed damages at excessive rate. As per complainants, they approached opposite parties to take delivery in the month of October 2015. Therefore, the rate prevailing in the month of October 2015 is relevant to determine the rate of potatoes. Opposite parties have placed on record average rate from the month of July 2015 onwards and it was Rs.350/- per quintile in the month of July 2015 and Rs.250/- per quintile in the month of August 2015. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainants. Before coming to the main relief, it is to be seen whether the complainants fall within the definition of 'consumers' or not. The complainants have pleaded in their complaint that they are agriculturists. In case of Subodh Chandel and Another Vs. The President District Consumer Disputes Redressal Forum and others (Supra), Hon'ble Allahabad High Court observed that farmers, who stores his agriculture produce in cold storage for hire, to be taken out at a later point of time for getting in higher return would fall within explanation of Section 2 (1) (d) of 'Act' as a 'consumer' and plea of opposite parties that hiring of cold storage by farmers is a commercial use, was rejected. Therefore, keeping in view the pleadings of the complainants and above observations of Hon'ble Allahabad High Court, only conclusion is that the complainants fall within the definition of 'consumer'. The complaint is filed against Davinder Pal Singla and Nikhil Singla being partners/proprietors of M/s Singla Cold Store. The complainants have not produced any document to prove that both Davinder Pal Singla and Nikhil Singla are partners of M/s Singla Cold Store, but opposite parties have placed on record plaint, (Ex.OP1/3). This plaint has been filed by M/s Singla Cold Store through its sole proprietor Davinder Pal Singla. In written version also, Davinder Pal Singla has also not denied proprietor of M/s Singla Cold Store. Moreover, there is no evidence to prove that Nikhil Singla is co-proprietor/partner of M/s Singla Cold Store. Therefore, in these circumstances, complaint against opposite party No.3 is not maintainable and stands dismissed. Now, coming to the main controversy. The complainants have stored 350 bags of potatoes with opposite parties. Opposite parties have admitted this fact. It is rather pleaded that the potatoes were stored in the damaged condition. This fact further leads to inference that opposite parties have impliedly admitted that the complainants have stored the potatoes. The complainants have produced on record receipts, (Ex.C7 and Ex.C8) issued by opposite parties, which prove that they stored the potatoes as detailed in the complaint with them. They have alleged that the stored potatoes suffered damage due to negligence of opposite parties. Opposite parties have also not disputed that the potatoes stood damaged. The contention of opposite parties is that these were stored in smeared condition and complainants are responsible for consequences. Of-course, in receipt, (Ex.C8), it is mentioned that potatoes are in 'wet' condition, but extent of damage is nowhere mentioned. It is also not the case of opposite parties that at that time the potatoes were not fit for storage. The conditions printed on the receipt issued by opposite parties are proved by them. It is mentioned that the owner will not be responsible, but this condition is in continuation of earlier part wherein it is mentioned that in case of loss of size/weight, owner of cold store will not be responsible. The owner of cold store (opposite parties) was exempted from the loss only when it is due to circumstances beyond their control, but there is nothing to show that the loss is due to circumstances beyond their control. In these circumstances, the contention of opposite parties that it is not negligent/liable for damage is not acceptable. The damage to the stored potatoes amounts to deficiency in service on their part. The complainants are entitled to compensation for this loss. The main plea of opposite parties is that the complainants have not come forward to take the delivery of the potatoes. There is no notice by opposite parties to the complainants asking them to collect their potatoes bags. Opposite parties have placed on record copy of plaint, (Ex.OP1/3). This suit was filed against number of persons for declaration that the defendants of the suit are not entitled to recover any claim for storage of potatoes in the store of opposite parties. Opposite parties have not issued any notice to the complainants asking them to take back their potatoes bags within the reasonable time and failing which they will not be liable to return the same, but there is no such action on the part of opposite parties. Therefore, contention of opposite parties that the complainants have not approached opposite parties to take delivery of the potatoes is not tenable. It is after thought version of opposite parties to escape from their liability regarding stock in question. As such, opposite parties are responsible for the loss of potatoes stored by the complainants. Now, point for determination is amount of compensation for which the complainants are entitled to. Opposite parties have tendered into evidence rate list, (Ex.OP1/8), which shows that the rate of potatoes was Rs.350/- per quintile in the month of July 2015; Rs.250/- per quintile in the month of August 2015 and Rs.350/- per quintile in the month of September 2015 and Rs.450/- per quintile in the month of October 2015. The delivery was to be made in the month of June/October 2015 and as per plaint, (Ex.OP1/3) also, the goods were stored up to 31.10.2015. As per rate list, the rate of potatoes was Rs.450/- per quintile in the month of October 2015. It is also matter of common knowledge that the rate of seed potatoes is on higher side from the rate of ration potatoes. Its rate is assessed as Rs.600/- per quintile. As per complainants, they have stored 350 bags of seed potatoes. They have not mentioned the weight of their bags. It is fairly admitted that the weight of normal bag of potatoes is 40 kgs. The total weight of 350 bags of seed potatoes is worked out 140.00 quintile and its value @Rs.600/- per quintile comes to Rs.84,000/-. The complainants were also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.8400/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainants is assessed as Rs.75,600/-. The complainants were to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/3) has also revealed rent @ Rs.85/- per bag. The total charges for 350 bags is calculated as Rs.29,750/-. The complainants have alleged that he has paid Rs.25,000/- as part of advance rent, receipt, (Ex.C7) acknowledges the payment of amount in advance, but the amount is not mentioned in clear figures. Counsel for opposite parties is also not able to explain the amount mentioned in this receipt. Moreover opposite parties have not produced any document to rebut this payment. No other record has been produced by opposite parties to prove that the amount received was not Rs.25,000/-. Therefore, we accept the version of the complainants that they have paid Rs.25,000/- in advance as part of rent. Therefore, this amount is adjustable in the rent amount payable to opposite parties. So, a sum of Rs.4750/- (Rs.29,750/- - Rs.25,000/-=Rs.4750/-) is payable by the complainants on account of rent charges. This amount is adjustable from the amount payable to the complainants i.e. Rs.75,600/-. Therefore, net loss of the complainants is worked out as Rs.70,850/-. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party Nos.1 and 2 being proprietor of M/s Singla Cold Store and dismissed qua opposite party No.3. The complainants are held entitled to above sum of Rs.70,850/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 06-02-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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