DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.443 of 23-10-2015

Decided on 21-09-2016

Gurbhaj Singh S/o Karnail Singh R/o Village Chak Attar Singh Wala, District Bathinda.

........Complainant

Versus

Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda, through its Proprietor/Partner/Incharge.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the complainant: Sh.Gurvinder Singh Sidhu, Advocate.

For opposite party: Sh.Shaminder Singh Sohal, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Gurbhaj Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite party Singla Cold Storage (here-in-after referred to as opposite party).

2. Briefly stated, the case of the complainant is that he is doing work as an agriculturist. He grows potatoes and stores the same in the cold storage to sell for better price. It is the source of income for livelihood for the complainant and his family. Opposite party is running the cold storage under the name and style of Singla Cold Storage, Raman Mandi.

3. It is alleged that on 31.3.2015, the complainant got stored 331 bags of potatoes (each bag of 50 kgs.) with opposite party in its cold storage vide receipt No.385 dated 31.3.2015. The value of 331 bags is Rs.2,50,000/- approximately. He deposited Rs.20,000/- in advance as rent for storage of potatoes.

4. It is further alleged that the complainant approached cold storage to take delivery of his 331 bags of potatoes, but opposite party refused to deliver the bags and told him that the potatoes have been rotten. The complainant many times requested opposite party through telephone and personal visiting to fulfill his loss, but to no avail. He has also got issued a notice on 7.10.2015 to opposite party.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite party and has claimed Rs.2 lacs as compensation for mental agony, harassment etc. and Rs.11,000/- as cost of litigation and Rs.2,50,000/- as cost of potatoes in addition to refund of Rs.20,000/- paid by him. Hence, this complaint.

5. Upon notice, opposite party appeared through its counsel and contested the complaint by filing its written version. In its written version, opposite party has raised the legal objections that this complaint has been filed by the complainant only to injure its goodwill and reputation. This complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, opposite party is entitled to get special costs from the complainant U/s 26 of 'Act'. The intricate questions of law and facts are involved in this complaint, which require extrinsic oral and voluminous documents and evidence that is not possible in the summary jurisdiction enacted before this Forum and only civil court has jurisdiction. As such, this complaint deserves dismissal.

6. It is pleaded that the complainant has concealed the material facts and documents from this Forum and opposite party. As such, he is not entitled to any relief. He has concealed the fact that he has stored the potatoes in wet, smeared and poor condition. This fact is within the knowledge of the complainant. This fact is clearly mentioned on the slips/parchi issued to him and it was brought by opposite party to his notice, but he alongwith other farmers made agitation against opposite party. As such, under the compelled circumstances, opposite party stored the poor condition potatoes. He wanted to misuse the process of law to get undue gain and benefit from opposite party. He is not consumer of opposite party. He has no locus-standi or cause-of-action to file this complaint against opposite party.

7. On merits, it is pleaded that the complainant got stored the potatoes after the expiry period for store of potatoes i.e. after 31.3.2015. As such opposite party is not responsible for illegal act of the complainant. It is further mentioned that the market value of the seed/ration potatoes was approximately Rs.1.50 per kg. The complainant and other failed to take delivery of his/their potatoes up to 31.10.2015, rather they have forced opposite party to pay the price of their smeared potatoes. As such, opposite party has already filed civil suit for declaration and permanent injunction, which is pending in the court of Sh.Suresh Kumar, Ld. Civil Judge (Junior Division), Bathinda. All other averments of the complainant are categorically denied.

   After controverting all other averments, opposite party has reiterated its stand as taken in the legal objections and detailed above and in the end, it has prayed for dismissal of complaint.

8. Parties were afforded opportunities to produce evidence.

9. In support of his claim, the complainant has tendered into evidence his own affidavit dated 21.1.2016, (Ex.C1); photocopy of legal notice, (Ex.C2); photocopy of postal receipt, (Ex.C3) and photocopies of stock receipts, (Ex.C4 to Ex.C7) and closed the evidence.

10. In order to rebut this evidence, opposite party has tendered into evidence affidavit of Devinder Pal Singla dated 4.4.2016, (Ex.OP1/1); photocopy of civil suit, (Ex.OP1/2); photocopies of gate pass, (Ex.OP1/3 to Ex.OP1/6); photocopy of conditions, (Ex.OP1/7); affidavit of Jagtar Singh dated 21.4.2016, (Ex.OP1/8); photocopy of rate list, (Ex.OP1/9) and closed the evidence.

11. We have heard learned counsel for the parties and gone through the file carefully.

12. Learned counsel for the complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by the learned counsel for the complainant that the complainant has pleaded in the complaint that he grows potatoes and stores the same in the cold storage to sell for better price. It is the source of income for livelihood for the complainant and his family. Therefore, he falls within the definition of 'consumer' as defined under 'Act'. Other facts are not categorically disputed by opposite party. The complainant has pleaded that he stored 331 bags of potatoes as mentioned in the complaint. The receipts, (Ex.C4 to Ex.C7) also prove this fact. It is not disputed that when the complainant approached opposite party to take delivery of the potatoes, same were not delivered and these were found damaged. Opposite party want to take shelter of the remarks mentioned in the receipts wherein it is shown as 'dagi' (damaged). Opposite party has intentionally mentioned this fact. In case, the potatoes were not fit for the storage, opposite party was not to store the same. The complainant was also not to pay the huge amount as storage charges, which is admittedly @ Rs.85/- per bag. Therefore, his claim cannot be denied only for the reason that opposite party has remarked 'dagi' (damaged) in the receipts. Opposite party is trying to take shelter under the condition got printed on the backside of the receipts. These conditions are not signed by the complainant. Therefore, he is not bound by these conditions. Moreover as per these conditions also, opposite party was saved from the loss when the loss was due to some circumstances beyond its control. Some circumstances are also mentioned, which are due to power failure, natural calamity and such type of other circumstances. As such, opposite party cannot escape from its 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 party stands established. In written version, the stand of opposite party is that the complainant has stored potatoes after season i.e. after 31.3.2015, but receipts, (Ex.C4 to Ex.C7) show that the potatoes were stored on 31.3.2015. Therefore, this contention of opposite party is also without any merits.

13. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.20,000/- in advance for storage of potatoes. Although, he is not in the possession of these receipts, but other facts will corroborate this averment of the complainant. Opposite party has relied upon the conditions, (Ex.OP1/7). As per condition No.5, 50% of rent charges was to be paid in advance. Even otherwise, opposite party was having no reason to store such a huge quantity of the potatoes of the complainant without receipt of any advance as rent charges. Hence, the case of the complainant stands proved. The payment of rent is also to be accepted. Opposite party is liable for loss and compensation claimed by the complainant.

    To support these submissions, learned counsel for complainant 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;

    2007 (2) CPJ 61 Balraj Sharma Vs. Shimla Cold Storage and Anr.;

    1999 (1) CPJ 483 M/s Perma Nand Joginder Pal and Co. Vs. M/s G.M.P Finishing Mills Cold Storage & Anr.;

    2003 (4) CPJ 535 Garg Stores Vs. Durga Ice and Cold Storage;

14. On the other hand, learned counsel for opposite party has submitted that the complainant is required to prove his case by affirmative evidence. No findings can be returned in his favour on the basis of conjectures and surmises. Before claiming any relief from this Forum, the complainant is required to prove himself as 'consumer'.

    As per complainant, he himself has got stored 331 bags of potatoes with opposite party and he has also alleged that he has suffered huge loss. Therefore, this fact shows that service of storage of potatoes was for commercial purpose. Therefore, the complainant does not fall within the definition of 'consumer'.

15. It is also submitted by learned counsel for opposite party that as per complainant, he went to take delivery of his 331 bags of potatoes and found that the entire lot has damaged. He has relied upon receipts, (Ex.C4 to Ex.C7), although to prove storage of potatoes, but in these receipts, the conditions of potatoes is also recorded as 'dagi' (damaged). Therefore, loss to the stocks was only for the reason that these were in smear/poor condition at the time of storage. Opposite party has also deposed on oath that the complainant was aware that in case of damage, opposite party will not be responsible. As per conditions mentioned on the backside of receipts as proved as Ex.OP1/7, opposite party will not be responsible for any loss due to circumstances beyond its 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 party will not be responsible. The loss to the stocks of the complainant was only due to the fact that the same were in the damage condition at the time of storage. As such, opposite party is not responsible for any loss.

16. It is also submitted by learned counsel for opposite party that opposite party has placed on record gate pass, (Ex.OP1/3 to Ex.OP1/6), which prove that there was not any damage to the stock of other persons and the stock of other persons was delivered on 28.10.2015 and thereafter. One Jagtar Singh has also furnished his affidavit wherein he has admitted that he stored his potatoes in the cold store of opposite party and received the delivery in safe and good condition and damage to the stock of the complainant was only due to the fact that the same were stored in smear condition and under the pressure of agitation by the farmers. As such, it is proved that there was no loss to the other farmers, who have stored the potatoes in good condition.

17. At the last limb of his arguments, learned counsel for opposite party has submitted that the complainant has claimed damages at excessive rate. Opposite party has 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.

18. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainant.

19. Before coming to the main relief, it is to be seen whether the complainant falls within the definition of 'consumer' or not. The complainant has pleaded in his complaint that he grows potatoes and stores the same in the cold storage to sell for better price and it is the source of income for livelihood for the complainant and his family. 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 party that hiring of cold storage by farmers is a commercial use, was rejected. Therefore, keeping in view the pleadings of the complainant and above observations of Hon'ble Allahabad High Court, only conclusion is that the complainant falls within the definition of 'consumer'.

20. Now, coming to the main controversy. The complainant has stored 331 bags of potatoes with opposite party. Opposite party has not categorically denied this fact. It is rather pleaded that the potatoes were stored in the damaged condition. This fact further leads to inference that opposite party has impliedly admitted that the complainant has stored the potatoes. The complainant has produced on record receipts, (Ex.C4 to Ex.C7) issued by opposite party, which prove that he stored the potatoes as detailed in the complaint with it. He has alleged that the stored potatoes suffered damage due to negligence of opposite party. Opposite party has also not disputed that the potatoes stood damaged. The contention of opposite party is that these were stored in poor condition and complainant is responsible for consequences. Of-course, in receipts, (Ex.C4 to Ex.C7), it is mentioned that potatoes are in 'dagi' (damaged) condition, but extent of damage is nowhere mentioned. It is also not the case of opposite party that at that time the potatoes were not fit for storage. The conditions printed on the receipts issued by opposite party are proved by it. 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 party) was exempted from the loss only when it is due to circumstances beyond its control, but there is nothing to show that the loss is due to circumstances beyond its control. In these circumstances, the contention of opposite party that it is not negligent/liable for damage is not acceptable. The damage to the stored potatoes amounts to deficiency in service on its part. The complainant is entitled to compensation for this loss.

21. Now, point for determination is amount of compensation for which the complainant is entitled to. He has alleged that the value of 331 bags of potatoes is Rs.2,50,000/- approximately. Opposite party has tendered into evidence rate list, (Ex.OP1/9), 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.OP1/2) also, the goods were stored up to 31.10.2015. As per rate list the rate of potatoes in the month of October was Rs.450/- per quintile.

22. As per complainant, 331 bags of potatoes were stored. The complainant has pleaded that weight of each bag was 50 Kg., but in receipts, there is no reference of weight. It is fairly admitted that the weight of normal bag of potatoes is 40 kg. The total weight of 331 bags of potatoes is worked out 132.40 quintile and its value @ 450/- per quintile is worked out Rs.59,580/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.5900/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.53,680/-.

    The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/2) has also revealed rent @ Rs.85 per bag. The total charges for 331 bags is calculated as Rs.28,135/-. The complainant has alleged that he has paid Rs.20,000/- as part of advance rent, but there is no receipt to prove this fact. Opposite party has denied having receipt of any advance as part payment. The payment of advance rent is not to be accepted only for the reason that as per conditions mentioned at the backside of receipts, opposite party was to receive 50% of the rent in advance. It is to be concluded that no advance rent was paid by the complainant. So, a sum of Rs.28,135/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.53,680/-. Therefore, net loss of the complainant is worked out as Rs.25,545/-.

23. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party. The complainant is held entitled to above sum of Rs.25,545/- with interest @12% per annum. The interest is payable from the date of filing of complaint till realization.

24. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

25. The complaint could not be decided within the statutory period due to heavy pendency of cases.

26. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    21-09-2016

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member