DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.553 of 02-12-2015

Decided on 20-10-2016

Gurmeet Singh aged about 30 years S/o Balbir Singh R/o Village Kot Shamir, Tehsil & District Bathinda.

........Complainant

Versus

1.Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, District Bathinda, through its Proprietor Davinder Pal Singla.

2.Nikhil Singla, Manager, Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, District 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 complainant: Sh.Harjinder Singh Sidhu, Advocate.

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

ORDER

M.P Singh Pahwa, President

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

2. Briefly stated, the case of the complainant is that he is small farmer and his entire family depends on his income i.e. agricultural income. He used to cultivate the land after taking the same on contract basis. Opposite party No.1 known as Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, District Bathinda under the the proprietorship of Davinder Pal Singla and Er.Nikhil Singla, opposite party No.2 is its manager. They are storing various products of the people by charging rent.

3. It is alleged that in the last year, the complainant has grown potatoes and with an intention to save his crops, he has stored 231 bags of potatoes with opposite parties vide different receipts. In lieu of the rent of the cold storage, the complainant has paid Rs.8000/- as advance rent to opposite parties on 24.3.2015, but they have not issued any receipt. The remaining amount of rent was to be paid by the complainant at the time of delivery of potatoes in the month of October 2015. Opposite parties have been charging rent for storing the potatoes in their cold storage. Opposite parties have given assurance that they are responsible for the maintenance of the potatoes in their cold storage and they shall return the same in good condition as and when so desired by the complainant.

4. It is further alleged that the complainant visited opposite parties to get delivery of 231 bags of potatoes, but he found that all the bags have been damaged as opposite parties have stored the bags more than the capacity of the cold store and caused loss to him to the tune of Rs.1,15,000/- as the market value of the potatoes is Rs.10/- per kgs. approximately. The complainant alongwith others moved an application to Deputy Commissioner, Bathinda vide No.22170 dated 21.10.2015. Hon'ble Deputy Commissioner obtained the report from Deputy Director Bagwani Department, Bathinda, he vide its letter dated 9.11.2015 has specifically mentioned that the potatoes stored with opposite parties are not usable for any purpose.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.1 lac on account of harassment plus cost of litigation and Rs.1,15,000/- as market value of potatoes. Hence, this complaint.

5. 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 complainant himself did not come to take the delivery of the potatoes from them during the period as per terms and conditions in order to save his 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 whereas opposite parties were ready to deliver the potatoes to the complainant. 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.

6. It is pleaded that the complainant has 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 proper weight and 201 bags of potatoes were in poor and wet 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 parties to his notice, but he alongwith other farmers made agitation against opposite parties. As such, under the compelled circumstances, opposite parties stored the smeared and poor condition potatoes. He wanted to misuse the process of law to get undue gain and benefit from opposite parties. He is not a consumer of opposite parties. He has no locus-standi or cause-of-action to file this complaint against opposite parties.

7. On merits, it is denied that the complainant paid advance rent of Rs.8000/- to opposite parties on 24.3.2015 and opposite parties have issued not receipt. The market value of the seeds/ration 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.

8. Parties were afforded opportunities to produce evidence.

9. In support of his claim, the complainant has tendered into evidence his own affidavit dated 11.4.2016, (Ex.C1); photocopy of letter, (Ex.C2); photocopies of receipts, (Ex.C3 to Ex.C5) and closed the evidence.

10. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 1.9.2016, (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.

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 is small farmer and his entire family depends on his income i.e. agricultural income. Therefore, he falls within the definition of 'consumer' as defined under 'Act'. Other facts are not categorically disputed by opposite parties. The complainant has pleaded that he stored potatoes as mentioned in the complaint. The receipts, (Ex.C3 to Ex.C5) also prove this fact. It is not disputed that when the complainant approached opposite parties to take delivery of the potatoes, same were not delivered and these were found damaged. Opposite parties want to take shelter of the remarks mentioned in the receipts wherein it is shown as 'wet' and 'poor'. 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 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 parties have remarked 'wet' and 'poor' in the receipts. Opposite parties are 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 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.

13. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.8000/- 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 parties have relied upon the conditions, (Ex.OP1/2). As per condition No.5, 50% of rent charges was to be paid in advance. Even otherwise, opposite parties were 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 parties are 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;

    2004 (2) CPJ 692 Himalaya Food Co. Vs. Dhanpat & Ors;

    2008 (1) CLT 592 Sanjay Kumar Vs. Vinod Kumar Yadav.

14. On the other hand, learned counsel for opposite parties 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 231 bags of potatoes with opposite parties 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 parties that as per complainant, he went to take delivery in the first week of October 2015 and found that the entire lot has damaged. He has relied upon receipts, (Ex.C3 to Ex.C5), although to prove storage of potatoes, but in the receipts, (Ex.C3 and Ex.C5), the conditions of potatoes is also recorded as 'wet' and 'poor'. 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 complainant was aware that in case of damage, opposite parties will not be responsible. As per conditions mentioned on the backside of receipts 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 complainant 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.

16. It is also submitted by learned counsel for opposite parties that opposite parties have placed on record gate pass, (Ex.OP1/4 to Ex.OP1/7), 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 parties 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 parties has submitted that the complainant has claimed damages at excessive rate. As per complainant, he approached opposite parties to take part 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.

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 is small farmer and his entire family depends on his income i.e. agricultural income. 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 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 231 bags of potatoes with opposite parties. Opposite parties have 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 parties have impliedly admitted that the complainant has stored the potatoes. The complainant has produced on record receipts, (Ex.C3 to Ex.C5) issued by opposite parties, which prove that he stored the potatoes as detailed in the complaint with them. He has 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 poor condition and complainant is responsible for consequences. Of-course, in receipts, (Ex.C3 and Ex.C5), it is mentioned that potatoes are in 'wet' and 'poor' 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 receipts 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 complainant is entitled to compensation for this loss.

21. The main plea of opposite parties is that the complainant has not come forward to take the delivery of the potatoes. There is no notice by opposite parties to the complainant asking him to collect his 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. In case, opposite parties were having potatoes bags of the present complainant ready for delivery to the complainant, they were also expected to seek directions against complainant to take back delivery of the bags. Opposite parties have also not issued any notice to the complainant asking him to take back his 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 complainant has 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 complainant.

22. Now, point for determination is amount of compensation for which the complainant is 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.OP1/2) also, the goods were stored up to 31.10.2015. As per rate list, the rate of potatoes is as 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.

23. As per receipts, 90 bags of ration potatoes were stored. The complainant has not mentioned the weight of his bags. It is fairly admitted that the weight of normal bag of potatoes is 40 kg. The total weight of 90 bags of ration potatoes is worked out 36.00 quintile and its value @Rs.450/- per quintile is worked out Rs.16,200/-. The weight of seed bags of the potatoes in receipts, (Ex.C3 and Ex.C4) is mentioned as 43 kgs. The total weight of 141 bags of seed potatoes is worked out 60.63 quintile and its value @ Rs.600/- per quintile is worked out Rs.36,378/-. The total value of stored potatoes is Rs.52,578/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.5200/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.47,378/-.

    The complainant was 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 231 bags is calculated as Rs.19,635/-. The complainant has alleged that he has paid Rs.8000/- as part of advance rent, but there is no receipt to prove this fact. Opposite parties have 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 parties were 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.19,635/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.47,378/-. Therefore, net loss of the complainant is worked out as Rs.27,743/-.

24. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.1. Opposite party No.2 is impleaded being manager, but opposite party No.1 is owner of firm in question. Therefore, only owner is liable for compensate the complainant. As such, complaint against opposite party No.2 is dismissed. The complainant is held entitled to above sum of Rs.27,743/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization.

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

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

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

    Announced:-

    20-10-2016

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member