DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.502 of 03-11-2015

Decided on 03-11-2016

Jagdeep Singh S/o Nachhattar Singh R/o Village Sarawan Wala, Tehsil Pilibanga, District Hanumangarh (Raj.)

........Complainant

Versus

1.M/s Singla Cold Storage, Tarkhanwala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, through its Proprietor/Partners Davinder Pal Singla and Er.Nikhil Singla R/o House No.1505, St.No.2, Nai Basti, Bathinda.

2.Davinder Pal Singla S/o Roop Chand Singla, Partner/Proprietor of M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo R/o House No.1505, St.No.2, Nai Basti, Bathinda.

3.Er.Nikhil Singla S/o Davinder Pal Singla, Partner/Proprietor of M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo R/o House No.1505, St.No.2, Nai Basti, 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.Sukhraj Singh Bains, Advocate.

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

ORDER

Jarnail Singh, Member

1. The complainant Jagdeep Singh (here-in-after referred to as complainant) has 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).

2. Briefly stated, the case of the complainant is that he is an agriculturist. He sown potatoes in the year 2014. He had to keep some quantity of potatoes for seed purposes to be sown for the next crop i.e. October 2015. He opted to store the remaining potatoes in a cold store for the purposes of seed.

3. It is alleged that the complainant approached opposite party Nos.2 and 3, who own and run cold store i.e. opposite party No.1 at V. Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo for getting stored the potatoes. Opposite party Nos.2 and 3 agreed to store the potatoes. The complainant filled 79 bags of potatoes each bag containing 40 kgs. and stored the same in the cold store of opposite party No.1 vide receipt No.883 dated 19.4.2015. Opposite parties told the complainant to pay advance store charges of Rs.6500/-, which he paid to them against a receipt. He told opposite parties that he will take out the bags of potatoes in the month of October 2015 for sowing in order to get next crop from the said potatoes and further agreed to pay the balance storage charges at that time and opposite parties agreed to the same.

4. It is further alleged that the complainant prepared his fields for sowing potatoes crop and for sowing potatoes crop in the fields, the land is cultivated 9/10 times and one has to spend much more amount for cultivation of the land in comparison to other crops. He spent more than Rs.20,000/- solely for preparing the fields for sowing the potatoes crop. On 22.10.2015, the complainant made telephone call to opposite party No.3 and then on 26.10.2015 for taking away the stored potatoes from opposite parties after paying the balance amount of charges, but they did not give him any proper reply and they are postponing the matter on one or other pretext. On 27.10.2016, he again made telephone call to opposite party No.3, he picked the phone and stated that he has no such goods stored in his cold store. The complainant moved an application to the SSP, Bathinda after taking appropriate action against opposite parties. He came to know that some farmers of village Phallar moved an application dated 18.10.2015 to SHO PS Raman for taking action against opposite parties. The application was marked for enquiry to ASI Manjit Singh of PS Raman. He conducted enquiry and made his report dated 24.10.2015 to the effect that opposite party Nos.2 and 3 have stored the potatoes in excess than the capacity of cold store and they did not provide full cooling in the cold store to save the electricity. A DDR dated 24.10.2015 has been incorporated in the daily dairy register of PS Raman, but the police did not take any action against opposite parties.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.2 lacs as damages and Rs.50,000/- as compensation and Rs.20,000/- as labour charges spent for preparing the land and prayed for giving directions to opposite parties to refund the advance charges of Rs.6500/-. 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 has been filed by the complainant only to injure their goodwill and reputation. This complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, opposite parties are 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 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 in smeared and poor condition and with no proper weight. 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 '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 deposited Rs.6500/- with opposite parties for storing his potatoes. He stored the potatoes after the expiry period for store of potatoes i.e. after 31.3.2015 i.e. beyond the period of storage. The complainant did not spent more than Rs.20,000/- for preparing the fields for sowing the potatoes. It is further mentioned that the value of the seed/ration potatoes was approximately Rs.1.50 per kg. The complainant. 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 photocopy of stock receipt, (Ex.C1); photocopy of letter, (Ex.C2); photocopy of DDR, (Ex.C3); his own affidavit dated 12.5.2016, (Ex.C4) and closed the evidence.

10. In order to rebut this evidence, opposite parties have tendered into evidence photocopy of conditions, (Ex.OP1/1); photocopy of civil suit, (Ex.OP1/2); photocopies of gate pass, (Ex.OP1/3 to Ex.OP1/6); photocopy of letter, (Ex.OP1/7); affidavit of Devinder Pal Singla dated 19.9.2016, (Ex.OP1/8); affidavit of Jagtar Singh dated 19.9.2016, (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 an agriculturist and sown potatoes in the year 2014. 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 79 bags of potatoes. The receipt, (Ex.C1) also proves this fact. It is not disputed that when the complainant approached opposite parties to take part 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 'dagi' (damaged). They have intentionally mentioned this fact. In case, the potatoes were not fit for the storage, opposite parties were not to store the same. 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. The complainant has paid Rs.6500/- as part of advance rent, receipt, (Ex.C1) acknowledges the payment of amount in advance.

    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.

13. 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 79 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'.

14. 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 complainant, he went to take part delivery in the month of October 2015 and found that the entire lot has damaged. He has relied upon receipt, (Ex.C1), although to prove storage of potatoes, but in this receipt, 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 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.OP1/1, 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.

15. It is also submitted by learned counsel for opposite parties that opposite parties have 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 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.

16. At the last limb of his arguments, learned counsel 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. 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.

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

18. Before coming to the main relief, it is to be seen whether the complainant falls within the definition of 'consumer' or not. Complainant has pleaded in his complaint that he is an agriculturist and had sown potatoes. 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'.

19. The complaint is filed against Davinder Pal Singla and Nikhil Singla being partners/proprietors of M/s Singla Cold Store.Complainant has 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.OP1/2). 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 Er.Nikhil Singla is not maintainable and stands dismissed.

20. Now, coming to the main controversy. The complainant has stored 79 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 complainant has stored the potatoes. The complainant has produced on record receipt, (Ex.C1) issued by opposite parties, which prove that he stored 79 bags of potatoes 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 receipt, (Ex.C1), 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 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. Now, point for determination is amount of compensation for which the complainant is entitled to. Opposite parties have tendered into evidence rate list, (Ex.OP1/7), 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. The complainant was to take delivery of potatoes in the month of October 2015. The rate of potatoes in the month of October 2015 was Rs.450/- per quintile, which is proved from the rate list produced by opposite parties, (Ex.OP1/7). The average rate of mix potatoes is assessed as Rs.500/- per quintile.

22. As per receipt, (Ex.C1) 79 bags of mix 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 79 bags of mix potatoes is worked out 31.60 quintile and its value @ 500/- per quintile is worked out Rs.15,800/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.1580/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.14,220/-.

    The complainant was to pay rent charges. The complainant has alleged that he has paid Rs.6500/- as part of advance rent, receipt, (Ex.C1) 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.6500/-. Therefore, we accept the version of the complainant that he has paid Rs.6500/- in advance as part of rent. In this receipt, there is also mentioned balance of Rs.1400/-. So, a sum of Rs.1400/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.14,220/-. Therefore, net loss of the complainant is worked out as Rs.12,820/-.

23. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.2 being proprietor of M/s Singla Cold Store. The complainant is held entitled to above sum of Rs.12,820/- 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:-

    03-11-2016

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member