DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.480 of 30-10-2015

Decided on 17-08-2017

Jagdish Singh aged about 40 years S/o Sukhdev Singh S/o Jugraj Singh R/o Village Mal Wala, Tehsil Talwandi Sabo, 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 S/o Roop Chand Singla R/o House No.1505, Gali No.2, Nai Basti, Bathinda.

2.Nikhil Singla S/o Devinder Pal Singla S/o Roop Chand Singla R/o House No.1505, Gali No.2, Nai Basti, Bathinda, 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.Rajesh Bansal, Advocate.

For opposite parties: Sh.S.S Sohal, Advocate.

ORDER

Jarnail Singh, Member

1. The complainant Jagdish 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. Opposite parties are owners of one cold storage known as Singla Cold Storage at Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda. They are storing various products of the people by charging rent.

3. It is alleged that as per complainant, in the month of March and April 2015, he has harvested potatoes and with an intention to save his crops, he has stored 5699 bags of potatoes with opposite parties from which 2306 bags were stored vide different receipts and for remaining 3393 bags, no receipt was issued. Out of 5699 bags, 2600 bags were of seeds potatoes. The agreed rate of rent was Rs.85/- per bag and in lieu of the rent of the cold storage, the complainant paid Rs.3 lakhs, out of which Rs.2 lakhs were paid through bank and remaining Rs.1 lakh were paid in cash. 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 in the first week of October 2015, when the complainant was to yield good income from the potatoes, he visited opposite parties to get delivery of 5699 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. The complainant alongwith others approached before Incharge of P.S Romana, he recorded the statement of the complainant and police prepared DDR No.15 dated 24.10.2015 in which the matter was thoroughly investigated by ASI Manjit Singh No.450/BTI of PS Raman, he has clearly mentioned in his report that all the potatoes bags have been damaged due to negligence of opposite parties as they have stored the potatoes bags more than the capacity of the cold store.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.2 lakhs on account of harassment plus cost of litigation and Rs.17,09,700/- as cost 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 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 poor and smeared. 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 smeared and poor condition potatoes. The complainant has concealed the fact that he has not deposited any rent amount of Rs.3 lakhs for the storage of his potatoes. He has already received 1292 bags of potatoes from opposite parties. 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 admitted that opposite parties charged rent @ Rs.85/- per bag for storing the bags up to 31.10.2015. It is denied that the complainant paid Rs.3 lakhs as advance rent with opposite parties. Any of the customer, who failed to get delivery of his potatoes up to 31.10.2015, opposite parties are not responsible for any damages or to deliver the potatoes. The complainant and others failed to take the delivery of their potatoes up to 31.10.2015, rather they have have forced opposite parties to pay the price of their smeared potatoes. As such, opposite parties have 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. It is further mentioned that the market value of the seed/ration potatoes was approximately Rs.1.5/- per kg.

   After controverting all other 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 affidavit dated 8.2.2016, (Ex.C1); photocopies of receipts, (Ex.C2 to Ex.C27); affidavit of Jagsir Singh dated 8.2.2016, (Ex.C28); photocopy of letter, (Ex.C29); photocopy of form D, (Ex.C30); cash deposit receipt, (Ex.C31); account statement, (Ex.C32) and closed the evidence.

10. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 5.5.2016, (Ex.OP1/1); photocopy of conditions, (Ex.OP1/2); photocopies of gate pass, (Ex.OP1/3 to Ex.OP1/6); affidavit of Jagtar Singh dated 5.5.2016, (Ex.OP1/7); photocopy of letter, (Ex.OP1/8); photocopy of civil suit, (Ex.OP1/9); photocopy of deposit slip, (Ex.OP1/10) 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. The receipts, (Ex.C2 to Ex.C27) 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 'poor', 'wet' and '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. 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 'poor', 'wet' and 'dagi' (damaged) 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. The complainant has alleged that he has paid Rs.3 lakhs in advance for storage of potatoes, but there is no document to prove this fact.

    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.

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 5699 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 delivery in the first week of October 2015 and found that the entire lot has damaged. He has relied upon receipts, (Ex.C2 to Ex.C27), although to prove storage of potatoes, but in these receipts, the conditions of potatoes is also recorded as 'poor', 'wet' and '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.OP1/2, 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.

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. It is further submitted by learned counsel for opposite parties that the complainant has already received 1292 bags of potatoes from opposite parties, but there is no document on record to prove this fact.

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 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. 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.OP1/9). 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.2 is not maintainable and stands dismissed.

21. Now, coming to the main controversy. As per complainant, he has stored 5699 bags of potatoes with opposite parties, but receipts produced by the complainant proves that he has stored 2306 bags of potatoes. No receipts have been produced for remaining 3306 bags. Therefore, it cannot be accepted that the complainant has deposited remaining 3306 bags with opposite parties. It is rather pleaded by opposite parties 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.C2 to Ex.C27) issued by opposite parties, which prove that he stored the 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' and 'smeared' condition and complainant is responsible for consequences. Of-course, in some receipts, it is mentioned that potatoes are in 'poor', 'wet' and '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.

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.OP1/9) 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. As per receipts, the complainant got stored 2306 bags of potatoes. Therefore, the average rate of potatoes is assessed as Rs.450/- and it is also matter of common knowledge that the rate of seeds potatoes is higher side from the rate of ration potatoes. Its rate is assessed as Rs.600/- per quintile.

23. As per receipts, 64 bags of goli and green 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 64 bags of goli and green potatoes is worked out 25.60 quintile and its value @ 450/- per quintile is worked out Rs.11,520/-. The rate of 975 bags of ration potatoes is worked out 40 X 975=390.00 quintile and its value @Rs.450/- per quintile comes to Rs.1,75,500/-. The complainant has mentioned the weight 40 kgs. of his 195 ration potatoes bags. The rate of 195 bags of ration potatoes is worked out 195 X 49=95.55 quintile and its value @ Rs.450/- per quintile comes to Rs.42,997/-. The rate of 992 bags of seeds potatoes is worked out 40 X 992=396.80 quintile and its value @Rs.600/- per quintile comes to Rs.2,38,080/-. The complainant has mentioned 43 kgs weight of 80 bags of seeds potatoes. The rate of 80 bags of seeds potatoes is worked out 43 X 80=34.40 quintile and its value @Rs.600/- per quintile comes to Rs.20,640/- The total value of stored potatoes is Rs.4,88,737/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.48,873/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.4,39,864/-.

    The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/9) has also revealed rent @ Rs.85/- per bag. The total charges for 2306 bags is calculated as Rs.196,010/-. The complainant has alleged that he has paid Rs.3 lakhs as part of advance rent, but evidence produced by the complainant does not prove this fact. The complainant has alleged that he deposited Rs.2 lakhs in the bank account, but the receipts proves that this amount was deposited by another person. Therefore, it cannot be accepted that this amount was deposited by the complainant. The complainant has also not produced any receipt regarding deposit of another Rs.1 lakh. 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.1,96,010/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.4,39,864/-. Therefore, net loss of the complainant is worked out as Rs.2,43,854/-.

24. As a result of our above discussion, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party No.2. The complainant is held entitled to above sum of Rs.2,43,854/- 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:-

    17-08-2017

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member