DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.456 of 28-10-2015

Decided on 04-10-2016

Karnail Singh aged about 50 years S/o Gora Singh R/o Village Jagmaal Wali, Tehsil Dabwali, District Sirsa (Haryana).

........Complainant

Versus

1.Singla Cold Storage, Tarkhanwala, Refinery Road, Raman Mandi, District Bathinda, through its Manager/Proprietor/Partner.

2.Davinder Pal Singla, Manager/Partner/Proprietor of Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda.

3.Er.Nikhil Singla, Manager/Partner/Proprietor of Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, 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.Gurdev Singh Bandi, Advocate.

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

ORDER

M.P Singh Pahwa, President

1. The complainant Karnail 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 opposite parties run the business under the name & style of Singla Cold Storage and do the business of storing different types of goods/material and take requisite charges for storage of different goods/material from its customers.

3. It is alleged that the complainant got stored 125 bags of seeds (white) of Rs.400/- each i.e. Rs.50,000/- and 116 bags of potato (white) of Rs.400/- each i.e. Rs.46,400/- with opposite parties on 18.3.2015 vide stock receipt Nos.072 and 073 dated 18.3.2015 respectively. He stored these goods/material to earn the livelihood for himself and his family members. The detailed terms and conditions are mentioned at the backside of the stock receipts. As per these terms and conditions, opposite parties are bound to give delivery of the goods to the complainant on or before 31.10.2015 and similarly, he is entitled to get delivery of the goods from them on or before 31.10.2015 and he has also paid requisite charges to opposite parties at the time of storage of the goods.

4. It is further alleged that in the first week of October 2015, the complainant approached opposite parties and requested them to deliver him bags of potatoes, but firstly they tried to linger on the matter on one or other pretext and finally, on protest by the complainant, they flatly refused to give him delivery of the seed potatoes bags on the ground that all the bags have been damaged and they are unable to give him delivery of the bags for which opposite parties are liable either to deliver the potatoes bags with same quantity, quality and same weight to him or to compensate him with amount of the said potatoes worth Rs.96,400/-, but nothing has been paid.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed compensation to the tune of Rs.60,000/- on account of mental tension, agony, harassment etc. and cost of litigation to the tune of Rs.11,000/- and prayed for directions to opposite parties either to supply the bags of potatoes with same quantity, quality and weight or to pay Rs.96,400/- as present market price of the said goods/material. 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 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 poor condition potatoes. He has not paid any rent for storing of his 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 value of each bag of potatoes was Rs.400/- per bag. It is further mentioned that any of the customer, who failed to get the delivery of his potatoes up to 30.10.2015, opposite parties are not responsible for any damages or to deliver the potatoes. 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 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. All other averments of the complainant are categorically denied.

   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 own affidavit dated 30.12.2015, (Ex.C1); photocopy of stock receipts, (Ex.C2 and Ex.C3); affidavit of Balvir Singh dated 21.3.2016, (Ex.C4) and closed the evidence.

10. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 5.8.2016, (Ex.OP1/1); certified copy of conditions, (Ex.OP1/2); photocopy of civil suit, (Ex.OP1/3); photocopies of gate pass, (Ex.OP1/4 to Ex.OP1/7); affidavit of Jagtar Singh dated 5.8.2016, (Ex.OP1/8); photocopy of letter, (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 stored the goods/material to earn the livelihood for himself and his family members. 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 receipt, (Ex.C2) also proves 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, (Ex.C2 and Ex.C3) wherein it is shown as 'very 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 'very poor' in the receipt. 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 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 requisite charges to opposite parties at the time of storage of goods/material, but he has not produced any receipt to prove this fact.

13. It is further submitted by learned counsel for the complainant that the complainant has paid requisite charges for storage of potatoes. Although, he is not in the possession of this receipt, 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 241 bags of potatoes with opposite parties and he has also alleged that he has suffered huge loss. 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 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 and Ex.C3), although to prove storage of potatoes, but in this receipt, the conditions of potatoes is also recorded as 'very 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 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 complainant was only due to the fact that the same were in the poor/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 stored the goods/material to earn the livelihood for himself and his family members. 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.OP1/3). 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.

21. Now, coming to the main controversy. The complainant has stored 241 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.C2 and Ex.C3) 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.C2 and Ex.C3), it is mentioned that potatoes are in 'very 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 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 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.OP1/9), 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.OP1/3) 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. The rate of mix potatoes is assessed as Rs.500/- per quintile.

23. As per receipts, 241 bags of potatoes were stored. The complainant has mentioned the weight of his bags as 45 kgs. The total weight of 116 bags of ration potatoes is worked out 52.20 quintile and its value @ Rs.450/- per quintile comes to Rs.23,490/-. The total weight of 125 bags of mix potatoes is worked out 56.25 quintile and its value @ Rs.500/- per quintile comes to Rs.28,125/-. The total value of stored potatoes is Rs.51,615/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.5100/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.46,515/-.

    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 241 bags is calculated as Rs.20,485/-. The complainant has alleged that he has paid requisite charges 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 receipt, 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.20,485/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.46,515/-. Therefore, net loss of the complainant is worked out as Rs.26,030/-.

24. 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. The complainant is held entitled to above sum of Rs.26,030/- 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:-

    04-10-2016

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member