| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.413 of 13-07-2016 Decided on 31-08-2017 Raja Singh @ Vipandeep Singh S/o Baldev Singh S/o Jugraj Singh R/o Village Malwala, Tehsil and 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.Shamindr Singh Sohal, Advocate. ORDER Jarnail Singh, Member The complainant Raja Singh @ Vipandeep 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). 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. It is alleged that in the months of March and April 2015, the complainant has harvested potatoes and with an intention to save his crops, he has stored 750 bags of potatoes with opposite parties. The receipts were issued by opposite parties, but the same has been lost from the complainant. He kept all the receipts inside his house, but thereafter he could not trace out the receipts with his best efforts as these receipts might have been thrown somewhere by his wife or children by treatment ordinary papers. Opposite parties have filed the civil suit title as M/s Singla Cold Storage Vs. Gurmeet Singh and others. It is pending in the Court of Sh.Kanwaljit Singh, Civil Judge (Junior Division), Bathinda. In this suit, opposite parties have made the complainant as party and admitted that he has stored ration and goli bags with them. At the time of storing the potatoes, they were in very good condition and opposite parties did not raise any objection regarding their condition. The agreed rate of rent was Rs.85/- per bag and in lieu of the rent of the cold storage, the complainant paid Rs.60,000/-. 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. 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 750 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.1 lakh on account of harassment plus cost of litigation and Rs.4 lakhs as cost of potatoes. Hence, this complaint. 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 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. The complaint has not been filed within the limitation period and it is liable to be dismissed. 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, but he has already received his potatoes. He did not pay the rent to opposite parties. As such, opposite parties have filed civil suit for permanent injunction as the complainant and other persons are threatening them to take delivery of potatoes without paying the rent. He is not a consumer of opposite parties. He has no locus-standi or cause-of-action to file this complaint against opposite parties. On merits, it is denied that the complainant paid Rs.60,000/- to opposite parties against the storage of his potatoes. At the time of storing of the potatoes, the complainant handed over the receipts issued by opposite parties. It is admitted that the agreed rate of rent was Rs.85/- per bag. 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. Parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 16.12.2016, (Ex.C1); photocopy of civil suit, (Ex.C2); photocopy of DDR, (Ex.C3); affidavit of Jagsir Singh dated 10.4.2017, (Ex.C4) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Nikhil Singla dated 26.7.2017, (Ex.OP2/1) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. 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 alleged that he has paid Rs.60,000/- advance for storage of potatoes, but no receipt has been brought on record to prove this fact. It is further submitted by learned counsel for complainant that although, the complainant has not produced any receipt, but opposite parties have not denied the deposit of storage of potatoes bags with them. Therefore, in this way, opposite parties have admitted that the complainant stored the potatoes bags with them. Opposite parties have pleaded that all the stored potatoes were returned to the complainant and receipts produced by him were destroyed. When the storage of potatoes was admitted by opposite parties, then onus to prove the return of same is upon them, but they have failed to discharge the onus. It is highly improbable and unbelievable that opposite parties have destroyed the receipts in case the potatoes were returned. Moreover they were also supposed to be in possession of other record regarding storage of potatoes and return of same. The complainant has placed on record copy of plaint, (Ex.C2) filed by opposite parties against 130 persons including the complainant. Names, Parentage and Residents of all 130 defendants are mentioned in the plaint. These particulars can be mentioned by opposite parties, if they maintain any record. This fact proves that opposite parties have having record regarding storage of potatoes and they are also supposed to be in possession of the record regarding return of stored potatoes bags. No record has been produced by opposite parties. The verbal version of opposite parties cannot be accepted when they were having documentary evidence. It is well settled that adverse inference can be drawn against the parties, who withheld the best evidence with them. Therefore, the case of the complainant is proved and admitted. 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. 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 750 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'. 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. It is also submitted by learned counsel for opposite parties that the complainant is supposed to stand upon his own legs. The case of the complainant is not held proved on the basis of conjectures and surmises. He has admitted that the receipts were issued by opposite parties. He has not produced any receipt by pleading that the same has been lost, but there is no evidence to prove loss of the receipt. The version of opposite parties is very plausible that the complainant produced the receipts and took the bags after returning the receipts and receipts were destroyed. The complainant has filed this complaint on 13.7.2016 i.e. at very belated stage. This fact also leads to inference that he has already taken his stored potatoes bags, otherwise, he was not to wait for such a long time. 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. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainant. 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 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'. The complaint is filed against Davinder Pal Singla and Nikhil Singla being partners/proprietors of M/s Singla Cold Store. The complainant has not produced any document to prove that both Davinder Pal Singla and Nikhil Singla are partners of M/s Singla Cold Store. He has placed on record plaint, (Ex.C2). 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. Now, coming to the main controversy. The version of the complainant is that he has stored 750 bags of potatoes with opposite parties and receipts issued by opposite parties have been lost. Of-course, the complainant has not produced any receipt, but opposite parties have not denied storage of 750 bags of potatoes by the complainant. The version of opposite parties is that the bags stored by the complainant were taken back by them. In these circumstances, onus shifted upon opposite parties to prove that the complainant took back his stored potatoes. They have not disclosed the dates on which these bags were returned to the complainant. They have also not produced any other documentary evidence to prove return of the bags to the complainant. The complainant has placed on record one plaint, (Ex.C2) filed by opposite parties against 130 persons. The names, parentage and residents of all 130 persons including the complainant is mentioned in the plaint. It is also mentioned that the defendants (which include the complainant) stored their potatoes with opposite parties. This fact can be only on the basis of some documentary evidence. Therefore, it is proved that opposite parties were maintaining the record regarding storage of potatoes by different persons including the complainant. The best evidence to prove return of the potatoes bags to the complainant was documentary evidence, which was to be supposed in their possession, but no documentary evidence is brought on record. It is well settled that adverse inference can be drawn against party, who withheld the best evidence in its possession. Therefore, adverse inference can be drawn against opposite party No.1 for this failure also. As such, it is accepted that the complainant has stored 750 bags of potatoes and opposite parties have failed to delivery back the same. As per complainant, 750 bags of potatoes were stored. The average rate of potatoes is assessed as Rs.450/- per quintile. 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 750 bags of potatoes is worked out 300.00 quintile and its value @ 450/- per quintile is worked out Rs.1,35,000/-. The total value of stored potatoes is Rs.1,35,000/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.13,500/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.1,21,500/-. The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.C2) has also revealed rent @ Rs.85/- per bag. The total charges for 750 bags is calculated as Rs.63,750/-. The complainant has pleaded that he has already paid Rs.60,000/- as part of advance rent, but there is no documentary evidence to prove this fact. So, a sum of Rs.63,750/- is due towards opposite parties. The complainant is liable to pay this amount to opposite parties. In this way, the total amount payable to the complainant is worked out as Rs.57,750/- (Rs.1,21,500/- - Rs.63,750/-=Rs.57,750/-). 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.57,750/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 31-08-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
| |
