| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.64 of 07-01-2016 Decided on 25-10-2016 Seera Sharma S/o Data Ram R/o Village Singhpura, Tehsil Kalianwali, District Sirsa. ........Complainant Versus 1.M/s Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, District Bathinda, through its Sole Proprietor Davinder Pal Singla S/o Roop Lal. 2.Nikhil Singla S/o Devinder Pal Singla, Manager of M/s 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.Harinder Singh Aklia, Advocate. For opposite parties: Sh.Shaminder Singh Sohal, Advocate. ORDER M.P Singh Pahwa, President The complainant Seera Sharma (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 Other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is an agriculturist by profession and is doing the cultivation to earn livelihood for himself and his family. Opposite parties are running one cold storage under the name M/s Singla Cold Storage, Raman Mandi. Opposite party No.1 is sole proprietor and opposite party No.2 is manager of the cold store. It is alleged that in order to protect his potatoes from the damage, the complainant approached opposite parties in the last week of March 2015 and enquired about the storage of the potatoes in their cold storage. They demanded a sum of Rs.80/- per bag (50 kgs) as charges for keeping the bags of potatoes in their cold storage and some advance amount. The remaining amount of storage charges was payable at the time of delivery of the bags from the cold storage, which was agreed to be taken up to 31.10.2015 and complainant agreed to the same. Opposite parties assured the complainant that they will preserve his potatoes and there will be no damage to the potatoes and assured for best services. It is further alleged that the complainant stored total 108 bags of potatoes (50 kgs. each) in the cold storage on 16.4.2015 and deposited a sum of Rs.7000/- as advance rent. At the time of keeping the potatoes in the cold storage of opposite parties and payment of advance rent, no receipt was issued by them in favour of the complainant. Opposite parties assured him to issue the receipt later on and complainant bonafidely believed their assurance. The entire stock of the complainant was in very good condition and retained by opposite parties after checking the same before storage. The complainant time and again visited the office of opposite parties and requested them to issue the receipt regarding payment of advance amount, but to no effect. It is further alleged that in the month of October 2015, the complainant visited the office of opposite parties to get delivery of the stock, but they have been putting off the matter on one or other pretext and failed to handover him the entire stock and ultimately, in the last week of October 2015, they flatly refused to return him the potatoes bags. The complainant came to know that his stock kept in the cold storage of opposite parties has been completely spoiled as opposite parties have failed to protect the stock by providing the proper services and to maintain the proper cooling in their cold storage and further the cold storage was loaded with the stock of potatoes in comparison to its capacity and cooling, as a result of which, the potatoes of the complainant and other persons have been completely damaged for which opposite parties are only responsible. 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.30,000/- on account of mental tension, harassment etc. and cost of litigation to the tune of Rs.5000/- and Rs.59,400/- as loss suffered by him due to damage of his 108 bags 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 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. Some of the bags of the potatoes have already been received by the complainant, but the remaining bags were not taken by him at his own. 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. 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 the weight of the potatoes bags of the complainant was not proper and all the potatoes are in smeared and damaged condition and also in poor packing. He has also concealed the fact that at the time of storage of potatoes, he has not deposited any rent amount whereas he is liable to pay the same. As such, 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. On merits, it is denied that opposite parties demanded Rs.80/- per bag of 50 kgs. potatoes, rather the rent of the storage of potatoes bag was demanded by them @ Rs.85/- per bag of 50 kgs. potatoes for the period up to 31.10.2015. The potatoes of the complainant were not in proper weight and were full of smeared, poor and damaged condition. This fact is clearly mentioned on the slip issued to him. The complainant alongwith other farmers made agitation against opposite parties. As such, under the compelled circumstances, opposite parties stored the potatoes of the complainant and other persons. Opposite parties did not give any assurance for issuance of any receipt. The allegations regarding over loading and proper cooling are totally false and baseless. 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. Parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence his own affidavits dated 24.12.2016 and 6.6.2016, (Ex.C1 and Ex.C7); photocopy of legal notice, (Ex.C2); postal receipts, (Ex.C3 and Ex.C5); photocopy of letter, (Ex.C4); stock receipt, (Ex.C6) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 19.9.2016, (Ex.OP1/1); certified copy of civil suit, (Ex.OP1/2); photocopy of letter alongwith rate list, (Ex.OP1/3); photocopies of gate pass, (Ex.OP1/4 to Ex.OP1/7); photocopy of conditions, (Ex.OP1/8); affidavit of Jagtar Singh dated 5.8.2016, (Ex.OP1/9) 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 an agriculturist by profession and is doing the cultivation to earn livelihood for himself and his family. 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 got stored 108 bags of potatoes as mentioned in the complaint. The receipt, (Ex.C6) also proves this fact. The complainant has alleged that when he approached opposite parties for taking delivery of the potatoes, he found that the entire lot has been damaged due to negligent act of opposite parties. In written version, opposite parties have taken the stand that the complainant has not approached for taking the delivery of his potatoes. This version of opposite parties is afterthought version. Opposite parties want to take shelter of the remarks mentioned in the receipt 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. 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 'dagi' (damaged) 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. Although, the complainant has paid Rs.7000/- in advance for storage of potatoes. The receipt, (Ex.C6) acknowledges the payment of Rs.7000/- 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. 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 108 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 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.C6), 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 receipt as proved as Ex.OP1/8, 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. It is further submitted by learned counsel for opposite parties that the real facts are that the complainant has not paid any rent. The price of potatoes is considerably fallen. The complainant opted not to take delivery of potatoes only to escape from the payment of rent. The matter has been unnecessarily delayed by the complainant, which now resulted damage to the stored potatoes. Therefore, the complainant is not entitled to any relief. 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. The complainant has pleaded in his complaint that he is an agriculturist by profession and is doing the cultivation to earn livelihood for himself and his family. 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'. Now, coming to the main controversy. The complainant has stored 108 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 receipt, (Ex.C6) 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 receipt, (Ex.C6), 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 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. 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.OP1/2). 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. Opposite parties have 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. Now, point for determination is amount of compensation for which the complainant is entitled to. Opposite parties pleaded that the market price of ration/seed potatoes is only Rs.60/- per bag of 50 kgs. Opposite parties have tendered into evidence rate list, (Ex.OP1/3), 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 was Rs.450/- per quintile in the month of October 2015. The average rate of mix potatoes is assessed as Rs.500/- per quintile. As per complainant, 108 bags of mix potatoes were stored. The complainant has not mentioned the weight of his bags. It is fairly admitted that the normal weight of potatoes bag is 40 kgs. The total weight of 108 bags of mix potatoes is worked out 43.20 quintile and its value @Rs.500/- per quintile comes to Rs.21,600/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.2100/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.19,500/-. The complainant was to pay rent charges, which is admittedly Rs.85/- per bag. Opposite party in the plaint, (Ex.OP1/2) has also revealed rent @ Rs.85/- per bag. The total charges for 108 bags is calculated as Rs.9180/-. The complainant has alleged that he has paid Rs.7000/- as part of advance rent, receipt, (Ex.C6) 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.7000/-. Therefore, we accept the version of the complainant that he has paid Rs.7000/- in advance as part of rent. Therefore, this amount is adjustable in the rent amount payable to opposite parties. So, a sum of Rs.2180/- (Rs.9180/- - Rs.7000/-=Rs.2180/-) is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.19,500/-. Therefore, net loss of the complainant is worked out as Rs.17,320/-. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.1 being proprietor of M/s Singla Cold Storage. Opposite party No.2 is impleaded being manager, but opposite party No.1 is owner of firm in question. Therefore, only owner is liable to compensate the complainant. As such, complaint against opposite party No.2 is dismissed. The complainant is held entitled to above sum of Rs.17,320/- 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:- 25-10-2016 (M.P Singh Pahwa) President (Jarnail Singh) Member
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