DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.489 of 30-10-2015

Decided on 01-09-2016

Gurcharan Singh aged about 50 years S/o Kala Singh S/o Kishan Singh R/o Village Chak Hira Singh Wala, Tehsil Talwandi Sabo, District Bathinda.

........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.

2.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.Arshdeep Singh, Advocate.

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

ORDER

M.P Singh Pahwa, President

1. The complainant Gurcharan 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 and told the complainant to pay advance store charges of Rs.500/-, which he paid to them vide receipt No.24 dated 27.2.2015. The complainant filled 133 bags of potatoes each bag containing 40 kgs and stored the same in the cold store of opposite party No.1 vide receipt No.65 dated 17.3.2015 and 67 dated 18.3.2015 respectively. 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 in the first week of October 2015, the complainant approached opposite parties to take his 133 bags of potatoes for sowing purposes to get next crop, but opposite party Nos.2 and 3 did not come to their cold store. The complainant made telephone call to opposite party Nos.2 and 3 and asked them to handover the above quantity of bags containing the potatoes, but they were not listening and were not giving any satisfactory reply. As such, the complainant and his co-villagers 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.1 lac as compensation and Rs.10,000/- as litigation expenses and prayed for giving directions to opposite parties to pay refund of advance charges of Rs.500/-. 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 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. 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. 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.

7. On merits, it is denied that in the first week of October 2015, the complainant approached opposite parties to take his 133 bags of potatoes or opposite parties did not come to their cold store. The allegations are totally false and baseless. The complainant himself neither visit for taking delivery of his potatoes nor he paid any rent to opposite parties for storing his bags of potatoes. It is further admitted that the application was marked for enquiry to ASI Manjit Singh of P.S Raman and DDR No.15 dated 24.10.2015 was lodged. All other averments are categorically denied.

   In the end, opposite parties 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 22.1.2016, (Ex.C1); photocopy of jamabandi, (Ex.C2); copy of khasra girdawri, (Ex.C3); photocopy of receipt, (Ex.C4); photocopies of stock receipts, (Ex.C5 and Ex.C6); photocopy of DDR, (Ex.C7); photocopy of letter, (Ex.C8) 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) 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 had sown potatoes. 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 133 bags of potatoes. The receipts, (Ex.C5 and Ex.C6) also prove this fact. He has also paid Rs.500/- in advance for storage of potatoes, receipt, (Ex.C4) proves 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.

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 165 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.

15. 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 considerably falled. The complainant opted not to take delivery of potatoes only to escape from the payment of rent. Opposite parties have fairly conceded that they are ready to deliver the stored potatoes in good condition but despite this fact the complainant has not taken any step to take the delivery of the potatoes. 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.

16. 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 June 2015. Therefore, the rate prevailing in the month of June 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.

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 small farmer and had grown potatoes to earn his livelihood. 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. 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, 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 Er.Nikhil Singla is not maintainable and stands dismissed.

20. Now, point for determination is amount of compensation for which the complainant is entitled to. He has alleged that the got stored 133 bags of potatoes, receipts, (Ex.C5 and Ex.C6) also proves this fact. Opposite parties have also not categorically denied this fact. Opposite parties pleaded that the market price of seed potatoes is not more than Rs.60/- per bag of 50 kgs. 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. 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.OP1/8) 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.

21. As per receipts, (Ex.C5 and Ex.C6), 63 bags of ration potatoes were stored. Opposite parties have mentioned the weight of bags on receipt, (Ex.C6) as 41.300 kgs. The total weight of 63 bags of ration potatoes is worked out 26 quintile and its value @ 450/- per quintile is worked out Rs.11,700/-. Opposite parties have also mentioned the weight of bags on receipt, (Ex.C5) as 45 kgs. The rate of 70 bags of seeds potatoes is worked out 70 X 45=31.50 quintile and its value @ Rs.600/- per quintile comes to Rs.18,900/-. The total value of stored potatoes is Rs.30,600/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.3000/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.27,600/-.

    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 133 bags is calculated as Rs.11,305/-. The complainant has already paid Rs.500/- as rent and a sum of Rs.10,805/- is due towards the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.27,600/-. Therefore, net loss of the complainant is worked out as Rs.16,795/-.

22. 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.16,795/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization.

23. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    01-09-2016 (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member