| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.461 of 28-10-2015 Decided on 05-09-2016 Gurditta Singh @ Gurpiar Singh aged about 30 years S/o Sadhu Singh S/o Jang Singh R/o Village Kuti @ Kishanpura, Tehsil Sangat, 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 M.P Singh Pahwa, President The complainant Gurditta Singh @ Gurpiar 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 month of March and April 2015, the complainant has harvested potatoes and with an intention to save his crops, he has stored 436 bags of potatoes with opposite parties vide different receipts. The agreed rate of rent was Rs.85/- per bag and in lieu of the rent of the cold storage, the complainant paid Rs.24,000/-. 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 436 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 lac on account of harassment plus cost of litigation and Rs.2,18,000/- 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 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 potatoes is not more than Rs.60/- per bag. 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 he has also filed another complaint against opposite parties on the same cause-of-action, which is fixed for 13.1.2016, but in that complaint he has not mentioned alleged bags mentioned in that complaint. As such, the second complaint is barred. 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 the complainant paid Rs.24,000/- to opposite parties in lieu of rent. Opposite parties were ready to deliver the potatoes of the complainant on payment of rent to them as per terms and conditions, rather he forced them to pay the alleged price of his potatoes. 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 are categorically denied. In the end, opposite parties 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 28.10.2015 and 1.3.2016, (Ex.C1); photocopy of DDR, (Ex.C2); photocopies of stock receipts, (Ex.C3 to Ex.C7); photocopy of letter, (Ex.C9); photocopy of form D, (Ex.C10) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 1.4.2016, (Ex.OP1/1); certified copy of civil suit, (Ex.OP1/2); photocopies of gate pass, (Ex.OP1/3 to Ex.OP1/6); photocopy of conditions, (Ex.OP1/7); photocopy of letter, (Ex.OP1/8) and affidavit of Jagtar Singh dated 2.6.2016, (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 small farmer and his 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 got stored 436 bags of potatoes as mentioned in the complaint. The receipts, (Ex.C3 to Ex.C7) also prove 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. It is rather mentioned that opposite parties were ready to deliver the stock of potatoes bags to the complainant on payment of rent. This version of opposite parties is afterthought version. It is further submitted by learned counsel for the complainant that the complainant has paid Rs.24,000/- in advance 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.OP1/7). 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. 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 436 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 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. Opposite parties have fairly conceded that they were ready to deliver the stored potatoes 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. 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.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.2 is not maintainable and stands dismissed. 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. In case, opposite parties were having potatoes bags of the present complainant ready for delivery to the complainant, they were also expected to seek directions against complainant to take back delivery of the bags. Opposite parties have also not issued any notice to the complainant asking him to take back his potatoe 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.OP1/8), 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.OP1/2) also, the goods were stored up to 31.10.2015. As per rate list, the average rate of potatoes was Rs.450/- per quintile in the month of October 2015. 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. As per complainant, 222 bags of ration potatoes were stored. The complainant has not mentioned the weight of his bags. It is fairly admitted that the normal weight of potatoe bag is 40 kgs. The total weight of 222 bags of ration potatoes is worked out 88.80 quintile and its value @ 450/- per quintile is worked out Rs.39,960/-. The rate of 214 bags of seeds potatoes is worked out 214 X 40=85.60 quintile and its value @Rs.600/- per quintile comes to Rs.51,360/-. The total value of stored potatoes is Rs.91,320/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.9100/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.82,220/-. 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 436 bags is calculated as Rs.37,060/-. The complainant has alleged that he has paid Rs.24,000/- 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 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.37,060/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.82,220/-. Therefore, net loss of the complainant is worked out as Rs.45,160/-. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- 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.45,160/- 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:- 05-09-2016 (M.P Singh Pahwa) President (Jarnail Singh) Member
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