| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.492 of 02-11-2015 Decided on 25-10-2016 Gurjeet Singh aged about 37 years S/o Nathu Singh R/o Village Malwala, Tehsil Talwandi Sabo, District Bathinda. ........Complainant Versus 1.M/s Singla Cold Storage, Village Tarkhan Wala, Refinery Road, Raman Mandi, Tehsil Talwandi Sabo, District Bathinda, through its Proprietor/Parnter/Owner. 2.Davinder Pal Singla, Proprietor/Partner/Owner of M/s Singla Cold Storage R/o # MCB/Z-3-02731, Street No.2, Nai Basti, Bathinda. 3.Er.Nikhil Singla, Proprietor/Partner/Owner of M/s Singla Cold Storage R/o # MCB/Z-3-02731, Street 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.Rakesh Mangla, Advocate. For opposite parties: Sh.Shaminder Singh Sohal, Advocate. ORDER Jarnail Singh, Member The complainant Gurjeet 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 Other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is an agriculturist by profession. Opposite parties are running one cold storage and they used to get the goods stored of their various customers against consideration. It is alleged that the complainant stored 59 bags of seed potatoes in the cold store of opposite parties vide receipt No.169 dated 24.3.2015. The rent was agreed to be paid @ Rs.85/- per bag. Opposite parties received advance payment of Rs.2500/- in cash from the complainant, but no receipt in this regard was issued by them. It was further agreed that the complainant shall lift his stock of seed potatoes on or before 31.10.2015. It is further alleged that the complainant has already lifted one bag of seed potatoes vide receipt No.171 dated 25.7.2015 and remaining 58 bags are still lying in the cold store. There is a crop season for sowing the potatoes crop and accordingly, the complainant started visiting opposite parties since 1.10.2015 to lift his remaining stock of 58 bags of seed potatoes, but opposite parties started postponing the matter on one or other pretext. The complainant came to know that due to mishandling of the stock by opposite parties in their cold store, the entire stock of different agriculturists including his stock has already been damaged. Opposite parties are postponing the matter so that due date for lifting the stock, which was fixed to be 31.10.2015 could be crossed and they may be able to avoid their liability with the aforesaid lame excuse. It is further alleged that on 19.10.2015, the complainant approached opposite parties to get his stock lifted, but the cold store of opposite party No.1 was found locked. Ultimately, he approached opposite party Nos.2 and 3 at their residence, but they again postponed the matter. He protested for the same, but opposite party Nos.2 and 3 misbehaved with him and refused to deliver him the stock. He has also got served a registered legal notice dated 20.10.2016 to opposite parties, but to no avail. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has claimed damages to the tune of Rs.25,000/- on account of mental tension, agony etc. and cost of litigation to the tune of Rs.10,000/- and Rs.29,000/- as cost of damaged stock alongwith interest. 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. 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 stored the potatoes in poor and not in proper weight. 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 wet, smeared and poor condition potatoes. He has also concealed the fact that he has not deposited any amount of Rs.2500/- as rent for the storage 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. On merits, it is denied that the complainant started visiting opposite parties since 1.10.2015 to lift his remaining stock of 58 bags of seed potatoes. It is further denied that opposite parties have mishandled the stock in their cold stores or caused any damage as alleged. The complainant and others 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, (Jr.Division), Bathinda. 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 receipts, (Ex.C1 and Ex.C2); photocopy of legal notice, (Ex.C3); photocopies of postal receipts, (Ex.C4 to Ex.C6); his own affidavit dated 4.3.2016, (Ex.C7) photocopy of report, (Ex.C8); registered letters received back undelivered, (Ex.C9 to Ex.C11) and closed the evidence. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 20.7.2016, (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); photocopy of letter, (Ex.OP1/8); affidavit of Jagtar Singh dated 20.7.2016, (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. 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 59 bags of potatoes as mentioned in the complaint. The receipt, (Ex.C1) also proves this fact. He has also pleaded that he has taken the delivery of one bag out of his 59 bags. 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 'wet'. 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 'wet' 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.2500/- in advance for storage of potatoes. The receipt, (Ex.C1) acknowledges the payment of Rs.2500/- 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 59 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. 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.C1), although to prove storage of potatoes, but in this receipt, the conditions of potatoes is also recorded as 'wet'. 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 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. 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.3 is not maintainable and stands dismissed. Now, coming to the main controversy. The complainant has stored 59 bags of potatoes with opposite parties and out of these bags, he has already taken the delivery of one bag of potatoes. Opposite parties have admitted 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.C1) 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.C1), it is mentioned that potatoes are in 'wet' 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.OP1/3). 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 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.OP1/3) 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. It is also matter of common knowledge that the rate of seed potatoes is on higher side from the rate of ration potatoes. Its rate is assessed as Rs.600/- per quintile. As per complainant, he has already taken the delivery of one bag of seed potatoes out of his total 59 bags of stored potatoes. 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 58 bags of seed potatoes is worked out 23.20 quintile and its value @ Rs.600/- per quintile comes to Rs.13,920/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.1400/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.12,520/-. 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 58 bags is calculated as Rs.4930/-. Although, the complainant has alleged that he has paid Rs.2500/- as part of advance rent, but receipt, (Ex.C1) acknowledges the payment of Rs.2500/- in advance. Moreover opposite parties have not produced any document to rebut this payment. Therefore, this amount is adjustable in the rent amount payable to opposite parties. So, a sum of Rs.2430/- (Rs.4930/- - Rs.2500/-=Rs.2430/-) is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.12,520/-. Therefore, net loss of the complainant is worked out as Rs.10,090/-. 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.10,090/- 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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