DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.487 of 30-10-2015

Decided on 15-12-2016

Malkit Singh aged about 35 years S/o Kartar Singh S/o Budh Ram R/o Village Machhana, 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.

2.Nikhil Singla, 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.V.P.S Khurmi, Advocate.

For opposite parties: Sh.Shaminder Singh Sohal, Advocate.

ORDER

Jarnail Singh, Member

1. The complainant Malkit 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 Others (here-in-after referred to as opposite parties).

2. 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 party No.1 is owner of cold storage known as Singla Cold Storage, Tarkhan Wala, Refinery Road, Raman Mandi, District Bathinda and opposite party No.2 is its manager. They are storing various products of the people by charging rent.

3. It is alleged that in the last year, the complainant has grown potatoes and with an intention to save his crops, he stored 214 bags of potatoes with opposite parties vide different receipts. In lieu of the rent of the cold storage, the complainant paid Rs.15,000/- to opposite parties on 26.3.2015 as advance rent of cold storage. 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.

4. It is further alleged that the complainant visited opposite parties to get the delivery of his 214 potatoes bags, 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. They have caused loss to the complainant to the tune of 2,14,000/- as the market value of the potatoes is Rs.20/- per kgs. The complainant alongwith others approached before the policy of P.S Romana and police prepared DDR No.15 dated 24.10.2015 in which the matter was thoroughly investigated by ASI Manjit Singh 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 tune of 2,14,000/- as cost of potatoes. 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 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.

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 the complainant paid advance rent of Rs.15,000/- to opposite parties. Opposite parties were ready to deliver the potatoes of the complainant on payment of rent to them as per terms and conditions. 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. It is denied that the market value of the potatoes is Rs.20/- per kgs., rather the market value of the seed/ration potatoes is not more than Rs.60/- per bag of 50 kgs. 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 29.2.2016, (Ex.C1); photocopies of stock receipts, (Ex.C2 to Ex.C5); photocopy of D.L, (Ex.C6); photocopy of writing, (Ex.C7); photocopy of receipt, (Ex.C8); photocopy of jamabandi for the year 2009-10, (Ex.C9); photocopy of DDRs, (Ex.C10 and Ex.C11); photocopy of backside of Ex.C2, (Ex.C12); photocopy of backside of Ex.C5, (Ex.C13) and closed the evidence.

10. In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Devinder Pal Singla dated 2.6.2016, (Ex.OP1/1); photocopy copy of conditions; (Ex.OP1/2); photocopy of civil suit, (Ex.OP1/3); photocopy of letter, (Ex.OP1/4); photocopies of gate pass, (Ex.OP1/5 to Ex.OP1/8); affidavit of Jagtar Singh dated 2.6.2016, (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 small farmer and his entire family depends on the agricultural land 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 214 bags of potatoes as mentioned in the complaint. The receipts, (Ex.C2 to Ex.C5) 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. The complainant has alleged that he has paid Rs.15,000/- as part of advance rent, receipt, (Ex.C12) acknowledges the payment of amount 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;

    2004 (2) CPJ 692 Himalaya Food Co. Vs. Dhanpat & Ors;

    2008 (1) CLT 592 Sanjay Kumar Vs. Vinod Kumar Yadav.

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 214 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 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.

15. We have given careful consideration to these submissions and gone through the cases law cited by the learned counsel for the complainant.

16. 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 small farmer and his entire family depends on the agricultural land 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'.

17. The main plea of opposite parties is that the complainant has not come forward to take the delivery of the potatoes. The complainant has alleged that he has stored 214 bags of potatoes with opposite parties. Opposite parties have not categorically denied this fact and simply pleaded that it is matter of record, but they have also not produced any record to controvert the averment of the complainant. Opposite parties were supposed to in possession of record, if any. The non-production of record by opposite parties further corroborates the stand of the complainant. Moreover the complainant has produced on record receipts, (Ex.C2 to Ex.C5), which also prove that he stored 214 bags of potatoes with opposite parties.

    It is also alleged by the complainant that opposite parties have failed to deliver back the stored potatoes when he approached them. The version of opposite parties is that the complainant has not come to take delivery of his potatoes bags from them during the period, but they have not produced any other evidence to prove that if the complainant has not come to take delivery of potatoes bags, he was given any notice asking him to take delivery of his potatoes bags. The complaint has been filed on 30.10.2015 and delivery was to be made up to the end of October 2015. In case, the complainant was himself at fault then he was no having reason to approach this Forum immediately after expiry period for which the potatoes were stored. This fact also belies the version of opposite parties that the complainant has not come to take delivery of his potatoes bags. Therefore, it stands proved that the complainant stored 214 bags of potatoes with opposite parties and they have failed to deliver back the same.

18. Now, point for determination is amount of compensation for which the complainant is entitled to. Opposite parties pleaded that the market price of seed potatoes is not more than Rs.60/- per bag. Opposite parties have tendered into evidence rate list, (Ex.OP1/4), 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 average 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/-. 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.

19. As per receipts, 214 bags of potatoes were stored. The complainant has mentioned the weight of his 13 bags of goli potatoes as 42 kgs. The total weight of 13 bags of goli potatoes is worked out 5.46 quintile and its value @ 450/- per quintile is worked out Rs.2457/-. The complainant has mentioned the weight of his 40 bags of ration potatoes as 49 kgs. The total weight of 40 bags of ration potatoes is worked out 19.60 quintile and its value @ 450/- per quintile is worked out Rs.8820/-. The complainant has mentioned the weight of his 131 bags of mix potatoes as 43 kgs. The total weight of 131 bags of mix potatoes is worked out 56.33 quintile and its value @ 500/- per quintile is worked out Rs.28,165/-. The complainant has not mentioned the weight of his 30 bags of seeds potatoes. It is fairly conceded that the weight of normal potatoes bags is 40 kgs. The total weight of 30 bags of seeds potatoes is worked out 12.00 quintile and its value @ 600/- per quintile is worked out Rs.7200/-. The total value of stored potatoes is Rs.46,642/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.4664/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.41,978/-.

    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 214 bags is calculated as Rs.18,190/-. The complainant has alleged that he has paid Rs.15,000/- as part of advance rent, receipt, (Ex.C12) 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.15,000/-. Therefore, we accept the version of the complainant that he has paid Rs.15,000/- in advance as part of rent. Therefore, this amount is adjustable in the rent amount payable to opposite parties. So, a sum of Rs.3190/- (Rs.18,190/- - Rs.15,000/-=Rs.3190/-) is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.41,978/-. Therefore, net loss of the complainant is worked out as Rs.38,788/-.

20. As a result of our above discussion, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.1. Opposite party No.2 is impleaded being manager, but opposite party No.1 is owner of firm in question. Therefore, only owner is liable for compensate the complainant. As such, complaint against opposite party No.2 is dismissed. The complainant is held entitled to above sum of Rs.38,788/- with interest @ 12% per annum. The interest is payable from the date of filing of complaint till realization.

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

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

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

    Announced:-

    15-12-2016 (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member