| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.504 of 04-11-2015 Decided on 14-12-2016 Veerdevinder Singh S/o Ganga Singh R/o Raghu Bangi, Tehsil Talwandi Sabo, District Bathinda. ........Complainant Versus 1.Singla Cold Storage, Tarkhan Wala Cold Storage, Raman Mandi, District Bathinda, through its Owner Davinder Pal Singla. 2.Davinder Pal Singla S/o Tara Chand R/o Street No.2, House No.1505, Nai Basti, Bathinda. 2.Nikhil Singla S/o Devinder Pal Singla S/o Tara Chand R/o Street No.2, House No.1505, 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.Sanjeev Kumar Gupta, Advocate. For opposite parties: Sh.Shaminder Singh Sohal, Advocate. ORDER Jarnail Singh, Member The complainant Veerdevinder 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). Briefly stated, the case of the complainant is that he is resident of village Raghu Bangi and agriculturist by profession. Opposite party Nos.2 and 3 on behalf of opposite party No.1, induced the complainant and many others to get their potatoes bags stored in their cold storage and further assured the complainant that they will be solely responsible for any damages to the articles being deposited by them. It was orally agreed by opposite party Nos.2 and 3 in the presence of Jagseer Singh S/o Karnail Singh that they will charge rent of Rs.85/- per bag from the complainant and Rs.50/- per bag will be taken as advance and remaining Rs.35/- per bag will be taken at the time of lifting of the stock from the cold storage. The complainant got stored 89 bags on 19.3.2015, 101 bags on 20.3.2015, 102 bags and 124 bags on 20.3.2015 and 103 bags on 20.3.2015 of 50 kgs. each vide different receipts and he also deposited advance rent of Rs.19,750/-. At that time opposite parties assured that they have every facility and instrument to take care of the articles (potatoes) up to 31.10.2015. It is alleged that some days before, the complainant visited the cold storage, it was found locked from the outside and many other peoples were also gathered there on the same pretext and came to know that opposite parties are negligent to take care of the articles and due to their sheer negligence, articles have been totally damaged. The complainant approached opposite parties in the presence of Jagseer Singh, they admitted their fault and flatly refused to compensate the complainant for lose. Since the rate of potatoes was Rs.400/- per 50 kgs. and complainant has caused loss to the tune of Rs.1,58,800/- On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and has claimed Rs.50,000/- on account of harassment and Rs.10,000/- as litigation and other expenses and Rs.19,750/- as rent amount and Rs.1,58,800/- as loss suffered by him. 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 has been filed by the complainant only to injure their goodwill and reputation. This complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, opposite parties are entitled to get special costs from the complainant U/s 26 of 'Act'. 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 without proper weight, in wet, poor and smeared condition. This fact is within the knowledge of the complainant. This fact 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. The complainant has not deposited any rent with opposite parties for storing the 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 pleaded that at the time of storing the potatoes of the complainant, opposite parties told him that all his potatoes are without proper weight and smeared and to store the same at his own risk. The potatoes were damaged due to the fact that the same are already in smeared condition. The complainant and other failed to take delivery of his/their potatoes up to 31.10.2015, rather they have 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 (Junior Division), Bathinda. It is further mentioned that the price of seed/ration potatoes is not more than Rs.75/- per bag of 50 kgs. After controverting all other 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 4.11.2015 and 19.2.2016, (Ex.C1 and Ex.C3); photocopies of stock receipts, (Ex.C2 to Ex.C5); affidavit of Jagseer Singh dated 19.2.2016, (Ex.C7); photocopy of rate list of potatoes, (Ex.C8) 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); photocopy 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 he is 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 stored potatoes in the cold storage of opposite parties. The receipts, (Ex.C2 to Ex.C5) also prove this fact. It is not disputed that when the complainant approached opposite parties to take delivery of the potatoes, same were not delivered and these were found damaged. The complainant has alleged that he has paid Rs.19,750/-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.OP1/2). 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 has got stored 395 bags of potatoes (249 bags as per receipts) 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, some days before, he went to take delivery of his potatoes bags and found that the entire lot has damaged. He has relied upon receipts, (Ex.C2 to Ex.C5), although to prove storage of potatoes. The 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 receipts 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 also submitted by learned counsel for opposite parties that opposite parties have placed on record gate pass, (Ex.OP1/4 to Ex.OP1/7), which prove that there was not any damage to the stock of other persons and the stock of other persons was delivered on 28.10.2015 and thereafter. One Jagtar Singh has also furnished his affidavit wherein he has admitted that he stored his potatoes in the cold store of opposite parties and received the delivery in safe and good condition and keeping in view the low market price of the potatoes, various farmers did not come forward to get their respective potatoes bags to avoid the payment of the rent. As such, it is proved that there was no loss to the other farmers, who have stored the potatoes in good condition. 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 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. 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.OP1/3). 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. Of-course, the complainant has pleaded that he has stored 395 bags of potatoes with opposite parties, but counsel for opposite parties has submitted that actually, 249 bags of potatoes bags were stored. The complainant has wrongly mentioned number of bags, but actually, this was serial numbers of bill book. Counsel for the complainant has not disputed this fact. Therefore, it is held that the complainant stored 249 bags of potatoes with opposite parties. 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 average 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 is as Rs.450/- per quintile in the month of October 2015. The complainant got stored 249 bags of potatoes. As per rate list, the rate of potatoes is as Rs.450/- in the month of October 2015 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. As per receipts, (Ex.C2 to Ex.C5) 249 bags of potatoes were stored. The complainant has mentioned the weight of his 122 ration potatoes bags as 49 Kgs. The total weight of 122 bags of ration potatoes is worked out 59.78 quintile and its value @ 450/- per quintile is worked out Rs.26,901/-. The complainant has mentioned the weight of his 93 ration potatoes bags as 50 Kgs. The total weight of 93 bags of ration potatoes is worked out 46.50 quintile and its value @ 450/- per quintile is worked out Rs.20,925/-. In the receipt, (Ex.C5), the weight of seed potatoes bag is mentioned as 50 kgs. As such, the rate of 34 bags of seeds potatoes is worked out 50 X 34=17.00 quintile and its value @ Rs.600/- per quintile comes to Rs.10,200/-. The total value of stored potatoes is Rs.58,026/-. The complainant was also to bear (suffer) expenses for the carriage and due to some damage to the potatoes. Rs.5800/- (Apprx.10%) is assessed as expenses on account of carriage/loss of stock. Therefore, net loss of the complainant is assessed as Rs.52,226/-. 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 249 bags is calculated as Rs.21,165/-. The complainant has alleged that he has paid Rs.19,750/- 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.21,165/- is payable by the complainant on account of rent charges. This amount is adjustable from the amount payable to the complainant i.e. Rs.52,226/-. Therefore, net loss of the complainant is worked out as Rs.31,061/-. 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 2 and dismissed qua opposite party No.3. The complainant is held entitled to above sum of Rs.31,061/- 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:- 14-12-2016 (M.P Singh Pahwa) President (Jarnail Singh) Member
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