In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/106/2018.

Date of filing: 23/07/2018.                     Date of Final Order: 20/04/2023.

Fakir Ch. Mondal

s/o. Satish Mondal,

Vill-Kaliagarh, P.O+ P.S-Balagarh, Dist-Hooghly.                     -        Complainant.

                                                                        VS  

Soumil Coldstorage Ltd.,

Vill-Ghoshpukur,P.O-Somrabazaar,

P.S-Balagarh,Dist-Hooghly

1. Taimur Mallick,

S/o Lt. Abu Bakkar Mallick

Vill-Shimulia, Jamilpukur, P.O-Shimuliadanga,

P.S-Mangolkote, Dist-Purba Bardhaman

2. Soumil Cold Storage Ltd.,

Vill-Ghoshpukur, P.O-Somrabazaar, Dist-Hooghly

Represented by its Director,

Tapas Ranjan Koner,

Vill- Basugopinathpur, P.O. +P.S.-Khandakosh,

Dist-Purba Burdwan, pin. 713142.Opposite Parties.

The Station Manager,

Somra Electric Group Supply Office,

Under (W.B.S.E.D.C.L),

P.O-Somra, P.S-Balagarh, Dist-Hooghly, Pin-712123.

Pro-forma Opposite Party.

Before:            President, Shri Debasish Bandyopadhyay.

                           Member, Minakshi Chakraborty.

                           Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act,1986 by the complainant stating that the complainant after being produces the potatoes in his agricultural land, retained the said potatoes in his account in the OP, cold storage in total 955 Bags of potatoes (each Bag contains 50 kgs), details are described in the complaint petition.

The complainant on 9.08.2017 went to the said cold storage for taking and selling the said potatoes but saw that the said OP cold storage was totally closed and no person was there to entertain the customers and electric line was disconnected and office was closed.  None was there to entertain the complainant and other customers.  As a result, the complainant returned with an empty hand and could not meet the agricultural expenses for manure, labours and other expenses and the complainant again on 07.09.2017 went to the said OP cold storage for taking potatoes and still saw that the said cold storage was closed and disconnected the electric line of the said cold storage, none was there to entertain the complainant vis-à-vis other customers and returned with a mental anguishment for non-delivery of said potatoes to the complainant and reason of non-delivery of said potatoes was not notified in the notice board.  As such the complainant faced great difficulties for non-receiving of the said potatoes and on 09.12.2017, the complainant again went to the said cold storage for taking his potatoes from the said cold storage but noticed that the said cold storage was totally closed and none was present there to receive complaint from the complainants or from other customers.  As a result, the complainant faced great difficulties for non-delivery of the said potatoes and returned with an empty hand with great morrows with mental pain and suffering.  In the said situation, the complainant was very much perplexed and assumed that the said cold storage authorities embezzled the said potatoes of the complainant vis-à-vis customers and finding no any other alternatives, the complainant wrote letters to the Block Development Office, Balagarh, assistant Director of Agricultural Marketing, Hooghly and sub-divisional office, Hooghly on 14.12.2017 for remedies in respect of the said potatoes embezzled by the said cold storage authorities and lastly went to the Balagarh P.S for lodging F.I.R against the said OP, Cold Storage and lodged an FIR being case no.308/2017 dated 17.12.2017 U/s 420 & 406 I.P.C and Balagarh P.S after receiving FIR, went to the said cold storage and saw that the said cold storage was closed and none was there to entertain and investigation officer of the said case seized some original potato bonds from the complainant and other customers and it is pertinent to maintain here that after enquiry and searching, it is revealed that the said cold storage authorities have no license to retain the potatoes in its cold storage since last few years though the said cold storage authorities retaining potatoes without taking any license from the competent authority and cheating the farmers and after taking insurance charges from the farmers and customers, no insurance was taken from the insurance company for covering the ;potatoes in the accidental loss or any other liabilities.  In such was, the said OP cold storage authority is also cheating the farmers and customers for retaining the said potatoes in the said cold storage fully believing that they have no authority to retain the said potatoes.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 1,91,000/- for embezzlement of potatoes and to pay a sum of Rs.1,00,000/- for pain ,suffering and mental anguishment and to a sum of Rs.50,000/- for litigation cost.

Defense Case:-  The Pro-opposite party  contested the case by filing written version denying inter-alia all the material allegation as leveled against him that due to non payment of energy bills within stipulated time, power supply of the said consumer was temporarily disconnected on 7.8.2017, 5.9.2017,11.10.2017 and 6.12.2017.  Therefore payment of energy bill along with disconnection reconnection charges was paid and reconnection was made on 11.8.2017, 13.9.2017, 26.102017 and 15.12.2017 respectively.  It was the habit of the consumer to withhold payment of the bill as a result of which disconnection took place and thereafter after receiving the outstanding amount service connection was restored and due to non payment of energy bill within stipulated time power supply of the consumer was temporarily disconnected on 7.8.2017 and again same was reconnected on 11.8.2017 after payment said energy bills alongwith disconnection-reconnection charges and due to nonpayment of energy bill within stipulated time, power supply was temporarily disconnected on 5.9.2017 and again reconnection was made on 13.9.2017 after receiving payment of the said energy bill along with disconnection-reconnection charges and due to non payment of energy bill within the stipulated time, power supply of the consumer was temporarily disconnected on 6.12.2017 and again service connection reconnected on 15.12.2017 after receiving payment of the energy bills along with disconnection-reconnection charges and due to nonpayment of energy bill the connection of the consumer temporarily disconnected lastly on 8.2.2018 and final bill was raised on 14.8.2018 after permanent disconnection as per norms of WBSEDCL.  The said matter has been communicated to the consumer.  At present the accrued outstanding amount of the consumer is Rs.54,496/-(as LPSC).

  The opposite party Nos. (a) and (b) contested the case by filing written version denying inter-alia all the material allegation as leveled against them that the OP runs the business (cold storage) as per guideline of West Bengal Agricultural Marketing and Regulating Act and the license is renewed from time to time as per regulations and in the year 2017 due to the huge production of potatoes the price of potatoes fall considerably.  The persons who stored potatoes before the OP refused to take back the begs of potatoes as the market price per bag was below the rent of the store.  The schedule time of the Government was 30^th November, 2017 for clearing all the stock lying in the store and Govt. extended by Notification no.1388/AM/4C-5/2013 dated 30.11.2017 the date upto 31.12.2017.  But unfortunately the depositors including the complainant failed to take delivery the bags of potato.  The cold storage authority on several occasions made request to the complainant and other to take the potatoes but none appeared and on 15.12.2017 the cold storage authority published in local news paper namely Balagarh Barta which is widely circulated in the area informing the depositors to take delivery of their respective bags of potatoes on handing over the receipts and paying rent of the opp. Store and on 01.02.2018 the OP cold store circulated notice to the respective Govt. Authority, panchayet pradhan for their help to deliver the balance sock left by the farmers as per circular of Director of Agricultural Marketing West Bengal Memo no.55(5) dated 04.01.2018 and the Op cold store also sent notice to O.C, Balagarh P.S and Panchayet Pradhan for their necessary cooperation but there was no reply and finding no other alternative the opp. Cold store filed a writ petition being no.2745(w)/18 before Hon’ble High Court, Calcutta and on 16.02.2018 Hon’ble High Court, Calcutta has been pleased to allow the petition of the cold storage department and appointed joint receiver for disposing the stock on auction in presence of D.M, Hooghly and after passing the order from Hon’ble High Court, Calcutta the District Magistrate, Hooghly passed an order on 20.02.2018 vide no.3112/HZP and fixed dated 24.02.2018 at 11.30 a.m for the auction at opp. Cold storage premises and on 22.01.2018 the SDO (Sadar), Hooghly passed an order no.140/SDO(SH)-Cor and departed to act as Executive Magistrate to perform Magistrate Duty on 24.02.2018 dated 11.30 a.m and on 22.02.2018 an inspection was held regarding the stock of potato at cold storage and a report was prepared and it was reported that at that time the stock of potato was 13,807 bags in presence lf all the concern authorities the auction was held and at last Rs.12/- per bag had come up us the highest price offered by the highest bidder paid Rs.1,65,684/- for 13,807 bags of potatoes (13807X Rs.12/-) in favour of the joint receiver appointed by the Hon’ble High Court, Calcutta and thereafter the joint receiver submitted this report before Hon’ble High Court, Calcutta and the Hon’ble Court has been pleased to enough with the report of the Receiver and accordingly disposed of the writ petition on 11.01.2019 and there is no fault on the part of the Opp. Cold storage.  As the petition of this case did not take delivery of his potatoes in time so the op cold storage compelled to take shelter of law regarding the procedure of auction as per rules and regulations.  As in the auction the highest bidder paid Rs.12/- only for per bag of potato so the Op sustained loss of huge amount or he could not collect the rent for per bag.  The petitioner has filed the instant case suppressing the real fact. So, he is not entitled to get any relief and the instant case should be dismissed.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

In this complaint case this District Commission has adopted as many as five points of consideration for the interest of proper and complete adjudication of this case. The questions and/ or points of consideration involved in these points of consideration are interlinked and/ or interconnected with one another and so all these points of consideration are clubbed together and taken up for discussion jointly. For the purpose of arriving at decision connected with the above noted points of consideration and also for the purpose of determining of the fate of this case there is necessity of scanning the materials of this case record. In this regard this District Commission after making scrutiny of the materials of this case record finds that the complainant in this case more or less are relying on the plea and evidence given by the pro forma op i.e. S.M. Station Manager of Somrabazaar CCC. In this regard, it is very important to note that the complainant side by laying emphasis on the plea as well as evidence given by the proforma op pointed out that the op M/S Soumil Cold Storage Ltd was/ is a habitual defaulter in the matter of payment of electricity charges and/ or energy bill which the proforma op of and on disconnected the electric connection of the said cold storage. It is very mentionworthy in this regard that the complainant side is relying on the pleadings and evidence given by proforma op but fact remains that against the proforma ops the complainant has not raised any allegations. In other words, it can be said that in this case the impleading of WBSEDCL as proforma op is not at all just and proper and it is not maintainable in the eye of law as because the complainants have no claim against the proforma ops.

Similarly, it is also very important to note that the complainant has also not any cause of action against the proforma op. Moreso, WBSEDCL has been unnecessarily made a party in this case since no relief has been prayed against the WBSEDCL and as such there has been no need to implead this WBSEDCL as a party in this case. All these factors are clearly depicting that this case is not maintainable against proforma op and so this case is liable to be dismissed against the proforma op.

The complainant side in course of their evidence as well as pleadings has time and again emphasized on the matter that the op Cold Storage has not returned back or deliver the potatoes and as a result of which the complainant had to suffer injury and damages. Over this issue the complainant side has given emphasis on the provisions of Section 14 of the West Bengal Cold Storage (licensing and regulation) Act, 1966. As per the case of the complainant side the Cold Storage embezzled the potatoes of the complainant and other customers and finding no other alternative the complainant had written letter to the Block Development Officer and other Authorities on 14.12.2017. In this regard it has also been alleged that the complainant has also lodged FIR against the Cold Storage Authorities and said FIR no. is 308 of 2017 dt. 17.12.2017 for the offence under Section 420/ 406, IPC is lodged at Balagarh P.S. It is also submitted by the complainant side that after receiving the complaint the IO of the Balagarh P.S. went to the place of occurrence that is the Cold Storage premises and noticed that the Cold Storage was closed. According to the case of the complainant side the investigating officer after completion of investigation submitted charge sheet against the Cold Storage Authority for the offence under Section 420/ 406, IPC. Over this issue it is very important to note that the complainant side has neither filed any certified copy of the said charge sheet nor examined the investigating officer in this case as witness. As a result of which the op has failed to get any opportunity to cross examine the said witness. All these factors are clearly indicating that the above noted version of the complainant has not at all been proved and so the plea of the complainant over this issue remains unproved. It has been alleged by the complainant side that the Cold Storage Authority has not delivered the potatoes to the complainant and other customers and for non delivery of such potatoes they had to suffer loss and the Cold Storage Authority   embezzled the potatoes. Regarding this matter the only remedy lies before the complainant is to claim damages and for such claim  of damages no such complaint case can lye before this District Commission/ Forum and for the purpose of claiming damages in respect of the loss and embezzled of the potatoes they have to claim damages before the Civil Court and they have to file suit before the Civil jurisdiction as per Section 9 of the Civil Procedure Code. All these factors are clearly indicating that this District Commission/ Forum has no jurisdiction to award any compensation  for sustaining loss or damages.

The complainant side by relying on the plea and evidence given by proforma op has adopted the plea that the WBSEDCL authority disconnected the electricity of Soumil Cold Storage Pvt. Ltd. at various periods and for such disconnection of electricity the complainant and other customers had to suffer loss and injury as during the period of disconnection of electricity there was every possibility of getting the potatoes rotten stored in the said Cold Storage. In this regard, it is claim of the complainant side that there was no system of generator although as per Chapter 5 under Section 10 of the West Bengal Cold Storage (Licensing and Regulation) Act, 1966, there must be generator system in each and every Cold Storage. Over this issue it is very important to note that the complainant side has not prayed any expert commission or local inspection commission before this District Commission/ Forum to inspect as to whether there was generator in the op Soumil Cold Storage Pvt. Ltd. or not? Although this type of evidence is the best and cogent evidence for proving the matter. Inspite of getting opportunity and sufficient time the complainant due to reason best known to them has failed to submit any prayer before this District Commission/ Forum for appointment of the expert commission or local inspection commissioner to inspect as to whether there was no generator inside the above noted Cold Storage premises or not? Thus, it is crystal clear that the above noted case of the complainant side is bereft of cogent evidence and it indicates that the claim of the complainant in the matter of damages of potatoes and getting compensation in this case has no legs to stand upon.

As per the case of the complainant they preferred application before the Block Development Officer, Balagarh, Assistant Director of Agricultural Marketing, Hooghly and Sub Divisional Office, Hooghly for the above noted issue.

Regarding this matter, it is important to note that the above noted Government Authorities have neither taken any steps nor submitted any report regarding the complaint of the complainant. This matter is clearly indicating the above noted point of contention of the complainant side has no force at all.

On the contrary this District Commission after going through the materials of the case record finds that the ops Cold Storage Authority by placing cogent documents has proved that in the year 2017 there was huge production of potato and as a result of that the price of the potatoes falls considerably and the Government of West Bengal for the purpose of giving protection for agriculturists by issuing notification extended time for keeping the potatoes in the Cold storage. From the documents filed by the op it appears that the State Government notification has been filed and it has also been pointed out that the Cold Storage Authority published the said matter in the local newspaper “Balagrah Barta” requesting the agriculturists depositors to take back the potatoes but it has not been done. From the documents filed by the ops it is also revealed that the Cold Storage Authority also had sent notice to the officer in charge Balagarh P.S. but the officer in charge Balagarh P.S. and local Gram Panchayat had not taken any steps in the matter of taking back the stored potatoes by the cultivators. It is revealed from the case record that the op Cold Storage Authority instituted a case before the Hon’ble High Court vide W.P. no. 2745 of 2018 where Hon’ble High Court has been pleased to appoint joined receiver and passed direction to the District Magistrate for conducting auction sell of potatoes stored in the op cold storage and accordingly the District Magistrate, Hooghly by appointing his officers of the level of WBCS (Executive) conducted auction sell and as per report of the joined inspection there was in total 13,807 bags of potatoes and which were sold on auction highest bidder was Sri Uttam Roy who paid Rs. 12 per bag and total amount money which was deposited in the Government Exchequer was Rs. 1,65,684/-. Thereafter the joined receiver appointed by the Hon’ble High Court has submitted his report before the Hon’ble High court and on the basis of said report the Hon’ble High Court has been pleased to dispose of the said writ petition. Over this issue it is vital to note that the complainant side regarding the above noted factors have not submitted any cogent documents wherefrom it can be revealed that no such auction proceedings was done or any such case was filed before the Hon’ble High Court. In other words, it can be said that the complainant side had not challenged the order passed by the Hon’ble High Court in the writ petition no. 2745 of 2018. Thus, it is crystal clear that the point of contention which is adopted by the op Cold Storage authority and it is also supported by documents are clearly reflecting that the case of the complainant which is adopted in this complaint case is not at all believable. From the written argument filed by the complainant at page 4 and 5 it is revealed that the complainant in their written argument also has admitted the fact of institution of the writ petition no. 2745 of 2018 and also admitted the fact of issuing auction order by the District Magistrate, Hooghly. In this regard, it is also important to note that the decision of Hon’ble High Court which is passed in the writ petition no. 2745 of 2018 is binding upon the complainant and he is duty bound to abide by the same.

In view of the judgement passed by the Hon’ble High Court in Writ Petition no. 2745 of 2018 and the auction order which is passed by the DM, Hooghly in compliance of the order of the Hon’ble High Court are clearly indicating that the case of the complainant which has been reflected in the complaint petition is against the judgement and order passed by the Hon’ble High Court in the above noted case.

In course of argument ld. Advocate for the complainant side pointed out that the Cold Storage Authority has no authority to retain potatoes in the said Cold Storage as because at the relevant point of time the Cold Storage Authority has no license and so the conduct of the Cold Storage Authority is clearly depicting that they have carried on unfair trade practice and deficiency of service. Regarding this matter, it is very important to note that in course of trial of this case the complainant authority has not filed any interrogatories nor submitted any prayer for inspection of documents as such license of the Cold storage Authorities and so at this stage the complainant has not scope to highlight the above noted plea.

In course of argument the complainant has pointed out that the Cold Storage Authority as per Section 18 of the West Bengal Cold Storage (Licensing and Regulation) Act, 1996 is bound to submit fortnight returns to the agricultural product stored in the said cold storage but it has not been done by the Cold Storage Authority and so the Cold Storage Authority is responsible for embezzlement of potatoes. In this Connection it is very important to note that this District Commission has already observed that for embezzlement of potatoes the complainant has the opportunity of claiming damages or loss before the Civil Court under Section 9 of the Civil Procedure Code but it has not been done. Over the issue of submitting periodical return by the Cold Storage Authority it is to be mentioned here that the complainant in course of trial had not filed any interrogatories or submitted any prayer for filing such documents for inspection. In view of this position the complainant has no scope to highlight the above noted argument.

A cumulative consideration of the above noted discussion goes to show that the complainant in this case has failed to prove their case in respect of all the points of consideration which have been adopted in this case by way of appointing expert commission and/ or which local inspection commission and the complainant has also not filed any interrogatories or prayer for inspection of documents of the Cold Storage Authority and the complainant has also not examined any vital witnesses of the police authority of Balagarh police station to prove that charge sheet has been submitted in this case. Similarly, the complainant has also failed to establish that in the criminal case which is initiated by the complainant before the Balagarh police station has been ended in conviction. No documents relating to the fate of this criminal case has been filed in this complaint case. All these factors are clearly indicating that the complainant side has failed to prove the case in respect of the points of consideration adopted in this complaint case. In view of this position this District Commission has no other alternative but to dismiss this case on contest.

In the result it is accordingly

ordered

that the complaint case being no. 106 of 2018 be and the same is dismissed on contest against the ops.

No order is passed as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.