Tripura

StateCommission

A/44/2017

Sri Prabir Kr. Majumder - Complainant(s)

Versus

Sri Dilip Shil - Opp.Party(s)

Mr. Surajit Gandhi , Mr. Koushik Datta

06 Dec 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.44.2017

 

1. Sri Prabir Kr. Majumder,

S/o Late Haripada Majumder,

Proprietor of P.K. Cold Storage,

Resident of Manubazar,

P.O. Harina Bazar, P.S. Manubazar,

District: South Tripura, Pin – 799145.

… … … … … Appellant/Opposite party.

 

VS.

 

 

1. Sri Dilip Shil,

S/o Late Dhananjoy Shil Sharma,

Resident of Haripur,

P.O. Hrishyamukh, P.S. Belonia,

District: South Tripura, Pin – 799156.

… … … … … Respondent/Complainant.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

 

 

 

 

 

 

 

For the Appellant:                                         Mr. Koushik Datta, Adv.

For the Respondent:                                      Mr. Haradhan Sarkar, Adv.

Date of Hearing & Delivery of Judgment:    06.12.2017.

 

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

This appeal is filed by the appellant, Sri Prabir Kr. Majumder, Proprietor of P.K. Cold Storage (hereinafter referred to as opposite party) against the judgment dated 15.06.2017 passed by the learned District Consumer Disputes Redressal Forum, Gomati District, Udaipur (hereinafter referred to as District Forum) in Case No.C.C.06 of 2016 whereby and whereunder the learned District Forum ordered that the complainant is entitled to get compensation of Rs.1,83,420/- (Rupees one lakh eighty three thousand four hundred twenty) from the opposite party, the appellant herein. The opposite party is also directed to make payment within 30 days from the date of judgment along with interest @6% per annum upon the said amount from the date of filing of the complaint i.e. from 02.02.2016 till payment.

2. The appeal was admitted on 11.09.2017 condoning the delay of 20 days in preferring the appeal.
3. Today the matter is fixed for hearing. Accordingly, the matter is taken up for final disposal at this stage.  
4. Heard Mr. Koushik Datta, Ld. Counsel appearing for the appellant-opposite party as well as Mr. Haradhan Sarkar, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as complainant).
5. Brief facts needed to be discussed are as follows:-

Complainant, Sri Dilip Shil, a farmer filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum praying for Rs.2,27,400/- (Rupees two lakh twenty seven thousand four hundred only) as compensation against the opposite party, the appellant herein, who is the proprietor of P.K. Cold Storage at Harina Bazar, Sabroom, South Tripura. The complainant alleged that he kept 236 bags of potato seeds on 23.03.2015 in the said cold storage of the opposite party with a service charge of Rs.200/- (Rupees two hundred only) per bag on condition that at the time of cultivation, he would take those potato seeds back. Accordingly, 50% of the service charge of total Rs.23,600/- (Rupees twenty three thousand six hundred only) i.e. Rs.11,800/- (Rupees eleven thousand eight hundred only) was paid by him to the opposite party at the time of keeping the potato seeds in the cold storage, but in the month of September, 2015 when the season of cultivation came, he approached the opposite party to handover the said 236 bags of potato seeds to him, but the same was not returned by the opposite party, rather the opposite party compelled the complainant to sell the said potato seed bags at a very low price to the opposite party and on insisting of the opposite party, he was compelled to put his signature on a resolution paper written in the letter head/writing pad of P.K. Cold Storage. According to the complainant, it was agreed that Rs.77,500/- (Rupees seventy seven thousand five hundred only) would be paid for first 62 bags by the opposite party @ Rs.25/- per Kg though the market rate of the same was Rs.30/- per Kg at that time and in each bag, there was 50 Kg of seeds. It was also agreed by the complainant and the opposite party that rest 174 bags would be sold @ Rs.580/- (Rupees five hundred eighty only) (per bag) i.e. in total Rs.1,00,920/- (Rupees one lakh nine hundred twenty only) and the opposite party assured to make the payment of total sale value of Rs.1,78,429/- (Rupees one lakh seventy eight thousand four hundred twenty nine only) to the complainant on or before 29.10.2015, but ultimately, the opposite party did not pay the same. Due to non-payment of the aforesaid amount and also for non-delivery of potato seeds, the complainant could not cultivate his land during that season for which he sustained severe financial loss. He also sent an Advocate Notice on 16.11.2015 claiming monetary compensation of Rs.2,27,400/- to the opposite party, but the opposite party did not reply to the said Advocate Notice. Thus, the complainant claimed for Rs.1,78,429/- as value of the 236 bags of the potato seeds + Rs.20,000/- as compensation for mental agony and harassment + Rs.10,000/- towards costs of litigation. He has also further claimed Rs.15,500/- for the aforesaid 62 bags on the ground of giving him the lower rate than the prevailing market value of the said seeds at the relevant time i.e. Rs.30/- per Kg and further Rs.3,480/- for giving lower rate of rest 174 bags in comparison to the prevailing market value, according to him, which was @ Rs.600/- per bag i.e. in total he claimed Rs.2,27,400/-.        

6. The opposite party filed his written objection wherein he challenged the jurisdiction of the District Forum stating that the disputes did not come under the purview of the Consumer Protection Act; though he admitted the storage of the potato seeds as stated by the complainant and also purchase of those seeds from the complainant, but simultaneously, he asserted that he had already paid the consideration money of said purchase to the complainant. He has also admitted the execution of one written resolution between the P.K. Cold Storage and the complainant in the letter head/writing pad of the opposite party.
7. During the hearing, the complainant examined himself as P.W.1 and another Mithu Majumder as P.W.2 and produced three documents such as one cash memo issued by the opposite party (Exhibit.1) regarding receipt of 50% of the service charge, carbon copy of one written resolution (Exhibit.2) signed by the complainant as well as the Manager of P.K. Cold Storage dated 19.09.2015 wherein it is specifically mentioned that the rate of 62 bags of potato seeds was fixed @ Rs.25/- per Kg and the remaining 174 bags of potato seeds @ Rs.580/- per bag and the demand notice (Exhibit.3 series).
8. The appellant-opposite party did not adduce any evidence except filing the written objection.
9. The learned District Forum after hearing the parties passed the impugned judgment as stated (supra).
10. Mr. Datta, Ld. Counsel appearing on behalf of the appellant-opposite party while urging for setting aside the impugned judgment submits that the complainant is not a consumer, but a seller and thus the learned District Forum failed to decide the complaint petition in true sense. He has also admitted that the appellant-opposite party did not adduce any evidence either on oath or producing any documents except filing the written objection regarding maintainability of the proceeding.
11. On the other hand, Mr. Sarkar, Ld. Counsel while supporting the impugned judgment would contend that in the instant case, the appellant-opposite party is a service provider being the owner of P.K. Cold Storage and for providing service he has also charged the service charge which is admitted even from the written objection filed by the appellant-opposite party and the cash memo/bill issued by the P.K. Cold Storage dated 23.03.2015. He further submits that when the complainant went to take back his potato seeds from the cold storage of the opposite party, the opposite party refused to hand over the same, rather forced to sell the potato seed bags to the opposite party at the lower rate than the prevailing market rate for which a resolution (Exhibit.2) prepared and the complainant was forced to sign the same. He has again contended that even after resolution also, the opposite party did not pay the amount agreed by the parties, therefore, the learned District Forum rightly passed the impugned judgment awarding compensation for an amount of Rs.1,83,420/- and the opposite party was directed to make the payment within 30 days from the date of judgment along with interest @6% per annum from the date of filing of the complaint i.e. 02.02.2016 till payment.
12. We have gone through the impugned judgment passed by the learned District Forum as well as the documents submitted by the respondent-complainant. From the documents exhibited (Exhibit.1 Cash memo) it appears that the complainant paid an amount of Rs.11,800/- i.e. 50% of the service charge of a total amount of Rs.23,600/-. Subsequently to sell the potato seeds, the rate of 62 bags of potato seeds was fixed @ Rs.25/- per Kg and for the remaining bags, the rate was fixed @ Rs.580/- per bags. Therefore, it cannot be said that the pleading and the evidence of the complainant is false. More so, when the appellant could not adduce any evidence, then there was no other alternative before the District Forum except to accept the evidence of the complainant. As regards the question of jurisdiction raised by the appellant-opposite party before the learned District Forum, we are of the view that the learned District Forum did not commit any wrong as admittedly the appellant-opposite party is a service provider doing the business of cold storage on receipt of service charge. In the instant case, the complainant is come within the purview of consumer as he availed the services of the appellant’s cold storage on payment of consideration money claimed by the appellant-opposite party.
13. The learned District Forum in Paragraph-6 of its judgment discussed about the evidence as well as its findings which are as follows:-

“(6) PW.1 and PW.2 deposed as usual about the deposit of 236 numbers of bags of potato seeds in the said Cold Storage @ Rs.200/- (two hundred) per quintal, issuance of cash memo by OP thereafter, payment of Rs.11,800/-(eleven thousand eight hundred) by the complainant as 50% of service charge and also about written resolution drawn up in the writing pad of OP. Oral evidence adduced by PW.1 and PW.2 is not much significant in this case, as the whole claim is centralized on the said written resolution. If said resolution is believed than the complainant has a good case, otherwise his case is very weak. During hearing of this case, learned counsel of the complainant served a notice to the O.P. under Order 12 Rule 2 of C.P.C. inviting him to admit the contents of said written resolution to which the O.P. replied through his learned counsel that such resolution might be written by his Manager but he had consent about the same and moreover, original copy of resolution was supposed to be in the custody of the complainant. He also further replied that no such original copy was lying with him and moreover whole consideration price of sale of potato seeds were already paid to the complainant by him. As already discussed above that in the written objection, the OP had admitted that written resolution was taken, so the objection raised by OP while taking the carbon copy taken into evidence had no valid justification. when the OP himself is admitting that a resolution was taken place and pursuant the said written resolution he had already paid the consideration money to the complainant, so it is his duty to produce the said resolution paper upon which he actually acted, otherwise it will be presumed that the copy of resolution which was submitted by the complainant was the actual copy of said written resolution. The OP in his reply notice had stated that he had no knowledge about said written resolution which might be executed by his Manager, then naturally the question arises as to how he could submit the written objection admitting the written resolution and claiming that payment was already made to the complainant. Thus, it appears that the OP has intentionally taken a fishy policy just to avoid his liability. Thus, Exhibit.2 is being taken into consideration. As per Exhibit.2, 62 numbers of bags of potato seeds were agreed to be purchased by the O.P. at Rs.77,500/- (seventy seven thousand five hundred) and payment was to be made by 14.10.2015. it was also further agreed that, for rest 174 numbers of bags would be purchased @ Rs.580/- (five hundred eighty only) per bag and total consideration price of said 174 begs was settled at Rs.1,00,920/- (one lakh nine hundred twenty only) which was agreed to be paid in two installments viz first installment on 20.10.2015 and second installment on 29.10.2015. The OP stated that he had already paid said amount to the complainant but he could not produce any money receipt or any other evidence to prove same. When the Advocate notice (Exhibit.3 series) was issued to him demanding said amount, he remained silent. Thus, his plea that total consideration money was paid to the complainant is not proved by him. Situated thus, it is held that the complainant is entitled to get Rs.77,500+ 1,00,920/- i.e. Rs.1,78,420/- (one lakh seventy eight thousand four hundred twenty) from the O.P. as cost of potato seeds. The complainant has proved payment of Rs.11,800/- (eleven thousand eight hundred) as 50% of service charge to the opposite party, but as subsequently, he agreed to sell the whole potato seeds to the Cold Storage Authority so he is not entitled to get back Rs.11,800/- (eleven thousand eight hundred), as it is presumed that he had agreed to said consideration price of potato seeds after incorporating said Rs.11,800/- within said consideration money. Though he claimed that said agreement was made with lesser price than the prevailing market price but as there is no proof that under threat, coercion or undue influence, the agreement was made by the opposite party with him, so the complainant is now barred from claiming higher price of said potato seeds. However, the lump sum amount of Rs.5,000/- (five thousand) further is awarded to him as cost of litigation. No further amount is awarded to him on any other count, as it appears that the amounts as already awarded will meet the ends of justice.”

In view of the above facts and circumstances, we are of the opinion that the learned District Forum did not commit any error while passing the impugned judgment.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the Ld. District Forum, Gomati District, Udaipur.