Hon'ble Mr. Haradhan Mukhopadhyay, President.

A conjoint grievance of all the Complainants took the shape of the present complaint against the OP. The precise fact of the case is that the Complainants namely Haripada Sen, Rajib Das, Abahar Miah, Ghottu Miya, Mintu Miya, Pran Paul and Khagendra Barman total seven persons are small farmers who cultivate Potatoes. After cultivation of potatoes the Complainants stored farm product (potato) in cold storage of the OP the Manager, Mathabhanga Agri Stroage a unit of Beladeep private Limited as per the schedule described in Para-4 in the complaint, individual bond. During storage the OP verified each potatoes bag and found in good condition. Thereafter they received advance money from the Complainants against a receipt for safe custody of the goods and promised the Complainant to render proper service and thereby the Complainant became consumer under the OP. They were instructed to let out the packet of potatoes from the storage within 30^th November, 2017 otherwise extra charge will be imposed as per norms of MAS just after 30^th November, 2017. Thereafter a meeting was called on 30.11.17 in Kolkata by Ministry of Krishi Bipanan Govt. of West Bengal and it was announced that the preservation time has been extended up to 31.12.17 instead of 30.11.17 without extra charge up to 15.12.17 at any cold storage of West Bengal and immediate then extra charge would be Rs. 6 per 50 Kg. Thereafter the Complainants went to take back their potatoes of storage by paying the balance amount and came to  know that all their potato bags were kept outside the cold storage without any intimation on 12.12.17 and charged Rs.250 per 50 Kg as per market price, notwithstanding announcement of the Minister. The Complainants found that the potatoes were damaged. Immediately the Complainants met with the authority of OP but they misbehaved with foul words and threatened them. Due to the said potatoes being rotten the Complainants sustained loss of Rs.3,29,000/-. The Complainants then lodged a complaint to the Ghoksadanga P.S. on 15.12.17 against the OP and also sent a legal notice to the OP on 22.12.17 through Advocate. In December,2017 the price of potatoes was Rs.6 per Kg in the open market. Due to such misdeed of the OP the Complainant suffered mental pain and agony. The cause of action arose on 12.12.17 and on subsequent dates. The Complainants prayed for an award as per the schedule against each Complainants for a total sum of Rs.3,29,400/-, Rs.10,000/- towards compensation for mental pain and agony each Rs.10,000/- each for deficiency in service and Rs.10,000/- each towards litigation cost. They claimed total award for Rs.5,39,400/-.

The OP contested the case denying each and every allegation of the Complainants. The positive defence case of the OP in brief is that extending the period of preservation and storage of potatoes in the cold storage vide Govt. order No.1388-AM/0/4C-05/2013 dated, Kolkata from 1^st day of December, 2017 to 31.12.17 the OP sent a notice to the hirers on 08.12.17 regarding the aforesaid order outstanding rent and extended period of storage through Jayshree Service, Falakata. But the Complainant refused to accept the notice which returned back on 11.12.17 as refused and un served. The cooling machine of the OP was running up to 31^st  December and stored potatoes were intact, healthy and good condition. The Complainants never went to the OP as because the price of the stored potatoes at the relevant time was Rs.0.05 paisa per kg in the open market. The Complainants are not cultivator. They are pure businessman and deal in vegetables for commercial purpose. No such complaint was lodged in Ghoksadanga P.S. on 15.12.17 nor was any legal notice served upon the OP. The OP had given best performance and services to the Complainants who stored potatoes in the cold storage. The OP prayed for dismissal of the case.

The specific allegation against the OP and its denial by the Complainants led this Commission to ascertain the following points for just and effective disposal of the case.

Points for  determination

1. Whether the Complainants are consumer under the C.P. Act?
2. Whether the Complainants are entitled to get the relief as prayed for?
3. To what other relief if any the Complainants are entitled to get?

Point No.1.

The OP challenged that the Complainants are not consumer under the C.P. Act as they are businessman.

The argument is not acceptable in as much as the Complainants categorically stated in the Para-3 of complaint that the Complainants are carrying on the aforesaid business due to maintain their livelihood and it is only their earning source. The OP could not prove in documents to establish that the turnover the business of the Complainants is so high that they should be kept outside the purview of the C.P. Act or that they are running the business other than for their livelihood.

Accordingly, the Complainants are consumer under the C.P. Act.

Ld. Defence Counsel argued also challenged the case on the ground that they are seven Complainants and they have seven type of interest who stands of a different footing. So their case cannot be amalgamated.

After perusing the pleading it transpires that all the seven Complainants do have a common cause of action who preserved the potatoes in the cold storage of the OP on the same date. It may be that their quantity of the potatoes are different and they are resident of different places. But the fact remains that all the Complainants have a common interest against the OP and they all are resident of different village under same P.S. and same District. Accordingly the territorial jurisdiction of all the Complainants are same and identical within the territorial jurisdiction of this Commission.

Thus the present case is not barred by territorial or pecuniary jurisdiction of this Commission.

Accordingly, Point. No.1 is answered in affirmative in favour of the Complainants.

Point Nos. 2 & 3.

Both the points are taken up together for brevity and convenience of discussion since both the points are very closely interlinked with each other.

The Complainant in order to substantiate the case adduced both oral evidence in the form of evidence on affidavit as well as documentary evidence. Annexure-A series are the application for booking of storage space. After perusing the said Annexure-a series document it transpires that potatoes was stored in the name of Haripada Sen for 200 bags advance Rs.4000/-, Rajib Das 100 bags Rs.2000/-, Ghottu Miya 200 bags Rs.4000/- , Mintu Miya 200 bags Rs.4000/-, Pran Paul 87 bags Rs.600/-. Annexure-B series also depicts preservation of potatoes by the Complainants on different dates. Thus the A series and B series documents disclose the actual quantity of potatoes kept by the Complainants with the cold storage of the OP being Mathabhanga Agri Storage, P.S. Ghoksadanga, Dist- Cooch Behar against advance money.

The OP has not denied that the Complainants did not preserve the said potatoes with the OP.

It is the specific case of the Complainants that the Govt. extended the period of preservation up to 31.12.17 instead of 30.11.17 without any extra charge up to 15^th December, 2017 at any cold storage. However extra charge should be paid for Rs. 6 per 50 kg.

The Complainants by filing evidence on affidavit corroborated the said fact. The OP also admitted the said announcement of the Govt. but claimed that they did not charge any extra amount. The Complainants alleged that when they went to bring back the preserved potatoes by paying the balance rent, they came to know that their packet of potatoes had been kept outside the cold storage due to which the potatoes rotten without any notice to the Complainants.

The defence plea in this regard is that they served a notice in spite of the Govt. order outstanding rent and extended period of preservation through Jayshree Service. But they refused to accept the notice which returned back on 11.12.17.

Although the said defence plea is taken but the OP could not discharge their onus regarding the service of notice upon the Complainants. After perusing the case record it appears that the OP failed to prove the notice in course of evidence properly.

Ld. Defence Counsel also remained silent regarding the said service of notice upon whom and who received that notice.

From the case record it transpires that one envelope containing some documents sent to the Mathabhanga Agri Storage by Rabindra Dey, Advocate which returned back with the remark refused on 28.12.17.

Thus the OP seems to have failed to establish the defence case that notice was served upon the Complainants before taking any step after the expiry of the contractual period and further extension of time by the Govt. notification.

Ld. Defence Counsel argued that both the parties will be guided by the terms and conditions of the bond.

A plain reading of the bond discloses that clause-10 of the MAS discloses that notice has to be served upon the parties storing the product under certificate of posting or by any informer.

In the instant case OP could not prove any notice under certificate of posting. So also nobody deposed on behalf of the OP that notice was served upon the Complainants. Nobody on behalf of Jayshree Service deposed in favour of the OP to establish that before releasing the potato packets notice was served or intimation was given to the Complainants.

The Complainants duly proved the legal notice as Annexure-E which was served upon the OP but the OP did not reply to the said notice.

It is immaterial as to what was the price of the potatoes in the open market at the relevant time. However the Complainants proved Annexure-G which shows the price in West Bengal was Rs.638.48 in the second week of December, 2017.

Annexure-C also discloses as per news paper cutting of Bartaman dated 01.12.17 that the date of storage of potatoes was extended up to 31^st  December, 2017 without any extra charge up to 15.12.17 and further charge of Rs.6 per packets of 50 kg.

Ld. Defence Counsel for the OP referred to a decision being reported in Vol.3 (2016) CPJ 44(NC) wherein it was held that Complainants who have separate agreement with Op cannot maintain a joint complaint filed on the plea that they fall within definition of Complainant as envisaged under section 21(1)(a)(iv).

The said case law does not apply in as much as the main inference of the said decision is that it was the view of the Hon’ble National Commission that in order to circumvent of pecuniary jurisdiction of Consumer Forum the Complainants have grouped together to file a joint complaint in order to inflate pecuniary value of claim to bring the claim within the jurisdiction of National Commission.

The said case law does not apply because even by grouping the claim of all the Complainants of this case the total claim amount does not exceed the pecuniary jurisdiction of this Commission. So sprit of the said case law does not fall within the fact and circumstance of this case and accordingly the said case law does not apply here.

Thus the Complainants proved their case by both oral evidence in the form of evidence on affidavit and documentary evidence being Annexure- A to G.

The OP failed to discard the case of the Complainants.

Thus after assessing the entire oral and documentary evidence of both the parties it is well established that the Complainant successfully proved the case up to the hilt.

In the result Point Nos. 2 & 3 are answered in affirmative on behalf of the Complainant.

Consequently the complaint case succeeds on contest with litigation cost Rs.10,000/-.

Hence, it is

Ordered

That the complaint case No. CC/2/2018 be and the same is allowed on contest with cost of Rs.10,000/-.

The Complainant do get an award of Rs.4,79,400/- towards total claim. The OP is directed to pay a sum of Rs.59,400/- to  Complainant Haripada Sen, Rs.90,000/- to Rajib Das, Rs.30,000/- to Abahar Miah, Rs.60,000/-  to Ghottu Miya, Rs.60,000/- to Mintu Miya, Rs.26,100/- to Paran Paul and Rs.3,900/- to Khagendra Barman.

The OP shall further pay Rs.10,000/- each to the Complainants for deficiency in service and Rs.10,000/- each towards mental pain and agony to the Complainants. The litigation cost of Rs.10,000/- to be shared by @ Rs.1,000/- each by all Complainants and additional Rs.1,000/- each by Rajib Das, Ghottu Miya and Mintu Miya. The OP shall pay aforesaid awarded money within 30 days from the date of Final Order failing which the entire awarded sum will carry an interest of 6% per annum from the date of Final Order till the date of realisation. 

DA to Note in the Trial Register.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.  

The copy of the Final Order is also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.