Tripura

StateCommission

A/22/2015

Md.Muslem Mia - Complainant(s)

Versus

The State of Tripura & 4 others - Opp.Party(s)

Mr.P.K Dednath

13 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

APPEAL CASE No.A/22/2015.

 

Md. Muslem Mia,

S/O Late Hazi Amber Ali Bhuiya,

Vill- Rangamatia, P.O-Khedabari,

P.S-Sonamura, District-Sepahijala.

                  ….    ….    ….    ….    Appellant.

                   Vs

1.A. The State of Tripura,

Represented by Addl. Chief Secretary, Agriculture,

Government of Tripura, New Secretariat Complex,

(State Capital Complex) P.O-Secretariat, Agartala,

District-West Tripura.

 

1. Director,

Department of Agriculture,

Government of Tripura, P.O-Agartala,

P.S-West Agartala, District-West Tripura.

 

2. Deputy Director,

Directorate of Agriculture,

P.O.Agartala, P.S-West Agartala,

District-West Tripura.

 

3. Superintendant of Agriculture,

Vill & P.O-Sonamura, P.S-Sonamura,

•  

 

4. In-Charge,

Melagarh Cold Storage,

Chandigarh,P.O & P.S-Melagarh, District Sipahijala.

             ….    ….    ….    ….    Respondents.

 

PRESENT :

           HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR.NARAYAN CH. SHARMA,

          MEMBER

            STATE COMMISSION.

               For the Appellant           :      Mr.P.K.debnath,Adv.

         For the respondents       :      Mr.D.Bhattacharjee,Adv.

         Date of Hearing             :      15.09.2015 & 16.09.2015.

         Date of delivery of Judgment  :

J U D G M E N T

S.Baidya,J,

            This appeal filed on 12.06.2015 by the appellant-complainant Md.Muslem Mia under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment dated 15.05.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-54 of 2012 whereby the Ld. District Forum dismissed the complaint filed under Section 12 of the Consumer Protection Act being devoid of any merit, but without any order as to costs.       

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the appellant is a Kishan-Credit Card Holder agriculturist and has been maintaining his livelihood by producing different types of agriculture products and on two occasions he kept the huge produced tomatoes in cold storage of the opposite parties-respondents at Melaghar Cold Storage in the year 2011 as well as in the year 2012. It is also alleged that in the first part of the year of 2011 on the basis of the statement of the representative of the respondents concerning the facility of Multi Cold Storage Centre in Melaghar, the complainant kept unripe tomatoes in some plastic basket of cartoons for 32000 kgs. after paying the necessary charges for storing the said tomatoes and as per the guidelines of Store In-Charge, the respondent No.4, the complainant handed over the said tomatoes in the month of April, 2011 for storing in the said cold storage for three weeks, but the complainant was instructed on 02.05.2011 by the respondent No.4, and being compelled he took delivery of tomatoes in rotted condition before three weeks and in the year 2011 the quantity of rotted tomatoes was more than 1000 kgs. and as a result, the complainant suffered a financial loss of Rs.35,000/- due to damage caused to tomatoes stored in the said multi cold storage of the respondents and the said incident was published in daily newspaper “Dainik Sambad” dated 07.05.2011, but the respondents avoided to accept any liability for such damages.                                                         
3. It is also alleged that in the first part of 2012 again another representative of the respondents came to the village and assured the complainant that the said multi cold storage centre was well equipped and furnished with necessary machineries and there would be no damages like previous year and being assured as per guidelines of the Store In-Charge, the complainant packaged the unripe tomatoes in 915 plastic basket of cartoons 20 kgs. each for storing the same in the said cold storage and handed over the same to the respondent No.4 on different dates for different quantities commencing from 26.03.2012 till 14.04.2012 for delivery of each storage before 21 days and for that the respondents issued the receipts of payment for hiring charges to the complainant giving back date on 17.04.2012 for Rs.1272/-, on 28.04.2012 for Rs.1353/- and on 05.05.2012 for Rs.120/- and the complainant was waiting for satisfactory delivery of tomatoes in good condition before 20.04.2012, but on 14.04.2012 during storing, the complainant found some tomatoes in rotted condition and as per instruction of the In-Charge, the rotted tomatoes were down loaded from the store and threw down them outside the store and thereafter, all the plastic baskets were down loaded before 21 days and the complainant found that in each basket about 70% of tomatoes became rotted. It is also alleged that as per instruction of the In-Charge, the complainant from 20.04.2012 on every morning to evening picked out the rotted tomatoes totalling 12000 kgs. approx. out of stored 18300 kgs.  and threw down the same outside the Verandah of the storage centre with the help of labourers.
4. It is also alleged that at the relevant time the market price of tomatoes was at Rs.22/- per kg. and thus, the complainant suffered Rs.2,64,000/- (Rs. 22/- x 12000 Kgs.) for the said rotted tomatoes. It is also alleged that for lack of proper method of cold storage and maintenance of requisite temperature in cold storage and due to negligence of respondents in taking proper care, the said quantity of tomatoes were rotted before the date of delivery.
5. It is also alleged that being frustrated the complainant submitted claim applications to the respondents for compensation on 05.05.2012, 07.05.2012 and at this the Chief Engineer, the Executive Engineer and the Junior Engineer of the respondents visited the spot on 08.05.2012 and inspected the rotted tomatoes and instructed labourers to throw down the same by the eastern side of the store centre and they assured the complainant for proper indemnification of such heavy damages and for this the complainant on several occasions approached the respondents at Agartala for proper indemnification, but they made no response and even they did not give any inspection report of such heavy damages caused to the complainant. It is also alleged that due to the heavy loss, the complainant could not repay the instalment of bank loan and ultimately, getting no response from the respondents, the complainant served a demand notice to the respondents and even then the respondents did not make any response and then being compelled, the complainant filed the complaint petition claiming a compensation of Rs.5,00,000/- in the Ld. District Forum.
6. It is also alleged that the Ld. District Forum considering the cases of the parties and the evidences dismissed the complaint by the impugned judgment dated 15.05.2015 and thereby being aggrieved and dissatisfied, the complainant has preferred the instant appeal before this Commission on the grounds that the Ld. Forum failed to consider the pleadings and evidences in passing the impugned judgment, that the Ld. Forum failed to appreciate the fact going through the tomatoes delivery register, that the Ld. Forum failed to appreciate that the Chief Engineer, the Executive Engineer and the Junior Engineer of the respondents visited the cold storage on 08.05.2012 and inspected the black-spotted rotted tomatoes as focussed in the photographs taken by mobile and they could have assessed the weight of black-spotted rotted tomatoes during inspection inside the store, that the Ld. Forum has committed serious error in dismissing the case without determining any fact and evidence and that the Ld. District Forum without appreciating the cases of the parties in the light of the evidences passed the impugned judgment erroneously which cannot be sustained in the eye of law and is liable to be set aside.
7. It transpires that initially the respondents were four in number, but they did not contest the claim of the complainant by filing any written objection and as such, the judgment of dismissal was passed on 26.08.2013 in case no.CC 54 of 2012 holding that the complaint is devoid of any merit.
8. It also transpires that against the judgment of dismissal dated 26.08.2013, the present appellant-complainant being the appellant has preferred an appeal being F.A-49/2013. It also transpires that the four respondents also preferred a revision petition being R.A-07/2014 against the said exparte judgment passed in C.C.54/2012. It also transpires that the said Appeal and the Revision Case were disposed of by this Commission on 02.04.2014 vide a common judgment and remanded the complaint case to the Ld. District Forum after setting aside the judgment with certain directions including a direction to the complainant to take step under Order 1 Rule 10(2) read with Section 151 of the C.P.C. for adding the State of Tripura as a party to the complaint petition. It further appears that the State of Tripura has been added to the complaint petition and thereafter all the five respondents including the added respondent the State of Tripura contested the claim of the complainant by filing a joint written objection on 17.04.2014 denying the claim of the complainant stating inter alia that the complainant took delivery of the stored tomatoes from the said Cold Storage Center, with full satisfaction after making necessary endorsement in the relevant register maintained by the Cold Storage Centre, but the complainant with an ulterior motive filed the complaint on false allegation claiming compensation. It also transpires that the Ld. District Forum considering the cases of the parties and finding no merit in the complaint, dismissed it by the impugned judgment dated 15.05.2015.                     

Points for consideration.

9.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether the judgment under challenge in this appeal should be set aside as prayed for.      

                         Decision with Reasons.

10.  Both the points are taken up together for the sake of convenience and brevity.
11. Going through the impugned judgment, we find that the Ld. District Forum dismissed the complaint petition finding no merit therein. Against the finding of the Ld. District Forum given in the impugned judgment, the appellant-complainant being aggrieved assailed the impugned judgment by filing the instant appeal. The learned counsel for the appellant-complainant submitted before us that the complainant is an experienced farmer and a Kishan-Credit Card Holder and also a borrower of a bank- loan for agriculture purpose. He also submitted that the appellant produces various agricultural products including tomatoes on taking loan from bank. He also submitted that being influenced by the statement of the representative of the respondents, the complainant kept 32000 kgs. of unripe tomatoes after making necessary payment for storing the tomatoes following the guidelines of the Store In-Charge, the respondent No.4 in Melaghar Cold Storage Centre. He also submitted that being instructed on 02.05.2011, the complainant was compelled to take delivery of tomatoes in rotted condition before three weeks and in that year more than 1000 kgs. of tomatoes were rotted and thereby, the complainant suffered a financial loss of Rs.35,000/-. He also submitted that in spite of such incident of damages of tomatoes published in the daily newspaper Dainik Sambad on 07.05.2011, the respondents neither gave any inspection report towards cause of damage of tomatoes nor made any compensation to the complainant for causing such damage of the tomatoes in the cold storage.  
12. The learned counsel for the appellant also submitted that even in 2012 also, the representative of the respondents came to the village of the complainant and assured that the said multi cold storage centre has been well equipped and there would be no damage of tomatoes like previous year. He also submitted that for such persuasion, the complainant packaged unripe tomatoes in 915 plastic basket of cartoons 20 kgs. each for storing them in the said cold storage and handed over the same to the respondent No.4 on 26.03.2012 for 3220 kgs., on 27.03.2012 for 3240 kgs., on 28.03.2012 for 1920 kgs., on 04.04.2012 for 3620 kgs., on 05.04.2012 for 3000 kgs., on 07.04.2012 for 2400 kgs. and on 14.04.2012 for 800 kgs. of tomatoes in good condition inside the said cold storage for a delivery of each storage before 21 days and for that the complainant paid necessary hiring charges, although the receipts of payment of hiring charges were given with back date on 17.04.2012 for Rs.1272/-, on 28.04.2012 for Rs.1353/- and on 05.05.2012 for Rs.120/- against the said storage.   
13. The learned counsel for the appellant also submitted that on 14.04.2012 during storing the complainant found some tomatoes in rotted condition and as per instruction of the In-Charge of the cold storage, the rotted tomatoes were down loaded from the store and threw down the same outside the store centre and that was before 21 days and the complainant also found 70% of tomatoes in rotted condition in each basket. He also submitted that the complainant with the help of his labourers were engaged in picking out rotted tomatoes to the extent of 12000 kgs. approx. from 20.04.2012 and thereby, the complainant suffered Rs.2,64,000/- as the whole sale market price of the tomatoes per kg. was then at Rs.22/-. He also submitted that against this the complainant lodged the complaint to the respondent No.1 for compensation on 05.05.2012 and 07.05.2012 and although, the inspection was held by the Chief Engineer, the Executive Engineer and the Junior Engineer of the respondents on 08.05.2012, but they failed to assess the quantity of rotted tomatoes and also failed to give any inspection report to the complainant and also failed to make good the loss suffered by the complainant due to the mismanagement in running the said cold storage resulting to the damages of the tomatoes stored by the complainant in that cold storage. The learned counsel for the appellant also submitted that the respondents have produced a register of taking delivery of tomatoes alleged to have been maintained by the respondents, but the endorsement found therein contains some overwritings and it also speaks that the same was not maintained properly and regularly by the respondents. He also submitted that the Ld. District Forum relying on such endorsement made in the said register dismissed the complaint which cannot be sustained in the eye of law.       
14. The learned counsel for the appellant also submitted that the officers of the respondents could assess the quantity of rotted tomatoes, but in spite of their visit, they failed to perform their lawful duty for assessing the quantum of rotted tomatoes and not only so, by not providing a copy of the said inspection report and not making any payment of compensation to the complainant as claimed by him, the respondents are found negligent and deficient in providing proper service to the complainant and thereby, the respondents are legally bound to make compensation to the complainant, but the Ld. District Forum failed to appreciate this facts and circumstances of the case and erroneously passed the impugned judgment dismissing the complaint holding that the complaint is devoid of any merit. He also submitted that such erroneous finding of the Ld. District Forum is unsustainable in law and as such, the impugned judgment should be set aside and a reasonable compensation may be awarded in allowing the appeal. In this regard, the learned counsel for the appellant has referred to a decision of the SCDR Commission, Punjab, Chandigarh reported in 2004 CTJ 773 (CP) (SCDRC) and submitted that the decision arrived at in the referred case is applicable in the instant case.
15. The learned counsel for the appellant referring to a report made by Post Harvest Technology on Tomatoes that the standard temperature would be 13 C with 90-95% relative humidity of slow ripening tomatoes for 2 to 3 weeks and of unripe tomatoes for four weeks on a temperature of 8 - 10 C with 85-90% relative humidity and for fully ripe tomatoes stored the temperature would be at 7 C with 90% relative humidity for one week. He also submitted that the complainant stored unripe tomatoes in the said cold storage, but Daily Plant Room Log sheet (Ext.C) discloses that the temperature of Melaghar cold storage at the relevant time varied from 9 to 12 C which was more than the required temperature needed for keeping the unripe tomatoes in good condition in the cold storage. He also submitted that as the respondents did not adopt proper scientific method to maintain the temperature as needed, this deficiency and negligence on the part of the respondents caused the tomatoes to be rotted stored by the complainant and as such, for such negligent and deficient act of the respondents in not adopting proper scientific method, they are liable to pay compensation for the damages of tomatoes of the complainant. He further submitted that the Ld. District Forum overlooked these aspects of the case and wrongly dismissed the complaint by the impugned judgment which cannot be sustained in the eye of law.        
16. The learned counsel for the respondents submitted that the appellant-complainant produced no document for establishing his allegation concerning the alleged incident of 2011 by not producing any documentary evidence. He also submitted that the appellant has given a go by to his alleged case of 2011. He also submitted that the complainant took delivery of the entire tomatoes to the extent of 18300 kgs. in full satisfactory condition from the Melaghar cold storage centre and accordingly, the complainant put his signature in the relevant register maintained by the said cold storage centre. He also submitted that no document whatsoever has been produced by the complainant for establishing as to what quantity of tomatoes, according to him, was in good condition and as to what quantity of tomatoes was found in rotted condition as alleged by him out of the total quantity of 18300 kgs. of tomatoes. He also submitted that the complainant took no step for measuring the alleged rotted tomatoes in any quantity. The complainant also failed to establish by producing any cogent and reliable document that any quantity of tomatoes stored by him in the said cold storage centre was found in rotted condition after down loading the same. He also submitted that in fact, at the relevant time, the market price of tomatoes was very low and the complainant with an ulterior motive to make profit has made out a fabricated story of rotted tomatoes, but the complainant miserably failed to establish the said fabricated story.     
17. The learned counsel for the respondents also submitted that the complainant filed some photographs in the Ld. District forum, but the same do not show on which date snaps were taken and wherefrom. He also submitted that there is nothing on record to show as to who were those persons appearing in the photographs. He also submitted that all the photographs do not establish that the tomatoes with black-spotted mark were actually the tomatoes which were down loaded from the cold storage as claimed by the complainant. He also submitted that mere filing of some photographs does not prove that the same are connected with the alleged incident of the complainant.
18. The learned counsel for the respondents also submitted that the newspaper publication were of the year 2011 and as such, the same has got no connection with the alleged incident of the year 2012. He also submitted that the Chief Engineer, the Executive Engineer and the Junior Engineer of the respondents visited Melaghar cold storage on 08.05.2012 on a routine inspection and it has got no connection with the alleged claim application of the complainant dated 05.05.2012 and 07.05.2012 and as such, the question of preparing any inspection report on the basis of the alleged allegation of the complainant and also supplying a copy thereof to the complainant does not arise at all.
19. The learned counsel for the respondents also submitted that there are some terms and conditions for operation of Agriculture, Departmental Cold Storage at Melaghar, West Tripura and as per term No.5, the goods are received in the said cold storage at owner’s risk. He also submitted that the complainant kept his tomatoes in the said cold storage not being influenced by the representative of the respondents as alleged by the complainant. He also submitted referring to term No.14 that the Cold Storage Authority shall not be held responsible for any loss or damage of tomatoes/seeds/fruits/veg. etc. kept in the storage as per clause No.4 and 5. He also submitted that the tomatoes is included within the category of vegetable and the respondents cannot be fastened with any liability on the basis of alleged fabricated story of causing any damage to the tomatoes of the complainant kept in the said cold storage centre. He also submitted that the decision of the Hon’ble State Commission as referred by the learned counsel for the appellant is not applicable in the instant case as the facts and circumstances of the referred case is altogether different from the facts and circumstances of the instant case.
20. The learned counsel for the respondents also submitted that the complainant took delivery of some tomatoes from the said cold storage as a first lot on 17.04.2012, but the complainant raised the allegation of causing damages to the tomatoes before the Director, Agriculture for the first time on 05.05.2012 i.e. after 17 days of taking delivery. He also submitted that the complainant stored 800 kgs. of tomatoes as last lot in the said cold storage on 14.04.2012 and as per case of the complainant, while storing the said 800 kgs. of tomatoes in the said cold storage on 14.04.2012, he found some tomatoes in rotted condition already stored by him. He also submitted that question automatically arises when the complainant himself found some rotted tomatoes among the tomatoes already stored, why he again stored as a last lot 800 kgs. of tomatoes on 14.04.2012. He also submitted that the belated making of complaint for the first time on 05.05.2012 after 17 days of taking delivery of the first lot from the said cold storage and the storing of 800 kgs. of tomatoes as last lot on 14.04.2012 in the said cold storage have made it clear that the complainant has fabricated the story of causing damages to the tomatoes inside the said cold storage of the respondents. He also submitted that the circumstance does not speak lie and as such, the story of the complainant made out in the complaint regarding the causing of damages of the tomatoes inside the cold storage of the respondents, having no legs to stand upon, is totally become an unbelievable story. 
21. The learned counsel for the respondents also submitted that the temperature maintained in the cold storage of the respondents at the relevant time was according to the need and there is nothing to establish that the respondents adopted any unscientific method in the management of the cold storage and as such, the submission made by the learned counsel for the appellant regarding the non-maintenance of the required temperature in the cold storage has no basis at all. He further submitted that the report made by Post Harvest Technology on Tomatoes in Tamil Nadu referred by the learned counsel for the appellant is nothing, but a mere opinion of an agriculture marketing expert and the same cannot be accepted as a gospel truth and, therefore, it will not be helpful to the complainant to succeed in the case. The learned counsel for the respondents lastly submitted that the Ld. District Forum meticulously considered the facts and circumstances of the case and arrived at the conclusion rightly and finding no merit, dismissed the complaint by the impugned judgment, which being legal and justified, should be affirmed and the appeal should be dismissed.
22. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the submissions at length made by the learned counsels of both sides. Going through the same, we find certain admitted facts. Admittedly, the complainant is the holder of a Kishan Credit Card and also a borrower of United Bank of India, Sonamura Branch. It is also admitted fact that the complainant kept in total 18300 kgs. of unripe tomatoes in phases in Melaghar Cold Storage Centre maintained by the respondents. It is also admitted fact that the first lot of tomatoes was stored by the complainant on 26.03.2012 and the last lot was stored by the complainant in the said cold storage on 14.04.2012. It is also admitted fact that as per terms and conditions of the guidelines, stored tomatoes require to be down loaded before 21 days from the date of storing of the same in the cold storage. It is also admitted fact that the complainant paid necessary hiring charges for keeping his tomatoes in the said cold storage. It is also admitted fact that the complainant produced no document for establishing that he stored any tomatoes in Melaghar cold storage in the 2011 and his alleged stored tomatoes were also damaged in the said year. Going through the impugned judgment, we are in agreement with the findings of the Ld. District Forum that as there is no document on record to suggest that the complainant had stored any quantity of tomatoes in Melaghar Cold Storage Centre in the year 2011, the District Forum rightly declined to make any decision on that issue.
23. Admittedly, The Consumer Protection Act, 1986 is a consumer friendly legislation. This Commission has to see as to how far the complainant is in a position to derive the benefit of the said Act in view of the facts and circumstances of the case coupled with evidences so adduced in this case. In the first instance, it can be said that assuming that the complainant stored tomatoes in Melaghar cold storage in 2011 and a huge quantity of said tomatoes were rotted due to the alleged adoption of wrong method of maintaining cooling system of the cold storage, but the fact remains that the complainant did not raise any allegation claiming any compensation for the alleged loss, if suffered at all, by him in 2011. In that case, question arises as to why the complainant again stored 18300 kgs. of tomatoes in phases in the same cold storage in 2012. In this regard, the learned counsel for the complainant failed to give any cogent and satisfactory answer, on our query made to him.
24. As per case of the complainant, the last lot of tomatoes of 800 kgs. was stored by the complainant on 14.04.2012. It is also the case of the complainant that while storing the said quantity of tomatoes in the said cold storage on 14.04.2012, the complainant found that some tomatoes were rotted inside the cold storage. Then question arises as to why the complainant seeing that condition of his stored tomatoes inside the cold storage again stored 800 kgs. of tomatoes on 14.04.2012 in the same cold storage. The circumstances of delivering and storing 800 kgs. of tomatoes again on 14.04.2012 clearly indicates that actually the complainant did not see any rotted tomatoes among the tomatoes already stored by him in Melaghar cold storage. Had there been any rotted tomatoes in the said cold storage and if that matter would come to the notice of the complainant, he would not again store said 800 kgs. of tomatoes on 14.04.2012 in the said cold storage. So, the story of the complainant regarding his noticing of rotted tomatoes inside the cold storage on 14.04.2012 is found not a believable story.
25. The allegation against the cold storage is that the Authority of the cold storage i.e. the respondents did not adopt proper and scientific method of cooling system inside the cold storage to keep the stored tomatoes in good condition. We have gone through the report made by Post Harvest Technology as referred by the learned counsel for the appellant. On our query, the learned counsel for the appellant clearly admitted before us that the said report has neither been prepared in Tripura nor in Assam nor in West Bengal. He also submitted that the said report has been prepared in Tamil Nadu. But according to us, the temperature and the relative humidity of Tamil Nadu are not similar to the temperature and the relative humidity of the atmosphere of the State of Tripura. From the Daily Plant Room Log Sheet (Ext.C), it transpires that Melaghar cold storage at the relevant time maintained 9-12 C cooling system inside the said cold storage. As per case of the complainant, he stored unripe tomatoes. From the said report made by the Post Harvest technology, it appears that a temperature of 8-10 C with 85-90% relative humidity is required in a cold storage for unripe tomatoes for a period of four weeks in Tamil Nadu. The complainant could not show by producing any document or any report of any expert for establishing that the method to maintain the temperature with relative humidity as maintained by Melaghar Cold Storage at the relevant time was unscientific and wrong. The report made by Post Harvest Technology in the atmosphere of Tamil Nadu as appearing and admitted by the learned counsel for the appellant cannot be used and accepted as an yardstick for considering that the cooling system in Melaghar cold storage adopted by the respondents at the relevant time was correct or not. In view of the above facts and circumstances, we are of the view that the submission made by the learned counsel for the appellant in this regard is not acceptable. Going through the referred case reported in 2004 CTJ 773 (CP) (SCDRC), we are of the view that the decision pronounced in the referred case is not applicable in the instant case as the facts and circumstances of the instant case is altogether different from the facts and circumstances of the referred case.
26. Admittedly, there is an overwriting in respect of a date in the register of taking delivery of the tomatoes from the cold storage. It appears that the said date either would be 03.05.2012 or 05.05.2012, but there is a clear endorsement that the complainant took delivery of his stored tomatoes of 18300 kgs. from Melaghar cold storage with satisfactory condition. In this regard, the learned counsel for the complainant submitted that the signature of the complainant was obtained in the said register on a blank sheet. Going through the complaint petition, we find that the complainant has made out no such case therein. So, the submission of the learned counsel for the appellant that the signature of the complainant was obtained on a blank sheet of paper of the register of taking delivery of the tomatoes from the cold storage is a matter of afterthought and has no basis at all.
27. Admittedly, the complainant took delivery of his stored tomatoes for the first lot on 17.04.2012. Had there been any rotted tomatoes in the said lot, the complainant could take delivery of the same with serious objection. Not only so, he could make complaint in writing to the respondents either on the same date or immediately after that date. But we find, in the instant case, the complainant received the entire 18300 kgs. of tomatoes in different phases on different dates commencing from 17.04.2012 till either 03.05.2012 or 05.05.2012. The complainant for the first time made allegation before the respondent No.1 on 05.05.2012 and then 07.05.2012. There is no explanation as to why the complainant waited till 05.05.2012 when, if at all, he found any rotted tomatoes in the first lot received by him from the cold storage on 17.04.2012. It is not only a delayed allegation, but also appears to us a fabricated story built up subsequently as a matter of afterthought.
28. It is well settled principle of law that a thing which requires to be proved by producing a document, that document must be produced for proving that fact and in its absence, it cannot be held that the alleged fact has been established and proved. In the instant case, the complainant has examined his two labourers namely Farid Maisan and Harun Mia as P.W.2 and P.W.3 respectively. These two P.Ws. have corroborated the complainant (P.W.1) as regards, the alleged rotted tomatoes. But the complainant produced no document to show as to how much quantity of tomatoes became rotted and how much quantity of tomatoes were in good condition and fit for human consumption. Admittedly, no measurement was made for ascertaining the same. No paper was prepared in the premises of the said cold storage centre in presence of any reliable person for proving as to what quantity of down loaded tomatoes became rotted and as to what quantity of tomatoes was in good condition. In this regard, the learned counsel for the appellant found himself helpless condition on our query to him. In the absence of any document showing the measurement of alleged rotted tomatoes, the oral evidence of P.W.1, P.W.2 and P.W.3 do not prove that 12000 kgs. of tomatoes approx. were rotted inside the cold storage, particularly when there is a clear endorsement in the register of taking delivery of tomatoes by the complainant from the said cold storage with satisfactory condition.
29. It transpires from the record that some photographs have been produced from the side of the complainant, but the said photographs do not indicate as to when, where and who took the said photographs. These photographs do not show that the same were taken from the verandah of the said cold storage. It is true that black spotted tomatoes and some rotted tomatoes were found in the said photographs, but the same do not prove in any way that the same were related to the alleged rotted tomatoes of the complainant.
30. From the weight receipts (Ext.1 series), it transpires that there are 14 terms and conditions printed on the reverse side of each weight receipt. The condition No.5 speaks, “goods will be received at owner’s risk”. The condition No.14 speaks, “Cold Storage Authority shall not be held responsible for any loss or damage of potatoes/seeds/fruits/veg. etc. kept in the storage as per clause No.4 & 5. It is needless to say that tomatoes are included within the category of veg. (vegetable). D.W.1 Subir Bhowmik, Executive Engineer in the office the E.E.(Mech), Agriculture department stated in his deposition that the cold storage management is responsible, if there is deterioration in cold chamber. In the instant case, it has not been proved from any corner that tomatoes of the complainant were allegedly rotted while the same were inside Melaghar cold storage. That being the position, we are of the view that the cold storage authority cannot be held responsible for the alleged damage of the complainant. It transpires from the terms and conditions of the weight receipts mentioned above that the same have been signed by the complainant. So, the terms and conditions as mentioned above are binding upon the complainant himself as well as the cold storage authority and when the complainant took delivery of his tomatoes of 18300 kgs. with satisfactory condition, the allegation made by the complainant in the complaint is found totally a baseless story. Going through the impugned judgment, we are of the view that the Ld. District Forum rightly held that the complainant has failed to make out a case that the O.Ps were negligent and deficient in rendering service in any manner to the complainant and being devoid of any merit the complaint is dismissed. So, considering the facts and circumstances, we find that the impugned judgment calls for no interference by this Commission and as such, it is liable to be affirmed and the appeal should be dismissed.                    
31. In the result, the appeal fails. The impugned judgment dated 15.05.2015 passed by the Ld. District Forum,West Tripura, Agartala in case No.C.C.54/2012 is hereby affirmed. There is no order as to costs.

 

  

           MEMBER                          MEMBER                           PRESIDENT

                State Commission                State Commission                State Commission

                        Tripura.                               Tripura                                   Tripura