DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

DF Case No 67 of 2012

Date of filing:  24.4.2012                                                                          Date of disposal: 26.5.2014

Complainant: Nikhil Paul @ Nikhil Pal, Village: Khanpur, Post Office: Bohar, District: Burdwan.

-VERSUS-

Opposite Party: 1.     Ultra Cold Storage, Bulbulitala, P.O. Khalishpur, District: Burdwan, represented by its Proprietor.

2.      Ultra Cold Storage, Bulbulitala, P.O. Khalishpur, District: Burdwan, represented by its Manager.

Present :  Hon’ble President: Sri Udayan Mukhopadhyay

     Hon’ble Member :  Smt. Silpi Majumder

                  Hon’ble Member :  Sri Durga Sankar Das

Appeared for the Complainant:     Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Party:  Ld. Advocate, Saurav Kumar Mitra.

JUDGEMENT

This complaint is filed by the complainant under Section 12 of the C.P. Act 1986 alleging deficiency in service and unfair trade practice against the OPs as the OPs did not refund him the packets of potato which were kept in the cold storage of the OPs. The brief fact of the complainant is that he is agriculturist by profession. He kept potatoes in the cold storage of the OPs for the period from March 2011 to November 2011 on the basis of his individual bond for future benefit to earn his source of livelihood. The complainant as per the prevailing system also promised to pay the cold storage charges of the Ops at the time of taking delivery of potatoes. The complainant went to take delivery of the potatoes in the first week of December 2011. The OPs initially gave assurance of delivery and later on they took plea of non-traceability. Thereafter they failed to give delivery in the second week of December 2011 also. The Ops again informed the complainant that the potatoes were not readily available and assured the complainant that they would find out soon and assured that the same will be delivered in the 4^th week of December 2011. In the meantime Additional

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District Magistrate (LA), Office of the District Magistrate, Burdwan (Food Section), Govt. of West Bengal through their notice bearing memo. No. 825(31)/FS, dated 27.12.2011 informed the Mayor of Asansol Municipal Corporation, Chairman of Burdwan/Guskara/Memari/Kalna/ Katwa/Dainhat Municipality, all the Sub-Divisional Officers and Block Development Officers of Burdwan district that potatoes which are lying at nearby cold storage are to be distributed to Primary and Upper primary Schools for mid-day meal purpose on the basis of guidelines mentioned in the said notice. When the complainant went to take delivery of the potatoes the Ops refused to deliver the same on the plea that in view of the notice dated 27.12.2011 issued by the Additional District Magistrate (LA), Burdwan the potatoes which are lying in the cold storage of the Ops would be supplied for mid-day meal purpose and in lieu of that the complainant would get the cost of the potatoes. In the first week of January 2012 the complainant again approached before the Ops and asked for payment of the cost of the potatoes. The OPs refused to pay the same and also refused to deliver the same which were kept by the complainant in the cold storage of the Ops. The Ops never delivered the potatoes nor paid the cost of the potatoes at the market price prevailing at that time till this date which tantamount to deficiency in service and unfair trade practice on the part of the Ops. The complainant claimed relief as under:-

a. Refund of cost of 4450 kg potatoes @Rs. 6/- per Kg. i.e. Rs. 26,700=00,

b. Rs. 25,000=00  as compensation towards mental pain, agony and harassment, and

c. Rs. 20,000=00  as litigation cost.

In the schedule below name of the holder of the Bond is quoted below:

The complainant has submitted documents like Xerox copy of Bond of depositing potatoes in the cold storage and Xerox copy of letter no. 825(31)/FS, dt. 27.12.2011 of ADM (LA), Burdwan.

            The OPs in the written version have denied the allegations. OP has further stated that this is not a consumer dispute as envisaged in Section 2(1) (d) of the C.P. Act 1986. The OPs

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have further stated that in the year 2011 due to heavy production of the potato the cost of the potato was very low. Most of the cultivators in the surrounding area did not book time schedule for taking delivery of the potatoes. The Government for the sake of the cultivators by publishing gazette notification extended the period till 05.12.2011. The gist of the said notification was hanged of the notice board of the cold storage apart from that several requests were made through announce in mike in the surrounding village. But during that period as complainant did not turn up for taking delivery of the potatoes, this OP has no other alternative but to place potatoes outside the cold storage premises. In this respect the OPs beg to submit that for the carelessness on the part of the complainant for taking delivery of his potatoes, the system and internal maintenance required for next season storage would be hampered if the potatoes be preserved furthermore. Moreover for the next season storage would be hampered and potatoes of several cultivator of surrounding area may be got damage in the next year which will be preserved place in the cold storage. The complainant has no locus standi to file the case as consumer because he has not paid the cold storage charge till date. On the other hand, he has refused to take delivery of his potato not only in the schedule time but also don’t bother to pay the cold storage charge. In this respect the Ops beg to submit that at that time the cost of potato was Rs. 1/- per Kg. and for proving the same complainant crave leave to file separate application. A report to that effect has been published in the Ananda Bazar Patrika, Burdwan part page 3 on 17.4.2013. The OPs strongly denied that all the potatoes so storage in that time was requisitioned for the supplying the same to primary & Upper primary Schools for the mid day meal purpose. The OPs put the complainant to prove the same with documentary evidence. In this regard the Ops submit the SDO, Kalna-1 has a requisition of nine bag of potato from the present OPs and they have supplied the same. Accordingly, there is no unfair trade practice and deficiency in service on the part of the Ops and prayed for dismissing the complaint treating the same as vexatious complaint.

Decision with reasons:

On compilation of statements along with records it is seen that complainant has deposited 89 packets of potato weighting 4,450 Kgs. in the cold storage of OPs as per serial no. of Bond 4180, cost of which as claimed by the complainant is Rs. 26,700=00 @Rs. 6/- per Kg. It is stated by the complainant that potatoes were not given delivery by the OPs in spite of representation to the OPs in the month of December 2011. The complainant has also given reference one letter of Additional District Magistrate (LA), Burdwan bearing memo. No. 825(31)/FS, dated 27.12.2011 that the potatoes remaining in the cold storage would be

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distributed to Primary and Upper Primary Schools for mid-day meals. In the written version OPs have not cited any document how much amount of potatoes have been supplied to the schools but stated that SDO, Kalna-1 gave a requisition of nine bags of potato only. But OPs have not specifically stated what was the fate of the said potatoes. During argument OPs have further stated that there was no letter or correspondence with the complainant by the OPs asking the complainant to take delivery but only announcement through mike was done which is also without any proof. Had it been so that the complainant did not take delivery of the potatoes due to low cost of the same there should be specific letter addressing to the complainant to take delivery of potatoes which was not done by the OPs. The rate of potato as quoted by OPs is Rs. 1/- per Kg. for which it is alleged that the complainant did not take delivery of the potatoes but the rate of potatoes as quoted by Assistant Agricultural Marketing Officer, Kalna sub-division that in the month of December 2011 the rate of potato was Rs. 4.50 per Kg. and not Rs. 1/- per Kg. as stated by the Ops. So here is the laches on the part of the OPs. The complainant so far has not paid the cold storage charges. In any of the statements there is no mention what is the actual cold storage charge of the said potatoes which is actually due to the OPs by the complainant and to be paid by the complainant. In this context this Ld. Forum gathered knowledge in connection with another case (DF Case No. 96/2013) which was pending before this Ld. Forum, that during that year the cold storage rent was of Rs. 53.75/- per packet.

In connection with another case which was pending before this Ld. Forum, this Ld. Forum wanted to call for the record from the abovementioned Department mentioning the price of potato during the month of November 2011, December 2011 and January 2012. The said Department has mentioned that during November 2011 price of potato per kg was of Rs. 5.50/- and December 2011 it was Rs. 4.50/- and January 2012 it was Rs. 3.50 (old) and Rs. 5.00/- (new). This case is related with the potato packets which were old one, not new, as the same was kept in the month of March 2011 and the complainant was permitted to keep the same till 30.11.2011. Therefore, during November 2011 as the price of potato per kg was of Rs. 5.50/-, hence in our view the complainant is entitled to get Rs. 5.50/- per kg from the sale proceeds. In the written version there is no whisper regarding the cost of per potato packet during that period and in this respect no convincing evidence has been adduced by the Ops. We find much substance in the document which has been called for by this Ld. Forum in another case from the Department of Agriculture, Govt. of West Bengal and as the said document carries much evidentiary value, in our view the complainants are entitled to get Rs. 5.50/- per kg .

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            In view of the letter as issued by the Department of Agriculture, Govt. of West Bengal (as the complainant did not went for collecting their potato packets in the month of November 2011 and went there in the month of December 2011) the complainant is entitled to get the price as mentioned in the said order i.e. Rs. 4.50 per kg. In view of the abovementioned order the cost of 89 packet potatoes will be Rs. 20,025/-. The total cost of the rental charge of 89 packets is of Rs. 4,783.75 i.e. Rs.53.75/- per packet. As it was the duty of the complainant for making payment of rental charge during delivery of the potato packets hence after deduction from the cost of the 89 potato packets the amount will be Rs. 15,241.25/-. Therefore the complainant is entitled to get refund of Rs. 15,241=00 in total from the OPs after deduction of the rental charge of the cold storage. In the prayer portion the complainant has prayed for Rs. 26,700/- towards the cost of 4,450 kgs potato i.e. @Rs. 6/- per Kg. But in this respect the complainant did not deduct the rental charge of the cold storage which he is bound to pay as per promise in the respect of the service as availed of. Secondly, in our opinion the complainant is not entitled to get the rate of potato @Rs. 6/- per kg because during the month of December 2011 the price was not Rs. 6/- per kg, it was Rs. 4.50 per kg as per the circular of the Agricultural Department, Govt. of West Bengal. As the said document has been called for in another case by this Ld. Forum we cannot go beyond the said circular. The complainant has also prayed for compensation to the tune of Rs. 25,000/- payable by the Ops to the complainant but in our view the amount as prayed for is on the higher side and in our opinion it will be just if we direct the Ops to pay compensation to the tune of Rs. 5,000/- to the complainant payable by the OPs. It is true that the complainant did not adduce any evidence that how far he has suffered mental pain and agony as well as harassment due to such action of the Ops, but it is clear to us that the person who used to keep potatoes in the cold storage for earning benefit to earn their livelihood by means of self-employment, non-refund of potato packets or sell proceeds of the potato packets has been seriously hampered his mental peace and to maintain his family establishment satisfactorily. For this reason the Ops are liable to pay compensation as per abovementioned direction. Undoubtedly the complainant has approached before this Ld. Forum by filing this complaint for getting redressal of their grievance and for this reason he had to incur some cost and the Ops are bound to pay some amount towards litigation cost to the complainant. In our opinion it will meet justice if we direct the Ops to pay Rs. 1,000/- to the complainant as litigation cost.

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            Hence, it is

O r d e r e d

 the complaint be allowed on contest  with cost. The Ops shall pay either severally or jointly an amount of Rs. 15,241/- to the complainant towards the cost of the potato packets within a period of 45 days from the date of passing of this judgment, in default, the abovementioned amount shall carry penal interest @10% per annum for the default period. The OPs are further directed to pay compensation either jointly or severally to the tune of Rs. 5,000/- to the complainant and litigation cost of Rs. 1,000/- to the complainant within 45 days from the date of passing of this judgment, in default, complainant will be at liberty to put this decree into execution as per provisions of law. With the abovementioned observation the complaint is thus disposed of accordingly.

(Udayan Mukhopadhyay)        

             Dictated and corrected by me.                                                     President      

      DCDRF, Burdwan

                    (Durga Sankar Das)

                           Member

                    DCDRF, Burdwan

                                                        (Silpi Majumder)                          (Durga Sankar Das)

                                                            Member                                                Member    

                                                        DCDRF, Burdwan                              DCDRF, Burdwan

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