Per Sri M.V.L.Radha Krishna Murthy, Member:
This complaint filed u/s 12 of Consumer Protection Act praying to direct the opposite party to deliver the stock in good and proper condition stored in the cold storage or in the alternative to pay the value of the stocks of Rs.4,43,520/- together with interest @24% p.a., from 11-12-10 till realization and after deducting the rental charges if any, to award damages of Rs.15,000/- for mental agony suffered and for costs.
2. The averments of the complaint in brief are as follows:
The complainant being an agriculturist stored 200 bags of white Bengal gram of 60 kgs on 17-03-07 in the cold storage of opposite party for which opposite party issued a bond No.2 of 30. The value of the said stock as on the date was Rs.2,64,000/-. Out of the said 200 bags the complainant took delivery of 169 bags on 07-01-08 and the remaining 31 bags are with opposite party. The complainant also stored another 145 bags of white Bengal gram of 60 kgs on 09-04-08 under bond No.9 of 37 with opposite party. The opposite party informed the complainant that the stock in the said premises was insured. As there is no proper price the complainant kept the stock in the cold storage of opposite party. Recently as there is some hike in prices, complainant approached the opposite party and expressed his intention to take delivery of the stock by paying the rental charges. To his shock and surprise he noticed that the said stock was totally damaged by insects. On enquiry the complainant came to know that the opposite party did not maintain the cold storage in proper condition and temperature. On account of the same the entire stock in the cold storage was damaged by insects. When complainant questioned the opposite party about the damage caused to his stock, the opposite party gave evasive replies and dodged the matter on one pretext or the other. All the efforts made by the complainant to get the stock released or get the value of the same from the opposite party proved futile. Hence complainant got issued notice on 11-12-10 demanding opposite party either to deliver the stock or to pay the value thereof at Rs.4,200/- per 100kgs. Though opposite party received the said notice, failed to comply the demand made by complainant. Opposite party failed to maintain proper temperature and preserve the goods in good condition in the cold storage and on account of the same the entire stock was damaged. Thus there is deficiency of service on the part of the opposite party. Hence the complaint.
3. Opposite party filed its version which is in brief as follows:
The material allegations mentioned in the complaint are not true and correct and are invented for the purpose of complaint. The present complaint is not maintainable either on law or on facts. It is not true that the opposite party is the owner of the cold storage and carrying on business in preserving the agricultural produce of the ryots by collecting rents. It is absolutely false to allege that opposite party informed the complainant that the stock in the said premises was insured. It is not true that this opposite party did not maintain the cold storage in proper condition and temperature and that on account of the same the entire stock in the cold storage was damaged by insects. The opposite party is not a director of the company at the time of present complaint. In the month of April, 2009 three directors resigned from the board of directors including the opposite party and after April, 2009 the directors remaining the board are one Mr. Jitendra and V. Vijaya Krishna, so the complaint may be dismissed for non joinder of necessary parties.
The claim of the complainant is barred by limitation. The complainant deposited the stocks in March, 2007 as per document No.1 dated 16-03-07 and also in April, 2008 dated 09-04-08. The consumer can claim only within two years from the date of deposit of stocks. There is no relationship between the parties as consumer and customer, because the complainant did not pay single pie towards rent for the stocks stored in the opposite party cold storage. As the complainant did not pay the rents and other expenses huge amounts are indebted to the opposite party. Hence complainant does not come under the provisions of the Consumer Protection Act. There is no deficiency on the part of opposite party in rendering services to the complainant. The complainant filed this complaint with malafide intention to avoid payment of rents and other expenses. The complainant is not entitled to file complaint before this Forum as the remedy is only to file civil suit. As per the general conditions under 18 of the terms any claim or dispute arising out of this agreement shall be settled in a civil court at Vijayawada only. Hence this Forum has no jurisdiction to entertain the case. As per the conditions of the agreement the stocks stored are for season to season only i.e., every year from March to December. The complainant may not keep the stocks for long period. The opposite party reminded the complainant personally through telephone, and also through postal correspondence intimating all the information that the stocks may be damaged due to his negligence. The entire negligence is on the part of the complainant for not taking delivery of stocks within season between March to December in the year of storage and also avoiding payment of rent and other expenses. The opposite party is not liable to pay loss or damage if any which is happened due to negligence of the complainant. The complainant intentionally kept calm for near before years in order to make false claim and to get undue advantage and to avoid making payments to the opposite party storage. Hence the complaint may be dismissed with costs.
4. Both parties have filed their respective affidavits in support of their contentions reiterating the same.
5. On behalf of complainant Exs.A-1 to A-19 are marked. No documents are marked on behalf of opposite party.
6. During the pendency of the complaint complainant also filed another IA 404 of 2011 to appoint an advocate commissioner to inspect the stocks in the cold storage of opposite party. Accordingly this Forum appointed a commissioner and the said commissioner issued report stating that on his visit V. Jitendra opened the doors and led him to A & B chambers, that both the Chamber are vacant and emitting foul smell because of disuse of the same for a long time and he found no stocks in both the chambers.
7. During pendency of complaint complainant filed IA 405 of 2011 praying to implead V. Jitendra and V. Vijaya Krishna the present directors of opposite party. The said petition was dismissed on 19-11-11 by this Forum relying on a decision regarding the applicability of CPC by this Forum.
8. On 14-12-11 this CC was reserved for orders. On 20-12-11 opposite party filed petition in IA 524 of 2011 u/s 151 CPC praying to reopen the matter for advancing arguments on behalf of opposite party. The said IA was dismissed on 28-12-11 on the ground that the said petition is not maintainable.
9. Now the points for consideration are:
- Whether the complainant is a consumer within the meaning of C.P. Act?
- Whether this Forum has got jurisdiction to entertain the complaint?
- Whether the complaint is bad for non joinder of necessary parties?
- Whether the complaint is barred by the law of limitation?
- Whether there is any deficiency of service on the part of opposite party?
- To what relief the complainant is entitled to?
10. POINT No.1:- It is not in dispute that the complainant stored 200 bags of white Bengal gram of 60 kgs worth of Rs.2,64,000/- in the opposite party cold storage on 17-03-07 under bond No.2 of 30 and took delivery of 169 bags on 07-01-08 keeping the remaining 31 bags with opposite party and also stored another 145 bags of white Bengal gram of 60 kgs with opposite party cold storage on 09-04-08. it is also not in dispute that opposite party cold storage has not returned 176 bags of Bengal gram.
11. It is the case of the complainant that recently as there is hike in prices complainant approached opposite party and expressed his intention to take delivery of the stocks by paying the rental charges. But to his surprise he noticed that the said entire stock was totally damaged by insects and that he demanded the opposite party either to return his stock or to pay its value. But the opposite party has not either returned the said 176 bags of Bengal gram or paid the value thereof to the complainant.
12. It is the case of the opposite party that complainant has not paid any rent for storing the stocks in the godown and that therefore complainant is not a consumer. As per condition No.10 of Exs.A-1 and A-2 if the depositor fails to remove the goods within the time required, the cold storage may remove them and sell the goods in public auction and appropriate the sale proceeds towards its dues and remit the balance, if any to the depositor. As per condition No.12 of Exs.A-1 and A-2 the cold storage shall have the lien for the goods deposited, until all its dues are cleared by the depositor. But as per terms of Exs.A-1 and A-2 bonds the complainant is liable to pay rents for the period in which he stored the stocks in the cold storage and the opposite party was authorised to collect the rents while delivering the stocks as per the said terms. Therefore the complainant is a consumer within the meaning of Consumer Protection Act. Accordingly this point is answered.
13. POINT No.2:- It is the case of the opposite party that as per general terms and conditions under 18 of the term any dispute arising out of the agreement shall be settled at Civil Court, Vijayawada only and this Court has no jurisdiction to entertain the complaint. The cold storage is situate at Guntur. The complainant is resident of Duddukuru village of Inkollu Mandal of Prakasam district. As per the general terms of the bond issued by the opposite party under term 18 the jurisdiction of disputes is stipulated at Civil Courts at Vijayawada. No transaction took place at Vijayawada nor the cold storage is situate at Vijayawada. The cold storage is situate at Guntur and the transaction took place at Guntur. Neither consent nor any agreement between the parties will confer jurisdiction if no part of cause of action arose at the place where the jurisdiction was stipulated.
14. Further in a decision reported in 2005 (2) CPR 15 the State Commission of Bangalore held-
“Clause in a contract between the parties restricting the jurisdiction to a Court, not a bar to the jurisdiction of the Consumer Fora”.
15. Therefore in view of section 11 (2) of CP Act this Forum has got jurisdiction to entertain the complaint. This point is answered accordingly.
16. POINT No.3:- It is the case of the opposite party that he is not a director of the company at the time of complaint and that three directors including himself were resigned from the board of directors during the month of April, 2009 and subsequently one Mr. V. Jitendra and V. Vijaya Krishna are the present directors of the opposite party company and that the complaint is bad for non joinder of necessary parties. The complaint was filed against the opposite party company represented by its Chairman V. Sambasiva Rao. No evidence is placed in support of the said plea by the Chairman of opposite party viz., V. Sambasiva Rao. The opposite party is a private limited company but not a firm as seen from cause title. The opposite party company might have been registered under the Companies Act. The company is a legal entity having a perpetual seal. The person shown as representing the company was one of the directors of the opposite party company at the time of depositing the stocks as revealed from the version. Any director of a company in our considered view cannot escape his liability by tendering his resignation. As already observed the opposite party did not file any document showing that his resignation was accepted by Company Law Board the company being legal entity. Therefore the complaint is not bad for non joinder of parties since the provisions of CPC except those specified u/s 13(4) of CP Act, are not applicable. Accordingly this point is answered.
17. POINT No.4:- As seen from Ex.A-1 cold storage bond issued by opposite party complainant stored 200 bags of Bengal gram on 16-03-07 and took delivery of 169 bags on 07-01-08, keeping the remaining 31 bags with the opposite party. Again complainant stored 145 bags of Bengal gram with opposite party under Ex.A-2 on 09-04-08. The term No.8 of Exs.A-1 and A-2 stipulates the storage period as follows:
“All goods are stored on month to season basis unless otherwise provided. If month’s basis a storage month shall extend from a date in one calendar month to but not including. The same date of the next of succeeding calendar months but if there is no corresponding date in a next succeeding calendar month it shall extent to and include the last day of that month. What the last day of the final storage month fails on a Sunday or a public holiday, the storage month shall be deed to expire on the next succeeding business day”.
18. It was also averred by opposite party in their version that the stocks stored are for season to season only i.e., every year from March to December and the complainant has not taken delivery of the stocks within the period i.e., March to December of the year in which the stocks were originally stored. According to the said term the period for storing the stock in the opposite party cold storage is one year.
19. The complainant stored his stocks under Ex.A-1 on 16-03-07. If one year is taken into consideration as storing period he shall take delivery of the stock before March, 2008. Therefore, the limitation for the stocks stored under Ex.A-1 starts from April, 2008 onwards. But the complaint was filed on 27-01-11. Therefore, the claim of the complainant regarding the stocks stored under Ex.A-1 are barred by law of limitation u/s 24 (A) of CP Act. The stocks stored under Ex.A-2 are on 09-04-08 if one year period is taken into consideration as storage period according to the above terms of the bond, the limitation will start from the month of April, 2009 for the stocks stored under Ex.A-2. As already stated above the complaint was filed on 27-01-11. Therefore the claim of the complainant regarding the stocks stored under Ex.A-2 is within time. Therefore the opposite party is liable for the stocks stored under Ex.A-2 since the same is not barred by law of limitation. Accordingly this point is answered.
20. POINT No.5:- The terms 9 and 10 of Exs.A-1 and A-2 bond are as follows:
“9. If for any reason the goods deposited cannot be kept for a long time in the cold storage for which it was agreed to be kept or its further keeping will deteriorate greatly in value or injure other property, the cold storage may give such notice as reasonable and possible in the circumstances to the depositor requiring him to remove those goods from the cold storage whether immediately or within the time notified in the notice, after paying all the charges, if any due to the cold storage.
10. If a depositor fails to remove the goods within the time required, the cold storage may remove them and sell the goods in public auction. The risk and cost of the depositor and appropriate the sale proceeds towards its dues and remit the balance, if any to the depositor”.
21. It is the case of the opposite party that inspite of reminding personally, through telephone and through postal correspondence the complainant did not take delivery of stocks and is negligent in taking delivery of the stocks. Opposite party filed copy of registered notice dated 07-12-07 and postal receipt (unmarked, since the same are filed after reserving the matter for orders on 20-12-11 along with IA 524 of 2011 to reopen the matter which was dismissed on 28-12-11 since the said IA is not maintainable) in support of the said contention that they have addressed the complainant to take delivery of the stocks. According to term 10 of Ex.A-2 mentioned above if the depositor fails to remove the goods the cold storage may remove them and sell the goods in public auction and appropriate the sale proceeds towards its dues and remit the balance to the depositor. But opposite party has not followed this term 10 stipulated under Ex.A-1. If the opposite party is diligent in returning the stocks to the complainant and if the complainant failed to turn up even after issuance of notice, they would have sold the stocks in public auction as per term 10 of Ex.A-1 and after collecting their dues they would have returned the balance amount to the complainant. But that was not done by the opposite party. Therefore, in view of the foregoing discussion it can be safely concluded that there is deficiency of service on the part of the opposite party firm. Accordingly this point is answered.
22. POINT No.6:- In view of the fore going discussions, on point 3 and 4, the opposite party is liable to pay the value of stocks stored under Ex.A-2 to the complainant. According to the complainant the value of 100 kgs of Bengal gram is Rs.4,200/- even though the said statement of complainant is self serving it was not contradicted by the opposite party nor placed any evidence contrary to it. Therefore, it can be safely concluded and taken into consideration that the value of 100 kgs of Bengal gram stored by complainant is Rs.4,200/-. As already stated above the opposite party is liable to pay the value of 145 bags of Bengal gram stored under Ex.A-2 containing 60 kgs each, thus the total quantity of Bengal gram stored is 8700 kgs. If 100 kgs of Bengal gram is valued at Rs.4,200/- it comes to Rs.3,65,400/-. Therefore the opposite party is liable to pay the cost of Bengal gram stored under Ex.A-2 i.e., Rs.3,65,400/- to the complainant. Either the complainant or opposite party has not disclosed the amount of rents payable by complainant to opposite party. Hence the opposite party is at liberty to collect the rents due by the complainant.
23. Complainant further claimed interest at 24% p.a., on the value of the stocks and also damages of Rs.15,000/- towards mental agony together with costs of the complaint. The interest claimed by the complainant is too high. Therefore we feel that interest on the value of the stock @9% p.a., besides awarding Rs.5,000/- towards compensation and also awarding Rs.2,000/- towards costs of complaint would meet the ends of justice. Accordingly this point is answered.
24. In the result the complaint is allowed in part as indicated bellows:
- The opposite party is hereby directed to pay Rs.3,65,400/- (Rupees three lakh sixty five thousand four hundred only) to the complainant towards the value of the goods stored together with interest @9% p.a., from the date of complaint i.e., 27-01-11 till the date of realization.
- The opposite party is also directed to pay an amount of Rs.5,000/- (Rupees five thousand only) to the complainant towards compensation for the mental agony suffered by him.
- The opposite party is further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) to the complainant towards costs of the complaint.
The above order shall be complied within a period of six weeks failing which the amount ordered in item No.2 shall also shall carry interest @9% p.a., till realization.
Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 29th day of December, 2011.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
A1 | 16-03-07 | Storage bond No. 2130 issued by OP in favour of complainant |
A2 | 09-04-08 | Bond No. 9/37 issued by OP in favour of complainant |
A3 | 11-12-10 | Office copy of regd. Notice |
A4 | 13-12-10 | Acknowledgement |
A5 | - | Copy of News paper clipping |
A6 to A13 | - | Original receipts issued by OP |
A14 | 21-03-07 | Storage Bond No. 3/1 issued by OP in favour of complainant |
A15 | 22-03-07 | Storage Bond No. 3/6 issued by OP in favour of complainant |
A16 | 25-03-07 | Storage Bond No. 3/29 issued by OP in favour of complainant |
A17 | 25-03-07 | Storage Bond No. 3/47 issued by OP in favour of complainant |
A18 | 25-03-07 | Storage Bond No. 3/48 issued by OP in favour of complainant |
A19 | 31-05-10 | F.I.R, charge sheet and case dairy (copies) |
For opposite party: NIL
PRESIDENT
