State Consumer Disputes Redressal Commission
Sarabdeep Cold Store vs Prithipal Singh on 4 May, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1322 of 2011
Date of institution: 02.09.2011.
Date of Decision: 04.05.2015.
Sarabdeep Cold Store, Village and Post Office Tanuli, Phagwara
Road, Hoshiarpur through its Partner/Manager Shri Sarabdeep
Singh.
.....Appellant/Opposite party.
Versus
Pirthipal Singh aged 40 years son of Shri Kabal Singh resident of
Village Nadalan, Tehsil Garhshankar, District Hoshiarpur.
.....Respondent/Complainant.
First Appeal against order dated
29.07.2011 of District Consumer
Disputes Redressal Forum,
Hoshiarpur.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Shri Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh.J.S.Mangat, Advocate
For the respondent : Sh.Amit Verma, Advocate
First Appeal No.1322 of 2011 2
VINOD KUMAR GUPTA, MEMBER
This appeal has been preferred by the appellant (opposite party in the complaint) against the respondent of this appeal (complainant in the complaint) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against order dated 29.07.2011 of District Consumer Disputes Redressal Forum, Hoshiapur (hereinafter called the 'District Forum') in Consumer Complaint No.306 of 2010, vide which, the complaint of the complainant was partly accepted and OP was directed to pay Rs.1,32,000/- within 30 days, failing which to pay 9% p.a. interest from the date of order till realization.
2. The brief facts of the case of the complainant are that he hired the services of the opposite party to keep 868 potato bags of 50 kg each @ Rs. 50/- per bag, as storage charges till the end of October, 2010 on different dates from March 2010 to April 2010 and each consignment of potatoes was duly received in the said cold store of OP against proper receipt, showing the type and nature of the goods alongwith residential addresses. It was further pleaded by the complainant that the legal duty was cast upon the opposite party to maintain proper temperature of cold storage to prevent the deterioration of above stored potatoes. The complainant further averred that he paid Rs.20,000/- in the presence of Tarlochan Singh son of Ajit Singh of village Nadalon, District Hoshiarpur, with advance rent, out of the total rent of Rs. 43,400/- and the remaining amount of Rs. 23,400/- was also to be First Appeal No.1322 of 2011 3 paid at the time of lifting the potatoes by him. It was further alleged that the OP did not issue the receipt of above Rs.20,000/- to the complainant. The opposite party got the conditions printed on the receipts, which were unilateral and they were not binding upon the complainant. The said conditions were contradictory and unreasonable as well. The complainant approached the opposite party on 15.10.2010 and requested to allow him to lift the potato bags from the Cold Store. Then, the opposite party requested for payment of Rs.23,400/- as balance rent amount, which was paid by him in cash and he also asked for its receipt. The OP assured him that the receipt would be issued in a day or two and the OP allowed the complainant to lift 258 bags of potatoes. It was further alleged in the complaint that when the potato bags were opened by the complainant, the bags were found emitting foul smell and the potatoes were found rotten. The complainant approached the opposite party along with rotten potato bags with the request to pay the amount of Rs. 300/- per bag, as market value of the potatoes, but the OP refused to make the payment. As per the allegations of the complainant, the remaining 610 bags of potatoes, which were lying in the Cold Store of the opposite party had become useless and unfit for human consumption and for sowing purposes as well, as they were in rotten state. The complainant made the request to the opposite party to make the payment of Rs.3,27,400/-, being the price of the potatoes stored in the Cold Store of the OP, but all in vain, hence the complainant filed the complaint seeking direction to the OP to pay a sum of Rs.3,27,400/-, as price of 868 bags of First Appeal No.1322 of 2011 4 potatoes @ Rs.300/- per bag alongwith Rs.17,000/- as interest @ 12% per annum and Rs.50,000/- as compensation for mental harassment besides litigation expenses.
3. The complaint was contested by OP by filing written reply before the District Forum. Preliminary objections were taken by the OP with regard to the point of jurisdiction. On merits, it was replied that the complainant kept 786 bags of potatoes for storing the same in the Cold Store of OP against proper receipt. It was further replied that the complainant was to pay Rs. 55/- per bag, as storage charges and the bags were to be lifted till 15.10.2010, as per the conditions printed on the receipts, failing which the OP was at liberty to sell the potato bags and recover the amount of rent by that process from the complainant. It was denied that the complainant ever paid the amount of Rs. 20,000/- as advance rent to the OP. The complainant was alleged to be bound by the terms and conditions as printed on the receipts. It was further averred that the complainant lifted 684 potato bags from the Cold Store of the OP on 1.9.2010, 18.9.2010, 20.9.2010 and 05.10.2010 and when the OP asked for the payment of rent, he assured that he would make the payment of the rent after selling the above stored potatoes in the market. The OP waited for the complainant till 15th October, 2010, but the complainant neither lifted the remaining bags of potatoes nor paid the amount of rent despite the message sent to him. It was further submitted that the OP sold the remaining 102 bags of potatoes in the open market for Rs.16,940/- First Appeal No.1322 of 2011 5 and the remaining amount of Rs.26,400/- is still due from the complainant. The other allegations, as raised by the complainant in the complaint, were denied and dismissal of the complaint was prayed for by the OP.
4. The complainant tendered in evidence his affidavit Ex.C-1, certificate dated 30.12.2010 Ex.C-2, receipts Ex.C-3 to Ex.C-13, certificate of M/s. Sood Alu Bhandar dated 15.11.2010 Ex.C-14 and closed the evidence. The OP tendered in evidence the affidavit of Sarbjit Singh Ex.OP-1, extract of register Ex. OP-2 to OP-8, receipt dated 27.10.2010 Ex.OP-9, receipt dated 25.10.2010 Ex.10, affidavit of Mukhtiar Singh Ex.OP-11, affidavit of Avtar Singh Ex.OP-12, affidavit of Mitlesh Rattan Ex.OP-13 and closed the evidence. On conclusion of evidence and arguments, the District Forum Hoshiarpur, partly accepted the complaint of complainant by passing the impugned order. Dissatisfied with this order of District Forum Hoshiarpur, the opposite party now appellant has preferred this appeal against the same.
5. We have heard learned counsel for both the parties and have also gone through the record of the case.
6. As per the version of the complainant, he deposited 868 bags of potatoes of 50 Kg. each on different dates starting from March, 2010 to April, 2010. However, from the receipts produced by the complainant Ex.C-3 to Ex.C-13,the quantity of potato bags in the cold store of the OP comes to only 610 bags. As per the affidavit Ex.OP1 Sarabjit Singh, partner of the OP First Appeal No.1322 of 2011 6 wherein he deposed that the complainant kept 766 bags of potatoes in the cold storage and proper receipt was issued to him and Rs.55/- per bag were charged as storage charges and the bags were to be kept in the cold storage till 15.10.2010. The complainant was required to lift his potatoes before 15.10.2010 and this fact was duly explained to the complainant and was very much clear to him, as printed on the receipts, which were issued to the complainant. It was further deposed that the complainant lifted 684 potato bags from the cold storage on different dates i.e. 01.09.2010, 18.09.2010, 20.09.2010 and 05.10.2010. The lifting of the above said potato bags were duly entered in the stock register of the OP and the complainant duly signed against the relevant entry in the stock lifting register. The OP has placed on record the copies of stock register as Ex.OP-2 to OP-8. Perusal of the documents brought on record by OP vide Ex.OP-8 has revealed that the complainant had kept 786 bags of potatoes in his cold storage. So, the written reply as well as affidavit given by the OP is contrary to his own document vide OP-8 on the record. The complainant did not lift his remaining 102 bags upto 15.10.2010. As per the terms and conditions on the rent receipts, the OP sold 102 potato bags in the open market for a total consideration of Rs.16,940/- vide Ex.OP-9 and OP-10.
7. We have perused the stock register record Ex.OP2 to OP-8 on the record which revealed that all the parties whose names were mentioned, the quantity of potatoes were released to First Appeal No.1322 of 2011 7 all the persons by way of credit. However, against the name of the complainant, it is written in Punjabi that all the stocks were given to the complainant without any acknowledgement "Mal Bina Parchi to le gaya" and OP failed to take the receipt or acknowledgement from the complainant with regard to above lifting of stock. So, the record placed by the OP is not believable on the point that words written on stock are delivered without any acknowledgement. However, as per the version put forth by the OP, 786 bags of potatoes were kept in the cold store by the complainant. It is settled position of law that no amount of evidence in the absence of any pleading can be looked into and considered by the Consumer Forum. Therefore, we have no other alternative but to rely upon the version of the complainant that he lifted 258 bags and remaining bags were kept lying in the cold store of the OP. However, not even an iota of evidence is led on the record in support of the deterioration of the stock as claimed by the complainant except his complaint. The complainant has failed to place any document with regard to the advance rent of Rs.20,000/- and thereafter of Rs.23,400/-. Therefore, payment of rent by the complainant as claimed by him is not proved at all. Even Trilochan Singh in whose presence advance rent is alleged to be paid has not been examined in this case. No notice was given by the OP to the complainant at the time of sale of 102 bags of potatoes for above default of the complainant. The complainant has relied upon only condition No.3 on the printed form in this case. The only conclusion, that can be arrived at is that the complainant lifted 258 First Appeal No.1322 of 2011 8 bags, remaining 528 bags lay behind in the cold store of the OP. As per Ex.C-2, the rates of potatoes were 200 to 500 per quintal and the District Forum has awarded the value of goods @ 300/- per bag which is on the higher side. So, we are of the view that the value of those bags can be arrived at after multiplying the remaining bags (528) with Rs. 200/- as price of material per bag (528 bags @ Rs. 200/- per bag = Rs. 1,05,600/-). The amount claimed by the OP as rent can be arrived at by multiplying the number of bags with Rs. 50/- (528 bags x Rs. 50/- per bag as rent = Rs. 26,400/-). The amount payable by the OP to the complainant thus comes to Rs.79,200/- by deducting the rent amount of Rs.26,400/- from the total loss amount of Rs.1,05,600/- (Rs. 1,58,400 minus Rs. 26,400/-).
8. Sequel to our above discussions, the appeal filed by the OP is partly accepted. The order of the District Forum is modified to the extent that the OP shall be liable to pay Rs.79,200/- within 30 days from the date of receipt of the order to the complainant, failing which, the OP shall be further liable to pay @10% from the date of order till its realization.
9. The appellant/OP No.1 has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. The amount of Rs.25,000/- with interest accrued, if any, be remitted by registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days.
Remaining amount shall be paid by OP to the First Appeal No.1322 of 2011 9 complainant/respondent within 30 days from the date of receipt of the copy of the order.
10. The arguments in this appeal were heard on 27.04.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.Klar)
Presiding Judicial Member
(Vinod Kumar Gupta)
Member
May 4, 2015 (H.S.Guram)
Lb/- Member