Mrs. Devinderjit Dhatt, Member:
1. This appeal received by transfer from Punjab State Commission, under the orders of Honble National Commission filed against order dated 15.11.2001 passed by District Consumer Disputes Redressal Forum, Hoshiarpur in complaint case No. 166/4.5.2001. The contextual facts in brief are as under:
As per averments, the appellants/complainants availed the services of OP M/s. Bhogal Ice Factory and Cold Storage, for keeping 570 bags/sacks valued at Rs. 1,19,700. It has been averred that bags/sacks were kept in lots, on dates 19.3.1999, 24.3.1999, 25.3.1999, 26.3.1999 and 9.4.1999, a few by the complainants and some were sent through one Sh. Rattan Singh. As per rate agreed upon, the respondent/OP was to charge Rs. 55 per bag for offering storage facilities for one season till 15.10.1999. The OP after accepting the potatoes in different lots, allotted different marks on the sacks, copies on record vide Annexure C-1 to C-15. It is alleged that after 9.4.1999, the appellants/complainant were never approached by the OP regarding the condition of the potatoes but whenever it was enquired on telephone, they were assured that the potatoes are kept stored in proper condition. It is alleged that on 7.10.1999 the complainants went to the cold store to take out 154 bags of potatoes to be sold to M/s. Amrit Trading Company situated at Una (H.P.), the delivery of the potatoes was given after receiving the rent for the same. It is further averred that OP offered to take the potatoes in question on a trolly against the transportation charges of Rs. 20 per bag. It is further stated by the complainant that after making the payment of Rs. 8,470 for 154 bags they took the delivery in good faith and agreed to get same transported by the OP to M/s. Amrit Trading Company, Una. It is alleged that when the complainants opened the bags in the premises of M/s. Amrit Trading Company, the potatoes in all 154 bags/sacks were found dried, shrunk, deteriorated and not fit for sale in the market due to which the same had to be dumped in the garbage. Thereafter a certificate dated 12.10.1999 was issued by M/s. Amrit Trading Company, certifying the rotten potatoes brought by the complainants. As per case set up by the complainant on 12.10.1999 the OP was approached and the above condition of the potatoes was explained as proved from the certificate issued by M/s. Amrit Trading Company also, but no action was taken by the OP. The remaining 416 bags lying in the premises of the OPs were requested to be shown, the OP refused to give the delivery to the complainants. It is submitted that in spite of repeated reminders by the complainants and also through respectable persons of the village to compensate the loss, the OP has refused to give the delivery of the remaining 416 bags till date. It is alleged that the OP is deficient in services, in addition to being guilty of unfair trade practice and negligence. A compensation of Rs. 3 lacs on account of mental tension, harassment, inconveniences and financial losses have been claimed. It is further prayed that the complaint be accepted with costs in the interest of justice and equity, any other relief to which the complainants are found entitled, may also be granted.
2. In the written statement filed on behalf of OP, the preliminary objection taken is that complainants have not approached the Forum with clean hands and are guilty of suppressing the material facts and thus not entitled to any relief. It is further pleaded that the case involves complicated questions of law and fact and the complainants deserve to be relegated to the Civil Court where the parties can avail the opportunity to lead detailed evidence to prove their case properly. It is alleged that the complainants are not agriculturists and had kept the potato bags for commercial purpose, thus the Forum had no jurisdiction to entertain the complaint.
3. In reply on merits, the averment of the complainants with regard to they being illiterate farmers have been denied. It is submitted that the complainants are cloth merchant running a shop at Village Majari. It is further stated that they are traders who purchase potatoes from the market at the lower rate, keep the same in the cold storage and sell them when the prices reach on the higher side. Thus the complainants cannot be accepted as consumers as per definition given in the Act. The number of bags kept in cold store as stated in the complaint has been disputed. It is submitted that only the 250 bags of potatoes were stored. It is further denied that any assurance was given or an agreement entered between the complainants and the OP to give regular information to the complainants. It is submitted that complainants were required to lift the potato bags on 15.10.1999 and no information with regard to same was agreed to be supplied. The OP has disputed the dates on which the bags in question were kept in the storage. It is admitted that Rs. 55 per bag was to be charged towards the storage facilities. It is further stated that few receipts are in the name of complainant while others are in the name of Sh. Rattan Singh, due to which the complaint by Sh. Surinder Kumar and Sh. Prem Nath is not maintainable. It is submitted that the condition of the potato was proper till 15.10.1999. It is further submitted that 89 bags were lifted by the complainants on 7.10.1999 and 49 bags on 12.10.1999. Since there was no contractual liability to keep the remaining bags after 15.10.1999, the loss, if any, cannot be attributed to the OP. It is alleged that in spite of being warned, the complainants did not come till 15.10.1999 to lift the bags. In spite of failure on their part, the bags were kept till 28.10.1999 after which the remaining stock was shifted to the verandah as the cold storage required to be cleaned. It is stated that remaining bags were taken by the complainants on 19.10.1999 and the cold storage remained empty till 31.10.1999. It is alleged that the complainants lifted the potato bags belatedly as the price of the potato at that time was on the lower side i.e. Rs. 80 per bag and rent payable for the same was Rs. 55 per bag. It is further stated that Rs. 8,000 only were paid while the amount due was Rs. 13,750 and a balance of Rs. 5,700 is still payable. The averment of the complainants for having provided tractor trolly to deliver the potato bags have been denied, hence the question of charges of Rs. 20 per bag having been agreed upon towards transportation, does not arise. It has also been denied that complainants paid Rs. 8,470 as alleged. It is further alleged by the OP that the certificate got issued on 12.10.1999 from M/s. Amrit Trading Company by the complainant is manipulated. It is stated that willingly 49 bags were lifted by the complainant on 12.10.1999 and the remaining on 19.10.1999. It is submitted that complainants are liable to pay Rs. 5,750 to the OP and in fact when this amount was demanded, the present complaint was filed. A prayer has been made to dismiss the complaint. It is submitted that if the Forum decides to allow any claim then the same be made subject to adjustment of Rs. 5,750 which are arrears towards the complainants.
4. In evidence, on behalf of complainant Sh. Surinder Kumar, Sh. Balram Krishan, Sh. Keshav Rai, Sh.Rana Balwant Singh,Sh. Rattan Singh, Sh. Satish Kumar and Sh. Prem Nath have filed their affidavits along with Exhibits C-1 to C-23 whereas on behalf of OP Sh. Jasvir Singh, Smt. Surinder Kaur and Sh. Bahadur Singh have filed their affidavit along with Exhibit R-4.
5. The District Forum, Hoshiarpur dismissed the complaint on the ground that the complainant could not prove any deficiency on the part of OPs.
6. Aggrieved against the order of the District Forum, the present appeal has been filed pleading inter alia that the impugned order by the District Forum is illegal, void, without jurisdiction and deserves to be set aside. It is submitted that as per facts stated in the complaint, the deficient services and negligence on the part of OP were established on the record as the stock of potatoes of which the delivery was taken was in a deteriorated condition and had rotten on account of negligence on the part of respondent/OP. It is contended that the Forum committed an error in not deciding the controversy as it was clear from the record that the OP was under an obligation (due to contract between the parties) to take care of the potatoes and to exercise and reasonable care and caution. The impugned order has been assailed on the ground that the Forum below passed the order on conjectures and surmises and failed to take note of the fact that respondent/OP was a custodian of articles entrusted to him by the appellant in good faith and for a consideration. It is stated that the potatoes were admittedly kept in the cold storage and proper receipts with regard to same were brought on record vide Exhibits C-1 to C-15 which prove that OP/respondent was responsible as the same were kept in improper condition from March, 1999 to October, 1999. It is alleged that they were not informed on telephone or otherwise regarding any damage to the potatoes, though it was a bounden duty of the respondent to check the stock at regular intervals and ensure that same is kept in a proper manner. It is alleged in support of its pleas by the appellant that though it was amply clear that the potatoes had deteriorated, the Forum failed to exercise its jurisdiction as it held that the complaint was not maintainable, though it was categorically stated by the complainant that he was an agriculturist by profession and in support of this plea, affidavits of various persons on record vide Annexures C-17 to C-21 to the effect that appellants were illiterate people. It is contended by the appellant that in spite of above evidence on record, the District Forum wrongly came to the conclusion that appellants were not agriculturist by profession. The impugned order has been termed erroneous on the ground that the question before the Forum was to decide whether the services of the respondent were hired by the appellant for a consideration? Secondly, whether the respondents have taken reasonable care and caution to protect the goods stored in their cold storage On the basis of above, the Forum was to adjudicate any deficiency if made out against the respondent/OP. The impugned order has been stated to be suffering from an error on the ground that the Forum failed to give any finding regarding deficiency on the part of OP/respondent. It is contended that the Forum has not applied its mind in deciding the controversy as the impugned order does not clarify if OP had exercised reasonable care and caution as it was expected from the person who is custodian of the goods for a valid consideration. It is stated that in spite of the fact that authorities cited in support by the appellants were applicable to the facts of the case, the Forum ignored the same and took a contrary view, which cannot be upheld. It is prayed that the impugned order be set aside and appeal be accepted in the interest of justice.
7. Adverting to the merit of appeal : after perusal of pleadings of the parties, record of the case, impugned order and the grounds of appeal, we are of the considered opinion that contention of appellant is bereft of merit that the District Forum has dismissed their complaint without appreciating the fact that the bags of potatoes were found deteriorated and were in an unsaleable condition due to which the same had to be dumped as this fact has been duly corroborated by the document issued by M/s. Amrit Trading Company to whom the potatoes in question were taken for sale. This contention of appellant is not worthy of being accepted as the complainant has not been able to corroborate from any document or evidence as to on which date potatoes in question were lifted by them. There are receipts on record Annexure C-1 to C-15 to prove the dates on which the bags were kept in the cold store mentioning brand assigned to the bag in question. The number of bags kept on particular date have also been mentioned. However, the evidence with regard to the dates on which the bags were taken from the cold storage is totally missing as no document has been placed by the complainant to substantiate that he had taken the delivery on or before the due date which is mentioned as 15.10.1999 on each receipt. The terms of contract are binding on both the parties. The appellant/complainants have not been able to show that they had complied with their part of contract namely that the bags were lifted by them positively before 15.10.1999 as per terms agreed upon at the time of acceptance of potatoes by the cold storage and agreed to by the complainants as well. This was a prime plea taken by the respondent/OP cold storage that since the bags of potatoes were not lifted by the complainant by 15.10.1999, they were compelled to remove the same from the cold storage and were kept in the Verandah as the cold store had to be cleaned up for the next season. Since the appellant/complainant have not been able to substantiate their allegation of deterioration of potatoes which could be attributed to any act or omission on the part of OP their bald averments that the potatoes have got rotten due to improper cold storage facilities cannot be accepted as it is uncorroborated through any evidence. Further the appellant has not been able to specifically refute the positive assertion by the respondent/OP that the potato bags were not lifted on or before 15.10.1999, due to which an adverse inference is drawn against the appellant/complainant. We hold that none of the contentions of appellant are worthy of being accepted. The appeal thus cannot be accepted and the impugned order of the District Forum which did not find merit in their submission cannot be stated to be suffering from any infirmity in fact or law, deserves to be upheld. The appeal is dismissed, however we refrain from imposing any costs.
8. Copies of this order be sent to the parties, free of charge.