NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(From the Order dated 09.08.1999 in Appeal No. 465/ 98 of the State
M/s Kanwal Cold Store Petitioner
Sant Nagar, Gurdaspur
Vijay Kumar Respondent
Son of Shri Kharaiti Lal
Resident of Sabazi Mandli
BEFORE: HON’BLE JUSTICE SHRI K S GUPTA, PRESIDING MEMBER
HON’BLE DR.P.D.SHENOY, MEMBER.
For the Petitioner : Shri Vipin Gogia, Advocate
Ms Jaspreet Gogia, Advocate
For the Respondent : Shri. Sukumar Pattjoshi, Advocate
The issue to be decided in this case is whether the proprietor of the cold storage is liable to make good the loss due to damage caused to potatoes stored in the cold storage, as result of collapse of the walls of the cold storage. The simple answer is : Yes.
Case of the complainant :
The complainant had stored 698 bags of potatoes from 21.03.1997 to 23.03.1997 weighing 80 kgs each at Kanwal Cold Store, Sant Nagar, Gurdaspur with a view to meet the requirement of the army on demand, on such occasions when the prices of potatoes shoot up due to scarcity of the commodity in the market. The complainant received notice dated 19.05.1995 on 24.05.1997 sent by the proprietor of the cold storage through his counsel to remove the potatoes stored in his cold storage on the plea that the walls of his cold storage developed cracks and require extensive repairs. The complainant went to the cold storage on 25.05.1997 for removal of his potato bags with his personal truck and found that utter confusion was prevailing due to collapsing of the walls of cold storage which took place 15 days before his visit. The potato bags were damaged due to this fall and they were not fit for human consumption and not confirming to the specifications for supply to the army. Complainant had stated that he had purchased 698 bags of potatoes from New Guru Nanak Fruit Company, Moga on 20.03.1997 and 21.03.1997 and spent Rs.1,57,050/- plus transportation, loading and unloading charges which works out to Rs.225/- per bag. The complainant has filed the complaint before the District Forum with the prayer that the proprietor of the Cold Storage may be ordered to pay Rs.1,57,050/- alongwith 18% interest and special compensation for mental agony.
Case of the opposite party (M/s Kanwal Cold Store) :
The complainant has not paid any consideration for storing potatoes, hence he is not a consumer. Even if any compensation has to be paid it should be granted after deducting Rs.75/- per bag of 80 kgs each, as rent. The complainant has further stated that the price of potatoes slashed down to Rs.30/- /Rs.40/- per bag of 80 kgs. The opposite party filed many affidavits from different farmers who had stored potato seeds in the same cold storage stating that their potato seeds were not damaged and they had lifted the same on receipt of notice from the proprietor of the cold storage.
Orders of the District Forum and State Commission :
The District Forum after hearing the parties passed the following order:
affidavits of such large numbers of persons that potatoes bags were in good
condition on 25.05.1997 and thereafter totally belie the averment of
complainant that his potato bags got damaged and potatoes were not fit human
consumption. As complainant failed to lift the potato bags when they
were in good condition and when he was called upon to lift the potato bags due
to collapse of walls of the cold storage on false plea. We find the complainant
failed to discharge his obligation under the agreement of hiring the services
of other party for storing the potatoes bags in the cold storage of other
party. Therefore, complainant is found not entitled to any compensation. In
light of what is discussed above, the complaint is dismissed. However,
complainant is left at liberty to seek his remedy in the
Dissatisfied by the order of the District Forum the complainant filed an appeal before the State Commission. The State Commission after hearing the parties came to the following conclusions:
“In the affidavit
of Kanwaljit Singh, there is no mention that he
contacted the complainant prior to
The opposite party was acting as a bailee with whom goods were entrusted in safe custody. It was expected of him to keep the goods with due care as they were his own and in that sense, he would have made arrangements of removal of the goods in any cold storage before they were deteriorated.
It was argued on behalf of the opposite party, the cold storage, that some of the matters before this Commission wherein the stand of the cold storage was accepted. Reference was made to appeal No. 802 of 1997 ‘Anoop Singh vs Kanwal Cold Store’. On perusal of the judgment, we find that the point raised in the present case was not raised therein nor the same was adjudicated i.e information given to the complainants prior to issuing of the notice referred to above. In that case, no deficiency on the part of the cold storage was found. On facts, ratio of the decision aforesaid cannot be applied to the case in hand which has been decided on the evidence produced in this case.
For the reasons recorded above, this appeal is allowed. The order of the District Forum is set aside. The complaint is allowed with the directions to the opposite party to pay Rs.1,87,070/- with 18% interest thereon w.e.f May 25, 1997 till payment alongwith cost of litigation Rs.5000/-.”
Submissions of the Learned Counsel for the Revision Petitioner:
The learned Counsel submitted that though the complainant in his prayer has stated that the complainant may be granted Rs,1,57,050/- as price of potatoes alongwith 18% interest on money invested and expenses and special costs for mental agony caused to the complainant for the lapse on the part of the respondent, the State Commission has awarded an higher amount as compensation i.e. Rs.1,87,050/-. He submitted that notice was received by the complainant on 24.05.1997 sent by the respondent through his Counsel for removing or making alternative arrangements of the potato bags stored in his cold storage on the plea that the walls of his cold storage developed cracks and require extensive repairs. The complainant did not remove the same though large number of other farmers had removed their potato seeds and saved themselves from the loss. If the Commission decides to award any relief to the complainant, Rs.75/- per bag has to be deducted as the storage charges. He referred the certificate issued by the Secretary, Market Committee Gurdaspur to the effect that ‘it is certified that the rates of potato from 13th May 1997 to 31st May 1997 ranged between Rs.80/- to Rs.100/- per quintal.’ Complainant had agreed to pay rent of Rs.40 per bag which was promised but not paid. He further submitted that several farmers had given affidavits to the effect that they had stored potato seeds in the same cold storage but they retrieved the same in good condition after receipt of the notice from the Proprietor of the cold storage. He further referred to some of the terms and conditions of the cold storage which read as under :
4. All stocks are received and stored at owners risk.
5. The firm will not be responsible for any delay in delivery or non delivery due to fact of war, riots, civil or political disturbances strikes, lock outs and accidents of kind if the stocks are not removed within the stipulated period the firm will not be held responsible for any loss or deterioration of stock and the entire risk will have to borne by the owner.
6. If it is considered by the firm that the stock cannot more be started (sic) the owner shall have to remove the same within a week from the receipt of such intimation after making payment of all sums due to the company. The company shall be within its right to dispose off such in any manner it deems fit it the same is not removed by the owner within the aforesaid period.
According to the terms and conditions of the agreement the stocks are received and stored at owner’s risk and the firm will not be responsible for any delay in delivery or non delivery due to accidents or any kind if the stocks are not removed within the stipulated period, the firm will not be held responsible for any loss or deterioration of stock and the entire risk will have to be borne by the owner.
Submissions of the Learned Counsel for the respondent :
The learned Counsel for the respondent submitted that all the affidavits on which the District Forum has relied upon pertain to potato seeds and not potatoes. As the potatoes stored in the cold storage had to be supplied to the army and unless they provide good quality potatoes the army authorities summarily reject the same. He brought to our notice the certificate issued by the United India Insurance Co. Ltd., wherein they have stated that “the claim case of M/s Kanwal Cold Store has been made as ‘no claim’ by this office due to faulty construction.” As the building was not constructed properly the walls got damaged and fell down, causing extensive damage to the potatoes stored by the complainant. He submitted that he had received a notice on 24.05.1997 and he had gone to the spot with a truck on 25.05.1997 and he found that due to collapsing of the walls of the cold storage the potato bags were damaged and as they were not fit for human consumption, hence he did not lift the same. The price of the potatoes mentioned by the Market Committee Gurdaspur, is the average price for average quality. The army requires top quality potatoes. The New Guru Nanak Fruit Company vide its receipt has stated that on 20.03.1997 and 21.03.1997 an amount of Rs.41,238.75/- and Rs.1,02,984.50/- respectively had been paid which alongwith cartage which works out to Rs.225/- per bag. He had also produced the receipt of Truck Union of Moga in support of the cartage charges paid.
It is clear from the above analysis that the complainant had stored potatoes worth Rs.1,57,050/- in the cold storage and due to faulty construction, the walls of the cold storage developed cracks which caused extensive damage to the potatoes. When the complainant had received a notice he had gone to collect the potatoes with his own truck, but he found that the potatoes were damaged and hence he did not collect the same. Affidavits filed by some farmers pertain the storage of potato seeds which according to them were not damaged. It is quite likely that some of the goods stored were damaged while others were not damaged.
Clause 6 of the terms and conditions of the agreement reads as follows :
If it is considered by the firm that the stock cannot more be started (sic) the owner shall have to remove the same within a week from the receipt of such intimation after making payment of all sums due to the company. The company shall be within its right to dispose off such in any manner it deems fit it the same is not removed by the owner within the aforesaid period.
Hence, it is quite likely that the revision petitioner would have sold the potatoes if they were in good condition.
As far as the prices of the potatoes are concerned it would be proper to rely upon the receipts produced by the complainant from the New Guru Nanak Fruit Company, from where he had purchased the potatoes than the certificate issued by the Secretary, Market Committee, Gurdaspur. He had also produced the receipts from the Truck Union Moga. The learned Counsel for the respondent argued that he had already deposited Rs.60,000/- as per directions of this Commission dated 06.12.1999 with the Registrar of this Commission and interim stay of enforcement of the order of the State Commission was granted. He said that this amount would suffice for compensating the loss.
However, we feel that the amount of Rs.1,86,070/- awarded by the State Commission is beyond the prayer made by the complainant. The complainant in his complaint has prayed that he may be compensated for the loss to the tune of Rs.1,57,000/- and hence, he is eligible only for this amount. He has also prayed for a payment of interest @ 18% per annum. As the interest prayed is on the higher side, we consider that the complainant is eligible for interest only @ 10% per annum. Rs.40 per bag was payable as rent for the period of storage. As two months had lapsed from the date of the storage till the date of collapse of the wall and damage to the potatoes, 50% of this amount has to be deducted from the amount payable to the complainant. Accordingly we direct that Rs.1,43,040/- shall be payable w.e.f 25.05.1997 alongwith an interest @ 10% per annum. The petitioner shall pay Rs.10,000/- as cost to the respondent. The Registry shall pay the amount of Rs.60,000/- alongwith the interest accrued to the respondent.
Revision Petition is disposed of accordingly.
[ P D Shenoy ]