KANWAL COLD STORE vs VIJAY KUMAR

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 21.3.1997 to 23.3.1997 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 19.5.1995 on 24.5.1997 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 25.5.1997 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 conforming 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 20.3.1997 and 21.3.1997 and spent Rs. 1,57,050 plus transportation, loading and unloading charges which works out of 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 along with 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 Rs. 30 to 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: The affidavits of such large numbers of persons that potato bags were in good condition on 25.5.1997 and thereafter totally belie the averment of complainant that his potato bags got damaged and potatoes were not fit for 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 potato 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 Civil Court if so advised. Parties are left to bear their own costs.

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 May 19, 1997 informing of appearance of cracks in the wall or calling upon him to remove the potatoes. Thus, the opposite party has failed to prove that prior to May 19, 1997, any intimation was given to the complainant about he existence of cracks in the walls of the cold storage or calling upon him to remove the potatoes. As per case presented before the District Forum, such cracks developed on May 11, 1997 and obviously for 7 days, no intimation was given to the complainants and the goods remained in the cold storage. In that situation, the deterioration in the goods was bound to be there for lack of maintenance of requisite temperature in the cold storage. May be some of the persons who had deposited potatoes in the cold storage of the opposite party, on notice being received, approached and found their goods intact and removed the same but that does not mean that the goods of the complainant were also safe and they deliberately did not remove the same. Admittedly by that time, walls had collapsed. 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 v. 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 along with cost of litigation Rs. 5,000. 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 along with 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 a higher amount as compensation i.e., Rs. 1,87,050. He submitted that notice was received by the complainant on 24.5.1997 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 and 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 owner''s 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, lockouts 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 of such in any manner it deems fit if 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 of 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 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 24.5.1997 and he had gone to the spot with a truck on 25.5.1997 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 20.3.1997 and 21.3.1997 an amount of Rs. 41,238.75 and Rs. 1,02,984.50 respectively had been paid which along with cartage 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. Findings: 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 of such in any manner it deems fit if 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 of Moga. The learned Counsel for the respondent argued that he had already deposited Rs. 60,000 as per directions of this Commission dated 6.12.1999 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. 25.5.1997 along with 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 along with the interest accrued to the respondent.

Revision petition is disposed of accordingly. Revision Petition disposed of.