Shalimar Cold Storage and Anr. vs Pawan Kumar Srivastava

APPELLANTS which were the Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 9.2.2006 passed by the State Consumer Disputes Redressal Commission, Bihar (in short, ''the State Commission'') in Complaint No. 18/99 wherein the State Commission allowing the complaint has directed the Appellants to pay a sum of Rs. 6,38,200 being the cost of the potatoes to the Respondent/Complainant apart from Rs. 500 as costs. Facts:

Respondent/Complainant had kept 108 packets (54 quintals) of seed potatoes in the appellants'' cold storage on 2.4.1998, which were to be taken back in September -October 1998. The price of the certified variety of the seeds stored was Rs. 86,400. Potato seeds were not given back to the Respondent. They were handed over to Sudhakar Upadhayay and Gulab Ahmed taking them as to be the partner and representative respectively of the respondent. Respondent, being aggrieved, filed the complaint seeking a compensation of Rs. 6,38,200.

APPELLANTS , on being served, put in appearance and filed their written statement resisting the complaint, inter alia, on the grounds that the potato seeds stored were collected by one Sudhakar Upadhayay on 15.11.1998 on behalf of the Respondent; that against the storage of potatoes, the Respondent had taken a loan of Rs. 10,000 along with Sudhakar Upadhayay who had taken a loan of Rs. 12,000; that the Respondent in the legal notice sent to the Appellants had made a demand of only Rs. 97,200 which included cost of potato, compensation and the transportation charges. State Commission allowed the complaint and directed the Appellants to pay Rs. 6,38,200 to the Respondent being the cost of the potatoes. Rs. 500 were awarded towards costs. State Commission in its order observed as under:

The admitted fact of the case is that complainant had stored 54 quintals (108 packets) of potato in the Cold Storage of the O.P. There is no receipt on record to show that the O.P. had handed over this potato to the complainant. The ledger and other papers filed on behalf of the complainant do not prove this fact beyond all reasonable doubt. It is case of the O.P. that complainant''s partner Sudhakar Upadhayay and the representative of the complainant one Gulab Ahmed have received the potatoes on behalf of the complainant but there is nothing on record to substantiate that Sudhakar Upadhayay is the partner of the complainant or Gulab Ahmed was representative of the complainant. There is no sheet of paper on record to show that the O.P. has returned back the potatoes to the complainant for which the complainant has issued receipt of the potatoes in favour of the O.P. In view of these facts we are of the view that the complainant has been able to prove its case beyond all reasonable doubt. We are also of the view that non -return of the potatoes to the complainant on demand amounts to deficiency in the service which has caused loss to the complainant. As such the complainant is entitled to get the amount as the price of the potatoes amounting to Rs. 6,38,200 only. The litigation cost of Rs. 500 is allowed. No amount shall be awarded towards compensation or interest as claimed for by the complainant. The O.P. is directed to pay the above amount within two months from the date of this order.

Appellants, being aggrieved, have filed the present appeal.

WE have heard the learned Counsel for the parties at length and also have gone through pleadings available on record. Admittedly, the Respondent had kept 54 quintals (108 packets) of potato seeds in the cold storage of the Appellants which were not returned back to the Respondent by the Appellants. Even according to the Respondent, the total cost of the potato seeds stored in the cold storage of the Appellants was Rs. 86,400. Respondent has given the break -up for claim of Rs. 6,38,200 in para -9 of the complaint which reads as under:

.....That due to malpractice activities of the opp. parties suffered pecuniary loss of Rs. 6,38,200 (Rupees six lacs thirty -eight thousand and two hundred) towards the price of potato seeds (certified -1 variety), profit assessed causing non cropping of potato in time in 36 big has of land, Truck fare from Agra to Patna twice and other miscellaneous expenses for which the opposite parties are only liable to pay.

FURTHER , break -up of the price of the potatoes, profit assessed thereon, truck fare and compensation and litigation costs have been given by the respondent in para -9 of his affidavit in evidence which reads as under: That the complainant put in pecuniary loss due to malpractices of opposite parties of Rs. 6,38,200 (Rupees six lakh thirty -eight thousand two hundred) towards the following head - -

Learned Counsel appearing for the Appellants submits that in view of Bihar State Regulation of Cold Storage Act, 1982, complaint filed by the Respondent before the State Commission under the Consumer Protection Act was not maintainable. This plea has been raised for the first time. It had not been taken by the. Appellants before the State Commission. Even in the grounds of appeal, this ground has not been taken. Counsel for the Appellants seeks to raise this point being the pure question of law at this stage which is declined. Permission to raise the point now would necessitate the remand of the case to the State Commission. Complaint was filed in the year 1999. Remand of the case would cause further delay in disposal of the case which has already been delayed hugely. However, the point is left open.

LEARNED Counsel appearing for the Appellants further submits that the price of the potato seeds was Rs. 86,400 only and since the State Commission had allowed the price of the potatoes only. State Commission ought to have awarded Rs. 86,400 only and not Rs. 6,38,200 which included the truck fare as well as the profit assessed thereon after the cultivation of the seeds and sale of the potatoes.

WE find substance in the submission made by the learned Counsel for the Appellants. Admittedly, the price of the potato seeds was Rs. 86,400 only. State Commission has awarded Rs. 6,38,200 towards the price of the potatoes which includes the profit which the Respondent would have received after cultivating the seeds which had been kept in the cold storage. Respondent has not led any evidence to show that what yield he would have got after cultivation of seeds kept in the cold storage. He has also not led any evidence to show the price prevalent at the relevant time when the crop would have come to the market. In the absence of any evidence to show the yield and the price prevalent at the relevant time, the Respondent was not entitled to get Rs. 5,40,000 towards the intended profit. Moreover, the expected profit cannot be termed as price of the goods/potatoes. State Commission has clearly erred in awarding Rs. 6,38,200 to the Respondent which includes the intended profit as well as the transport charges of the potatoes to the market. Respondent is entitled to the extent of price of the potatoes seeds which were kept in the cold storage, compensation and costs. For the reasons stated above, the appeal is partly allowed and the order passed by the State Commission is modified to the extent that the Respondent would be entitled to Rs. 86,400 being the price of the potatoes, Rs. 10,000 as compensation and Rs. 5,00 as costs.

IN compliance of our order dated 4.12.2006, a sum of Rs. 75,000 has already been paid to the Respondent. The balance amount of Rs. 21,900 shall be paid to the Respondent by the Appellants within a period of one month failing which the balance amount shall carry interest @ 12% p.a. from the date of default till payment. Registry is directed to refund the sum of Rs. 35,000 deposited by the Appellant as statutory deposit along with accrued interest.