At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE J.M. MALIK
By, PRESIDING MEMBER & THE HONOURABLE MR. VINAY KUMAR
For the Petitioner: Ritesh Khare, Advocate. For the Respondent: Jayant R. Vipal, Anand Adhikari, Advocates.
JUSTICE J.M. MALIK, PRESIDING MEMBER
1. The case of the complainant-respondent is this. He had kept 505 bags of potatoes, weighing 314 quintals and 15 kgs. valued at Rs.2,51,201 in the cold storage, Maa Chamunda Cold Storage, petitioner-opposite party. The petitioner charged Rs.10 per bag as storage charges. The balance was to be paid at the time of taking back potato bags. It is alleged that when he went to take back the potatoes in August, 2008, he found that majority of the potatoes had decayed and some potato bags were missing from the lot. He complained that he should be compensated for the loss but his request fell on deaf ears. Consequently, he filed a complaint with the District Forum with the prayer that he be granted compensation amounting to Rs.2,51,320/- plus Rs.48,680/- towards mental agony, total being Rs. 3 lakhs.
2. The District Forum dismissed the complaint. The District Forum was pleased to hold:
'5. It is an admitted fact that on 23.08.2008, Chagan Lal, brother of the father of the complainant received 310 bags from different rack number and their dispatch receipt has been produced. From which it is clear that had the potato been perished, applicant would not have received the potato. Affect of temperature of cold storage takes place on all the bags of potatoes stored therein. It is submitted by the respondent that the bags of potatoes stored in his cold storage were not misplaced, when the remaining bags of potatoes were not picked up by the applicant, respondent sold out 195 bags of potatoes in Mandi on 07.09.2008, receipt whereof is No. 393. Bags of potatoes were sold in STC PTC.
6. It is apparent after taking into consideration the above fact that complainant did not pick up the potatoes kept in the cold storage deliberately and the potatoes were stored at right temperature. Respondent on 07.09.2008 sold out all those bags in the Mandi which were not received back by the complainant and by doing so, respondent has not committed any deficiency in service.'
3. Aggrieved by that order, complainant preferred an appeal before the State Commission. The State Commission reversed the order passed by the District Forum and granted compensation in the sum of Rs.1.5 lakh.
4. We have heard learned counsel for the parties. In his affidavit, the petitioner-opposite party submits that as a matter of fact, 1005 bags of potatoes were kept in the cold storage for the period from February 2008 to July, 2008 by the complainant and his uncle. The complainant took 310 bags on 23.8.2008 vide receipt No. 353. The complainant’s uncle also informed the opposite party that the complainant would come and pick up the remaining bags on 29.8.2008. The complainant came and took away 501 bags vide receipt No. 379. He assured the opposite party that the remaining 195 bags would be removed on the next very date. Since he did not come back to take 195 bags, therefore, the petitioner-opposite party sold in the mandi.
5. It is crystal clear that the contributory negligence on the part of both the parties stands established. Learned counsel for the petitioner has invited our attention towards receipt dated 5.3.2008. At the back of this receipt, it clearly, specifically and unequivocally mentioned the dates for keeping the goods. It was stated that he season would commence from February to July. It also mentioned that Rs.10/- as advance was obtained and rest of the charges would be taken at the time of release of the goods. This clearly goes to show that the goods were not removed till the end of August, 2008. There cannot be any conflictions on the point that the potatoes are of perishable nature. This cannot be kept in the cold storage for a very long time. The complainant should have removed 195 bags of potatoes immediately during the month of August, 2008. However, the needful was not done despite coming to know that the potatoes had started decaying. Negligence is attributable to him in this regard.
6. However, it is also not understood as to why did the opposite party sell the potatoes without informing the complainant before doing so. He should have sent a notice to the respondent. The record reveals that the opposite party received the legal notice on 5.9.2008 and sold the bags in the market to its later date without informing the complainant.
7. The complainant himself admits in his reply that he has consigned 195 bags of potatoes in the cold storage. The complainant had filed an affidavit of Chagan Lal alongwith the appeal whereby Mr. Chagan Lal categorically denied the fact that he had withdrawn 310 bags of potatoes on 23.8.2008 vide receipt No. 353 and he has further denied that he has never informed the petitioner that the respondent would come to pick up balance bags of potatoes. Mr. Chagan Lal has given affidavit Ex. P-1 before this Commission.
8. The affidavit of Chagan Lal does not add another twist to the tale. The facts already stands elucidated. It was the bounden duty of the complainant to remove the potatoes in the month of July. Even if the potato market was not picking up during those days, the complainant should have paid the charges and made a request to keep the same for further period.
9. It is difficult to fathom on what basis the State commission granted compensation in the sum of Rs.1.5 lakhs. No receipt or any other document saw the light of the day. The complainant did not pay the charges for cold storage. To the same effect is story coming out from the mouth of opposite party. The opposite party could not explain
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for how much consideration it had sold the potatoes. Suppression of facts is the best way to get rid of the liability. The complainant admits that only 195 bags were left. Its value is less than half claimed by the complainant. There is contributory negligence as well. The potatoes had started decaying. After mulling over all these facts and circumstances, we reduce the compensation from Rs.1.50 lakh to Rs.60,000/- which will carry interest at the rate of 6% from the date of filing the instant complaint before the learned District Forum till its realization. The revision petition stands disposed of accordingly.