CLAIM UNDER SECTION 28 OF THE PUNJAB CONSUMER PROTECTION ACT 2005 FOR RECOVERY OF RS. 14, 58,350/-
1. Manzoor Ahmad, the claimant filed a complaint U/s 25 of the Punjab Consumer Protection Act 2005 for recovery of Rs. 14, 58,350/- for providing defective services by the defendant Haji Muhammad Jamil proprietor Muzammal Cold Storage and Oil Mills.
2. Briefly stated facts of the case are that the claimant during the period of 20-03-11 to 28-03-11 stored his 821 potatoes bags in the cold storage of the defendant with rent of Rs. 340 per bag. It was settled between the parties that the claimant will remove his potatoes till 30-09-2011 after payment of rent of Rs. 2, 79,140/-. In the month of October, the claimant contacted with the defendant and after negotiation in presence of witnesses, the last date for removal of stored potatoes was extended up to 15-12-11 with additional rent of Rs. 150 per bag. According to the claimant, it was also agreed between them that the defendant would be responsible for damage caused to the potatoes due to defective services. On 21-11-11, the claimant paid Rs. 1, 50,000/- to the defendant through on line process. On 10-12-11, the claimant alongwith Khalid Mehmood and Haji Saeed visited the cold storage of the defendant and observed that his potatoes were rooting due to defective services, bad and substandard cooling system. The claimant protested for the said fault on the part of the defendant but the defendant did not attend to it. The claimant approached the office of Deputy Distinct Officer Agriculture Extension, Pakpattan on 12-12-11 with request for examination of his potatoes. The said officer referred the matter to agriculture officer to visit the cold storage of the defendant who prepares report dated 13-12-11. He reported to the higher authorities that 30 to 40% potatoes had been damaged. On 19-12-11, the claimant sent a legal notice to the defendant which was replied on 26-12-11. In the said reply, the defendant refuted the allegations leveled by the claimant and submitted that the last date for storage of potatoes i.e. 30- 09-11, had been extended till November 2011 and no contract whatsoever was made regarding storage of potatoes till 15-12-11. The matter could not be settled out of the court despite issuance of legal notice. Therefore, the claimant approached this court for a decree for recovery of Rs.
14,58,350/- including price of potatoes in market , the amount of Rs. 1,50,000/- paid to the defendant and Rs. 2,00,000/- as damages.
3. The defendant resisted the claim in law and facts. He raised as many as 07 preliminary objections including that the claimant did not fall under the definition of consumer, the claim was barred by time, the claimant has no cause of action and that the defendant was entitled to special costs.
4. It is made clear here that other preliminary objection were not pressed by the learned counsel for the defendant at the time of arguments. Otherwise also, those preliminary arguments were irrelevant in cases triable by consumer courts.
5. The defendant admitted in his written statement that 811 potatoes bags were kept in his cold storage and as per agreement, he was bound to store, stored item till 30-09-11. The value of potatoes in market was suffering from losses; therefore, on the request of the claimant, the last date of agreement i.e. 30-09-11 was extended till October 2011and that too without any additional rent. During the extended period, the claimant did not remove/lift his potatoes from the cold storage and again on his request, another one month till November 2011 was extended and for the said month, additional rent of Rs. 150/- per bag was settled. The claimant paid Rs. 1, 50,000/- as rent for the period till 30-9-11. At the end of the month of November 2011, the defendant asked the claimant to lift his potatoes from the cold storage but the claimant delayed it. On 05-12-11, the cold storage was closed as per routine. Defendant claimed that a sum of Rs. 2, 63,610/-was outstanding against the claimant as rent for the period from month of March to 30-09-11 and for the month of November 2011. The defendant prayed for dismissal of the claim with special cost of Rs. 10,000/- and claim for outstanding amount against the claimant.
6. The parties failed to reach at settlement during pretrial settlement proceedings. Therefore, they ware asked to produce their evidence in support of there respective version.
7. The claimant examined himself as Pw-1. He was supported by Haji Saeed Pw-2 and Khalid Mehmood Pw-3, Muhammad Aslam DDO Agriculture Pakpattan Pw-4and Allah Dittah Agriculture Officer Pw-5.
8. The claimant also relied upon receipt Ex-p1, application to District Officer (Agriculture) Ex-P2, report of DDO(A) dated 13-12-11 Ex-p3, report of agriculture officer dated 13-12-11 Ex-p4, receipts regarding storage of potatoes Ex-p5 to Ex-p9, legal notice Ex-P-10 and reply to the legal notice Ex- p11.
9. The defendant Muhammad Jamil appeared in the witness box as Dw-1 to rebut the claim of the claimant. He also examined Allah Dittah Dw-2 and Shaikh Muneer Ahamd Dw-3.
10. Before giving findings on controversial points, it would be appropriate to have a glance over oral as well as documentary evidence produced by both the parties.
11. Manzoor Ahmad Pw-1 reiterated facts mentioned in the claim, therefore, his examination in chief is not required to be discussed. During cross examination, he stated that he checked his stored potatoes in the month of October 2011 and those were found in good condition and that he did not visit the store of the defendant in the month of November 2011. He explained in his cross examination that extension in period regarding storage potatoes till 15-12-11 was made through a settlement in presence of Jamil, Naveed and Ijaz in the tenth month of 2011. He admitted it correct that he had not paid rent of potatoes stored till 30 September. According to the claimant, at the time of inspection by the Agriculture Department, Jamil, Naveed and Ijaz were present in the cold storage but the agriculture officer did not obtain their signatures. The agriculture officer simply examined the potatoes on his pointation. He held it incorrect that he had not removed his potatoes because potatoes in the market had been devalued and were being sold at less rate.
12. Haji Saeed Pw-2 and Khalid Pw-3 visited the cold storage of the defendant on 10-12-11 alongwith claimant and few other traders of potatoes. According to both of them, the cooling system of the cold storage was defective due to which potatoes owned by the claimant were rooting. Haji Saeed Pw-2 also stated that agriculture officer had inspected the cold storage of the defendant on 12-12- 11 in his presence.
13. He also admitted that agriculture officer had not issued any notice to the defendant before inspection of cold storage. Both the witnesses admitted that potato's rates remained unstable in market.
14. Allah Dittah agriculture officer Pw-5, on an application moved by the claimant and in compliance of District Officer Agriculture visited the cold storage of the defendant on 12-12-11. He prepared his report Ex-P4. According to him, he had inspected/examined the potatoes stored in room No. 1 of cold storage of the defendant. He further stated that the ratio of rooting of potatoes was between 35 to 40%. During his cross examination, he admitted that he had not issued any notice to the defendant before inspection/examination of potatoes stored in the cold storage nor he ever took signatures of any employee or respectable of the locality on report prepared by him.
However, he held it incorrect that he had prepared a fake report when he visited the cold storage of the defendant.
15. Muhammad Aslam DDO (Agriculture) Pakpattan Pw-4 forwarded his report Ex-P2. He verified the contents of his report Ex-P2 and signatures thereon. During cross examination, he admitted that his report was based on the findings recorded by agriculture officer. He admitted that he neither visited nor examined the cold storage of the defendant nor he ever issued any notice to the defendant before preparing report. According to him, he did not know where the cold storage of the defendant was located/situated.
16. Haji Muhammad Jamil as Dw-1 in his statement in chief reproduced facts mentioned in his written statement almost in same language but with some modification and changed words. He admitted the execution of receipts Ex-P1 to P-9. The factum of issuance of legal notice and reply thereof Ex P-10 and P11 were also not denied by him. However, he reiterated that the agreement for storage of potatoes of the claimant was extended up to 30 November 2011. He held it incorrect that the agriculture officer had ever visited the cold storage. According to him, the said agriculture officer never went at the spot. In last portion of his cross examination, he stated that Rs. 2, 63,610/- were outstanding against the claimant for which he never earlier issued any notice to him.
17. Allah Dittah Dw-2 and Shaikh Muneer Ahmad Dw-3 unanimously and more and less in the same language, stated that in November 2011, the rate of potatoes in market was ranging between Rs.
200 to 400/- per bag.
Therefore, the people involved in business of potatoes had left there stored items in store rooms in order to avoid further financial loss.
18. The undeniable facts of the case are that the claimant hired the services of the defendant for storage of his 821 or 811 bags of potatoes in lieu of rent of Rs. 340/- per bag and that the defendant was under a legal obligation to get those potatoes stored till 30-09-11. After the said period i. e 30- 09-11, the claimant was under a legal obligation to remove his potatoes but he did not do so. Why he failed to remove those stored potatoes is a question to be resolved.
19. The controversy between the parties starts from the extended period of storage of potatoes.
According to the claimant, it was mutually agreed between the parties in presence of witness that the defendant would continue to maintain potatoes in his cold storage till 15-12-11. It means that the period of two and half months was extended for storage of potatoes. On the other hand, the defendant version is that the rates of potatoes in market had gone down; therefore, on the request of the claimant, initial one month period was extended which was to end on 30-10-11 and that too without any additional rent. The position of rate of potatoes in market remained the same therefore, once again on the request of the claimant this period was extended till 30-11-11 and this time, additional rent of Rs. 150 per bag was claimed.
20. The question to be resolved is as to whether the contract for storage of potatoes was extended from 30-09-11 to 30-11-11 or till 15-12-11.The defendant, in a free and fair manner without any doubt and reservation, admitted that time for storage of potatoes was extended with mutual consent till 30-11-11 and not till 15-12-11. The claimant's version was that this period was extended up to 15-12-11.
When the claimant appeared in witness box as Pw-1 he explained that fresh settlement whereby the defendant agreed to keep his potatoes in cold storage till 15-12-11, was made in presence of Jamil, Naveed and Ijaz. The said three persons were the best witnesses to make disclosure and prove the alleged factum of extension of agreement till 15-12 11.Unfortunately; all the three witnesses have not been produced by the claimant. The factum of withholding such an important evidence would speak volumes against the contention of the claimant. Resultantly, it could not be believed that the contract for retention of potatoes in cold storage of the defendant had been extended till 15-12-11. On expiry of 30-11-11, the defendant remained no more under any legal obligation to continue to store the potatoes bags of the claimant in his cold storage. After the said date i.e. 30-11-11, the claimant was supposed to remove the potatoes from the cold storage but he avoided to do so. The claimant has not advanced any reason for not shifting the potatoes bags from the cold storage of the defendant. However, the defendant has produced sufficient evidence in shape of statements of Allah Dittah Dw-2 and Shaikh Muneer Ahmad Dw-3 who unanimously and unequivocally explained that the price of potatoes in market had been lowered down and its price was ranging between Rs. 200 to 400/-. This was the reason that the claimant did not remove his potatoes bags from the cold storage of the defendant. Had he done so, obviously he would have suffered a great financial loss in market by selling potatoes at low rates and for this reason he did not remove his potatoes bags. Therefore, it can be said with certainty that it was the claimant himself who was at fault in removing the potatoes bags within stipulated period. Resultantly, the defendant could not be burdened with the cost of the potatoes and damages as claimed by the claimant as he was not supposed to keep the potatoes bags in his cold storage after 30-11-11.
21. On an application dated 12-12-11 Ex-p2 the District Officer Agriculture Pakpattan asked the Deputy District Officer Agriculture Extension to visit the spot and submit report about the allegations of the claimant. He delegated his powers of inspection to Agriculture Officer. The Agriculture Officer Allah Dittah Pw-3 prepared his report where in he mentioned that the potatoes were found in room No. 1 and in front of cold storage. Potatoes were rotting rapidly as the cold store was closed and powered off. He further reported that rotting percentage of potatoes was round about 35 to 40 % at the time of inspection. The Deputy District Officer Agriculture Extension Pakpattan, vide report Ex-P3 reiterated the observations recorded by agriculture officer in his report dated 13-12-11 Ex-P4 and forwarded the same to District Officer Agriculture Officer Extension Pakpattan Vide his report dated 13-12-11 Ex-p3. Both the said reports if read with the statements of their authors Pw-4 and Pw-5 have swayed this court to believe that the observations recorded in the reports were dubious and doubtful. Therefore both the reports could not pay any significance.
The inspecting office i.e. Agriculture Officer Allah Dittah Pw-5 admitted that before inspection, neither any notice was issued to the defendant nor he or any person at site were heard nor any respectable of the locality present there was associated at the time of inspection of potatoes.
Muhammad Aslam Deputy District Officer Agriculture neither inspected the site nor he heard any other person. He simply made the observations recorded by the agriculture officer, as the basis of his report Ex-P3. He admitted in his cross examination that he was not aware about the location of the cold storage of the defendant. It was also stated by agriculture officer Pw-5 that he had inspected the potatoes lying in room No. 1 of the cold storage and the potatoes bags available out side the store. The execution of receipts Ex-P1 to P5 and P9 whereby the potatoes bags were kept in cold storage of the defendant was admitted by both the parties. According to the said receipts, the potatoes bags of the claimant were stored in room No. 2 and 3 of the cold storage of the defendant. Potatoes stored in room No. 1 were obviously inspected wrongly and illegally. Therefore, due to the said two reasons that no prior notice was issued to the defendant before inspection and secondly, the potatoes bags stored in room No. 1 were checked whereas those potatoes factually were stored in room No. 2 &3. The reports Ex-p3, p4 and the statements of Pw 4 and 5 hardly carry any legal value. These reports appear to have been prepared in connivance with the claimant and agriculture authorities without any notice /knowledge of the defendant.
22. In view of the reasons and observations recorded above, it is held that claimant has no case on merits. The claimant was himself at fault in not removing /lifting potatoes bags from the cold storage of the defendant till 30-11-11.
23. So far as limitation was concerned, there is no second view to the settled law that primarily, the claimant may approach the consumer court within a period of 30 days from date of accrual of cause of action. The date where from cause of action would arise, is a question of fact which is different in each and every case.
24. The claimant failed to prove that the agreement for storage of potatoes had been extended up to 15-12-11. It stands established on record that this period was to come to end on 30-11-11. The said date i.e. 30-11-11 would be considered as a date when a cause of action had occurred in favour of the claimant. As such the claimant was supposed to file his claim till 30-12-11 whereas, he filed the claim on 09-01-12. Therefore, the claim was barred by time.
25. There was another aspect of the case so far as limitation was concerned.
The claimant moved an application on 12-12-11 Ex-P2 with District Officer Agriculture Pakpattan with request to probe into the matter regarding rooting of his potatoes. On the said application, the proceedings were initiated and reports were prepared. It has also been observed earlier part of this order that the report prepared by agriculture officer were not reliable. In the said application dated 12-12-11 the claimant mentioned that he visited the cold store of the defendant in the month of October 2011 to know the quality of his stored items and on that occasion, he observed that the great damage to his potatoes had been caused. It therefore appears that damage, if any, to the potatoes of the claimant had been caused due to alleged poor and defective services of the defendant, in the month of October 2011. In the said month of October 2011 the claimant had acquired knowledge about damage caused to his potatoes. Therefore, it can be said that limitation would start from the said month of October 2011. If limitation is counted from October 2011, then it can be said that the claim was hopelessly time barred.
26. The defendant in his written statement asserted that claimant did not fall under the definition of consumer. It appears that the said objection was taken for sake of objection only. According to Section 2 (c) (ii) of the Punjab Consumer Protection Act 2005, consumer is a person who hires any services for consideration and includes any beneficiary of such services. There was no denial to the fact that the claimant stored his potatoes in the cold storage of the defendant with settlement to pay rent. Thus, he hired services of the defendant being owner of the cold store to provide him services. Therefore, the facts of the case, if read with definition of consumer as given in section 2 c
(ii) of the Punjab Consumer Protection Act 2005, the claimant would fall under the definition of consumer. The contention of the defendant on the said point is therefore turned down.
27. The reasons and findings recorded above, have answered the entire factual as well as legal controversy between the parties including contesting preliminary objections raised by the defendant in his written statement. The claim is hereby dismissed with cost of Rs. 10,000/-. It is made clear here that although the defendant claimed a sum of Rs. 2, 63,600/- as rent outstanding against the claimant but he did not issued any notice to the claimant for recovery of said amount, therefore, he is held disentitled to get the said amount from the claimant.