By Sri. MOHANDASAN.K, PRESIDENT

The complaint U/s 12 of the Consumer Protection Act 1986.

1.The complaint in short is as follows: -

       The complainant is an interior designer and the owner of KL-52-G 5005 TOYOTA FORTUNER vehicle.  He was in use of the vehicle for his business purpose. Usually, the complainant availing diesel from opposite party Oil pump. On 10/4/2018 the complainant was in need of travel up to Kumarakam work site and for that purpose on 09/04/2018, the complainant availed diesel from the opposite party oil pump at about 9.33 pm for Rs. 4500/-.  Thereafter he reached at his home traveling 3.5 kilometer and during that journey diesel indicator of the vehicle was burning and there was low beep sound from the vehicle.  The complainant thought that it was due to filling of oil tank fully.  On 10/04/2018 early morning at about 6.00 am the complainant started to travel in the vehicle driven by his driver Shidhin. P.P.  While he was travelling in the vehicle there was beep sound from the vehicle and vehicle stopped while reached at Pandiaksala near Valancheri.  At that time there was beep sound from the vehicle and the diesel indicator was burning. The complainant tried to start again the vehicle but he could not.   Then complainant called his brother Mr. Vijayan and asked him to reach at the place along with office staff Mr. Sudhil K.P.   On their arrival complainant contacted Toyota service Centre and informed the complaint.  As per the instruction from the service Centre it was told that it may be due to water content in the fuel and so it was advised to examine diesel filter and accordingly diesel filter separated and water content removed.  The complainant again tried to start the vehicle but could not.  Since the complainant was to reach at work site and to attend a meeting, the complainant continued his journey in the vehicle of his brother brought at there. The service center directed to produce the vehicle at their service center and the brother of the complainant tried to start the vehicle and to take to the service center but he could not.  Then the people from the service center came with the recovery vehicle and the vehicle was taken to the service center.  It was examined from the service center and found that there is exorbitant quantity of water in the diesel and that is the reason for the complaint of the vehicle.   Due to complaint to machineries, it was suggested an amount of Rs. 1,57,891/- as repair cost.  The service center issued an estimate also to that effect.  It was informed the complainant that due to water contained diesel, the parts of vehicle have caused serious damage to injectors, some of them already damaged and the remaining injectors, main fuel pump also will cause damage.  If that is occurred, the repair cost even main fuel pump worth more than Rs.1,00,000/-told by the service people from service center.  Complainant is required to spare cost for other parts of the vehicle also.

2.      The complainant contacted directly the opposite parties and also through telephone with the intention of solving the issue in an amicable way but the opposite parties dragged the matter and at last, they renounced from the responsibility.  The complainant alleges that the opposite parties tried to drag the matter since the complainant was not taken any steps immediately on the incident. He could have established defects of the diesel tanks maintained by the opposite parties and to avoid the same the opposite parties willfully dragged the amicable settlement of issue.  The complainant suffered huge loss due to the act of the opposite parties.  The complainant could not reach at the work site in time and thereafter from 10/04/2018 till filing this complaint, he could not use the vehicle.  The travelling of the complainant affected and all the engagements are disturbed.  The complainant suffering mental agony, time loss and also financial loss.  The complainant alleges opposite parties No.3 to 5 are supporting opposite parties No.1 and 2 for this sort of practice.  Hence the complainant prays for the refund of cost Rs. 1,57,891/- as the cost for the repair work at the service center and also an amount of 1,50,000/- towards replacement of common rail, main fuel pump and injectors. The complainant also prays an amount of Rs. 10,00,000/- towards the inconvenience and hardships caused to the complainant along with cost of Rs. 15,000/-.

3.         On admission of the complaint notice was issued to the opposite parties.  Opposite parties No.1, 2, 3 and 5 entered appearance and filed version.   Opposite party No.4 not appeared, hence set exparte.

4.       The opposite party No.1 and 2 filed version jointly and denied the entire allegations and averments in the complaint. The complaint is not legally maintainable and filed on experimental basis, liable to be dismissed with cost of the opposite parties.  The opposite parties admitted that the complainant purchased diesel from opposite parties for Rs. 4,500/- on 09/04/2018.  But opposite parties denied that the complainant was regularly filling fuel from the opposite party, within 3 kilometers after filling the fuel on the way to house there was beep sound and burning of diesel indicator are not known to the opposite parties. Opposite parties submitted that the vehicle was usually filling small quantity of diesel for a long period and when total tank was filled, the slurry under the tank was entered in to the diesel injector and pump which might have affected the functioning of vehicle. The opposite parties submit that the so-called water found diesel filter may be happened on water service.  The opposite parties denied that the service person of the service center examined the vehicle and found that diesel is contained exorbitant extent of water and due to water contained diesel vehicle became defective.  The opposite parties stated that, they never delivered water contained diesel to any vehicle. The opposite parties denied that the vehicle was damaged due to water contained diesel, so the vehicle injector and other injectors, common rail, main fuel pump also may cause damage in future, told from the service center, and if it is happened, for rectification of main fuel pump itself worth Rs. 1,00,000/-, the other parts will cause another amount all are incorrect.  There is no complaint received from anybody who received diesel from the opposite parties pump.  The opposite parties have not delivered water contained diesel to any vehicle. 

5.     The opposite parties also denied the allegation that the complainant approached opposite party directly as well as through telephone and opposite parties said that it can be amicably settled but it was dragged and later told that they cannot solve the issue and the same was with a view to escape from the legal actions which the complainant might have taken to find out defects of diesel tank of the opposite parties.  The opposite parties never told to the complainant that the complaint will be settled amicably.  Except the complainant no other person approached with a complaint of diesel contained water and the opposite party suspect that there may be pre-existing water in the tank of the complainant’s vehicle.

6.       The opposite parties denied that the complainant sustained huge loss that he could not reach at the main project of the complainant at Kumarakam resort site meeting, there was bad impression due to non-attendance in the meeting in time and the complainant could not use the vehicle from 10/04/2018 onwards, thereby complainant could not reach many places, he suffered mental agony, time loss and financial loss.  The opposite parties denied the entire claim of the complainant that repair cost of Rs. 1,57,891/-, the cost for changing certain parts of the vehicle including common rail, main fuel pump, injectors worth Rs. 1,50,000/-, complainant claim for 10,00,000/- rupees for the inconvenience and hardship and cost of Rs. 15,000/-.

7.        The opposite parties denied that the complainant had requested the service center Amana Toyota to keep safely the fuel in a sealed position, the complainant taking steps to get report on analysis of fuel are in correct. The opposite parties are not aware of such a keeping of oil as stated, if at all it is not within the presence of the opposite parties and it is not preserved properly and there was no opportunity provided to the opposite parties to examine the same, the sending of the fuel for examination is worthless. 

8.     The opposite parties submitted that the oil pump belongs to the opposite parties situated at the heart of Malappuram Town.   There are two diesel tanks at the oil pump containing 9000 and 22000 liters respectively.  On 09/02/2018, on the day of incident the opposite parties could sell out 4025 liter diesel. There is strict instruction to examine the density of the diesel on every   morning as per mandate of the company.  The opposite parties is able to produce the report of Temperature and Density record of the month of April.  The same is doing with calibrated hydrometer and Thermometer. It is also ensuring that on every day there is no water particles using dips scale.  The opposite party can produce dip stock record and daily sales record.  All these records are examining by inspectors of the Hindustan Petroleum Limited through unexpected periodical visit, they also making physical verification of the tanks as well as entries.  If that are not maintained, the opposite parties will lose the license.  The opposite parties able to produce inspection records of the day.  The opposite parties are working as dealer of Hindustan Petroleum Limited. The opposite parties are bound to observe all the rules and regulations of the central and state governments and other regulatory Boards and so the company is also to be a party in the proceedings. The opposite parties dispute the claim of the complainant which is baseless and exorbitant.  Hence the complainant is to be dismissed with cost of the opposite parties. 

9.     Opposite parties No.3 and 5 also filed version denying the statements, allegations and averments in the complaint.

10.        Opposite parties No.3 and 5 submitted that  the first opposite party  is the duly appointed  dealer in charge  of the Petroleum  Retail outlet  situated at  Tirur Malappuram Road, owned by  Hindustan Petroleum Corporation Limited, a Public sector under taking.  The 2^ndopposite party is the Manager, an employee of the dealer.  It is submitted that 5^th opposite party is the  sales officer  of the  Corporation  in charge of the  concerned  sales area  of the Corporation and  there is no  such  post  Sales office , Marketing , Mumbai  impleaded as 4^th opposite party in the complaint. The opposite parties submitted that the dealer is appointed entrusting the retail distribution of the Petroleum products  supplied by the Corporation as per the terms and conditions, as set forth in the agreement dated  25/02/2011  executed between the Corporation and the dealer, specifically stipulating among  other things,  the duties and  responsibility of the dealer in the matter of  maintaining the specification of the Petroleum products  supplied by the Corporation to the retail outlets operated by the dealers. The Supply, Distribution and Prevention of Malpractices order 2005, issued under the Essential Commodities Act insist that the dealer shall maintain a record of density and keep samples of products duly signed jointly by him and the driver of the tank truck.  In tune with order, dealers are directed by incorporating a specific clause, Clause 26 of the Agreement. Insisting that all the products supplied by the Corporation to the dealer hereunder shall be in accordance with the specification laid down by the Corporation from time to time.    The dealer shall be taking every possible precaution against contamination of the products water, dirt, or other things.   As per notification of the Corporation the dealers are bound to keep the samples of the petroleum products drawn  from the takers  at the uploading stage and  after  decantation  and before  nostril delivery  and  any variation  in the product  is to be recorded  and is to be brought  to notice  of the  Corporation .   In case of any variation in the standard specification of the product is notices in the above process the dealer is bound to stop the sale of the products immediately and informed the Corporation Authorities for further investigation and action as provided in the scheme. 

11.         In the absence of any variation having noticed  the  instant case, the product delivered and  allegedly  sold to  the complainant,  the Corporation  is absolved from  all liabilities  in compensating  the damages  and  loss suffered  by the customers. The opposite party No.3 and 5 submit that the complainant has  opted  not to bring  the matter  to the notice of the  Corporation  and to file the  complaint  without the  juncture of corporation at the first instance are matters strongly supporting that, the complainant was  aware of the  above factual situation.   The opposite parties denied the averments that the diesel sold to the complainant as alleged in the complaint was adulterated with water and therefore complainant suffered loss and damages as claimed in the petition.  The complainant had not made any complaint about the incident to these opposite parties. The opposite parties submitted that the dealer, who brought about the alleged incident after a couple of days thereof.   The 5^thopposite party on receipt of the information inspected the outlet and verified the registers maintained at the outlet and found that all records where maintained properly and there was no incidence of the variation in the standard specification of the products delivered and sold at the outlet.  The opposite parties submitted that  they made further enquiries  to ascertain the veracity of the allegation  and  found that  the complainant  as part of his contract works  used to travel  extensively  and necessarily  he has to  fill fuel in his car at various places  throughout Kerala and  therefore   contention of complainant that  he used to fill  diesel only from the particular outlet is opposed  to the facts  and denied by the opposite parties. It is submitted that the allegations about the snag developed in the working of the engine of the car and various ordeals  undergone  by the complainant  thereof was  brought to the  notice of  the opposite parties only on  receipt of  the complaint , that was  after three months of the alleged incident.  According to opposite parties all the matters are not within the knowledge of these opposite parties and allegations are not capable of justifying any sort of liability on the opposite parties.  The opposite parties submitted that on verification of delivery and sale particulars of the particular supply revealed that the tanker truck unloaded 8000 liters diesel about 8.00 am on 9/04/2018 and the sale from the same stock continued up to next day until next delivery of the diesel on the succeeding date.  There was no complaint of any sort from the customers who filled those large quantity of diesel from the particular stock or thereafter.  The complainant’s vehicle availed the supply   at stage when there was  stock about 15  liters of diesel and if at all any adulteration  with water was noticed in the fuel in store  in the complainant’s vehicle the only possibility in the context is  that  the vehicle had in store contaminated diesel  even before  the alleged consumption from the  opposite parties  outlet. So the submission is the quality of the fuel recovered from the Tank of vehicle without the juncture of the opposite parties is not binding on the opposite parties.  The procedure based on the said storing is incapable of meeting the standard prescribed in the relevant rules for drawing sample of petroleum products for analysis. 

12.       The opposite parties No. 3 and 5  also denied that  there was an offer  to settle the matter on personal discussion and over phone call  and thereafter  the opposite parties  retreated from the  amicable settlement , and in attributing  that such a tactic was adopted to by  time to rectify  the defects of the  underground tank, as  all such allegations  are totally false and are based on  erroneous  perception.  The underground tanks  are installed  by strictly  adhering  to the standard prescribed  for protecting  the same from  any sort of  seepage, leakage and any other  form  vulnerability as prescribed by the petroleum Rules. The opposite parties  submitted  the quantum of loss and compensation claimed under each heads of loss/ compensation in the petition,  figures are exaggerated version,  without  any bearing  with actual figures,  notwithstanding  the liability to pay any compensation  by the opposite parties and  complaint  is devoid any merit  and the same is  liable to be dismissed  with compensatory caused  to  opposite parties. 

13.       The complainant and opposite parties No. 1,2,3 and 5 filed affidavit and documents. Documents on the side of complainant marked as Ext. A1 to A9. Documents on the side of opposite parties marked as Ext.B1 to B9.  Commissioner’s report marked as Ext.C1. Ext. A1 is copy of complaint submitted before Superintendent of Police, Malappuram dated 18/04/2018.  Ext. A2 is copy of Job order dated 10/04/2018.   Ext. A3 is copy of estimate dated 14/04/2018.  Ext. A4 is copy of receipt for an amount of Rs. 4,500/-  dated 09/04/2018  at  about 9.33 PM, Ext. A5 is copy of letter issued to Service manager Amana Toyota dated 16/04/2018.  Ext. A6 is copy of observation remarks received from Amana Toyota.  Ext. A7 is receipt for complaint obtained from DPO Malappuram dated 18/04/2018, Ext. A8 is copy of job order dated 10/04/2018 (15 pages), Ext. A9 is Letter issued by Amana Toyota to the complainant. Ext.B1 is Random inspection report dated 29/03/2018, Ext.B2  is Mobile lab test report for quantity checks dated 18/04/2018, Ext. B3 is  Retail outlet inspection report  dated 23/04/2018, Ext B4 is Temperature and density record  two pages dated April 2018, Ext.B5 is  Stock record  of April 2018, Ext.B6 is Water dip report  of April 2018, Ext. B7 is Certificate  issued from Rose Lounge on 30/04/2018, Ext. B8 is a certificate issued by Royal traders  dated 27/04/2018, Ext. B9 is a certificate issued by KPM Sanitation dated 27/04/2018. Commissioner’s report marked as Ext. C1, Chemical lab report marked as Ext. C2.

14.       Heard both sides, perused affidavits of complainant and opposite parties No.1 and 2 and also the Notes of arguments.  The 3^rd and 5^th opposite parties did not file affidavits and documents. 

1. Whether the damage caused to vehicle was due to water contained diesel?
2. Who is responsible for the damage?
3. Reliefs and cost

15.Point No.1 & 2

           The grievance of the complaint is that the complainant availed diesel from the opposite party oil pump on 09/04/2018 at about 21.33. hours and while the vehicle were driving to his house nearly about 3 kilometers, he noticed beep sound from the vehicle and also burnt diesel indicator.   On the next day early morning at about 6.00 am, he was travelling in his car driven by his driver Mr. Shidhin and when he reached at Valancheri -Pandikasala the vehicle  abruptly stopped.  During that journey there was low beep sound from the vehicle and burning diesel indicator.   The vehicle was tried to start again, but they could not succeed.  The same was informed the service center and as per the advice diesel filter was separated and again tried to start the vehicle.  But again, engine stopped.  Then informed to the service center and they shifted the vehicle to the service center using recovery vehicle on the same day.  It was found exorbitant extent of water in the diesel and that was the reason for the complaint of the vehicle.   They issued an assessment a minimum of Rs. 1,57,891/-for repair. The contention of the complainant is that the vehicle damaged due to filling of water contained diesel in to the vehicle. 

16.   The opposite party No.1 and 2 strictly opposed the allegation of the complainant and produced documents Ext. B1 to B9. Opposite parties documents include Random inspection report dated 29/03/2018, Mobile lab test report dated 18/04/2018, Retail outlet inspection report dated 23/04/2018, Temperature and density occurred during the month of April 2018, stock report of April 2018, Water dip test record of April 2018 and 3 certificates of different persons certifying the quality of the diesel of the opposite party.  The documents Ext. B1 to B6 do not relate to the quality of the diesel of the particular day of 09/04/2018. Documents Ext. B7 to B9 are certificates issued by some business establishments stating the quality of the diesel of opposite party on that particular day.  But there is no document to show for the purchase of diesel by the authors of the documents Ext. B7 to B9.  They have no locus standi to issue a certificate like Ext. B7 to B9. 

17.        The complainant hear in produced documents Ext. A4 to show that he bought diesel from the opposite party oil pump on 09/04/2018 at night 9.33 hours.  The opposite party also seen admitted the same.  The complainant has stated that he was regularly availing diesel from the opposite parties pump.   The opposite party stands denied the averments.  But from the documents it can be seen that he availed diesel from the opposite party on that particular day.    The case of the complaint is that only after filling of diesel from the opposite party, complaint to the vehicle was started.    Thereafter vehicle was shifted to the authorized work shop and they duly examined the vehicle and found the complaint was due to   use of water contained diesel in the vehicle.  The averment of complainant is that he contacted the first and second opposite party and they offered amicable settlement and later renounced from the settlement offer.  The allegation of the complaint is that the offer of settlement from the side of opposite parties   was to rectify the defects of the record and documents of the opposite parties.  The complainant filed a complaint before the police as per Ext. A7 and finally approached this Commission to redress the grievance. 

18.         The vehicle was taken to the authorized service center on 10/04/2018 and the service people of the service center examined the vehicle and found that the damage was due to water contained diesel.  Ext. A2 Job card, it was noted the customer request as “check Vehicle not starting check vehicle misfiring (break down vehicle)”.  Ext. A3 it is noted that “as per our inspection procedure we found that four injectors are defective. During inspection we found heavy water particle in the primary and in the fuel tank.  The fuel with water which may cause damages to injectors, common rail and main fuel pump.  After replacing the injectors which is already damaged, we can able to confirm the other parts.” Ext. A5 is a letter by the complainant to the service manager requesting to   keep the diesel in strict security and it may be checked by a qualify technician and which is dated 16/04/2018.  All these documents establish the case of the complainant that the damage caused to the vehicle was due to water contained fuel.  The opposite party has contended that the complainant availed diesel from the opposite party only for 4500/- rupees which is not sufficient to fulfill the diesel in the entire tank.  The contention is that the complainant might had availed diesel from other oil pump and also there is chance to enter water in the diesel tank during water servicing. Hence it is submitted by the opposite parties that the water contained diesel was not provided from the opposite party’s oil pump. He has produced certain documents B7 to B9 stating the persons   availed diesel from the opposite party on that particular day have no complaint the diesel provided to them was water contained. But it can be seen that the vehicle was in regular use of the complainant and there was no complaint was reported till filling of diesel from the opposite parties. If that being the fact the possible conclusion is the diesel availed from the opposite parties was water contained.  In order to establish the same immediately on filing this complaint complainant has taken steps to depute an Advocate commissioner to report the facts and to collect the sample of the product.  The advocate Commissioner issued notice to both parties and sent message to the opposite parties along with copy of the order of this Commission.  The interim order of the Commission is that commissioner shall give notice to opposite party and require them to put their seal if any on the sample and hand over the sample for analysis to quality control laboratory mentioned in the petition. The notice of the commissioner was that “Your personal assistance with tool kit and seal required for sample of fuel from the vehicle kept under the service of the opposite parties in the above matter. Advocate Commissioner PP. Balakrishnan. Time inspection 4.00 PM. today evening”.  The commissioner reported that on the day of inspection 21/04/2018 in the morning onwards he tried to get the opposite parties through phone but the opposite parties was reluctant to take the phone in many times and finally the opposite party picked the phone and talked with him and asked him to assistance for taking the sample for analyzing.  Commissioner has stated that since he was not in a cooperation mood, he issued copy of warrant through Whatsapp and he acknowledged the same.  Commissioner reported that opposite party has got their legal wing   and they could act only upon their direction and also told by them that they have not received any order from the court.  Hence he alone moved to the service center after giving notice to both parties and after purchasing  the articles  which  he feel  sufficient to take sample fuel form the tank of the vehicle for sending the same  for expert analysis. 

19.       The sample was sent to the Lab through staff of this Commission and the Commission report stands marked as Ext. C2.  The report is as follows: - “Report: - Based on the above findings the upper layer of light yellowish viscous and florescent liquid with identified to be high speed diesel oil and the lower layer of slurry was identified to be water, rust and other muddy dirty particles.  The lower slurry layer consists of 23.08 % of total volume of to which water containing 17.43 % by volume. “So, the report established the diesel contained water was there in the oil tank.  But it can be seen that in the report that quantity of oil specimen was with variation.  In the report it is stated as follows”: One sealed two-liter plastic cannas labeled as “CC 114/2018 LA 227/18” etc. containing an upper layer of 300 ml  of light yellowish and florescent liquid with lower layer of 90 ml of brownish slurry material alleged to be diesel (Total volume 390 ml) involved in CC.114/2018 of District Consumer Disputes Redressal Forum, Malappuram for chemical analysis. The seal on the cannas was intact. The articles have examined under my personal supervision with the result shown in the reverse.”  In this matter the volume is noted as 390 ml by the expert but the volume noted by the commissioner was 200 ml. The complainant   filed an affidavit stating that it may be a mistake happened on the part of commissioner while measuring the content of specimen.    The Commission do not find any reason to disbelieve the affirmation of complainant. It may be happened do to in experience of the commissioner in taking this sample.  It can be seen that he was given proper notice to the opposite parties to collect the sample using appropriate apparatus. So, the difference in quantity cannot be taken as a vital issue and there by defeat the   right cause of the complaint. There no document to show the complainant and opposite parties were in bad terms to prefer a complaint like this before this authority.

20.      In the above facts and circumstances it can be seen that the vehicle was damaged due to water contained diesel and which was availed by the complainant from the opposite party and we find that points one and two accordingly.

21.Point No.3

              The prayer of the complaint is that to refund the cost of repair work Rs. 1,57891/- and also prays for Rs. 1,50,000/- towards the replacement of certain parts of the vehicle. The complainant demands the cost of diesel of Rs. 4500/- which he  paid to the opposite parties on 09/04/2018.  The complainant also  pray for  an amount of Rs. 10,00,000/- towards the inconvenience  and hardships  caused to the complainant along with cost of Rs. 15,000/-. The Commission finds that the complainant is entitled to   refund the cost of repair works.  But the claim  for Rs. 1,50,000/- towards replacement of certain parts and injectors are not substantiated properly through evidence.  At the same time, it can be seen that due to the defective product issued by opposite parties caused hardships, inconveniences and financial loss to the complainant.  Hence complainant is entitled for a reasonable amount as compensation. Hence the Commission allows Rs. 2,00,000/- as compensation on account of supply of defective product to the complainant and there by caused inconvenience, hardship and financial loss. The Commission also allows Rs. 15000/-as cost. 

22.         In the above facts and circumstances we allow the complaint as follows: -

1.  The opposite parties No.1,2,3 and 5 are directed to  pay  Rs. 1,57,891/- (Rupees One lakh fifty seven thousand eight hundred and ninety one only) to the complainant  as cost of the  repair works.
2. The opposite parties No.1 2 ,3 and 5  are directed to pay Rs. 2,00,000/-(Rupees Two lakh only) to the complainant  on account of supply of defective product to the complainant  and thereby caused  inconvenience,  hardship and financial loss sustained to the complainant.
3. The opposite parties No.1 2 ,3 and 5 are directed to pay Rs. 4500/-(Rupees Four thousand and  five hundred only) to the complainant  as the cost of the diesel  purchased by the complainant  from the opposite parties  on 9/4/2018. 
4. The opposite parties No.1 2 ,3 and 5 are also directed to pay Rs. 15,000/- (Rupees Fifteen thousand only) as cost of the proceedings.

         The opposite parties No.1 2 ,3 and 5 shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant will be entitled for interest at the rate of 12% per annum for the above entire amount from the date of order till realization.