By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:-
1. The complainant is a licensee under the opposite party and he is a Kerosene retail dealer. His license number is 18/97 PTM. He Deposited 1,300/- as security on demand of the opposite party. But later the opposite party did not deliver the Kerosene as per agreement and so the complainant was not able to proceed with the business. The complainant repeatedly approached the opposite party, but the response was not positive one. Moreover the deposited amount also not refunded. Subsequently the complainant requested several times to refund the amount and ultimately caused registered notice on 07/07/2021. But there after also no proper response from the opposite party.
2. The complainant submitted that he availed kerosene dealership license from the opposite party for the livelihood of his family but the opposite party denied the proper service. There was no due reply also from the side of opposite party. Hence the prayer of the complainant is to refund the deposit amount of Rs.1, 300/- with interest at the rate of 10% from 1997 onwards. The complainant also prayed cost of notice Rs.750/-, Rs.5, 000/-on account of mental agony and cost of the proceedings Rs.10, 000/- i.e. altogether Rs.17,050/-.
3. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party filed version dated 14/01/2022 and thereafter filed a detailed IA 354/2023 challenging the maintainability of the complaint.
4. The version dated 14/01/2022 contended that the complainant was allowed to receive Rs.1, 000/-, the security bond amount and the same is authorized to release through Taluk Supply officer, Perinthalmanna. The request of the complainant could not consider at the time when complainant approached the office of the opposite party since the office of the opposite party was under processes of shifting to another building and thereby could not trace the file at that occasion. It is also submitted that the opposite party is not authorized to distribute kerosene but only authorized to issue license to the dealer. It is also contended the period of license issued to the complainant was expired on 08/08/2003.
5. The contention in IA 354/2023 is that the complainant failed to state the date on which the kerosene was denied to the complainant as per license. Hence the cause of action not properly revealed in the complaint.
6. The opposite party contended that there is no consumer relationship between the complainant and the opposite party. The complainant actually a kerosene dealer and so the license was availed for commercial purpose.
7. It is submitted that during 2002-2003 period the government by a notification declared that the government is not prepared to renew the license to the complainant licensees. The said declaration was brought to the notice of public through the Medias and accordingly the dealers who were in need of release of security amount had released the security deposit. The fact is very well aware to the complainant. The complainant was aware the fact from 2003 onwards itself but did not approach the opposite party for the release of security deposit. Thereafter on highly belated period the complainant approached this Commission with malicious intention. Only to overcome the limitation period the complainant caused a lawyer notice in the year 2021 and so it is submitted that the complaint is highly time barred one. It is further submitted that the opposite party is not accepting security deposit as cash. But the licensee himself deposited the amount before the post office and produced the receipt before the opposite party. Hence the submission of the opposite party is that the complaint is highly time barred one without any bonafides and to be dismissed in limine.
8. The complainant filed a detailed counter on the maintainability contention. The complainant contended that the opposite party did not prepare to deposit the security amount before the Consumer Disputes Redressal Commission despite the contention that the opposite party were ready to give back the amount. The complainant further contended that the notice was ordered in the complaint to the opposite party after admitting the complaint and also considering the delay as alleged in the complaint. According to the complainant the admission of the complaint itself reveal that the delay was already condoned by the Commission.
9. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext.A1 to A5. The opposite party did not file documents. Ext. A1 is copy of notice issued by complainant to the opposite party dated 07/07/2021. Ext. A2 is postal acknowledgment dated 08/07/2021. Ext. A3 is copy of challan No. 1641/license No.18/97 PTM dated 29/09/1998. Ext. A4 is copy of license granted to a retailer dealer / the complainant. Ext. A5 is copy of license renewed up to 31/03/2007 dated 19/04/2004.
10. Heard both side, perused affidavit and documents. The complainant filed argument note also. The following points arise for consideration:-
1) Whether the complaint is maintainable?
2) Whether there is deficiency in service on the part of the opposite party?
3) Relief and cost?
11. Points 1 to 3
The complainant submitted that he is a licensed dealer of kerosene under the opposite party as per the license No. 18/97 PTM which is issued on 29/09/1997. For issuing the licensee the opposite party had received an amount of Rs.1, 000/- along with license fee and incidental charges. Now the complainant is not the licensee and there is no dealership and so he is in need of refund the deposit amount Rs.1, 000/- from the opposite party. Accordingly complainant approached the opposite party several times but the opposite party did not heed the request of the complainant and so approached this Commission with claim of altogether 17,050/- rupees.
12. The opposite party contended that the complainant is not a consumer as per Consumer Protection Act and the complainant is engaged in commercial activity, beyond all the complaint is highly time barred one. The contention of the opposite party is that the government itself had notified the issuance of retail license to the people like complainant has stopped since 2002-2003 period and the same was notified through the news media. The dealers who were in need of refund had also received the amount from the opposite party. Moreover the claim of complainant is for refund of deposit amount which is not deposited as cash before the opposite party but produced by the complainant itself after depositing before the postal department and that cannot be treated as fee.
13. The commission have gone through the averments in the complaint, affidavit of both parties and the application 354/2023 and the counter therein. It is admittedly the complainant is a kerosene dealer with license under the opposite party from 1997 onwards and it is expired during 2003 itself as consequential to the government decision. It is also evident that the claim amount of Rs.1, 000/- is not a consideration for any sort of service under the provisions of Consumer Protection Act which is an essential ingredient for treating a dispute under the Consumer Protection Act. In the absence of consideration as provided under Consumer Protection Act the claim of complainant that he is a consumer under the opposite party is not sustainable. The complainant submitted that he remitted required fee incidental to the license and he has no complaint that the opposite party was deficient in service by not providing approved kerosene as per license to the complainant. There is no document to show that the opposite party refused to provide required kerosene as per agreement. Moreover the complainant has got a case that the cause of action in this complaint is continuing one. As per the complainant is concerned the cause of action aroused from the date of issuance of Ext. A1 notice dated 07/07/2021. The issuance of notice alone will not constitute a cause of action. On the other hand the opposite party contended that the license was expired in the year 2003 as per government decision and so this complaint is highly belated and with malicious intention. The commission find that there is reason to accept the version of the opposite party that his right to claim for refund of the deposit amount arises from 2003 onwards and in the present complaint the date of notice i.e. on 07/07/2021. No doubt the complaint is a highly belated one and there is no satisfactory explanation to condone the delay for raising the claim for Rs.1,000/-. Moreover the opposite party submitted that when the complainant approached the office of the opposite party, due to shifting of the office could not trace the record and thereby caused slight delay in sorting the request of the complainant. It is also relevant to note that there is no document from the side complainant to show that any claim has been raised by him before the Ext. A1 notice. So we do not find merit in the contention of the complainant. At the same time in the interest of justice it will be proper to direct the opposite party to release the deposit amount as agreed by the opposite party without further delay in favor of complainant.
14. Hence the opposite party is directed to release the deposited amount of
Rs.1, 000/- to the complainant forthwith. The opposite party is at liberty to deposit the disputed amount before this Commission as contended by the complainant in the counter statement filed before this Commission. With above observation the complaint stands dismissed.
Dated this 26th day of February, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A5
Ext.A1: Copy of notice issued by complainant to the opposite party dated 07/07/2021.
Ext.A2: Postal acknowledgment dated 08/07/2021.
Ext A3: Copy of challan No. 1641/license No.18/97 PTM dated 29/09/1998
Ext A4: Copy of license granted to a retailer dealer / the complainant
Ext A5: Copy of license renewed up to 31/03/2007 dated 19/04/2004.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
