Punjab

StateCommission

FA/13/215

Soni Indane Service - Complainant(s)

Versus

Dr. V.B. Kulshreshtha and another - Opp.Party(s)

Arun Takhi & Varun Baanth

22 Jan 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 215 of 2013

                                                           

                                    Date of institution: 27.2.2013 

                             Date of Decision:  22.1.2015

 

Soni Indane Service, Chandigarh Road, Balachaur, District S.B.S. Nagar through its Proprietor Vaishali Soni W/o Shri Naveen Soni.

…..Appellant/OP No. 1

                                      Versus

1. D.V.B. Kulshreshtha S/o Shri A.L. Kulshreshtha R/o Shakti Vihar, Ward No. 5, Near Bulewal Turn, Bhaddi Road, Balachaur, District S.B.S. Nagar.

…..Respondent No.1/Complainant

2. Indane Gas, Indian Oil Corporation, Suchi Pind, District Jalandhar, through its Manager.

.                            …Performa Respondent

 

First Appeal against the order dated 22.1.2013 passed by the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Mrs. Anupama Takhi, Advocate for

                                                          Sh. Arun Takhi, Advocate

          For respondent No.1        :         Sh. V.B. Kulshreshtha, in person

          For respondent No.2        :         None.

 

2^nd Appeal

First Appeal No. 161 of 2013

                                                           

                                    Date of institution: 18.2.2013 

 

D.V.B. Kulshreshtha S/o Shri A.L. Kulshreshtha R/o Shakti Vihar, Ward No. 5, Near Bulewal Turn, Bhaddi Road, Tehsil Balachaur, District S.B.S. Nagar-144521.

…..Appellant/Complainant

                                      Versus

1. Soni Indane Service, Chandigarh Road, Balachaur, District S.B.S. Nagar-144521 through its Proprietress Mrs. V. Soni W/o Sh Naveen Soni.
2. M/s Indian Oil Corporation Limited, Indane Area Office, Bye Pass, Suchi Pind, Jalandhar-144009 through its Sr. Area Manager.

.                                      … Respondents

 

First Appeal against the order dated 22.1.2013 passed by the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Sh. V.B. Kulshreshtha, in person

          For respondent No.1        :         Mrs. Anupama Takhi, Advocate for

                                                          Sh. Arun Takhi, Advocate

          For respondent No.2        :         None.

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

                   This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals and against the impugned order dated 22.1.2013  passed in Consumer Complaint No. 152 dated 22.8.2012 by the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar(in short the “District Forum”) vide which the complaint filed by complainant was allowed with a direction to OP No. 1 to update their record as per directions given by Op No. 2 and also pay Rs. 3,000/- on account of harassment caused by Op No. 1 to the complainant within a period of 30 days.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the appellant and respondent No.2/opposite parties(hereinafter referred as ‘Ops’) on the allegations that OP No. 1 is a Indane Gas Agency running its business under the name and style of Soni Indane Service at Balachaur whereas OP No. 2 is its Distributor. The complainant is LPG consumer NO. ST-6929, SV No. 493378 with LPG card serial No. 1242072 with home delivery supply. The complainant booked his refill cylinder vide refill booking No. 85 dated 27.5.2011 and cash memo receipt No. 2551 dated 1.6.2011 of Rs. 363/- was issued in the name of the complainant for the home delivery but the refill was not delivered till 26.6.2011 and during that period, he made several visits OP No. 1 but false assurances were being given to the complainant to supply the refill. On 25.6.2011, OP No. 1 issued a second cash memo No. 10039 dated 25.6.2011 amounting to Rs. 416.70p against the same refill booking No. 85 dated 27.5.2011 and charged  Rs.  420/-  instead of Rs. 416.70p and on 27.6.2011, OP No. 1 delivered refill cylinder at his residence vide cash memo No. 308143 dated 27.6.2011. On 5.7.2011, he submitted a complaint addressed to Deputy Commissioner, SBS Nagar for issuing different cash memos in the name of the complainant. Although inquiry was ordered by the Deputy Commissioner in the matter but all his efforts were in vain. In the Sangat Darshan before the Deputy Commissioner and in the inquiry it was recommended to file the complaint, which was accepted by the Addl. Deputy Commissioner. The conduct of OP No. 1 amounts to deficiency in services on his part and as a Distributor Op No. 1 is equally responsible. Accordingly, consumer complaint was filed for awarding compensation to the tune of Rs. 10 lacs.

3.                The complaint was contested by the Ops. OP No. 1 in its written statement took the preliminary objections that the complainant had not approached the Forum with clean hands; the booking history of the complainant for re-fill of cylinder  was on 1.6.2011 vide booking No. 258 and cash memo No. 2551 but in the meantime a mail was received on 4.6.2011 from Indian Oil Corporation alongwith Circular dated 3.6.2011 regarding incomplete address and name of domestic customer and suspension of supplies thereof. Vide circular dated 3.6.2011, Distributors have been directed that henceforth to update and incorporate the addresses of customer followed by landmarks and telephone numbers and domestic supply to the customers having incomplete addresses and without telephone numbers are to be suspended with immediate effect. Whereas the complainant has failed to give his complete address/information as required despite repeated requests and reminders and then complainant reported that he is not having any ration card and asked OP No. 1 to remove the restriction in respect of his gas connection. OP No. 1 waited upto 23.6.2011, as the complainant failed to give the requisite information, therefore, OP No. 1 to cancel the booking on 23.6.2011 in order to avoid any adverse order from Indian Oil Corporation. Complainant again got booked his cylinder vide booking No. 1096, cash memo No. 10039 dated 25.6.2011, which was delivered on 27.6.2011. After cancellation of the booking on 23.6.2011, the complainant visited the office of OP No. 1 completed his address and other information in the record and accordingly that delivery was supplied on 27.6.2011. The complainant has wrongly mentioned the cash memo No. 308143 dated 27.6.2011, in fact it is not a cylinder number. With regard to charging Rs. 420/- instead of Rs. 416.70, it was submitted that on cancellation of first booking, the complainant got booked the cylinder on 25.6.2011 and on 25.6.2011 OP No. 1 received a mail from the Indian Oil Corporation informing that retail selling price of 14.2. Kg domestic cylinder was revised to Rs. 416.70 w.e.f. 25.6.2011, therefore, the complaint is not maintainable based on wrong facts and liable to be dismissed. On merits also, the same averments were repeated. It was submitted that the complaint is without merit and it be dismissed.

4.                Op No. 2 in its reply took the preliminary objections that the complainant had not approached the Forum with clean hands; there was no privity of contract between the complainant and this Op because Op No. 1 was not an agent but they were working on principal to principal basis. Therefore, Op No. 2 cannot be held jointly responsible with OP No. 1. On merits also it was again reiterated that there was no privity of contract between the complainant and this Op. Otherwise receipt of circular dated 3.6.2011 to all the Distributors has been admitted. It was also submitted that the rates of the refill cylinders were revised w.e.f. 25.6.2011 and price was increased to Rs. 416.70, therefore, no deficiency in services is made out against Op No. 2. Therefore, the complaint against this OP be dismissed.

5.                The parties were allowed by the learned District Forum to lead their evidence.

6.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/A, copy of booking copy and booking entries Ex. C-1/A, complaint to DC & Controller Ex. C-2 & C-3, newspaper cuttings Exs. C-4 to C-10, Cylinder supply slip Ex. C-11, entries in booking copy Ex. C-12, affidavit of complainant Ex. C-13. On the other hand, opposite party No. 1 had tendered into evidence affidavit of Vaishali Soni Ex. RW-1/A, consumer refill details Ex. R-1, circular dt. 3.6.11 Ex. R-2, email dt. 4.6.11 Ex. R-3, letter Ex. R-4, email Ex. R-5, rates of domestic cylinder Ex. R-6, circular dt. 3.6.2011 Ex. R-7. OP No. 2 had tendered affidavit of Kulwinder Singh, Sr. Area manager Ex. R-2/A, distributorship agreement Ex. R-2/1, circular dt. 3.6.11 Ex. R-2/2.

7.                After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the complaint was allowed as referred above.

8.                Both OP No. 1 and complainant have filed their respective appeals. OP No. 1 has filed the appeal to set-aside the order passed against him whereas the complainant has filed the appeal for enhancement of compensation.

First Appeal No. 215 of 2013

9.                In the grounds of appeal, it has been stated that the booking order dated 1.6.2011 was not complied with because on 3.6.2011 they had received the circular from Indian Oil Corporation through OP No. 2 that the domestic customers, whose addresses are incomplete and does not have telephone numbers be not supplied the refills till they complete their addresses and supplied the telephone numbers. The said Circular has been referred on the record as Ex. R-2 & R-3 whereas the complainant in his letter Ex. R-4 submitted that as he does not have any ration card from the office of D.F.O. Balachaur or he was never in need of it, a request to remove these instructions in his gas connection was made and that the complete address was given on 3.6.2011 and then he got a new cylinder booked on 25.6.2011 and it was supplied on 27.6.2011. With effect from 25.6.2011, the rates of the refill was revised to Rs. 416.70p, therefore, the revised rate was charged from the complainant. The said circular is Ex. R-6 and in the case of Balachaur its rate is Rs. 416.70 and accordingly, that rate was charged. These documents have not been properly appreciated by the learned District Forum while disposing of the complaint. Accordingly, it has been requested to set-aside the impugned order, accept the appeal and consequently, the complaint of the complainant be dismissed.

10.              We have also gone through the written arguments submitted by the counsel for the parties. There is no dispute with regard to issuance of the Circular Ex. R-2 by the Indian Oil Corporation to suspend the supply of refill to those domestic customers, whose addresses are not complete and did not provide the telephone numbers. The complainant in his evidence has placed on the record his copy issued by OP No. 1 in which various dates of refill supply has been given and his address has been given as under:-

“Dr. V.B. Kulshreshtha

Ward No. 5,

Near Bulewal Turn, Bhaddi,

RRS for Kandi Area Road,

PAU Ballowal Saunkheri (NSR),

Balachaur, Distt. Nawanshahr.”

 

11.              He has also placed on the record various cuttings by the Press Ex. C-4 to C-10 vide which the consumers of gas supply have raised protest against OP No. 1. Ex. C-11 is order dated 25.6.2011. On the other side, OP No. 1 has placed on the record only the request of the complainant Ex. R-4 in which he has submitted that he could not submit the ration card because he did not get, he did not feel its necessity, therefore, in his case restriction of the ration card be removed. Otherwise, the circular placed on the record by Op No. 1 issued by Indian Oil Corporation demanded the complete address, they does not say that ration card is a condition precedent, there can be number of documents to prove the address of the consumer, Election voter card, bank account, driving licence, AAdhar Card, Water & Electricity Bill etc., therefore, it is not necessary that the ration card must be a condition to supply the gas connection. They are unable to place on the record what was the earlier address of the complainant and what other complete address was given by the complainant on 23.6.2011. Otherwise, the complainant is silent that he had furnished any fresh address to OP No. 1 on 23.6.2011. Therefore, in case OP No. 1 has not been able to prove on the record that the address of this complainant was incomplete or does not have any  telephone  number  then its supply was to be suspended. OP No. 1 has failed to prove on the record what address and telephone number was given by the complainant under which they had restored the supply as per the directions given by Indian Oil Corporation, therefore, OP No. 1 has not been able to justify the suspension of the supply of the refill of the complainant.

12.              No doubt that the rates of re-fill were revised by Indian Oil Corporation w.e.f. 25.6.2011 but in case the supply was simply suspended and it was supplied against the original booking then how the revised rates will be applicable. The counsel for respondent No. 1 has placed on the record Ex. R-1 i.e. the booking chart dated 25.6.2011 and the booking number of the complainant has been referred as 10096, which was booked on 25.6.2011 and delivery was given on 27.6.2011. However, in case supply was only suspended then there was no necessity of fresh booking. Therefore, we are of the opinion that there was deficiency in services on the part of OP No. 1 because OP No. 1 has not been able to prove on the record that the address and telephone number of the complainant was incomplete. In case it was complete then OP No. 1 has not been able to prove on the record that it was completed on 23.6.2011 as alleged in the written statement. In case it was not so then what were the reasons to suspend his supply. Further in case his booking was suspended and not cancelled then why the cylinder was not given on the original booking. In case there is no record with Op No. 1 to produce before the file of the District Forum that original booking was cancelled by the complainant, then, we are of the opinion that the findings with regard to the deficiency in services on the part of Op No. 1 as given by the District Forum are justified, we affirm the same.

13.              In view of the above, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

FIRST APPEAL NO. 161 OF 2013

14.              In  the  grounds  of appeal, it has been stated that Op No. 1 had made the double and fake entries, which aspect has not been appreciated alongwith the press cuttings Exs. C-4 to C-10 and both OP Nos. 1 & 2 were responsible for that and FIR under Section 193, 195, 196, 197, 199 and 228 IPC should have been registered. In case any document has been fabricated or forged and criminal offence is required to be registered against Op No. 1 and 2 then the complainant is advised to move the competent Police Authority for that purpose.  The scope of this Commission is to verify whether any deficiency in services or goods are there on the part of the Op and where any compensation is to be granted to the complainant on the basis of those alleged deficiency in services and the scope of this Consumer Fora is not to investigate the criminal aspect of any case. Otherwise deficiency in services with regard to non-supply of the cylinders on the reasons as alleged by OP No. 1 has been hold by the District Forum and the appeal filed by Op No. 1 has been dismissed and the findings so recorded by the District Forum have been affirmed.

15.              So far as relationship of OP Nos. 1 & 2 is concerned, OP No. 2 is Supplier whereas OP No. 1 is Retail Dealer. Mainly the refill supply to the consumers are given by Op No. 1 and in case of any illegal activity of OP No. 1, the supply has not been given to the complainant then Op No. 2 does not come in picture because there was no dealing with Op No. 2. OP No. 2 had issued the Circulars to OP No. 1 as received from Indian Oil Corporation otherwise according to the agreement between them Ex. R-2/1 they are doing their business on principal to principal basis. Therefore, for the acts of omission and commission by Op No. 1, OP No. 2 will not be liable.

16.              With regard to enhancement of the compensation that he has demanded Rs. 10 lacs against which only a sum of Rs. 3,000/- has been awarded. The compensation is awarded keeping in view the nature of deficiency in services and the loss caused to the complainant on account of those deficiencies. In case the compensation is taken from that angle that seems to be reasonable but this consumer alongwith others had raised voice against the illegal acts of the gas agency at various forums, which included the office of the Deputy Commissioner, SBS Nagar but no action was taken by those authorities against the acts of OP No. 1 and then he had to knock at the door of Consumer Fora, therefore, some amount on account of litigation should have been allowed in case his complaint has been allowed, therefore, a sum of Rs. 5,000/- is allowed to the complainant on account of litigation expenses. Accordingly, the appeal is disposed off with a direction to OP No. 1 to pay Rs. 5,000/- as litigation expenses.

17.              The appellant-Soni Indane Service in F.A. No. 215 of 2013 had deposited an amount of Rs. 1500/- with this Commission at the time of filing the appeal and Rs. 1500/- in compliance with the order dated 7.3.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No. 1-D.V.B. Kulshreshtha by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

18.              Remaining amount shall be paid by the appellant-Soni Indane Service to respondent No. 1 as per the order of the Commission within 30 days from the receipt of the copy of the order.

19.              The arguments in these appeals were heard on 20.1.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.

20.              The appeals could not be decided within the statutory period due to heavy pendency of Court cases.

21.              Copy of this order be placed on F.A. No. 161 of 2013.

 

                                                                              (Gurcharan Singh Saran)

                                                                             Presiding Judicial Member

 

January 22, 2015.                                                                                                                                        (Jasbir Singh Gill)

as                                                                                                                                                                           Member