Punjab

StateCommission

A/11/195

Indian Oil Corporation Ltd. - Complainant(s)

Versus

Harjinder Singh - Opp.Party(s)

Ashish Kapoor

16 Feb 2015

ORDER

 First Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.195 of 2011  

 

                                                Date of institution :  28.01.2011.                                                      Date of Decision  :  16.02.2015.

 

Indian Oil Corporation Limited (Earlier IBP Co. Limited), Indian Oil Bhawan, Sector 19, Chandigarh through its Constituted Attorney Sh.Pankaj Mathur, Chief Area Manager.         

                             ….….Appellant/OP No.2.

                                      Versus

 

1. S.Harjinder Singh S/o Chander Parkash S/o Punran Chand R/o Gali No.1, Bareta, Budhladha, District Mansa.

    …….Respondent No.1/Complainant.

    

2. Bareta Gas, Budhlada Road, Bareta, District Mansa through its Proprietor.

                                                        ..…Respondent No.2/OP No.1.

    

   First Appeal against order dated 16.12.2010 of District Consumer Disputes Redressal Forum, Mansa.

   Before:-

    

                 SH.J.S.KLAR, PRESIDING JUDICIAL MEMBER

                SH.VINOD KUMAR GUPTA, MEMBER

    

   Present:-

       For the appellant                         :         Sh.M.S.Rana, Advocate

       For respondent No.1                  :         None

       For respondent No.2                  :         None

   VINOD KUMAR GUPTA, MEMBER :

              This appeal has been preferred by appellant/OP No.2 (hereinafter referred as ‘OP No. 2’) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against order dated 16.12.2010 in C.C. No. 232 of 13.08.2010, passed by the District Consumer Disputes Redressal Forum, Mansa (in short the ‘District Forum’), vide which, the complaint of the complainant was allowed and both the OPs were directed to exchange and supply LPG gas refill of the actual weight to the complainant immediately and each OPs were also directed to pay Rs. 20,000/- as compensation and Rs. 2500/- as litigation expenses to the complainant.  OP No. 1 was further directed that in future, the distribution shall be made to the consumer strictly in accordance with the rules and at the time of delivery, full particulars be entered in the office record as well as in the pass book of the consumer and the cylinder before delivery to the consumer be weighed in presence of the consumer to satisfy him and to obtain acknowledgment of the same from the consumer.

   2.                The brief facts of the case are that Harjinder Singh, complainant filed the complaint against the opposite parties on the averments that he secured LPG gas connection from the OPs and OP No. 1 allotted A/c No. BJ2692 to him and started supply of gas to him.  OP NO. 1 being a distributor of OP No. 2, did not act according to the terms and conditions, because at the time of release of a gas connection, every subscriber was entitled for two gas refills, but OP No. 1 did not provide two LPG refills to any of his subscriber/consumer.  It was alleged that OP No. 1 did not give home delivery of the LPG refills, rather charged extra amount for the same.  Due to monopoly business of OP No.1 at Bareta, after lapse of 22 days, delivery of the LPG gas was not provided to the consumers by OP No. 1, which amounts to unfair trade practice and deficiency in service on the part of OP No. 1.  It was pleaded in the complaint that on 28.07.2010, the complainant got the delivery of a duly sealed, filled LPG cylinder from OP No. 1.  However, when the complainant weighed the said refill, it was only 28 Kgs 880 gms, as such, the cylinder which was supplied to the complainant by OP No. 1 was short by 1 Kg 520 gms LPG gas.  He immediately approached OP No. 1 with the cylinder and informed about the less weight of the cylinder, but OP No.1 did not respond satisfactorily.  It was alleged that whenever any consumer approached the office of the OP No.1 to lodge the complaint, he was not being attended to and noted down by the officials of the OP No. 1, because OP No. 1 concern was not being run by its proprietor, but by somebody else.  Hence, the complaint seeks directions to the Ops to pay Rs. 20,000/- as compensation and Rs. 5000/- as litigation expenses besides other suitable directions.

   3.                The complaint was contested by the OPs.  OP No. 1 filed written reply taking preliminary objections that the complainant had not come to the Forum with clean hands and had suppressed the material facts from this Forum and rather true facts are that at the time of applying for the connection, the complainant had demanded only one gas cylinder, which was supplied to him.  If he wanted another cylinder, he could move an application for it and the complaint was not maintainable in the present form.  On merits, it was submitted that OP No. 1 was working according to the guidelines of the Department of Food & Civil Supply and the Corporation.  Home delivery was also being provided to the complainant as per the terms and conditions of the Corporation.  It was submitted that on 28.07.2010, the complainant took the delivery of the refill after weighing it and was fully satisfied at that time with its weight.  The complainant had never approached OP No.1 with any complaint and Mrs. Shashi Gautam w/o Sh. Sanjay Gautam was the proprietor of OP No. 1 gas agency.  It was submitted that the complainant had deposited the empty cylinder and procured a new refill vide No. 378830 on 5.9.2010.  Other allegations in the complaint were denied and dismissal of the complaint was prayed for.

   4.                OP No. 2 filed separate written statement taking preliminary objections that the complainant has not come to the Forum with clean hands and has suppressed the material facts and he has not annexed his SV number alongwith the complaint.  That the OP has entered into a Distributorship Agreement with OP No. 1, who being a distributor and OP No.1 is responsible for delivery, supply, distribution and installation of cylinders including undertaking of the mandatory checking at the time of installation of an LPG cylinder connection.  That under clause 17 of the above agreement,  OP No. 1 was responsible for the safety and security of the cylinder in its possession and OP  No.2 was not in any way responsible for the same.  Under clause 18 thereof, OP No. 1 has categorically agreed that he would indemnify the OP No.2 against all actions, proceedings, claims and demands made against it by any of its customers in respect of any accident or loss or damage and that OP No. 2 was neither the necessary nor the proper party in the complaint and as such, the complaint is liable to be dismissed.  On merits, the factum of the complainant being a consumer of OP No. 1 and distributor of OP No. 2 was not denied.  It was asserted that supply of gas to the consumers was on first come first serve basis, subject to availability of the filled cylinders and the customers are delivered refills at their respective addresses by the concerned distributor.  It was submitted that gas refill was supplied to the complainant on 28.07.2010, but he never approached the distributor or the company to replace or for supplying the alleged underweight cylinder.  It was denied that weight of a filled LPG cylinder depends upon the weight of an empty cylinder, which may vary between the range of 14 to 18 kgs plus the fixed weight of LPG of 14.2 kg.  Hence, the gross weight of a filled LPG cylinder may vary between a range of 28.2 to 32.2 kg.  Other allegations in the complaint were denied and dismissal of the complaint was prayed for.

   5.                The complainant tendered in evidence his affidavit Ex. C-1, copy of car Ex. C-2, cylinder Ex. C-3, photograph of the cylinder Ex. C-4 and closed the evidence.    On the other hand, OPs tendered in evidence copy of applications Ex. OP-1 to OP-3, copy of panchayatnama Ex. OP-4, copy of receipts Ex. OP-5 & OP-6, copy of agreement Ex. OP-7, affidavit of Sh. Suresh Kumar Ex. OP-8, affidavit of Ashwani Kumar Ex. OP-9, copy of form Ex. OP-10, copy of SQC record register Ex. OP-11, copy of godown delivery check register Ex. OP-12, copy of receipt Ex. OP-13 and closed the evidence.  On conclusion of evidence and arguments, the District Forum accepted the complaint in terms stated above by virtue of order under appeal in this case.  Feeling aggrieved by the order of the District Forum, the appellants/OPs have filed the appeal against the same.

   6.                We have heard the learned counsel for the appellant and counsel for respondent No.1  and have also perused the record.  The complainant secured LPG gas connection from the Ops and OP No. 1 allotted A/c No. BJ2692 to him Ex. C-2.  The complainant has placed on record Ex. C-3, in which, the entry dated 28.07.2010 was shown.  The complainant has placed on record the photographs of the cylinder Ex. C-4.  Allegations made in the complaint are that on 28.07.2010, the complainant got the delivery of duly filled LPG gas cylinder from OP No. 1, when he tried to weigh the said cylinder, it was only 28 kgm and 880 gm as such cylinder, which was supplied to the complainant by OP No. 1 was short by 1 kgm 520 gm LPG gas.  On the other hand, the plea of the appellant is that on 28.07.2010, the complainant took the delivery of the cylinder after weighing it and he was fully satisfied therewith at that time.  The complainant had deposited empty cylinder and procured the new cylinder refill by voucher No. 378830 on 05.09.2010.  The alleged delivery was taken on 28.07.2010 and the complaint was filed on 05.08.2010.

   7.                According to Clause 17 of the Distributorship Agreement Ex. OP-7, it clearly postulates the Distributor to act as an Agent.  Clause 17 of the agreement has laid down the conditions, where the distributor shall act as Principal and not in each and every case. 

   Clause 17 of the agreement is as under:-

                      “In all contracts or engagements entered into by the Distributor with the customers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG cylinders (filled or empty) and/or refills and/or pressure regulators and/or attached equipment, the Distributor shall act and shall always be deemed to have acted as a principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale distribution, connections, repairs or otherwise.  The Distributor shall be bound to inform the customers in writing of this provision through correspondence or at the time of enrollment of the customer.”

   8.                The careful perusal of clause 17, referred to above, reveals that a distributor will act and will be responsible as principal and shall be liable exclusively in respect of contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections repairs or otherwise to the consumers.

   9.                We have also examined the proceedings of the District Forum in which the alleged gas cylinder was weighed in the presence of the parties and total weight of the gas cylinder vide Ex. C-3 was found to be gross weight 29 kg (This weight includes LPG, empty cylinder weight 16.2 kg) and if the engraved empty cylinder weight was subtracted out of the total gross weight of the cylinder i.e. 29 kgs minus 16.2 kgs, the LPG weight comes to 12 kgs 800 gms which should be otherwise, as per the expected norms which should have been 14 kgs 28 gms, meaning thereby, that the LPG cylinder Ex. C-3, when weighed in the Forum before the counsel for the parties, was found containing 1 kg 400 gms less LPG (14.2 minus 12.8).  The memo was prepared regarding the weight and it was not disputed on behalf of any of the parties.  It means that Ex. C-3, which was delivered by the OP No. 1 to the complainant on 28.07.2010 was containing LPG weighing 12 kgs 800 gms as against 14 kgs 2 gm, which clearly shows the unfair trade practice on the part of the appellant/OP.  Therefore, impugned order was correctly passed by the District Forum, under challenge in this case and the same is hereby affirmed in this appeal.

   10.              Sequel to the above discussion, we are of the view that there is no merit in the appeal and the same is hereby dismissed. The order of the District Forum is affirmed and upheld in this appeal.

   11.              The appellant had deposited an amount of Rs.11,250/- with this Commission at the time of filing of the appeal. The amount of Rs. 11,250/- alongwith interest be remitted to the respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days subject to stay, if any, by the Higher Fora/Court. Remaining amount shall be paid by the appellant to the respondent No.1/complainant within 45 days from the receipt of copy of the order.

   12.             The arguments in this appeal were heard on 09.02.2015 and the order was reserved. Now the order be communicated to the parties.

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

                                                          

    

                                                                (J.S.Klar)

                                              Presiding Judicial Member

    

   Februry 16, 2015.                   (Vinod Kumar Gupta)

   Lb/-                                               Member