DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 236 of 06-07-2015

Decided on : 17-03-2016

Amanpreet Singh S/o Gurcharan Singh, R/o Village Doen Khera, District Sri Mukatsar Sahib.

….....Complainant

Versus

1. Hindustan Petroleum Corporation Ltd., 17, Jamshedji Tata Road, Mumbai 400 020, through its CEO

2. HP Junction Doomwali Company and company operated retail outlet Dabwali-Bathinda Road, NH-63, Village Doomwali, District Bathinda, through its Manager

........Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa President

Smt. Sukhwinder Kaur Member

Sh. Jarnail Singh Member

Present :

For the Complainants : Sh. S S Gill, Advocate

For the opposite parties : Opposite party No. 1 already deleted.

Sh.Vishal Goyal, counsel for OP No. 2.

O R D E R

M. P. Singh Pahwa

1. This complaint has been filed by Amanpreet Singh, complainant against Hindustan Petroleum Corporation and another (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').

2. Briefly stated, the case of the complainant is that he is owner in possession of bus bearing registration No. PB-30N-3725. He has been plying his bus on the route as per permit issued by the competent authority. He is operating his bus to earn his livelihood. On 12-02-2015, complainant got refueled his said bus from opposite party No. 2 which is owned and operated by opposite party No. 1. The complainant purchased 43.54 Ltrs diesel against cash price of Rs. 2,000/- vide cash memo bearing No. 22052 dated 12-02-2015. After refueling, the diesel pump of the vehicle got jammed as there was water in the diesel sold to the complainant by opposite party No. 2 as a result of which bus went out of order. The complainant approached opposite party No. 2 and informed about presence of water in diesel sold by them which had led jamming of diesel pump of his vehicle. The opposite party No. 2 requested the complainant to get the vehicle repaired and assured to make good the loss suffered by him. Accordingly on bona fide belief, the complainant got repaired diesel pump of his bus by spending Rs. 35,000/-. The complainant could not operate bus for six days. He suffered financial loss of Rs. 21,000/- i.e. @ Rs. 3500/- per day on account of his earnings and salary of his driver and conductor for six days. The complainant has claimed compensation of Rs. 75,000/- for this financial loss including harassment suffered by him.

3. On this backdrop of facts, the complainant has filed this complaint with the prayer for directing the opposite parties to pay compensation of Rs. 75,000/- on account of physical and mental harassment and financial loss, Rs. 21,000/- on account of loss of earnings and Rs. 11,000/- as litigation expenses.

4. In view of the statement of learned counsel for complainant, name of opposite party No. 1 was deleted vide order dated 23-07-2011.

5. Upon notice, opposite party No. 2 appeared through counsel and contested the complaint by filing written version. The opposite party No. 2 in its written version raised legal objections that complainant has levelled false, wrong and baseless allegations. He has claimed relief against opposite party No. 2 by fabricating a concocted false story. Complaint is liable to be dismissed with special cost of Rs. 50,000/-. That there is no privity of contract between complainant and opposite party No. 2 as it has not sold diesel measuring 43.54 Ltrs to the complainant on 12-02-2015. That complainant has not come with clean hands and suppressed the material facts from this Forum. That complainant has played fraud not only upon opposite party No. 2 but also upon this Forum by fabricating and forging the Bill/Cash memo dated 12-02-2015. That complainant has not placed on file any special report pertaining to the fact that the diesel refueled in the bus was adulterated or there was water therein. That complainant is not consumer of the opposite party No. 2 as it has not sold diesel to the complainant. This Forum has no jurisdiction to try and entertain the complaint. That contents of the complaint are misconceived, misleading and concocted. That complainant has misrepresented this Forum by disclosing false, vague, arbitrary and untrue facts. That there is no deficiency in service on the part of opposite party No. 2. That the complainant is estopped from filing the present complaint by his own act, conduct, omissions and acquiescence and that the complaint has neither been properly valued nor proper court fee has been affixed on the complaint. The complaint is liable to be dismissed.

6. On merits, opposite party No. 2 controverted all the material averments and reiterated its stand as taken in legal objections and detailed above. The opposite party No. 2 has also pleaded that carbon copy of cash memo No. 22052 dated 12-02-2015 does not bear the name/number of vehicle of any customers. The number shown thereon must have been fabricated by the complainant to fetch undue benefit by misrepresentation. The complainant has submitted some bills of opposite party No. 2 dated 21-1-2015, 1-2-2015, 2-2-2015, 3-2-2015, 4-2-2015, 5-2-2015, 6-2-2015, 8-2-2015 and 10-2-2015. All these bills are of Rs. 2,000/- only but as per bill dated 12-2-2015 bearing No. 22051, 22052 and 22015 are of Rs. 7600/-. This fact itself proves that complainant procured the bills from the sources better known to him. He has failed to place on record any proof from which it would have been ascertained that the alleged bus was refueled with which cash memo. After controverting all other averments, the opposite party No. 2 prayed for dismissal of complaint.

7. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 19-10-2015 (Ex. C-1), photocopy of bill receipts (Ex. C-2 & Ex. C-3), photocopy of bill (Ex. C-4), photocopy of legal notice (Ex. C-5), photocopy of postal receipt (Ex. C-6), photocopies of reply of legal notice (Ex. C-7 & Ex. C-8), photocopy of RC of vehicle (Ex. C-9) and photocopy of route permit (Ex. C-10).

8. In order to rebut this evidence, opposite party No. 2 has tendered into evidence affidavit dated 5-1-2016 of Kamal Bansal (Ex. OP-2/1), photocopies of bills (Ex . OP-2/2 to Ex. OP-2/8), photocopy of stock register (Ex. OP-2/9), photocopy of Density register (Ex. OP-2/10), photocopy of reply of legal notice (Ex. OP-2/11) and photocopy of postal receipts (Ex. OP-2/12 to Ex. OP-2/13).

9. We have heard learned counsel for the parties and gone through the record.

10. It is submitted by learned counsel for the complainant that complainant has produced on record copy of registration certificate Ex. C-9, which proves that bus bearing registration No. PB-30N-3725 is registered in the name of complainant Amanpreet Singh. The complainant has also placed on record memo Ex. C-2 & Ex. C-3. Ex. C-2 proves that on 12-02-2015 complainant purchased 43.54 Ltrs of diesel for Rs. 2,000/- from opposite party No. 2. Therefore the complainant is proved consumer of opposite party No. 2. The complainant has also placed on record bill Ex. C-4 issued by Kalsi Motor Workshop. This bill also relates to bus No. PB-30N-3725. The complainant has also placed on record photocopies of news paper cuttings which proves that number of consumers raised matter regarding adulteration of diesel with water by opposite party No. 2. All these facts fully prove the case of the complainant. Therefore, deficiency in service and unfair trade practice on the part of opposite party No. 2 is proved. The damage to the bus of the complainant was only due to adulterated diesel. The complainant has suffered loss for six days as the bus remained non-operational. Therefore, the complainant is entitled to compensation and other relief as prayed for.

11. On the other hand, learned counsel for opposite party No. 2 has submitted that matter is not to be decided on the basis of news paper cuttings. The matter is to be decided on the basis evidence produced by the complainant. The complainant has placed on record number of documents but none of these documents proves that complainant has purchased diesel from opposite party No. 2 and the diesel purchased by him was adulterated with water. Therefore, in these circumstances, no relief can be granted to the complainant.

12. It is further submitted by learned counsel for opposite party No. 2 that documents produced by complainant himself belies his claim and prove that complainant has based his claim on fabricated documents. The complainant has produced on record invoices Ex. C-2 & Ex. C-3. Ex. C-2 is produced to prove that complainant purchased 43.54 Ltrs diesel for his bus 3725 vide bill No. 22052 but complainant has also placed on record bill No. 22051 of 12-2-2015 for Rs. 3600/- and another bill No. 22015 dated 12-2-2015 (Ex. C-3). Therefore in this way, as per bills produced by the complainant, he purchased diesel worth Rs. 7680/-. The complainant has purchased diesel vide bills No. 22051 & 22052. He has alleged adulteration only in the diesel purchased vide bill No. 22052. It is not believable that opposite parties would have mixed the water in the diesel in the presence of complainant. Otherwise the complainant was also to allege that diesel purchased vide invoice No. 22051 dated 12-02-2015 was also adulterated. This fact itself shows that complainant filed false complaint.

13. It is further submitted by learned counsel for opposite party No. 2 that complainant has also placed on record other bills of different dates to prove that complainant used to purchase diesel between Rs. 1900/- to Rs. 2200/- per day. The opposite party No. 2 has also placed on record carbon copy of number of bills dated 12-2-2015 to prove that on that particular date number of consumers have purchased diesel from the opposite party but none of the consumer has lodged complaint. The opposite party No. 2 has also produced on record carbon copy of bill No. 22052 but in this copy name of the purchaser or vehicle number is not mentioned. Complainant has mentioned vehicle number in the copy produced by him. This fact shows that complainant has forged bill No. 22052 to claim purchase of diesel for his vehicle. When complainant has based his claim on the basis of forged documents, he is not entitled to any relief and the complaint is liable to be dismissed with special cost.

14. We have carefully gone through the record and have considered the rival contentions.

15. It is well settled that complainant has to prove his claim by affirmative evidence and the finding cannot be given on the basis of conjectures and surmises and on the basis of news paper cuttings. The complainant has alleged that on 12-2-2015, he has purchased diesel from opposite party No. 2 vide invoice No. 22052 and this diesel was found mixed with water. The complainant has not produced on record any expert report that diesel was mixed with water. The complainant has also not produced any report that water can be mixed with diesel.

16. It is to be seen whether the case of the complainant stands proved from the evidence of the complainant. Ex. C-1 is the affidavit of the complainant which is verbatim to the contents of complaint. Mere affidavit is not sufficient to prove the case of the complainant. Ex. C-2 & Ex. C-3 are the invoices vide which the complainant has purchased diesel from opposite party No. 2 on different dates. Ex. C-2 contains copy of invoice No. 22051 and 22052 and Ex. C-3 contains copy of invoice No. 22015. All these are of 12-02-2015. The complainant has alleged that on that particular date i.e. 12-02-2015, he purchased diesel from opposite party No. 2 to the extent of 45.28 Ltrs, 78.38 Ltrs and 43.54 Ltrs but the complainant has alleged mixing in the diesel purchased vide bill No. 22052. From bill No. 22051 and 22052 it can be safely inferred that as per complainant he has purchased this quantity of diesel at the same time. In case the complainant has purchased 78.38 Ltrs diesel at the time of purchase of 43.54 Ltrs diesel then this diesel was also to be mixed with water but there is no such allegation. Even otherwise invoices Ex. C-2 & Ex. C-3 can only prove that complainant used to purchase diesel from opposite party No. 2 on different dates but it cannot be held proved that diesel purchased by complainant was mixed with water. Ex. C-4 is the invoice issued by Kalsi Motor Workshop. This document might have proved that complainant spent Rs. 35,000/- for repair of his bus on 18-02-2015 but this document will not prove that defect was due to mixed (adulterated) diesel or that diesel sold by opposite party No. 2 was adulterated. Ex. C-5, Ex. C-7 & Ex. C-8 are the copies of legal notice and reply to legal notice. Ex. C-6 is the postal receipt. These documents will also not prove main allegation of the complainant. Ex. C-9 is the copy of registration certificate and Ex. C-10 is the route permit. From these documents also, it cannot be concluded that complainant has been able to prove that diesel purchased from opposite party No. 2 is adulterated or mixed with water.

17. Therefore from this discussions, it can be concluded that the evidence produced by the complainant does not prove the allegations levelled by him. Hence, this complaint fails and is hereby dismissed with no order as to costs.

18. The complaint could not be decided within the statutory period due to heavy pendency of cases.

19. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    17-03-2015

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

     

    (Jarnail Singh )

    Member