| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.600 of 26-09-2014 Decided on 23-11-2015 Ravi Kumar S/o Bishamber Dass R/o Mohalla Medhrian, Sultanpur Lodhi, District Kapurthala ........Complainant Versus Hindustan Petroleum Corporation Limited, HPCL Outlet, Mansa Road, Phoos Mandi, District Bathinda, through its SRM (Retail Marketing). .......Opposite party 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 Complainant: Sh.Harraj Singh, counsel for the complainant. For Opposite party: Sh.Abhey Singla, counsel for opposite party. ORDER M. P. Singh Pahwa, President The complainant Ravi Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite party Hindustan Petroleum Corporation Limited (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that he was dealer of HPCL at village Bheetiwala, Tehsil Malout, District Sri Muktsar Sahib and was running the business under the name & style of M/s Shubh H.P Petroleum. This business was only source of livelihood for the complainant and his family. It is alleged that the dealership of the complainant was terminated by HPCL on 2.9.2011 and since then he is not having any concern with the dealership of HPCL. At the time of termination of the dealership of the complainant, a sum of Rs.4,22,030/- approximately was lying deposited with HPCL as advance payment for the supply of petroleum, but due to termination, no stock has been supplied by company to him after 2.9.2011. An amount of Rs.4,22,030/- is still lying deposited with opposite party. The complainant has been repeatedly requesting opposite party to settle the account with him and to refund the said amount alongwith upto date interest, but to no effect. Opposite party is deriving unlawful gains from this amount and causing loss to the complainant. Opposite party refused to accede to the request of complainant before filing of this complaint.
On this backdrop of facts, the complainant has claimed refund of Rs.4,22,030/- alongwith upto date interest @12% per annum w.e.f. 2.9.2011 in addition to Rs.50,000/- as compensation and Rs.5500/- as litigation expenses.. Hence this complaint. Upon notice, opposite party appeared through its counsel and contested the complaint by filing its written version. In the written version, opposite party raised legal objections that the complainant was a licensee-cum-dealer and not its consumer. By virtue of agreement dated 1.1.2008, the complainant entered into dealership agreement with opposite party. He was appointed as licensee for supply of petroleum products i.e. petrol and diesel to public in large. The complainant has no locus-standi to file this complaint. He availed the services for a commercial purpose and under the contract i.e. dealership agreement dated 1.1.2008. As such, he is estopped to file this complaint due to his own act, conduct and acquiescence. He was dealing in the business of sale of petroleum products on commercial basis and his transaction was commercial one, as such provision of 'Act' is not applicable. There is relationship of dealer-cum-principle between the complainant and opposite party. Opposite party was supplying the petrol and diesel to the complainant and he was earning profit out the sale made to public at large. Hence, transaction is a commercial one and complaint is not maintainable. Provision of Indian Arbitration Act, 1940 is also attracted in view of arbitration clause in retail outlet dealership agreement. As such, this Forum has no jurisdiction to entertain and adjudicate the complaint. The complicated questions of law and facts are involved in this case as it is related to recovery of amount, if any. The dispute can only be decided by Civil Court or Arbitrator after elaborate evidence. As such, this Forum has no jurisdiction to entertain, try and decide this complaint. This complaint is time barred. It is pleaded that after termination of Dealership Agreement, the matter was referred to arbitration on the request of complainant. Arbitrator made and announced arbitral award and rejected claim of the complainant including claim for restoration etc. Now, the complainant has absolutely no right to file this complaint before this Forum and same is liable to be dismissed. Opposite party is paying rent of Rs.1452/- per month to the landowner in discharge of its obligation to the lease agreement. It is suffering large losses on account of rental, loss of business, damages to the image of Corporation besides inconvenience of the motoring public as the complainant in connivance with the landowner has not given management of the said premises alongwith Corporation property till date ,constructed thereon, despite regular reminders and efforts. The complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits also, opposite party controverted all other averments of the complaint. Opposite party has also referred to other disputes with it, reference of which is not considered relevant for disposal of this controversy. In the end, the opposite party prayed for dismissal of complaint. Both the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence photocopy of letter, (Ex.C1); photocopy of postal receipt, (Ex.C2); and his own affidavit dated 12.2.2015, (Ex.C3). In order to rebut this evidence, opposite party has tendered into evidence photocopy of agreement, (Ex.OP1/1); photocopy of letter, (Ex.OP1/2); photocopies of notice, (Ex.OP1/3 to Ex.OP1/5); photocopies of postal receipts, (Ex.OP1/6 to Ex.OP1/11); photocopy of award, (Ex.OP1/12); affidavit of Rakesh Sehgal dated 26.5.2015 and photocopies of postal receipts, (Ex.OP1/14 and Ex.OP1/15). We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for the complainant has reiterated his stand as set up in the complaint and detailed above. It is further submitted by learned counsel for complainant that the averment of the complainant is that a sum of Rs.4,22,030/- is due towards opposite party. It was deposited by the complainant for receiving stock of opposite party. Of-course, opposite party denied this averment, but opposite party was in possession of account books, which has not been produced by it. Opposite party has withheld this best evidence (account book), which is in its possession. Therefore, inference is to be drawn against opposite party and version of the complainant is to be accepted. It is further submitted by learned counsel for complainant that opposite party has also tendered into evidence copy of award to deny the claim of the complainant, but the present dispute was not before the Arbitrator. Therefore, case of the complainant cannot be dismissed only due to arbitral award. On the other hand learned counsel for opposite party has submitted that the complainant has claimed refund of Rs.4,22,030/-. Therefore, case is regarding recovery of money and not for any deficiency in service or unfair trade practice. As per complainant himself, the agency was terminated on 2.9.2011. Thus, the complainant was having cause-of-action from 2.9.2011. The complaint was to be filed within 2 years, but it was filed on 26.9.2014. As such, the complaint is patently time barred. It is further submitted by learned counsel for opposite party that the onus was upon the complainant to prove his case. The complainant has alleged that a sum of Rs.4,22,030/- is lying deposited with opposite party as advance payment. Opposite party denied this averment. The complainant was to prove any advance payment made by him to opposite party. The complainant has not produced any account book or other receipts to prove this fact. Only evidence is produced by the complainant is letter, postal receipt and affidavit. These documents do not prove any deposit/ advance payment made by him. The mater was already taken up by the Arbitrator. The award of the Arbitrator is brought on record as Ex.OP1/12. The monetary claim lodged by the claimant (Now complainant) were also considered by the Arbitrator and these were already rejected. The complainant has already availed remedy before the Arbitrator, as such he is debarred from filing of this complaint. We have given careful consideration to these rival contention. Controversy lies in very narrow campass. The complainant has claimed an amount of Rs.4,22,030/- stated to be paid by him to opposite party in advance for taking supply of petroleum product from opposite party. Opposite party has denied this averment. Therefore, the complainant was to prove his case by affirmative evidence. The complainant has produced only photocopy of letter, (Ex.C1); photocopy of postal receipt, (Ex.C2) and his own affidavit, (Ex.C3). He has not produced any receipt to prove payment of any advance amount to opposite party and has also not produced his account book to corroborate his version. Evidence produced by the complainant does not prove his claim. Moreover opposite party has produced photocopy of arbitration award. This award has been passed on the basis of claim lodged by the complainant before Arbitrator. A perusal of award reveals that the monetary claim raised by the complainant due to termination of dealership was also considered and denied. The complainant has already availed remedy for the same relief. Therefore, this complaint is not maintainable for this reason also. For the reasons recorded above, this complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 23-11-2015 (M.P Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh ) Member
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